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MENSHAKOVA v. UKRAINE - 377/02 [2010] ECHR 485 (8 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/485.html
Cite as:
[2010] ECHR 485
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FIFTH
SECTION
CASE OF MENSHAKOVA v. UKRAINE
(Application
no. 377/02)
JUDGMENT
STRASBOURG
8 April
2010
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 Menshakova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 377/02) 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 Aleksandra Yemelyanova Menshakova (“the
applicant”), on 4 December 1999.
The
applicant was represented by Mr S. Kozlov, a lawyer practising in
Sevastopol. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev, of the Ministry of
Justice.
On
7 May 2007 the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1941 and lives in Sevastopol.
She
worked at the State-owned company “Sevastopolskyy Morskyy
Zavod” (“the SMZ”). Following her retirement from
the SMZ on 30 September 1996 the applicant worked for the SMZ's
subsidiary company “Sovmorsudokorpus” (“the SMSK”)
until July 1997.
She instituted several sets of court proceedings
against her former employers, seeking initially recovery of salary
arrears and subsequently compensation for late payment of salary
pursuant to Article 117 of the Labour Code. Under that provision,
retired employees were entitled to claim compensation if their salary
or related payments due to them were not paid on the day of
termination of employment, i.e. such compensation concerned delays in
payment after termination of employment.
A. Proceedings against the SMZ
1. First set of proceedings
In
July 1997 the applicant lodged a claim with the Nakhimovskyy District
Court of Sevastopol (“the Nakhimovskyy Court”) against
the SMZ. She sought recovery of salary arrears.
On
8 July 1997 the court awarded her 492.17
Ukrainian hryvnyas (UAH) in salary arrears. The period of the
applicant's work concerning which she was awarded the above sum in
salary arrears was not specified.
2. Second set of proceedings
On
26 November 1997 the applicant instituted a new set of proceedings in
the same court against the SMZ, seeking compensation for the latter's
failure to pay her salary arrears in due time.
On
5 August 1998 the court, referring to paragraph 1 of
Article 117 of the Labour Code, awarded her UAH 1,574.40
in compensation for non-payment of salary arrears for the period of
1 October 1996 – 5 August 1998, during
which her salary arrears had remained unpaid. The court noted that
the respondent company failed to appear before it without informing
about the reasons for its absence. It further observed that in his
written statement submitted to the court on 13 March 1998 the
company's representative accepted the applicant's claim as regards
the amount of compensation for the period of 1 October 1996
– 13 March 1998.
The
judgments of 8 July 1997 (salary arrears) and 5 August 1998
(compensation for late payment) were not appealed against and became
final. The enforcement proceedings in respect of these judgments were
instituted on 15 October 1997 and 5 October 1998
respectively. On 18 March 1999 the applicant received the
full amounts of the awards.
On 1 October 2001 the SMZ lodged a request
with the Supreme Court for leave to appeal against the judgment of
5 August 1998 under the new cassation procedure. In its
appeal the SMZ alleged that it had not been responsible for the delay
in payment of salary arrears to the applicant, that its
representative before the first instance court had not been given the
right to accept the applicant's claim, that the SMZ had not been duly
informed about the date and time of the hearing before that court,
and that the latter's judgment did not contain calculations of the
awarded amount. On 23 April 2003 the Supreme Court granted
such leave and invited the applicant to participate in the hearing on
the SMZ's appeal scheduled for 29 May 2003. On the latter
date the Civil Chamber of the Supreme Court quashed the judgment of
5 August 1998 on the ground that the Nakhimovskyy Court had
examined the case in the absence of the SMZ and remitted it for fresh
consideration.
3. Third set of proceedings
Meanwhile,
on 15 March 1999 the applicant lodged a new claim with the
Nakhimovskyy Court, seeking compensation for the period of
6 August 1998 – 15 March 1999, during which
the SMZ had failed to pay her salary arrears awarded by the judgment
of 8 July 1997.
4. Joined proceedings
On
31 July 2003 the applicant requested the Nakhimovskyy Court
to examine her claims of 26 November 1997 and 15 March 1999
jointly. In the course of a hearing on 18 September 2003
the court allowed the applicant's request.
On
26 November 2003 the court adopted a judgment dismissing
the applicant's claims. Its relevant provisions read as follows:
“... The court, having heard the plaintiff [and]
having examined the materials of the civil case, considers that the
claims are unsubstantiated and may not be allowed for the following
reasons.
