CASE OF BESTIYANETS v. UKRAINE

FIFTH SECTION

CASE OF BESTIYANETS v. UKRAINE

(Application no. 34545/05)

JUDGMENT

STRASBOURG

4 October 2012

This judgment is final but it may be subject to editorial revision.

In the case of Bestiyanets v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Mark Villiger, President,
Karel Jungwiert,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 11 September 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 34545/05) 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, Mr Mykola Grygorovych Bestiyanets (“the applicant”), on 12 September 2005.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev, succeeded by Ms Valeria Lutkovska and, later, by Nazar Kulchytskyy, of the Ministry of Justice.

3. On 11 January 2010 the President of the Fifth Section decided to give notice of the application to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1951 and lives in Kyiv.

A. Initiation of the proceedings by the applicant and severance of certain claims

5. On 28 January 2000 the applicant instituted civil proceedings in the Shevchenkivskyy District Court of Kyiv (hereafter – “the Shevchenkivskyy Court”) against its former employer, the Kyiv Motorcycle Factory (“the factory”), seeking his reinstatement and compensation for the related pecuniary and non-pecuniary damages, salary and other payments’ recovery, as well as disability allowance (in respect of a traffic accident which had happened with the applicant shortly before his dismissal and which the factory denied to be work-related).

6. On 20 November 2000 the court severed the applicant’s claims for certain payments’ recovery and for disability allowance into separate sets of proceedings.

B. Reinstatement proceedings (first set)

7. On 27 December 2000 the Shevchenkivskyy Court rejected the applicant’s reinstatement claim. On 7 May and 8 October 2001 the Kyiv City Court and the Supreme Court respectively upheld that judgment.

8. In 2005 the applicant unsuccessfully sought re-opening of the proceedings on the basis of some newly-discovered circumstances.

C. Proceedings concerning recovery of certain payments (second set)

9. On 8 June 2001 the Shevchenkivskyy Court allowed in part the applicant’s claim for recovery of certain payments, such as salary arrears, compensation for unused leave, dismissal allowance, and sick leave payment. On 28 August 2002 the judgment was enforced.

D. Proceedings concerning disability allowance (third set)

10. In January 2002 the Shevchenkivskyy Court transferred the applicant’s claim for disability allowance to the Podilskyy District Court of Kyiv (“the Podilskyy Court”), in line with the instruction of the Kyiv City Court of Appeal (“the Court of Appeal”).

11. The applicant reiterated all his initial claims before the Podilskyy Court.

12. On 25 December 2003 the court rejected the claim for disability allowance. As regards the other claims, it decided to leave them without examination, for they had already been adjudicated on 27 December 2000 and 8 June 2001 (see paragraphs 7 and 9 above).

13. On 6 June 2005 the Court of Appeal quashed the above judgment, because it had been delivered in the applicant’s absence and without his knowledge, and remitted the case to the first-instance court for fresh examination.

14. On 23 June 2005 the Podilskyy Court sent the file to the Shevchenkivskyy Court on the latter’s request. It was required for the examination of the applicant’s request for re-opening of the reinstatement proceedings (see paragraph 8 above).

15. On 24 June 2005 the Podilskyy Court stayed the proceedings until the file would be returned.

16. On 4 October 2005 the judge rejected the applicant’s request for leave to appeal against the aforementioned decision. That ruling was, by mistake, not sent to the applicant, until November 2008.

17. On 28 March 2008 the Podilskyy Court resumed the proceedings.

18. On 10 June 2008 it adjourned the hearing till 25 June 2008 because of the unspecified misbehaviour of the applicant’s representative. The court also decided that the applicant’s presence was obligatory.

19. On 25 June 2008 the applicant did not appear at the hearing, and the Podilskyy Court again adjourned it till 8 July 2008.

20. On 24 November 2008 it dismissed the claim without examination on merits for the applicant’s repeated failure to attend hearings.

