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GOLOVKO v. UKRAINE - 39161/02 [2007] ECHR 98 (1 February 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/98.html
Cite as:
[2007] ECHR 98
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FIFTH
SECTION
CASE OF GOLOVKO v. UKRAINE
(Application
no. 39161/02)
JUDGMENT
STRASBOURG
1 February 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Golovko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 8 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 39161/02) 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, Ms
Mariya Vasylivna Golovko (“the
applicant”), on 20 September 2002.
The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
On
7 September 2005 the
Court decided to communicate the applicant's complaint under Article
6 § 1 of the Convention concerning the length of civil
proceedings in the applicant's case on her claim for salary arrears.
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
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1948 and lives in the town of Netishyn,
Khmelnytsk region, Ukraine.
The
applicant worked as a guard in the private enterprise “Ekspromt”.
She was allegedly dismissed on 1 November 1998.
A. First set of proceedings
On
25 November 1999 the applicant instituted proceedings in the
Netishynskyy Town Court against her former employer claiming salary
arrears.
On
22 December 1999, 1 February and 22 February 2000 the hearings in the
applicant's case were postponed due to the defendant's failure to
appear before the court.
On
13 June 2000 the defendant failed to appear again. The court decided
to consider the case in the absence of defendant. The applicant was
heard and the court adjourned the hearing in order to summon
witnesses.
On
23 June 2000 the court heard a witness and adjourned the hearing in
order to collect additional evidence.
On
10 July 2000 the court sent a letter to the defendant informing it
that if it failed to appear at court, a sanction would be imposed.
On
19 September 2000 the court heard another witness and adjourned the
hearing.
On
20 September 2000 the court found in part for the applicant. The
applicant was not present in court hearing.
On
17 October 2000 the applicant requested the court to replace the
judge in her case and was informed that the judgment had already been
adopted.
On
27 June 2001 the Khmelnytskiy Regional Court quashed this judgment
upon the protest of the Deputy Head of the Khmelnytskiy
Regional Court under the extraordinary review procedure and remitted
the case for a fresh consideration.
On
20 May 2002 proceedings in the case were resumed.
On
11 June 2002 the proceedings in the applicant's case were stayed
pending the consideration of her second labour case (see Second
set of proceedings).
On
12 July 2002 the applicant requested the court to replace judge Kh.
in her case. The applicant's representative, Mr L., alleged that
judge Kh. adopted particularly unfavourable decisions in Mr L.'s
cases.
On
30 August 2002 the court satisfied the applicant's request “in
order to avoid such statements in the future”. On the same date
the proceedings were resumed.
On
28 January 2003 the defendant failed to appear. The hearing was
adjourned as the applicant allegedly insisted on the defendant's
presence.
On
15 April 2003 the defendant again failed to appear. The hearing was
adjourned.
On
3 July 2003 the prosecutor inquired with the police about the address
of the defendant.
On
27 August 2003 the prosecutor inquired the Slavuta Tax Inspection
about the address of the defendant.
On
3 September 2003 the hearing in the case was postponed as the parties
failed to appear.
On
10 October 2003 the hearing was postponed as the defendant failed to
appear.
On
20 October 2003 the applicant was heard. The court adjourned the
hearing on the applicant's request because of the unsatisfactory
state of her health.
On
23 October 2003 the applicant informed the court that she would be
represented by her brother and by a prosecutor's assistant.
On
6 April 2004 the court heard the parties and adjourned the hearing in
order to summon witnesses.
On
25 May 2004 the hearing was postponed as the defendant's
representative and witnesses failed to appear.
On
1 June 2004 the court heard a witness and adjourned the hearing.
On
10 June 2004 the court heard the applicant's representative and a
witness and adjourned the hearing.
On
14 June 2004 the hearing was postponed as the parties'
representatives failed to appear.
On
23 June 2004 the court heard a witness.
On
30 June 2004 the Netishynskyy Town Court found in part for the
applicant and awarded her UAH 2,135.33 of salary arrears. The
applicant did not appeal against this judgment.
B. Second set of proceedings
On
16 October 2000 the applicant instituted another set of proceedings
in the Netishynskyy Town Court challenging her dismissal.
On
29 December 2000 the court found against the applicant.
On
26 April 2001 the Khmelnytskyy Regional Court quashed this judgment
and remitted the case for a fresh consideration.
On
7 November 2001 the Netishynskyy District Court reinstated the
applicant in her position and awarded her UAH 2,610 in salary
arrears.
On
20 March 2002 the Khmelnytskyy Regional Court upheld this judgment.
On
4 January 2003 the Supreme Court of Ukraine rejected the applicant's
cassation appeal.
II. RELEVANT DOMESTIC LAW
Article
172 of the Code of Civil Procedure provides that if the duly summoned
defendant repeatedly fails to appear in courtroom the court may, of
its own motion, decide to proceed with the case in his/her absence.