In particular, the court established that on
30 September 1996 the plaintiff had retired [from the SMZ]... By
the judgment of the Nakhimovskyy Court ... of 8 July 1997,
she was awarded 492.17 [Ukrainian hryvnyas] in salary arrears...
Therefore, the dispute concerning the recovery of sums in the event
of termination of employment was determined and [the matter] turned
to the stage of enforcement. The said judgment was enforced on
18 March 1999...
In accordance with Article 117 of the Labour Code of
Ukraine, if [the employer] fails to pay the employee [whose contract
of employment was terminated] the sums due to him within the
time-limits set by the law, [the former] shall pay the employee his
average wages for the whole period of the delay until the day of the
factual payment.
As it appears from the materials of the case, the
plaintiff retired on 30 September 1996, the sum of her salary
arrears on the day of the retirement was 492.17 [Ukrainian hryvnyas]
which was recovered by the judgment of 8 July 1997.
Therefore, the dispute concerning the recovery of sums
in the event of termination of employment was determined on 8 July
1997 and [the matter] turned to the stage of enforcement. The
plaintiff lodged with the court her first claim for compensation
under Article 117 of the Labour Code of Ukraine on 26 November 1997
... having missed the three-month term envisaged by Article 233
of the Labour Code of Ukraine. The plaintiff and her representative
did not furnish sufficient and objective evidence demonstrating that
there had been a reasonable excuse for missing the procedural term,
and she did not request an extension of [that] term; thus, the court
[discerns] no grounds to renew it in accordance with the requirements
of Article 234 of the Labour Code of Ukraine.
In the light of the foregoing... [the court]
Decided:
To dismiss the claim of Menshakova...”
The
applicant appealed, contending that the time-limit at issue had
started to run on 18 March 1999, the day when she had
received her belated salary payment.
On
18 March 2004 the Sevastopol Town Court of Appeal (the
former Sevastopol Court) upheld the judgment of 26 November 2003.
It rejected the applicant's contention that the limitation
period under Article 233 of the Labour Code had started to run
on 18 March 1999, when she had actually obtained the amount
awarded by the judgment of 8 July 1997. It held that the
“factual payment” had been made on the latter date and
that the limitation period had started to run from that day onwards.
On
28 July 2006 a panel of three judges of the Supreme Court
rejected the applicant's request for leave to appeal in cassation as
unsubstantiated.
B. Proceedings against the SMSK
1. First set of proceedings
In
May 1998 the applicant instituted proceedings in the Nakhimovskyy
Court against the SMSK, seeking recovery of salary arrears and
compensation for their prolonged non-payment.
On 25 May 1998 the court awarded her
UAH 1,767.38
in salary arrears and compensation for late payment of these arrears
for the period of 7 July 1997 – 25 May 1998.
This judgment was not appealed against and became final. On an
unspecified date the Nakhimovskyy District Bailiffs' Service
instituted enforcement proceedings in respect of the judgment. On
15 June 1999 the enforcement proceedings were discontinued
upon the applicant's request. On 12 July 1999 the applicant
received the full amount of the award of 25 May 1998.
2. Second set of proceedings
In
April 1999 the applicant again instituted proceedings in the
Nakhimovskyy Court against the SMSK, seeking compensation for the
latter's failure to pay her salary arrears from 26 May 1998
onwards.
On
19 April 1999 the court rejected the applicant's claims as
unsubstantiated. The applicant appealed in cassation, contending that
the proceedings instituted by her in May 1998 concerned salary
arrears and compensation for their non-payment during the period of
7 July 1997 – 25 May 1998, while in her new
claim lodged with the courts in April 1999 she requested
compensation for the period after 25 May 1998.
On
15 June 1999 the Sevastopol Court quashed the decision of the
first-instance court and adopted a new decision by which it
discontinued the proceedings in the applicant's case. It held that
the matter had already been determined by the Nakhimovskyy Court on
25 May 1998. The relevant parts of the decision of 15 June
1999 read as follows:
“... In accordance with Article 227 § 3
of the Code of Civil Procedure of Ukraine, the court shall
discontinue the proceedings, if there is a judgment, which has
entered into the force of the law, concerning a dispute between the
same parties, on the same subject-matter and grounds.
It appears from the case materials that on 25 May 1998
the Nakhimovskyy District Court adopted a judgment, by which the
plaintiff was awarded 1,767.38 [Ukrainian hryvnyas] in respect of
salary arrears and average wages for the delay in payment in the
event of termination of employment during the period of 8 July
1997 to 25 May 1998...
