AS TO THE ADMISSIBILITY OF
by Lyudmila Fedorovna LYUBCHENKO
The European Court of Human Rights (Fifth Section), sitting on 27 January 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 31 March 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Lyudmila Fedorovna Lyubchenko, is a Ukrainian national who was born in 1945 and lives in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The circumstances of the case
On 16 May 1994 the applicant instituted civil proceedings in the Dzerzhynsky District Court of Kharkiv against a State company, Kharkivsadvinprom, challenging her dismissal on the grounds of redundancy from the position of dispatcher and seeking reinstatement and compensation for wrongful dismissal. She alleged, inter alia, that at the material time the position of senior financial controller (ведучий економіст-ревізор) was vacant, and the defendant was obliged under the applicable law to offer it to the applicant.
Between May and December 1994 the court listed five hearings. Three hearings were adjourned since the applicant failed to appear, one hearing was adjourned since the both parties failed to appear.
On 13 December 1994 the court left the applicant’s claims without consideration. In April 1995 the applicant lodged an appeal against this ruling.
On 15 August 1995 the Kharkiv Regional Court1 quashed the ruling of 13 December 1994 and remitted the case to the first instance court.
Between September 1995 and May 1996 the first instance court listed some sixteen hearings. Ten hearings were adjourned since the applicant failed to appear. One hearing was adjourned since the judge was involved in other proceedings.
On 31 May 1996 the court ruled against the applicant, finding her dismissal lawful. The court observed, in particular, that the applicant’s qualifications were insufficient to fill the position of senior financial controller. The applicant appealed in cassation.
On 30 July 1996 the Kharkiv Regional Court allowed the applicant’s cassation appeal and remitted the case for fresh consideration. The court found that the first-instance court had not sufficiently investigated the applicant’s eligibility for the vacant position. The proceedings were transferred to the Kyivsky District Court of Kharkiv.
Between August 1996 and May 1997 the first instance court listed five hearings. One hearing was adjourned since the applicant was ill, one due to the applicant’s request for adjournment. One hearing was adjourned since the defendant’s representative failed to appear.
On 21 May 1997 the Kyivsky District Court of Kharkiv reinstated the applicant and partly allowed her compensation claims, having found that the applicant was sufficiently qualified to fill the vacant position of senior financial controller and that the defendant had wrongly failed to offer her this option. The defendant appealed in cassation.
On 1 July 1997 the Kharkiv Regional Court quashed the judgment of 21 May 1997 and remitted the case for fresh consideration, having found that the first-instance court had insufficiently investigated whether the applicant’s qualifications made her eligible for the vacant position.
Between September 1997 and March 2003, some forty-four hearings were listed by the first instance court. Seventeen hearings were adjourned due to the applicant’s failure to appear, two due to the applicant’s request for adjournment, two due to the absence of the applicant’s representative appointed ex officio. These adjournments caused a delay of almost two years.
Two hearings were adjourned because the judge was involved in other proceedings, five because of the judge’s illness, two because the judge was on leave, and one because he was travelling on official business. Two hearings were adjourned due to the defendant representative’s failure to appear. These adjournments caused a delay of about one year. Most of the hearings in the applicant’s case were scheduled by the first instance court at intervals from several days to two months.
On 29 June 2001 the amendments to the Code of Civil Procedure entered into force. They provided a right to lodge a cassation appeal within a three month period with the Supreme Court of Ukraine against court decisions adopted before 29 June 2001 and which had entered into force before that date. Accordingly, in September 2001, while the proceedings before the first instance court were still pending, the applicant lodged an application with the Supreme Court of Ukraine seeking annulment of the ruling of the Kharkiv Regional Court of 1 July 1997. On 3 December 2001 the Supreme Court rejected the applicant’s appeal in cassation.
On 31 March 2003 the Kyivsky District Court of Kharkiv dismissed the applicant’s claims. On 8 July 2003 the Kharkiv Regional Court of Appeal upheld this judgment. The applicant appealed in cassation before the Supreme Court.
On 22 October 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
In March 2004 the applicant requested the Kyivsky District Court of Kharkiv to quash the judgment of 31 March 2003 in the light of newly discovered circumstances. On 13 July 2004 the court refused to grant the applicant’s request. On 8 September 2004 and 18 January 2007 the Kharkiv Regional Court of Appeal and the Supreme Court, respectively, upheld this ruling.