If the defendant's repetitive failure to appear had no valid reasons,
the court may fine him/her three times the monthly minimum wage (see
Sukhovetskyy v. Ukraine (dec.) no. 13716/02, 1 February
2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
The
applicant complained under Articles 6 § 1 and 13 of the
Convention about the unfair hearings and the outcome of the
proceedings in her cases. She further complained under Article 6 §
1 of the Convention about the length of the proceedings. These
Articles provide, insofar as relevant, as follows:
Article 6 § 1
“In the
determination of his civil rights and obligations ... everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
1. Fair hearing
The applicant complained in a very general manner
about the unfairness and the outcome of the proceedings.
a) First set of proceedings
The Court notes that the applicant failed to appeal
against the judgment of 30 June 2004 of the Netishynskyy Town Court
and, therefore, has not exhausted, as required
by Article 35 § 1 of the Convention, the remedies available to
her under Ukrainian law. This part of the application is rejected in
accordance with Article 35 §§ 1 and 4.
b) Second set of proceedings
The Court is not called upon to
examine the alleged errors of facts and law committed by the domestic
judicial authorities. Moreover, no unfairness of the proceedings can
be detected and the decisions reached cannot be considered arbitrary.
Within the framework of the proceedings the applicant was able to
introduce all necessary arguments in defence of her interests, and
the judicial authorities gave them due consideration. No issue arises
under Article 13 of the Convention either.
The Court rejects this part of the application
as manifestly ill-founded in accordance with Article 35 §§
3 and 4 of the Convention.
2. Length of the proceedings
a) First set of proceedings
The
Government did not submit any observations on the admissibility of
the applicant's complaint.
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) Second set of proceedings
The
Court notes that the proceedings in question lasted from 16 October
2000 until 4 January 2003 that is approximately two years and two
months. That length did not exceed the "reasonable time"
requirement referred to in Article 6 § 1 of the Convention. In
particular, there is no discernible period of inactivity which can be
attributed to the domestic courts. The Court
rejects this part of the application as manifestly ill-founded in
accordance with Article 35 §§ 3 and 4 of the Convention.
B. Merits
The
Court recalls that the “reasonable” length of proceedings
must be assessed in accordance with the circumstances of the case and
the following criteria: the complexity of the case, the behaviour of
the applicant and that of the competent 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).
1. Period to be taken into consideration
The Court notes that the proceedings in question
lasted from 25 November 1999 until 20 September 2000, when the
final decision in the applicant's case was adopted. This decision was
subsequently quashed on 27 June 2001 under the extraordinary review
procedure and the case was remitted for a fresh consideration to the
first instance court. The Court considers it appropriate to take into
account only the period when the case was actually pending before the
courts, that is the periods when there was no effective judgment and
when the authorities were under an obligation to pass such a judgment
(see, mutatis mutandis, Rudan v. Croatia (dec.),
no. 45943/99, 13 September 2001; Markin v. Russia (dec.),
no. 59502/00, 16 September 2004). Therefore, in the present
case, it will not take into account the period between the final
decision of 20 September 2000 and 27 June 2001, when the
Khmelnytskiy Regional Court allowed the extraordinary appeal (see,
mutatis mutandis, Yaroslavtsev v. Russia,
no. 42138/02, § 22, 2 December 2004, and Klyakhin
v. Russia, no. 43082/99, § 91, 30 November 2004).
The Court also notes that the
quashing of the final and binding court decision, though not
explicitly raised by the applicant, could raise an issue under
Article 6 § 1 of the Convention, but cannot be considered
because of the six months rule contained in Article 35 of the
Convention (see, Voloshchuk v. Ukraine (dec.), no. 51394/99,
14 October 2003).
After the case had been remitted
for fresh consideration, the proceedings lasted from 27 June 2001
until 30 June 2004, during which time the case was considered by the
first instance court only. The overall length of the proceedings is,
therefore, three years and ten months.
2. Complexity of the case
52. The
Government maintained that the civil proceedings in the present case
were complicated from legal and factual points of view. Firstly, the
national courts considered the applicant's two civil cases which were
interrelated. In particular, the court proceedings in the first case
were stayed for two months and 19 days until the end of consideration
of the second case. Secondly, it was particularly difficult to
determine the date of the applicant's dismissal as it had not been
recorded. Thirdly, the applicant several times changed her claims.
Finally, the case was complicated by the necessity to carry out a
number of financial and accounting inquiries, and its consideration
was delayed as the prosecutor's office requested the case file from
the court for inquiries.
The
Court does not agree with the Government's submission. In the present
case the national courts were to establish the salary arrears due to
the applicant. In the Court's view this case does not present any
significant factual or legal difficulties. The period of two months
and 19 days, during which the court proceedings were stayed, though
such procedural measure can be regarded as necessary, is not lengthy
enough to contribute significantly to the total length of the
proceedings in the applicant's case. The Court further notes that the
hearings in the applicant's case were not adjourned following the
prosecutor's request to see the case file and there is no record that
the applicant ever changed her claims. Thus, the Court concludes that
the subject matter of the litigation at issue could not be considered
particularly complex.