Therefore, [the court finds that] the dispute concerning
the recovery of wages for the period of the delay in payment has been
determined on 25 May 1998 and that the admission of a new claim
concerning the same subject-matter and based on the same grounds
would be contrary to Articles 136 § 3 and 227 § 3
of the Code of Civil Procedure...
Pursuant to Articles 310 and 315 of the Code of Civil
Procedure of Ukraine, [the court]
Decided:
To quash the judgment ... of 19 April 1999 and to
discontinue the proceedings concerning the claim of Menshakova ...
against [the SMSK]...”
C. Other proceedings to which the applicant was a party
On
4 December 1995 the Sevastopol Arbitration Court (State
court dealing with disputes between companies and other economic
entities before June 2001) initiated bankruptcy proceedings against
the SMZ. The applicant and Mr K. joined the proceedings as the
SMZ's creditors. By a decision of 24 December 1998, the
arbitration court ordered the inclusion of the Nakhimovskyy Court's
awards of 8 July 1997 and 5 August 1998 in the
applicant's favour into the list of creditor's claims.
By
a decision of 24 March 1999, partially amended by a
decision of 2 April 1999, the same court quashed the
decision of 24 December 1998 and discontinued the
bankruptcy proceedings on the ground that the SMZ had paid the
amounts claimed by the applicant and Mr K. in full.
On
6 and 24 April 1999 respectively, Mr K. and the
applicant lodged with the court requests for supervisory review of
the decisions of 24 March and 2 April 1999.
On
13 July 1999 the Higher Arbitration Court rejected the
request of Mr K. as unsubstantiated.
By
a letter of 8 October 1999, the Sevastopol Arbitration
Court informed the applicant that her request for supervisory review
had not been submitted to the Higher Arbitration Court as it had been
directed against the same decisions as the request of Mr K.
On
3 November 1999 the applicant instituted proceedings in the
Leninskyy District Court of Sevastopol against the Sevastopol
Arbitration Court, seeking compensation for the latter's failure to
consider her request for supervisory review of its decisions of
24 March and 2 April 1999.
On
22 May 2000 the Leninskyy District Court discontinued the
proceedings on the ground that the applicant's claim was not to be
considered by the courts, as the Sevastopol Town Arbitration Court
enjoyed immunity from civil proceedings in respect of its procedural
activities. On 19 September 2000 the Sevastopol Court
upheld the decision of the first instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code
of Civil Procedure of 1963 (repealed on 1 September 2005)
The
relevant provisions of the Code read as follows:
Article 136
Admissibility of claims in civil cases
“... A judge shall not [deal with] a claim:
...
3) if there is a judgment, which has entered
into the force of the law, concerning a dispute between the same
parties, concerning the same subject and based on the same grounds,
or a court's ruling endorsing the plaintiff's withdrawal of the claim
or a friendly-settlement agreement between the parties...”
Article 227
Grounds [for a decision] to discontinue the
proceedings
“... A court shall discontinue the proceedings:
...
3) if there is a judgment, which has entered into the
force of the law, concerning a dispute between the same parties,
concerning the same subject and based on the same grounds, or a
court's ruling endorsing the plaintiff's withdrawal of the claim or a
friendly-settlement agreement between the parties...”
Article 310
Tasks of the [court] of cassation
In the course of consideration of a case in cassation
the court shall verify whether the first instance court's judgment is
lawful and well-founded...
The court shall not be bound by the reasons of an appeal
in cassation ... and must review the entire case.
Article 315
[Decision] to quash the [first instance court's]
judgment and to discontinue the proceedings or to leave the claim
without consideration
The [first instance court's] judgment shall be quashed
in cassation and the proceedings shall be discontinued or the claim
shall be left without consideration on the grounds envisaged in
Articles 227 and 229 of the Code.
B. Labour
Code of 1971
The
relevant provisions of the Code, as worded at the material, read as
follows:
Article 116
Time-limits for payment in the event of termination
of employment
“An enterprise, entity, or organisation shall pay
the sums due to a [dismissed or retired] employee on the day of
termination of his employment. If the employee did not work on the
day of his [dismissal or retirement], the abovementioned sums shall
be paid to him not later than the day following the day of the
submission of his payment request.
