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FIFTH
SECTION
CASE OF SHINKARENKO v. UKRAINE
(Application
no. 31105/02)
JUDGMENT
STRASBOURG
7 June
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 Shinkarenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31105/02) 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, Mr Volodymyr Semenovych Shinkarenko (“the
applicant”), on 24 July 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Valeriya Lutkovska and Mr Yuriy Zaytsev.
- On
15 March 2005 the Court
decided to communicate the complaint concerning the length of the
proceedings and the lack of remedies in that respect 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 1940 and lives in the town of Kremenchuk.
-
On 15 December 1997 the applicant was dismissed from his position at
the Instrumentalnyy Zavod Company (hereafter the “Company”).
- On
16 February 1998 the applicant instituted proceedings seeking his
reinstatement and compensation for the loss of salary.
- On
4 June 1999 the Kryukivsky District Court of Kremenchuk (hereafter
“the District Court”) rejected the applicant's claim as
unsubstantiated.
- On
5 August 1999 the Poltava Regional Court (hereafter “the
Regional Court”) upheld this judgment.
- On
10 February 2000, at the applicant's request, the Deputy President of
the Supreme Court lodged with the Regional Court a protest against
these decisions.
- On
29 February 2000 the Presidium of the Regional Court quashed the
decisions of 4 June 1999 and 5 August 1999 and remitted the case for
a fresh consideration. It indicated that the courts had failed to
establish all relevant facts, particularly concerning the applicant's
productivity and qualifications.
- On
24 October 2000 the District Court rejected the applicant's claim as
unsubstantiated.
- On
14 December 2000 the Regional Court quashed this decision and
remitted the case for a fresh consideration stating that the first
instance court had failed to give appropriate consideration to the
issue of the applicant's qualifications.
- On
19 November 2001 the District Court rejected the applicant's claim as
unsubstantiated.
- On
31 January 2002 the Poltava Regional Court of Appeal (the former
Poltava Regional Court, hereafter “the Court of Appeal”)
quashed this decision and ordered a fresh consideration on the ground
that the first instance court's reasoning was insufficient.
- On
15 July 2002 the District Court rejected the applicant's claim as
unsubstantiated.
- On
5 November 2002 the Court of Appeal quashed this judgment and
dismissed the applicant's claim as being out of
time. The applicant did not appeal in cassation.
THE LAW
I. 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 16 February 1998
and ended on 5 November 2002 (over four years and eight months). The
Court recalls, however, that it is appropriate to take into account
only those periods when the case was actually pending before the
courts, that is the periods when the authorities were under an
obligation to determine the issue within a “reasonable time”
(Rokhlina v. Russia, no. 54071/00, § 82,
7 April 2005). Accordingly, the six-month-period between
5 August 1999, when the judgment of 4 June 1999 became final, and 10
February 2000, when the protest was lodged (paragraphs 8-10
above), should be excluded from the calculation. Thus, the period to
be taken into consideration lasted over four years and two months for
two levels of jurisdiction.
A. Admissibility
- The
Government pleaded non-exhaustion of domestic remedies, referring to
the lack of a cassation review by the Supreme Court of the ruling of
5 November 2002.
- The
applicant disagreed.
- The
Court recalls that the purpose of Article 35 § 1 of the
Convention is to afford Contracting States the opportunity to prevent
or put right the violations alleged against them before those
allegations are submitted to the Court. However, the only remedies to
be exhausted are those which are effective (Voytenko v. Ukraine,
no. 18966/02, § 29, 29 June 2004).
- The
Court notes that in the present case recourse to the cassation
procedure could neither afford the applicant compensation for any
alleged breach of the right to a hearing within a reasonable time nor
speed up the examination of the case.
- In
these circumstances, the Court concludes that the applicant was
absolved from pursuing the remedy invoked by the Government and has
therefore complied with the requirements of Article 35 § 1.
- 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
Government submitted that the need to establish whether the applicant
had a preferential right to stay in the job had complicated the case,
that the domestic courts considered case without substantial delay,
and that the protracted length of the proceedings was primarily due
to the applicant's repetitive appeals.
- The
applicant considered that the proceedings had not been conducted with
sufficient diligence.
- 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 further 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 considers that the case was not particularly complicated,
either factually or legally, the question of a preferential right to
stay in a job being an ordinary matter for disputes of this kind. Nor
does it appear that the applicant's conduct had substantially
contributed to the length of the proceedings. The Court is not
persuaded by the Government's argument that the applicant should be
reproached for having appealed against unfavourable judgments, the
more so since three out of four of his appeals were upheld by the
higher courts.
- As regards the conduct of the domestic judicial
authorities, the Court notes that the protracted length of the
proceedings was mainly due to the repeated re-examination of the
case. Despite its relative simplicity, the applicant's claim was
considered by the courts on four occasions. Although the Court is not
in a position to analyse the quality of the case-law of the domestic
judicial authorities, it observes that, since remittal is usually
ordered because of errors committed by lower courts, the repetition
of such orders within one set of proceedings discloses a serious
deficiency in the judicial system (see Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
- 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.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER COMPLAINTS
- The
applicant finally complained under Article 6 § 1 of the
Convention about the alleged unfairness and outcome of the
proceedings. The Court finds that the applicant has not, as required
by Article 35 § 1 of the Convention, exhausted
the remedies available to him under Ukrainian law (Vorobyeva v.
Ukraine (dec.), no. 27517/02, 17 December 2002). It follows that
these complaints must be rejected in accordance with Article 35 § 4.
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 50,000 euros (EUR) in respect of non-pecuniary
damage.
-
The Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 1,800
under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
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 1,800 (one
thousand and eight 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 7 June 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
