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BARSKIY v. UKRAINE - 10569/03 [2007] ECHR 563 (5 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/563.html
Cite as:
[2007] ECHR 563
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FIFTH
SECTION
CASE OF BARSKIY v. UKRAINE
(Application
no. 10569/03)
JUDGMENT
STRASBOURG
5 July
2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention.
In the case of Barskiy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 10569/03) 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 Vyacheslav Vladimirovich Barskiy (“the
applicant”), on 20 March 2003.
The
Ukrainian Government (“the Government”) were represented
by Mr Y. Zaytsev, their Agent, and Mrs I. Shevchuk,
Head of the Office of the Government Agent before the European Court
of Human Rights.
On 15 December 2005
the Court decided to communicate the complaint concerning the length
of the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in Odessa.
In September 1994 the applicant instituted civil
proceedings in the Central District Court of Odessa (the “District
Court”; Центральний
районний суд
м. Одеса)
against the Publishing House “Chornomorya” (the
“Company”; Видавництво
“Чорномор'я”),
seeking his reinstatement as a typographer and various compensations
in connection with his allegedly unlawful dismissal. Subsequently,
the Company and Mr L., its lawyer, brought libel proceedings
against the applicant, claiming to have been defamed by certain of
his submissions before the court. The applicant lodged a counterclaim
for libel, alleging that certain submissions were defamatory. All of
these complaints were joined.
On
26 April 1996 the District Court reinstated the applicant in his
position, partly allowed his compensation and other claims, and
dismissed all claims for libel brought by both parties.
On
1 October 1996 the Odessa Regional Court (the “Regional Court”;
Одеський
обласний суд)
quashed the judgment of 26 April 1996 in respect of the libel claims
and remitted them for a fresh consideration to the District Court. As
regards the applicant's reinstatement and compensation awards, the
judgment was upheld and became final.
On
26 June 1997 the District Court partly allowed the Company's and
Mr L.'s libel claims and dismissed the applicant's counterclaim.
The applicant appealed in cassation.
On
25 November 1997 the Regional Court upheld, in its final decision,
the judgment of 26 June 1997 to the extent that the
applicant's claims had been dismissed. The court further quashed the
judgment concerning the claims of the applicant's opponents and
dismissed them.
On
various dates the applicant, seeking to obtain higher compensation
for his wrongful dismissal, petitioned the State authorities to
re-open the proceedings.
On
21 April 1999, following a protest lodged by the Deputy
President of the Supreme Court on the applicant's behalf, the
Regional Court quashed the judgment of 26 April 1996
concerning the compensation claims and remitted the case for a fresh
consideration in that respect.
On
21 November 2000 the District Court found no reason to change the
amount of compensation payable to the applicant. The applicant
appealed. On 6 March 2001 the Regional Court quashed this
judgment on appeal and remitted the case for a fresh consideration to
the District Court.
Between March 2001 and May 2004 the
applicant amended his compensation claims on three occasions by
indexing their amount. In the same period the District Court
scheduled 21 hearings, the adjournment of three of them being
attributable to the applicant. Other reasons for adjournments
included the judge's sickness, the defendant's requests and the
ordering of an accountant's opinion. No hearings were scheduled
between September 2001 and June 2002, as the applicant had
lodged a cassation appeal against the judgment of 1 October 1996
under the newly instituted cassation procedure. This appeal was
dismissed by the Supreme Court on 17 May 2002.
On
14 May 2004 the District Court partly allowed the applicant's claims
and awarded him UAH 2,406.10
in additional compensation. Both parties appealed. On 4 November 2004
the Odessa Regional Court of Appeal upheld this judgment.
On
3 December 2004 the applicant lodged a cassation appeal against the
above judgments. On 22 March 2006 the Supreme Court
rejected, by a final decision, the applicant's request for leave to
appeal in cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length 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.
The
Court notes that the proceedings at issue were instituted in 1994.
However, the period to be taken into consideration began only on
11 September 1997, when the recognition by Ukraine of the
right of individual petition took effect. Nevertheless, in assessing
the reasonableness of the time that elapsed after that date, account
must be taken of the state of proceedings at the time.
The
period in question ended on 22 March 2006. It thus lasted
eight years and six months for three levels of jurisdiction. The
Court recalls, however, that it is appropriate to take into account
only those periods when the case was actually pending before the
courts, that is the periods when the authorities were under an
obligation to determine the issue within a “reasonable time”
(Rokhlina v. Russia, no. 54071/00, § 82,
7 April 2005). Accordingly, the seventeen-month period
between 25 November 1997 and 21 April 1999, when
there existed a final judgment in the case (paragraphs 9-10 above),
should be excluded from the calculation. Thus, the period to be taken
into consideration lasted seven years and one month.
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).
The
Court notes that the complexity of the case and the applicant's
conduct alone cannot explain the overall length of the proceedings
and finds that a number of delays (remittals of the case for a fresh
consideration and prolonged periods of inactivity) are attributable
to the Government.
The
Court has already found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see e.g., Frydlender, cited above; Svetlana
Naumenko v. Ukraine, no. 41984/98,
9 November 2004 and Karnaushenko v. Ukraine,
no. 23853/02, 30 November 2006).
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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that he had no effective remedies for
his complaint about the excessive length of the proceedings. He
relied on Article 13 of the Convention.
The
Government contended that Article 13 did not apply to the
circumstances of the case, as there was no violation of
Article 6 § 1.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). Referring to its findings in paragraph 21 above, the
Court dismisses the Government's arguments as to applicability of
Article 13 to the facts of the present case.
The
Court considers that in the present case there has been a violation
of Article 13 of the Convention on account of the lack of a remedy
under domestic law whereby the applicant could have obtained a ruling
upholding his right to have his case heard within a reasonable time,
as set forth in Article 6 § 1 of the Convention (see Efimenko v.
Ukraine, no. 55870/00, § 64, 18 July 2006).
III. OTHER COMPLAINTS
The
applicant further complained under Articles 6 § 1
of the Convention about the amount of compensation awarded to him in
connection with his unlawful dismissal and under Article 17
about corruption in Ukrainian courts.
In
the light of all the material in its possession, and insofar as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. 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.”
A. Damage
The
applicant claimed 5,940 Ukrainian hryvnyas (965 euros (EUR)) in
respect of pecuniary and EUR 30,000 in non-pecuniary damage.
The
Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards him
EUR 1,200 under that head.
B. Costs and expenses
The
applicant also claimed UAH 752.58 (EUR 123) for the costs
and expenses incurred before the Court and submitted copies of
receipts for postal and other services.
The
Government left the matter to the Court's discretion.
Regard
being had to the circumstances of the case and the submissions of the
parties, the Court awards the applicant the full amount claimed.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the excessive
length of the proceedings and the lack of effective remedies for this
complaint admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200
(one thousand two hundred euros) in respect of non-pecuniary damage
and EUR 123 (one hundred twenty three euros) in respect of costs
and expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