In the event of a dispute over the amount to be paid to
a [dismissed or retired] employee, [the employer] ... shall pay the
undisputed amount within the time-limit envisaged by this
[provision].”
Article 117
Responsibility for the delay in payment in the event
of termination of employment
“In the absence of a dispute over the amount to be
paid to a [dismissed or retired] employee, [the employer] ... shall
pay him his average wages for the whole period of the delay in
payment of the amounts envisaged by Article 116 of this Code
until the day of their factual payment, if the delay was due to the
fault of [the employer]...
In the event of a dispute over the amount to be paid to
a [dismissed or retired] employee, [the employer] ... shall pay him
compensation envisaged by this [provision], if the dispute was
resolved in favour of the employee. If the dispute was resolved
partly in favour of the employee, the amount of compensation for the
delay shall be determined by the body deciding on the dispute...”
Article 233
Time-limits for lodging applications with ... courts
concerning labour disputes
“An employee may submit an application concerning
a labour dispute directly to a ... court within three months
following the day on which he became or should have become aware of a
violation of his right...”
C. Resolution no. 13
of the Plenary Supreme Court of 24 December 1999 concerning
the application of legislation on payment of salaries by the courts
The
relevant extracts from the Resolution of the Plenary Supreme Court
read as follows:
“20. Having established, in the course
of consideration of a case concerning recovery of [average] salary in
connection with a delay in payment in the event of termination of
employment, that an employee was not paid the amounts due to him ...
on the day of his [dismissal or retirement] ... a court shall award,
under Article 117 of the Labour Code, the employee average salary for
the whole period of the delay in payment; if no such payment has been
made before the consideration of the case [the court shall award
average salary] until the date of the adoption of the judgment, safe
in case the employer proofs that it was not responsible [for the
delay]. The mere absence of funds shall not exclude the employer's
responsibility.
In case no payment [in the event of termination of
employment] took place because of a dispute on the amount to be paid,
the claims concerning the responsibility for the delay ... shall be
allowed in full, if the dispute was determined in favour of the
plaintiff or if a court dealing with the case reaches such a
conclusion. In case the claim is partly allowed, the court determines
the amount of compensation for the delay in payment, taking into
account the disputed sum which [the plaintiff] was entitled to
receive, the part of the claim it constituted, the value of the part
[of the claimed amount] in comparison with average salary and other
specific circumstances of the case...
25. ...A failure to pay sums due to an
employee on the day of his dismissal or, if he was absent from work
on that day, on the day following the submission of his request for
payment constitutes a ground for responsibility under Article 117
of the Labour Code. In this case, the running of a three-month
time-limit for lodging an application with a court commences on the
day following the payment of the above mentioned sums, irrespective
of the delay in payment.
A failure to meet the three-month time-limit for an
application to a court as such constitutes a ground for dismissal of
the claim, however, if the court finds that [the claim] is
unsubstantiated, it shall dismiss [the claim] on [the latter]
ground...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND
13 OF THE CONVENTION
In
her initial submissions of 4 December 1999 the applicant complained
under Article 6 § 1 of the Convention about the
outcome and unfairness of the proceedings concerning her claims for
compensation for late payment of salary against the SMSK. In
particular, she alleged that the domestic courts had unlawfully
refused to examine the merits of her claims.
Subsequently,
in her submissions of 11 March 2001, the applicant alleged that
the Sevastopol Arbitration Court had unlawfully refused to consider
her request for extraordinary review of its decisions of 24 March and
2 April 1999. She also complained about the refusal of the domestic
courts to consider her civil law claim against the Sevastopol
Arbitration Court. The applicant invoked Articles 6 § 1
and 13 of the Convention.
On
21 October 2004 she complained under Article 6 § 1
of the Convention about the quashing of the judgment of the
Nakhimovskyy Court of 5 August 1998.
On
26 September 2006 the applicant complained about the outcome,
unfairness and length of the proceedings concerning her compensation
claims against the SMZ. In particular, she alleged that the domestic
courts had unlawfully refused to examine the merits of her claims
against that company. The applicant further alleged that the hearing
of 28 July 2006 before the Supreme Court had not been
public. She invoked Article 6 § 1 of the
Convention.
Articles
6 § 1 and 13 of the Convention read, in so far as
relevant, as follows:
Article 6
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by [a] ... tribunal...”
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
The
Court notes the applicant's complaint about a violation of her right
to a hearing within a reasonable time in respect of her compensation
claims against the SMZ raises issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring it inadmissible.