E. Proceedings for recovery of two days’ salary (fourth set)

21. On 25 August 2004 the applicant brought another claim to the Shevchenkivskyy Court against the factory in respect of salary recovery, this time confined to two specific days.

22. On 16 August 2005 the court terminated the proceedings given that this claim had already been examined by the courts as a part of the applicant’s another claim. On 27 December 2005 and 17 May 2006 the Court of Appeal and the Supreme Court respectively upheld that ruling.

F. Proceedings against the factory’s administration and trade union in respect of their alleged conspiracy against the applicant (fifth set)

23. On 24 April 2008 the applicant supplemented his claim regarding the disability allowance with an additional complaint regarding the alleged conspiracy of the factory’s administration and trade union again him.

24. On 2 June 2008 the Podilskyy Court decided to refer the applicant’s claim in that part to the Shevchenkivskyy Court for examination. The applicant unsuccessfully challenged that referral before higher-level courts.

25. On 9 June 2009 the Shevchenkivskyy Court started the proceedings. According to the applicant, this set of his proceedings is pending.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF THE THIRD SET OF PROCEEDINGS

26. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which 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

27. The Government contended that the applicant could not be regarded to have exhausted the domestic remedies, for he had failed to seek the completion of the domestic proceedings in question.

28. The applicant did not submit any comments in reply.

29. The Court notes that the Government’s objection rather concerns the subject-matter of the proceedings, and not their length.

30. The Court has held on many occasions that the Ukrainian legislation did not and does envisage an effective and accessible remedy for complaints in respect of the length of civil proceedings (see, for example, Teliga and Others v. Ukraine, no. 72551/01, § 104, 21 December 2006, and Vashchenko v. Ukraine, no. 26864/03, § 59, 26 June 2008).

31. The Court therefore dismisses this objection of the Government.

32. It further notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

33. 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).

34. Turning to the present case, the Court notes that the period to be taken into consideration began on 28 January 2000 and ended on 24 November 2008 (see paragraphs 5 and 20 above). It thus lasted eight years and almost ten months for one level of jurisdiction, without having eventually been adjudicated on merits.

35. The Court observes that the proceedings concerned the applicant’s claim for disability allowance, thus being important for him and not complex. At the same time, the Court does not discern any substantial delay that can be attributed to the applicant, apart from the final period of about five months when the Podilskyy Court adjourned and finally terminated the proceedings because of some misbehaviour of the applicant’s representative and his own failure to attend (see paragraphs 18-20 above). As regards the domestic courts’ conduct, the Court notes that it took them about two years to even start the examination of the claim (see paragraphs 5 and 10 above). The remittal of the case by the appellate court back to the first-instance court for fresh examination caused another delay of about one year and a half (see paragraph 13 above). Finally, the transfer of the file from one court to another stalled the examination of the applicant’s disability allowance claim for two years and nine months (see paragraphs 14 and 17 above).

36. The Court has frequently 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 fact or argument 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.

37. There has accordingly been a breach of Article 6 § 1.

II. REMAINDER OF THE APPLICATION

38. The applicant also complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the alleged unfairness of all the domestic proceedings in his case, as well as the length of the fourth and fifth sets of proceedings. He further complained about the impossibility to get re-opened the reinstatement proceedings and the lengthy non-enforcement of the judgment in his favour in the second set of proceedings. Relying on Articles 13, 14 and 17 of the Convention, he complained that the domestic courts had treated his claims in a formalistic and discriminatory manner.

39. Having carefully examined the remainder of the application in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

40. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41. 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

42. The applicant claimed 33,977[1] Ukrainian hryvnias (UAH) and 5,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

43. The Government contested the claim.

44. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,300 under that head.

B. Costs and expenses

45. The applicant did not claim any costs and expenses; the Court therefore makes no award.

C. Default interest

46. The Court considers it appropriate that the default interest rate 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

1. Declares the complaint concerning the excessive length of the third set of proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into the national currency of Ukraine 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsMark Villiger
Deputy RegistrarPresident

[1] Around EUR 3,320.

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