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MAYSTER v. UKRAINE - 18951/04 [2010] ECHR 1990 (9 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1990.html
Cite as:
[2010] ECHR 1990
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FIFTH
SECTION
CASE OF MAYSTER v. UKRAINE
(Application
no. 18951/04)
JUDGMENT
STRASBOURG
9 December
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Mayster v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 18951/04) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by
Mr Grygoriy Ivanovych Mayster (“the applicant”) on 5
April 2004.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
On
12 May 2009 the Court
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 is a Ukrainian national who was born in 1948 and lives in
Vinnytsia.
A. Proceedings for reinstatement
On
20 May 1997 the applicant was dismissed from his position of managing
director of a private company, V.Ph.
In
May 1997 he instituted proceedings in the Leninsky District Court of
Vinnytsia (“the Leninsky Court”) against a joint-stock
company, V.M., the owner of V.Ph., seeking: reinstatement as
director; recovery of salary arrears for the period of involuntary
leave between dismissal and reinstatement; recovery of court fees;
and compensation for loss of working time.
On
17 April 2001 the Zhytomyr Regional Court (“the Regional
Court”), following several hearings in the case, endorsed a
friendly settlement between the applicant and V.M., pursuant to which
V.M. undertook to reinstate the applicant and pay him the amounts
claimed.
V.M.
paid the applicant the amounts due to him pursuant to the friendly
settlement. On 17 April 2001 it approved his reinstatement but
on 18 April 2001 it issued a resolution abolishing the position
of the director of V.Ph. on the grounds of a reduction in staff. On
19 April 2001 V.M. made the applicant redundant as of 20 April
2001.
On
14 May 2001, at the applicant’s request, the Regional Court
issued a warrant of execution in relation to its ruling of 17 April
2001. The applicant lodged the warrant with the State Bailiffs’
Service (“the bailiffs”).
On
7 August 2001 the bailiffs terminated the enforcement of the Regional
Court’s judgment. On 7 September 2001 the Leninsky Court
quashed the termination, holding that the ruling in question had only
been partially enforced because the applicant had not in fact been
allowed to perform his job.
On
9 August 2002, 8 July and 20 August 2003 and 12 August 2005
respectively, the Leninsky Court quashed the bailiffs’
subsequent resolutions terminating the enforcement and ordered them
to enforce the ruling of 17 April 2001.
On
17 February and 26 April 2004, the Leninsky Court and the Regional
Court respectively issued reminders to the bailiffs that the ruling
of 17 April 2001 remained unenforced.
On
14 June 2004 the Regional Court issued a duplicate of the warrant. On
16 July 2004 it reprimanded the bailiffs for their continued
non enforcement.
According
to the applicant, the ruling at issue remains unenforced.
B. First proceedings against the bailiffs
On
16 July 2002 the applicant instituted proceedings in the Leninsky
Court against the bailiffs, complaining of their failure to enforce
the ruling of 17 April 2001 and claiming compensation for
non-pecuniary damage.
In
a judgment of 28 October 2002 the Leninsky Court awarded the
applicant damages and ordered the bailiffs to enforce the ruling
concerned.
On
18 March 2003 the same court, following the bailiffs’ request
for review in the light of newly discovered facts, quashed its
above-mentioned judgment.
In
two separate rulings of 23 October 2003 it terminated the
proceedings, leaving the applicant’s claim for compensation
without consideration. The applicant appealed against the first
ruling.
On
2 December 2003 the Vinnytsia Regional Court of Appeal (“the
Court of Appeal”) upheld the ruling at issue. The applicant
appealed in cassation.
On
27 September 2005 the Supreme Court of Ukraine transferred the case
to the Higher Administrative Court which, on 25 July 2007, returned
the case to the Supreme Court for lack of jurisdiction. According to
the Government, on 13 August 2007 the case was transferred to the
Lviv Regional Court of Appeal in accordance with new cassation
procedures.
On
8 January 2008 the Lviv Regional Court of Appeal, sitting as a court
of cassation, quashed the decision of 2 December 2003, stating that
the lower court had misapplied the law, and remitted the case to the
Court of Appeal.
According
to the Government, on 19 March 2008 the Court of Appeal upheld the
Leninsky Court’s ruling of 23 October 2003. The applicant did
not contest this statement, nor did he inform the Court of any
further appeals.
C. Second proceedings against the bailiffs
On
29 December 2004 the applicant instituted proceedings in the Leninsky
Court against the bailiffs, challenging their refusal to institute
enforcement proceedings regarding an unspecified judgment in his
favour.
On
8 February 2005 the court left his action without consideration
noting that the Court of Appeal was competent to deal with it.
On
24February 2005 the Court of Appeal, having found that the
applicant’s action was outside its jurisdiction, left it
unexamined.
On
23 October 2007 the Lviv Regional Court of Appeal, sitting as a court
of cassation, upheld this decision.