The
Court further considers that the applicant's complaints under
Article 6 of the Convention that the domestic courts' refusal to
consider her compensation claims lodged against the SMZ and the SMSK
in November 1997, March and April 1999 amounted to a breach of
her right of access to a court must also be declared admissible.
The
Court has examined the remainder of the applicant's complaints under
Articles 6 § 1 and 13 of the Convention and
considers that, in the light of all the material in its possession
and in so far as the matters complained of were within its
competence, they did not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
Accordingly, the Court rejects them as manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the
Convention.
B. Merits
1. Length of the joint proceedings against the SMZ
The
applicant maintained her complaint of the length of the compensation
proceedings against the SMZ. In particular, she stated that the case
had not been complicated. She had had to make modifications to her
claims in order to bring the amounts of compensation she claimed up
to date, especially in view of the duration of the proceedings. The
applicant further stated that no hearings had been held between May
1999 and May 2003 because the judge dealing with her case had
been busy with another case. She also argued that it had been for the
courts to ensure, by using all available procedural means, including
sanctions, the defendant's appearance at the hearings. Finally, the
applicant submitted that there was no explanation for the delay of
more than two years when the case was pending before the Supreme
Court between March 2004 and July 2006. Therefore, according to the
applicant, the courts had not dealt with her case within a
“reasonable time” as required by Article 6 § 1
of the Convention.
The
Government submitted that the length of the relevant proceedings was
not unreasonable. They stated that there had been no significant
periods of inactivity attributable to the State. On the contrary,
there were some periods of delay which had been attributable to the
parties to these proceedings and their behaviour had somewhat
complicated the proceedings. In particular, the first-instance court
and the court of appeal had had to reconsider the case on several
occasions following the applicant's and the defendant company's
appeals; the applicant had challenged a judge dealing with the case
and modified her claims twice; the courts had had to adjourn several
hearings because of the parties' failure to appear and in order to
summon witnesses and obtain additional information requested by the
parties. The Government did not specify the dates of the hearings or
the duration of the delays in the proceedings to which they referred
in their observations.
The
Court observes that on 26 November 1997 and 15 March 1999 the
applicant lodged with the domestic courts two separate claims against
the SMZ, seeking compensation for late payment of her salary. On
5 August 1998 the Nakhimovskyy Court delivered a judgment in
respect of the applicant's first claim. It was not challenged before
the higher courts, became final, and was subsequently enforced on
18 March 1999. However, some five years later the Supreme Court
quashed that judgment and remitted the case for new consideration.
The first-instance court joined the applicant's first claim to the
proceedings concerning her second claim, which had already been
pending since 15 March 1999.
The claims were considered jointly and on 28 July 2006
the Supreme Court adopted the final decision in the applicant's case,
rejecting both claims as having been lodged out of time. Thus, the
impugned proceedings, which started on 26 November 1997 and
ended on 28 July 2006, lasted eight years and eight months,
excluding the period between 5 August 1998 and
15 March 1999, when no court proceedings were pending (see
Yemanakova v. Russia, no. 60408/00, § 41,
23 September 2004, and Efimenko v. Ukraine,
no. 55870/00, § 51, 18 July 2006).
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 notes that the dispute at hand concerned recovery of salary
arrears and compensation for their non-payment. Thus, it was an
ordinary civil case the adjudication of which did not require any
complicated procedures to be followed. Moreover, the proceedings
ended in a decision that the applicant's claims were time-barred.
The
Court points out that it has frequently found violations of
Article 6 § 1 of the Convention in cases raising
issues similar to the present application (see, for instance,
Efimenko, cited above, §§ 55-58).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case.
There
has accordingly been a breach of Article 6 § 1 with respect to
the length of these proceedings.
2. Access to a court
The
applicant maintained that the refusals of the courts to consider her
compensation claims against her former employers had not been based
on the circumstances of the cases and resulted from the incorrect
application of the relevant procedural rules by the courts.
The
Government argued that the decisions adopted by the courts had been
in compliance with the relevant procedural rules and, thus, the
applicant had not been deprived of the right of access to a court.
The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal. In this way it embodies the
“right to a court”, which, according to the Court's
case-law, includes not only the right to institute proceedings but
also the right to obtain a “determination” of the dispute
by a court (see, for instance, Kutić v. Croatia, no.
48778/99, § 25, ECHR 2002 II).