3. What was at stake for the applicant
The Court observes that at the domestic level the
applicant sought recovery of her salary arrears. The Court notes that
the salary was the main source of income for the applicant and that
special diligence is necessary in employment disputes (see, mutatis
mutandis, among many other, Obermeier v. Austria, judgment
of 28 June 1990, Series A no. 179, § 72 and Trevisan
v. Italy, judgment of 26 February 1993, Series A no. 257 F,
§ 18).
The
Court therefore considers that the proceedings were of undeniable
importance for the applicant, and what was at stake for her called
for an expeditious decision on her claims.
4. Conduct of the applicant
According
to the Government, the applicant was responsible for some delays in
her case as she insisted on the presence of the defendant and lodged
requests to replace the judge in her case because of his lack of
impartiality and independence.
The
applicant disagreed. She accepted that she had twice asked for the
judges in her case to be replaced, but maintained that neither
occasion influenced the length of proceedings as they both took place
when the final decision had been already taken (see paragraph 13) or
when the proceedings had been stayed (see paragraphs 17-18). She
further stated that the court had the means to sanction the defendant
for not appearing in court instead of simply adjourning the hearings.
The
Court observes that the requests to replace the judge in the
applicant's case both took place when the proceedings had already
been finished or stayed. Therefore, these requests of the applicant
did not contribute to the total length of proceedings.
The
Court also notes that the applicant did indeed insist that the
defendant should be present in court. However, although the domestic
courts could have either brought the person responsible to the court
or considered the case in his or her absence, and in spite of the
fact that the majority of the court hearings was adjourned because of
the defendant's or its representative's failure to appear, the court
repeatedly adjourned the hearings.
Given
the above considerations, the Court concludes that the applicant did
not contribute in a significant way to the length of the proceedings.
5. Conduct of the national authorities
The
Court notes that the first instance court had to resume the civil
proceedings after the decision of 27 June 2001. However, the
proceedings were resumed only in May 2002. The Court further notes
that between 30 August 2002 and 29 January 2003, and from 23
October 2003 and 6 April 2004, no hearings took place. The
Government did not provide any explanation for these intervals.
Therefore, these significant periods of delay (the total of one year
and 9 months) are attributed to the authorities.
Furthermore,
the Court notes the Government's submissions according to which the
case was adjourned six times for failure of the defendant to appear.
These periods of delay should be attributed to the authorities, as
apparently no appropriate steps were taken to ensure the defendant's
presence in court.
The
Court recalls that it is the role of the domestic courts to manage
their proceedings so that they are expeditious and effective.
However, in the Court's opinion the national courts did not act with
due diligence, having regard to the applicant's situation.
In
sum, having regard to the circumstances of the instant case, the
overall duration of the proceedings in the first instance court,
which was three years and ten months, including one year and nine
months of inactivity completely attributable to the authorities, the
Court considers that the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
There
has accordingly been a violation of Article 6 § 1.
II. 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 2,850 euros (“EUR”) in respect of
pecuniary damage and EUR 16,400 in respect of non-pecuniary damage.
The Government contended that the applicant's claim
for pecuniary damage was related to the subsequent non-enforcement of
judgments in her favour and not to the lengthy consideration of her
case by the court which was the subject matter of the present
application. The Government therefore considered such claims as
irrelevant. As for the applicant's claims for non-pecuniary damage,
the Government agreed that the applicant might have suffered some
distress but it left this matter for the Court's consideration.
69.
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this
claim. However, the Court considers that the applicant must have
sustained non-pecuniary damage, and, deciding on an equitable basis,
awards her EUR 1,400 in this respect.
B. Costs and expenses
The
applicant also claimed EUR 270 in costs and expenses in domestic
proceedings and in Strasbourg. In particular, she claimed UAH 79.55
in postal expenses and UAH 1,550
in legal fees.
The
Government stated that they did not object to reimbursement of those
expenses if confirmed by relevant bills.
The Court notes that the applicant never informed the
Court of any legal representation. The lawyer concerned did not file
any submissions to the Court on the applicant's behalf. However, the
applicant may have incurred some costs and expenses in connection
with her Convention proceedings. Regard being had to the Court's
case-law and the information in its possession, the Court awards the
amount of EUR 100 in costs and expenses (see mutatis mutandis,
Romanchenko v. Ukraine, no. 5596/03, § 38,
22 November 2005).
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 applicant's complaint under Article
6 § 1 of the Convention about the length of proceedings in her
case on salary arrears admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 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 1,400
(one thousand four hundred euros) in respect of non-pecuniary damage
and EUR 100 (one hundred 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 1 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
