BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF BLIDCHENKO v. UKRAINE
(Application
no. 20339/03)
JUDGMENT
STRASBOURG
29
November 2007
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 Blidchenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20339/03) 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 Valentyn Yosypovych Blidchenko
(“the applicant”), on 10 June 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, the Deputy Minister of
Justice, Mrs V. Lutkovska and the Head of the Office of the
Government Agent before the European Court of Human Rights, Mrs
I. Shevchuk.
- On
24 October 2006 the
Court decided to communicate the complaint concerning the length of
the proceedings to the Government. Applying Article 29 § 3
of the Convention, it decided to rule on the admissibility and merits
of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Vinnytsya.
- On
17 November 1997 the applicant was dismissed from his
position as a department manager (начальник
бюро) of
the Vinnytsya State Optical Mechanical Plant (“the Company,”
Вінницький
державний
експериментальний
оптико-механічний
завод).
- On
17 December 1997 the applicant instituted civil proceedings
in the Leninsky District Court of Vinnytsya (“the Leninsky
Court,” Ленінський
районний
суд
м. Вінниця),
seeking his reinstatement and compensation
for unlawful dismissal. On 3 June 1998 the Leninsky Court
stayed the proceedings until resolution of another dispute between
the applicant and the Company.
- On
27 March 2001 the applicant requested that the proceedings
be resumed, as the aforementioned dispute had been resolved to his
satisfaction. On 28 May 2001 the applicant complained to
the Vinnytsya Regional Deparment of Justice (Управління
юстиції Вінницької
області)
that the Leninsky Court had never responded to his request of
27 March 2001.
- On
6 June 2001 the Leninsky Court informed the applicant that
on 26 January 1999 it had discontinued the consideration of
his claims because of his repetitive failures to attend the hearings.
In July 2001 the applicant appealed against this decision.
- On
19 September 2001 the Leninsky Court granted the applicant
an extension for lodging his appeal, having noted that the applicant
had not been informed about the decision of 26 January 1999
in due time.
- On
4 December 2001 the Vinnytsya Regional Court of Appeal
(“the Court of Appeal,” Апеляційний
суд
Вінницької
області)
quashed the decision of 26 January 1999
on the ground that the Leninsky Court had not duly summoned the
applicant to attend the hearings and remitted the case for a fresh
consideration to the Zamostyansky District Court of Vinnytsya (“the
Zamostyansky Court,” Замостянський
районний суд
м. Вінниця).
- On
29 July 2002 the Zamostyansky Court dismissed the
applicant's claims. On 27 August 2002 the applicant
appealed against this judgment.
- On
17 December 2002 the Vinnytsya Regional Court of Appeal
upheld the judgment of 29 July 2002. In March 2003
the applicant appealed in cassation.
- On
18 March 2003 the Zamostyansky Court rejected the appeal
for having being lodged out of time. The applicant appealed against
this decision.
- On
14 May 2003 the Court of Appeal upheld the decision of
18 March 2003. In June 2003 the applicant
appealed in cassation against the decisions of 18 March and
14 May 2003.
- By
omission of the court personnel, the applicant's cassation appeal was
transferred to the Supreme Court only in June 2006.
- On
28 November 2006 the Supreme Court rejected the applicant's
request for leave to appeal in cassation.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicant additionally invoked Article 3
of the Convention and Article 1 of Protocol No. 1 to
the facts of the present case. He also complained under Article 6 § 3
of the Convention about the unfairness of the cassation proceedings
in his case.
- In
the Court's view, these new complaints are not an elaboration of the
applicant's original complaint under Article 6 § 1,
lodged with the Court almost four years earlier, on which the parties
have commented. The Court considers, therefore, that it is not
appropriate now to take this matter up in the present context (see
Skubenko v. Ukraine (dec.),
no. 41152/98, 6 April 2004).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 17 December 1997
and ended on 28 November 2006. It thus lasted almost nine
years. During this period the merits of the applicant's claims were
examined by two levels of jurisdiction, and the issue of
admissibility of his cassation appeal – by three levels.
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). 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
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 and Golovko v.
Ukraine, no. 39161/02, 1 February 2007).
- 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.
- There
has accordingly been a breach of Article 6 § 1.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Additionally,
the applicant complained under Article 6 § 1 of
the Convention that his reinstatement proceedings were unfair; under
Articles 11 and 14 of the Convention that he had been dismissed
for having been a member of an independent trade union and a public
activist; and under Article 13 of the Convention that he had no
effective remedies for his complaints under Articles 11 and 14.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession, and insofar 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 §§1, 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 pecuniary damage in an unspecified amount and
non-pecuniary damage of 45,000 euros (EUR).
- 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. On
the other hand, it considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
him EUR 3,200 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 600 for the costs and expenses. He
presented no documentary evidence to support his claim.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. The Court considers that these requirements have not been
met in the present case. It therefore makes no award.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 3,200 (three thousand two hundred euros) in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(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 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