D. Proceedings for recovery of salary arrears
In
March 2003 the applicant instituted proceedings in the Zhytomyr
Regional Court of Appeal against V.M., seeking recovery of salary
arrears for the period from 19 June 2001 to 1 March 2003.
On
7 July 2002 the court rejected his claims as unsubstantiated.
On
4 December 2003 the Supreme Court of Ukraine upheld this judgment.
E. Criminal proceedings
Since
September 2002 the applicant had repeatedly requested that criminal
proceedings be instituted against various managers of V.M. who,
according to him, were partially responsible for the non-enforcement
of the ruling of 17 April 2001.
The
criminal proceedings were opened, closed and subsequently resumed
several times following the applicant’s complaints to the
courts: most recently on 25 March 2009, the District Court quashed a
decision by the prosecutor to terminate the investigation. By letter
of 17 April 2009 the applicant informed the Court that the
investigation was pending before the prosecutors, but that he had not
been granted victim status.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained of the excessive length of the first proceedings
against the bailiffs. He relied on Article 6 § 1 of the
Convention which, so far as relevant, 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 ...”
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).
1. Period to be taken into consideration
The
Court notes that the proceedings at issue began on 16 July 2002.
The
Government maintained that the proceedings ended on 23 October
2003 with the relevant court ruling.
The
Court considers that the applicant’s action was in fact
terminated on 19 March 2008, as he challenged one of the court
decisions of 23 October 2003 and the proceedings continued until
the court of appeal’s decision of 19 March 2008. Thus, the
overall duration of the proceedings in question was five years and
eight months at three levels of jurisdiction.
The
Court considers it, however, appropriate to take into account only
the period when the case was actually pending before the courts (see,
mutatis mutandis, Golovko v. Ukraine, no. 39161/02, §
49, 1 February 2007). If the period between the adoption of the final
judgment and its quashing in the light of newly discovered
circumstances is excluded, the length of proceedings was five years
and three months.
2. Reasonableness of the length of the proceedings
before the domestic courts
The
Court considers that the issue at stake was important for the
applicant professionally as well as economically. It does not,
however, find any grounds for the domestic courts to have handled the
applicant’s case with particular urgency vis-à-vis
other cases pending before them as, at least from April 2001, the
applicant’s post was abolished and his claims for salary and
other sums were moot thereafter.
It
further considers that the subject matter of the litigation was not
complex and that the applicant did not contribute to the length of
the proceedings by his conduct.
The
Court observes that the main delay in the proceedings took place
during the examination of the applicant’s appeal in cassation.
This procedure lasted more than four years and included two
reassignments of jurisdiction between courts (see paragraph 20
above).
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 Frydlender, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any facts or arguments 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 1 OF PROTOCOL NO. 1
The
applicant further complained that the inordinate length of the
proceedings had infringed his right to the peaceful enjoyment of his
possessions, as guaranteed by Article 1 of Protocol No. 1 to the
Convention.
The
Court notes that this complaint is linked to that examined under
Article 6 § 1 of the Convention and must therefore likewise be
declared admissible. However, having regard to its finding under
Article 6 § 1 of the Convention (see paragraph 44 above), it
does not consider it necessary to examine whether, in the present
case, there has been a violation of Article 1 of Protocol No. 1 (see
Khurava v. Ukraine, no. 8503/05,
§ 26, 8 April 2010).
III. OTHER COMPLAINTS
The
applicant complained of the non-enforcement of the ruling of 17 April
2001. He also complained of the unfairness and outcome of the first
proceedings against the bailiffs and the proceedings for recovery of
salary arrears. He further complained about the excessive length of
the criminal proceedings and of the lack of access to court in the
course of the second proceedings against the bailiffs.
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 these complaints must be declared 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 12,038 euros (EUR) in respect of pecuniary damage
and EUR 8,025 in respect of 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.
However, it considers that the applicant must have sustained
non-pecuniary damage as regards the excessive length of the
proceedings in his case. The Court, making its assessment on an
equitable basis, as required by Article 41 of the Convention,
considers that the finding of a violation constitutes in itself
sufficient just satisfaction for the non-pecuniary damage (see Silin
v. Ukraine, no. 23926/02, § 46, 13 July 2006).
B. Costs and expenses
The
applicant also claimed EUR 16 for costs and expenses incurred before
the Court.
The
Government left the matter to the Court’s discretion.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 16 under this head.
C. Default interest
The
Court considers it appropriate that 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 first proceedings against the bailiffs admissible and
the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of length of the proceedings;
Holds
that there is no need to examine the complaint under Article 1 of
Protocol No. 1 to the Convention;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
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 16 (sixteen euros),
plus any tax that may be chargeable to the applicant, 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;
(b) that,
from the expiry of the above-mentioned three months until settlement,
simple interest shall be payable on the above amount 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 9 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
