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FIFTH
SECTION
CASE OF KRYZHANIVSKYY v. UKRAINE
(Application
no. 36619/05)
JUDGMENT
STRASBOURG
12 January
2012
This
judgment is final but it may be subject to editorial revision
In the case of Kryzhanivskyy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as
a Committee composed of:
Boštjan M. Zupančič,
President,
Ann Power-Forde,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 36619/05) against Ukraine
lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian
national, Mr Oleksandr Vasylyovych Kryzhanivskyy (“the
applicant”), on 6 June 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of
Justice.
- On
17 May 2010 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol No.
14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Kyiv.
- The
circumstances of the case and court proceedings relate to a labour
dispute between the applicant and his former employer, the State
Patent Agency (“the Agency”, Держпатент).
- On
1 September 1998 the applicant was dismissed from the Agency.
A. First set of proceedings
7. On
23 September 1998 the applicant instituted proceedings in the
Shevchenkivsky District Court of Kyiv (“Shevchenkivsky Court”)
against the Agency seeking reinstatement and claiming salary
arrears and related payments.
- On
21 October 1998 the court allowed his claims. Consequently, the
applicant was reinstated.
- The
Agency appealed. On 24 February 1999 the judgment of 21 October
1998 was quashed by the Kyiv City Court and
the case was remitted for fresh consideration. The judgment resulted
in cancellation of the first instance court’s finding that the
applicant was dismissed illegally.
- On
4 March 1999 the applicant was dismissed again. On 10 March 1999
the applicant challenged his second dismissal before the
Shevchenkivsky Court. He also claimed payment of salary arrears and
various allowances.
- On
17 March 1999 the proceedings concerning the first and second
dismissals were joined.
- On
14 January 2000 the Shevchenkivsky Court found against the applicant.
- On
29 March 2000 the Kyiv City Court quashed the judgment in the part
concerning the applicant’s second dismissal and related
pecuniary claims, having confirmed the first instance court’s
findings concerning the applicant’s first dismissal.
- Following
two reconsiderations of the case, on 11 October 2004 the
Shevchenkivsky Court rejected the applicant’s claims concerning
his second dismissal.
- On
14 February 2005 the Kyiv City Court of Appeal quashed the judgment
in the part concerning the lawfulness of the second dismissal. The
Court of Appeal invalidated the Agency’s dismissal order of 4
March 1999 though found that it was not a ground for reinstatement
because of the legality of the first dismissal as confirmed by the
Shevchenkivsky Court’s judgment of 14 January 2000. The
remaining part of the first instance court’s judgment
(concerning pecuniary claims) was upheld.
-
Having received the official text of the judgment, the applicant
appealed in cassation on 9 March 2005.
- On
7 December 2006 the Higher Administrative Court dismissed the
applicant’s appeal in cassation.
- In
the course of the proceeding the applicant amended and clarified his
claims on a number of occasions. He also made procedural requests
with a view to obtaining information pertinent to the case. Out of
forty-two scheduled hearings, six were adjourned at the applicant’s
request or due to his failure to appear, five because of both
parties’ failure to appear, three because of the non-appearance
of defendants or representatives thereof. Five hearings were
adjourned as the judge was busy with another case or absent for
health, business trip or professional mandate reasons. On several
occasions the courts had to renew, at the parties’ request, the
term for lodging an appeal, finding no fault on their part, which
resulted in delays of about one and half months.
B. Other proceedings
- In
1998-1999 two sets of administrative proceedings linked to the
applicant’s labour dispute were instituted against him. By the
final decisions of 12 October 1998 and 22 February 1999,
respectively, they were terminated.
- In
1998-1999 the applicant instituted two sets of civil proceedings
against the Agency. In particular, he claimed that his record
of service had not been correctly calculated by the Agency and that
he had not been given leave entitlement according to the law. In 1999
the proceedings concerning the leave entitlement claim were
discontinued. On 10 April 2001 the Shevchenkivsky Court delivered a
judgment allowing the applicant’s record of service claim.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the
first set of the proceedings had been incompatible with the
“reasonable time” requirement, laid down in Article 6 §
1 of the Convention, which reads as follows:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ...
hearing within a reasonable time by [a] ... tribunal...”
- The
Government contested that argument stating that there had been no
delays in the course of the proceedings that could be attributed to
the State. According to them, the case was complex and the applicant
contributed to the length of the proceeding by introducing additional
claims and by failing to attend the hearings, while the opposite
party was also responsible for some delays. The Government referred
to two instances of missed terms for appeal which were later renewed.
The Government also submitted that the courts had had to wait for the
outcome of the administrative proceedings against that applicant
which had been decisive in the labour dispute case.
- The
period to be taken into consideration began on 23 September 1998
and ended on 7 December 2006. It thus lasted about 8 years and 2
months for three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII. The Court reiterates
that special diligence is necessary in employment disputes (Ruotolo
v. Italy, judgment of 27 February 1992,
Series A no. 230-D, p. 39, § 17).
- Turning
to the facts of the present case, the Court notes that the
proceedings concerned a labour dispute which was not of any
particular complexity.
- The
Court acknowledges that the parties and in particular the applicant
somewhat contributed to the length of the proceedings. It however
considers that the parties’ behaviour alone cannot justify the
overall length of the proceedings.
- The
Court observes that the major delays were caused by the repeated
remittals of the case for fresh consideration because of the appeal
court’s disagreement with the first instance court’s
findings (see paragraphs 14-16 above). The Court reiterates that,
since remittal is usually ordered because of errors committed by
lower courts, the repetition of such orders within one set of
proceedings discloses a serious deficiency in the judicial system
(see, mutatis mutandis, Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
- The
Court also takes note of the lengthy examination, for which no
acceptable justification was given, of the applicant’s appeal
in cassation (see paragraphs 17 and 18 above).
- In
the light of the foregoing, the Court concludes that the State
authorities bear the primary responsibility for the excessive length
of the proceedings in the present case.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present
case. Having regard to its case-law on the subject, the Court
considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER COMPLAINTS
- Relying
on Articles 6, 34, 35 and 37 of the Convention and Article 7 of
Protocol No. 7, the applicant complained about the outcome and
unfairness of the proceedings. In particular, he disagreed with the
courts’ ascertainment of facts and application of law. He also
complained that in the course of the first set of proceedings the
courts had failed to summon witnesses on his behalf.
- In the light of the materials in
its possession, the Court finds that the applicant’s complaints
do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call
to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaint under
Article 6 § 1 of the Convention concerning the excessive length
of the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 12 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Boštjan M. Zupančič
Deputy
Registrar President
