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FIFTH
SECTION
CASE OF ROMANOVA v. UKRAINE
(Application
no. 33089/02)
JUDGMENT
STRASBOURG
13
December 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 Romanova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33089/02) 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, Mrs Tatyana Leonidovna
Romanova (“the applicant”), on 8 August 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
14 February 2006 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 born in 1951 and lives in Mykolayv.
A. Proceedings concerning the applicant's initial
dismissal
- In
1991-1996 the applicant was employed with a private company N., which
provided maintenance services for student dormitories of the
Ukrainian State Marine Technical University (Український
державний
морський технічний
університет,
hereafter “the USMTU”). In 1996 the USMTU,
following a year's litigation with N., terminated their contract and
re employed most of N.'s former employees, but not the
applicant.
- In
May 1996 the applicant sued N. and the USMTU for unfair dismissal. On
26 July 1996 the Tsentralny District Court of Mykolayv (Місцевий
суд Центрального
районну м. Миколаєва,
hereafter “the District Court”) approved a
settlement between the parties and discontinued the proceedings.
- On
4 September 2001 the District Court, at the applicant's request,
reopened the proceedings on the ground of new circumstances. In the
course of the proceedings the applicant dropped her claims against N.
- On 24 September 2001 the District Court, composed of a
single judge, Mr A., granted the applicant's claim against the USMTU
and ordered her immediate reinstatement. The USMTU appealed.
- On
27 February 2002 the Mykolayv Regional Court of Appeal (Апеляційний
суд Миколаївської
області,
hereafter “the Court of Appeal”) quashed that
judgment and remitted the case to the District Court for a fresh
consideration by a different judge.
- The
case was again considered by Judge A., who on 12 July 2002 rejected
the applicant's claim as unsubstantiated. The applicant filed an
appeal. On 25 September 2002 the Court of Appeal upheld the judgment
rejecting the applicant's claim. The question of the competence of
Judge A. to re-examine the case on the merits was not addressed in
this decision.
- The
applicant appealed in cassation arguing, inter alia, that her
case had been heard by a judge who was not competent. On
19 February 2003 the Supreme Court dismissed her appeal,
finding that no procedural or substantive breaches had occurred
before the lower courts.
B. Subsequent proceedings
1. Proceedings concerning the reinstatement order
- In
October 2002 the USMTU applied to the District Court for permission
not to comply with its order of 24 September 2001 to reinstate the
applicant. On 24 December 2002 the District Court found that the
impugned order had lost its validity on 27 February 2002, when the
Court of Appeal quashed the judgment on the basis of which it had
been issued. The court also invited the USMTU “to resolve the
issue of [the applicant's] dismissal”. The applicant appealed.
- On
13 March 2003 the Court of Appeal excluded from the judgment the
reference to the need to resolve the issue of the applicant's
dismissal and upheld the remainder of the District Court's findings.
On 19 May 2003 the Supreme Court dismissed the applicant's appeal in
cassation.
2. Proceedings concerning the second dismissal
- On
26 December 2002 the applicant was dismissed from the USMTU. She
brought a claim for reinstatement and loss of earnings. On
23 April 2003 the District Court rejected her claim, noting
that the applicant had been employed with the USMTU pursuant to the
reinstatement order of 24 September 2001, which had lost its validity
on 27 February 2002.
- The
applicant's appeals were dismissed by the Court of Appeal on 22 July
2003 and by the Supreme Court on 31 October 2003.
3. Claim for unpaid wages
- On
27 August 2003 the applicant brought proceedings against the USMTU in
which she claimed that her salary had not been paid to her in full.
On 1 December 2003 rejected this claim as unsubstantiated. On
13 February 2004 the Court of Appeal dismissed the applicant's
appeal against this judgment.
II. RELEVANT DOMESTIC LAW
-
The relevant part of Article 21 of the Code of Civil Proceedings of
18 July 1963 (hereafter “the Code”), as worded at the
material time, read as follows:
“A judge who has been involved in the resolution
of the case at first instance shall not consider the same case on
appeal or on a cassation appeal, or participate in a fresh
consideration by the court of first instance following a reversal of
the judgment...”