The
right to a court is not absolute and may be subject to legitimate
restrictions. Where an individual's access is limited either by
operation of law or in fact, the restriction will not be incompatible
with Article 6 where the limitation does not impair the very essence
of the right and where it pursues a legitimate aim, and there is a
reasonable relationship of proportionality between the means employed
and the aim sought to be achieved (see Ashingdane v. the United
Kingdom, 28 May 1985, § 57, Series A no. 93). The
Court underlines that in the domain of interpretation of domestic
legislation, in particular, procedural rules applicable to judicial
proceedings, its role is limited to verifying whether the effects of
such interpretation by the domestic authorities, notably the courts,
are compatible with the Convention (see Zvolský and Zvolská
v. the Czech Republic, no. 46129/99, § 46, ECHR
2002 IX).
Turning
to the circumstances of the present case, the Court notes that the
applicant had access to a court, in that her claims reached the
Nakhimovskyy court and the courts of higher instances. However, in
the proceedings against the SMZ the domestic courts eventually
dismissed the applicant's compensation claims, holding that they had
been lodged out of time. The applicant's April 1999 claim
against the SMSK was dismissed on the ground that the matter had
already been determined by a final judgment of 25 May 1998.
The
Court observes that the applicant's compensation claims against her
former employers were based on her argument that Article 117 of
the Labour Code entitled her to compensation for late payment of
salary arrears until the day of their factual payment even for
periods of non-enforcement of a judgment awarding salary arrears.
Despite
the difference in the formal outcome of the proceedings against the
SMZ and the SMSK, it transpires that the applicant's argument was not
accepted by the courts. In particular, the courts' decisions of
15 June 1999 and 26 November 2003 dismissing the
applicant's claims were based on the position that the compensation
for late payment of salary pursuant to Article 117 of the Labour
Code could have been claimed by the applicant only as regards the
period before the sums in respect of her salary arrears had been
awarded by the judgments of 8 July 1997 and 25 May 1998
and that the three-month time limitation period had started to run on
these dates (see in particular paragraph 15 above). With the adoption
of those judgments Articles 116 and 117 of the Labour Code were no
longer applicable in the applicant's situation and the former
employers' obligation to pay salary arrears and compensation was
replaced with the obligation to enforce the judgements in the
applicant's favour, falling outside the sphere of substantive labour
law.
In the light of the foregoing, the Court notes that
the application of procedural limitations in the applicant's case to
a large extent depended on the interpretation of the substantive
provisions of the Labour Code. In this context, the Court observes
that, according to the wording of Article 117 of the Code, “in
the absence of a dispute over the amount” of salary arrears,
retired employees were entitled to compensation for late payment of
such arrears until their “factual payment” (Article
117 § 1) and, “in the event of a dispute over
the amount” of salary arrears, compensation was to be paid if
that dispute was resolved in the employee's favour (Article 117 § 2).
Particular importance must be attached to the fact that the second
paragraph of Article 117 of the Code, which concerns entitlement to
compensation in the event of judicial determination of the amount of
salary arrears and was applicable to the applicant's claims at issue,
does not provide for compensation until the factual payment of salary
arrears, unlike the first paragraph of Article 117. Thus, it cannot
be reasonably argued that those provisions provided for an
entitlement to compensation as regards delays in payment of salary
arrears taking place after their amount was determined by a court.
While
it may be argued that the reasons given by the courts for the
impugned decisions somewhat lacked precision and clarity, in that the
courts did not specifically address the two-fold operation of Article
117 of the Labour Code, the Court finds that they do not disclose any
appearance of unfairness or arbitrariness and that the procedural
limitations on the applicant's access to the courts were not applied
disproportionately. Moreover, the Court reiterates that it is not a
court of appeal from the decisions of domestic courts and that, as a
general rule, it is for those courts to interpret domestic law and
assess the evidence before them (see, for instance, Waite and
Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 I).
Accordingly,
the Court holds that there has been no violation of Article 6 of the
Convention with respect to the applicant's complaint of lack of
access to a court.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1.
In
her submissions of 26 September 2006 the applicant complained
that her right to peaceful enjoyment of her possessions, within the
meaning of Article 1 of Protocol No. 1, had been
violated because of the refusal of the domestic courts to consider
the merits of the compensation claims against her former employers.
