AS TO THE ADMISSIBILITY OF
by Lidiya Pavlovna KASPARYANTS
The European Court of Human Rights (Fifth Section), sitting on 10 May 2011 as a Committee composed of:
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 26 March 2007,
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 Lidiya Pavlovna Kasparyants, is a Ukrainian national who was born in 1939 and lives in Odessa. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev.
On 3 December 2001 the applicant instituted proceedings in the Prymorskyy District Court of Odessa against the company E., her former employer, seeking reinstatement and recovery of debts.
On 5 December 2002 the court granted the applicant’s request, ordered a forensic medical examination and suspended the proceedings pending its outcome.
In December 2002 the case was transferred to the Kyivskyy District Court.
On 10 April 2003 the court received a letter from the Odessa Bureau of Forensic Examinations informing the court that the applicant refused to report to the Bureau and therefore it was impossible to carry out the forensic medical examination. On 23 May 2003 the Bureau informed the court that the applicant again refused to appear and to provide her medical records.
On 20 October 2003 the court received the results of the forensic medical examination.
On 24 May 2005 the court rejected the applicant’s claims as unsubstantiated.
On 21 December 2005 the Odessa Regional Court of Appeal upheld that judgment.
On 28 September 2006 the Supreme Court rejected the applicant’s appeal in cassation.
Out of thirty-seven court hearings one was adjourned following request of the applicant’s representative, twelve were adjourned due to failure to appear of the applicant or her representative and six were adjourned due to both parties’ failure to appear.
The applicant complained under Article 6 § 1 and 13 of the Convention about the length and the unfavourable outcome of the proceedings. She also complained under Article 1 of Protocol No. 1 on account of the outcome of the proceedings.
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government submitted that there were no delays attributable to the domestic authorities and the protraction of the proceedings was due to the complexity of the case and the conduct of the applicant. The Government also stated that some protraction of the proceedings before the Supreme Court was justified by the latter’s heavy workload, however in 2007 the latter problem was solved by introduction of amendments into the domestic legislation.
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, Frydlende 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 period to be taken into consideration lasted from 3 December 2001 to 28 September 2006. It thus lasted for about four years and ten months.
The Court notes that the subject matter of the dispute was not complex. The Court also notes that the proceedings were of undeniable importance for the applicant as they concerned her reinstatement claims and called for a particularly expeditious decision on her claims.
The Court observes that the applicant and her representative failed to appear at the court hearings on twelve occasions and requested adjournment of a hearing on one occasion which resulted in about nine months’ delay in the proceedings. The Court also observes that the forensic examination which contributed to the protraction of the proceedings was ordered by the first instance court following the applicant’s request. In this context the Court recalls that, although a party to civil proceedings cannot be blamed for using the avenues available to her under domestic law in order to protect her interests, she must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).
Having regard to all the circumstances of the case and in particular to the responsibility of the applicant for part of the delays, the Court finds that the overall duration of the proceedings in the period under consideration did not in itself exceed what may be considered “reasonable”.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Court finds that, in the light of all the materials in its possession, and insofar as the matters complained of are within its competence, that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen Phillips Boštjan M. Zupančič
Deputy Registrar President