The applicant complained under Article 6 § 1 of the Convention that the length of proceedings in her case was excessive. She further complained that the proceedings were unfair, notably because free legal aid had not been made available to her and the merits of her claims had been dismissed.
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
(a) Submissions of the parties
The Government maintained that 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. Therefore, the applicant’s complaints related to the events prior to that date should be rejected as incompatible ratione temporis.
The Government contested the applicant’s complaint, stating that there were no significant periods of inactivity attributable to the State. They maintained that the case had been complex and that the judicial authorities had acted with a due diligence. According to the Government, the applicant and the defendant were responsible for some periods of delay in the proceedings. The Government further submitted that the hearings had been adjourned on numerous occasions at the applicant’s request or due to her or her representative’s failure to appear. They pointed out that the applicant had lodged numerous demands to provide additional documents and call witnesses, which the domestic courts had to consider.
The applicant disagreed. In particular, she submitted that she had been unaware of some of the hearing dates when she failed to appear. She further maintained that she had failed to appear before the court on numerous occasions since she or her mother had been ill. She finally submitted that she could not be responsible for her representative’s failures to appear since the latter had been appointed ex officio.
(b) The Court’s assessment
The Court notes that the proceedings complained of began in May 1994 and ended on 22 October 2003. The subsequent unsuccessful attempts by the applicant to have the proceedings reopened after this judgment had become final cannot be taken into account, since such proceedings fall outside the scope of Article 6 § 1 (see Prystavska v. Ukraine (dec.), no. 21287/02, ECHR 2002 X). Therefore, the overall duration of the proceedings was nine years and five months. The Court reiterates that the Convention entered into force in respect of Ukraine on 11 September 1997, thus the period falling within the Court’s competence ratione temporis lasted six years and one month. However, in assessing the reasonableness of the time that elapsed after 11 September 1997, account must be taken of the state of proceedings on that date (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 21, 20 April 2006; and Styranowski v. Poland, no. 28616/95, § 46, ECHR 1998-VIII).
The Court reiterates 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. Complexity of the case
In the instant case, the Court considers that the subject matter of the litigation was not particularly complex since the court mainly had to establish whether the applicant’s qualifications were sufficient to fill the position of senior financial controller.
2. The conduct of the State authorities
The Court notes that the absence of a judge on several occasions due to his illness, being on leave and due to his participation in consideration of other cases caused a delay of about one year. However, the Court considers that the relevant State authorities were not the only ones responsible for the length of the proceedings in the instant case. The Court observes that the domestic courts hearing the case attempted to streamline the proceedings since the hearings were scheduled regularly. Furthermore, the Court notes that the proceedings before the Kharkiv Regional Court of Appeal and the Supreme Court were completed within seven months after the first-instance court gave its judgment on 31 March 2003.
3. What was at stake for the applicant
The Court considers that what was at stake for the applicant would have required diligence on the part of the State authorities since the proceedings concerned employment dispute (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230 D). However, in view of her own behaviour, the applicant did not treat the matter as urgent (see below).
4. The conduct of the applicant
The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Humen v. Poland [GC], no. 26614/95, § 66, 15 October 1999). The Court observes that between September 1997 and 31 March 2003 the applicant failed to appear before the court on seventeen occasions, and on two occasions the hearings were adjourned on account of the applicant’s request. Furthermore the applicant’s representative failed to appear on two occasions. These adjournments caused a delay of almost two years. Contrary to the applicant’s submission, it is not established that she was unaware of the hearing dates when she failed to appear. The Court notes that the applicant also contributed to the overall length by lodging various motions and by contesting the rulings and judgments in her case before the higher courts. The proceedings were consequently adjourned with a view to examining the applicant’s applications and appeals.
The Court notes that although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).
Even assuming that that certain delays were attributable to the judicial authorities, the Court considers that it was primarily the applicant’s behaviour that prolonged the proceedings in her case (see Zherdin v. Ukraine, no. 53500/99 (dec.), 1 February 2005) .
In conclusion, regard being had to all the circumstances of the case and in particular to the conduct of the applicant, the length of the proceedings cannot be considered unreasonable.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Having carefully examined the applicant’s submissions in the light of all the material in its possession and in so far 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen Registrar President
1 Since June 2001 – the Kharkiv Regional Court of Appeal