- Article
336 of the Code listed the grounds on which the cassation instance
court could quash the lower courts' decisions and remit the case for
fresh consideration.
This
Article, in so far as relevant, provided:
“The court decision shall be quashed and the case
remitted for fresh consideration if:
1) the case has been considered by a
judge who, or panel which, was not competent to hear it
[неправомочним
суддею або
складом суду]”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
proceedings concerning her initial dismissal were unfair. She stated
in particular that the District Court,
when hearing her case in the second set of proceedings, was, contrary
to domestic law, composed of the same single judge as in the first
set. The applicant claimed to have suffered a violation
of her right to have her case heard by an “independent and
impartial tribunal established by law” within the meaning of
Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The parties did not make submissions as to the
admissibility of the case. 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
applicant submitted that, contrary to Article 21 of the Code of Civil
Proceedings, Judge A. had twice participated in the examination of
her civil case at first instance.
- The Government did not submit any observations on the
merits of the case.
- The
Court first notes that the issues of the lack of an “impartial”
tribunal and a tribunal “established by law” coincide in
substance in the present case.
- Article
21 of the Code, which lays down that a judge who has been involved in
the first instance examination of the case shall not be permitted to
participate in its rehearing on a remittal from a higher court (see
paragraph 17 above) must be taken to manifest the national
legislature's concern to remove all reasonable doubts as to the
impartiality of that court (see Pfeifer and Plankl v.
Austria, judgment of 25 February 1992, Series A no. 227,
§ 36). Accordingly the failure to abide by this rule means
that the applicant's appeal was heard by a tribunal whose
impartiality was recognised by national law to be open to doubt (see
Oberschlick v. Austria (no. 1), judgment of 23 May
1991, Series A no. 204, § 49).
- In conclusion, there has been a violation of Article 6
§ 1 of the Convention.
- In
these circumstances the Court does not find it necessary to examine
the applicant's complaint of general unfairness in the proceedings
concerning her initial dismissal.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained of the length of the proceedings concerning her
initial dismissal and of unfairness in the proceedings concerning the
reinstatement order, her second dismissal and her claim for unpaid
wages.
- The Court has examined these complaints as submitted
by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of were 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 or its Protocols.
- Accordingly,
it rejects this part of the application in accordance with Article 35
§§ 3 and 4 of the Convention as being manifestly
ill-founded.
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 EUR 68,000 in respect of loss of earnings, caused
by the allegedly unfair court decisions and UAH 500,000
(approximately EUR 145,000) in respect of non-pecuniary damage.
- The
Government argued that there was no causal link between the alleged
violation and the pecuniary damage claimed. As regards the
non pecuniary claim, the Government maintained that it was
exorbitant and unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the alleged pecuniary damage; it therefore rejects this claim.
-
However, it considers that the applicant must have suffered distress
which cannot be compensated for solely by the finding of a violation.
Deciding on an equitable basis, the Court awards the applicant EUR
500 as compensation for non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 114 for costs and expenses incurred before
the Court, including EUR 49 for medical expenses paid during the
Convention proceedings.
- The
Government invited the Court to restrict any award to such costs and
expenses as were actually and necessarily incurred and reasonable as
to quantum.
- Applying
the criteria laid down in its case-law and making its assessment on
an equitable basis, the Court considers it reasonable to award the
applicant EUR 65 for her costs and expenses together with any
value added tax that may be chargeable.
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 alleged
unfairness of the proceedings concerning her dismissal 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 the consideration of the
applicant's case by a court which was not an “independent and
impartial tribunal established by law”;
- Holds that there is no need to examine the
complaint under Article 6 § 1 of the Convention of general
unfairness in the proceedings concerning the applicant's initial
unfair dismissal action;
- 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, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable on the date of payment:
(i) EUR
500 (five hundred euros) in respect of non-pecuniary damage;
(ii) EUR
65 (sixty five euros) for costs and expenses;
(iii) plus
any tax that may be chargeable on the above amounts;
(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 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