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
The
Government argued that the applicant's claims had been rejected by
the courts in accordance with the domestic law and this fact did not
constitute an unjustified interference with her right to peaceful
enjoyment of her possessions. Moreover, they stated that the judgment
of the Nakhimovskyy Court of 25 May 1998 allowing her
compensation claims against the SMSK had been enforced in full.
The
applicant submitted that she had a statutory right to receive
compensation for the delay in payment of her salary arrears which she
could not entertain because of the unlawful rejection of her claims
by the courts.
The
Court notes that the applicant's complaint in respect of her
compensation claims against the SMSK was first raised in her
submissions of 26 September 2006 and, thus, more than six months
after the final domestic decision had been given by the Sevastopol
Court (15 June 1999). Accordingly, it must be declared
inadmissible, pursuant to Article 35 §§ 1 and 4 of the
Convention.
As regards the applicant's complaint in respect of the
compensation proceedings against the SMZ, the Court reiterates that
applicants may allege a violation of Article 1 of Protocol No. 1
only in so far as the impugned decisions relate to their
“possessions” within the meaning of that provision.
“Possessions” can be either “existing possessions”
or assets, including claims, in respect of which the applicants can
argue that they have at least a “legitimate expectation”
of obtaining effective enjoyment of a property right (see, among
other authorities, Malhous v. the Czech Republic (dec.)
[GC], no. 33071/96, ECHR 2000-XII; Gratzinger and
Gratzingerova v. the Czech Republic (dec.) [GC], no.
39794/98, § 69, ECHR 2002-VII; Kopecký v. Slovakia
[GC], no. 44912/98, § 35, ECHR 2004-IX; Von
Maltzan and Others v. Germany (dec.) [GC],
nos. 71916/01, 71917/01 and 10260/02, § 74, ECHR
2005-V; and Bata
v. the Czech Republic (dec.), no. 43775/05, 24 June
2008).
In the light of the courts' interpretation of the
relevant domestic legislation in the applicant's case, the Court
finds that the applicant's compensation claims in respect of the
period of 8 July 1997 to 18 March 1999 did not have any legal
basis (see paragraphs 56 and 57 above). In particular, Article
117 of the Labour Code could not have been interpreted as
establishing the right to compensation for a delay in payment of
salary arrears taking place after the latter had been awarded by a
court decision.
As regards the compensation claims which concerned the
period before 8 July 1997, the Court notes that the domestic
decision to reject them as lodged out of time does not appear to have
been arbitrary or manifestly unreasonable. Furthermore, the Court has
limited jurisdiction to interpret domestic rules of procedure and, in
principle, it cannot substitute its view for that expressed by the
domestic courts.
It
follows that the complaint under Article 1 of Protocol No. 1 as
regards the applicant's claims for compensation against the SMZ is
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention and must be rejected in accordance with Article 35
§ 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.”
A. Damage
The
applicant claimed UAH 64,803.28
in respect of pecuniary damage, which represented the amount of
compensation she was allegedly entitled to receive for the delay in
payment of her salary by the SMZ during the period of 1 October 1996
– 18 March 1999, adjusted in accordance with the current
statutory minimum monthly income. She also claimed 4,500
euros (EUR) in respect of non-pecuniary damage.
The
Government maintained that the applicant had no entitlement to any
payments in respect of her claim for pecuniary damage, which was
confirmed by the domestic courts. As to non-pecuniary damage, the
Government considered that this claim was unsubstantiated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this part of
the claim. On the other hand, making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court
considers it reasonable to award the applicant EUR 2,100 in respect
of non-pecuniary damage.
B. Costs and expenses
The
applicant claimed 60.98 United States dollars (USD)
for postal expenses incurred in the Convention proceedings.
The
Government contested this claim.
Regard
being had to the information in its possession, the Court considers
it reasonable to award the applicant the requested amount for costs
and expenses.
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 complaints under
Article 6 § 1 of the Convention concerning the
applicant's lack of access to a court in respect of her compensation
claims lodged with the domestic courts in November 1997, March and
April 1999, as well as concerning the length of the compensation
proceedings against the SMZ, admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention with respect to the length of
the compensation proceedings against the SMZ;
Holds that there has been no violation of
Article 6 § 1 of the Convention with respect to the
applicant's complaint of lack of access to a court;
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 2,100 (two
thousand one hundred euros) in respect of non-pecuniary damage and
EUR 40 (forty euros) for costs and expenses, plus any tax that may be
chargeable on the above amounts, which shall be converted into the
currency of the respondent State at the rate applicable on 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
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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
