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FIFTH
SECTION
CASE OF CHUKHAS v. UKRAINE
(Application
no. 4078/03)
JUDGMENT
STRASBOURG
12
July 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 Chukhas 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 19 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4078/03) 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, Ms Mayya Stepanivna Chukhas (“the
applicant”), on 4 November 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
5 April 2006 the Court
decided to communicate the complaint concerning the length of the
proceedings, including their enforcement stage, 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 1963 and lives in Gorodok.
- On
1 June 1998 the applicant was dismissed by her employer,
the Gorodok State Administration (“the Administration”;
Городокська
районна
державна
адміністрація)
from her position as a senior logistics specialist (головний
спеціаліст
організаційного
відділу секретаріату)
on account of her failure to meet the requirements of the post.
A. Judicial proceedings
- On
30 June 1998 the applicant instituted civil proceedings for
reinstatement in the Yarmolynets City Court (the “Yarmolynets
Court”; Ярмолинецький
районний суд
Хмельницької
області).
- On
5 April 1999 the court left the applicant's claim without
consideration on account of her failures to appear for the hearings.
The applicant did not appeal against this decision within the
statutory time-limit.
- On
24 October 2000 following the applicant's petition, the
Khmelnytsky Region Deputy Prosecutor instituted a protest,
seeking to re-open the proceedings on account of the court's failure
to inform the applicant of the date of the last hearing.
- On
24 November 2000 the Presidium of the Khmelnytsky Regional
Court (the “Regional Court”; Хмельницький
обласний суд)
found the protest substantiated, quashed the decision of
5 April 1999 and remitted the case for a fresh
consideration to the Yarmolynets Court.
- On
6 September 2001 the Yarmolynets Court dismissed the
applicant's reinstatement claims. It found, however, that the
dismissal record was incorrect, as in fact the applicant had not
passed the probationary period. Accordingly, the court awarded the
applicant 5,000 Ukrainian hryvnyas (UAH)
in non-pecuniary damage. Both parties appealed.
- On
4 December 2001 the Regional Court upheld the judgment, but
reduced the amount of compensation to UAH 1,000.
The applicant appealed in cassation.
- On
11 May 2002 the Supreme Court rejected the applicant's
request for leave to appeal in cassation against the court decisions
of 6 September and 4 December 2001.
B. Enforcement proceedings
- On
4 February 2002 the Gorodok Bailiffs' Service (“the
Bailiffs”; Відділ
Державної
виконавчої
служби Городоцького
районного
управління
юстиції) initiated
enforcement proceedings for the judgment of 4 December 2001.
- On
19 September 2002 the applicant was paid UAH 50.
- On
3 February 2003 the Bailiffs terminated the enforcement
proceedings in view of the debtor's lack of funds.
- In
January 2003 the applicant instituted administrative proceedings
against the Bailiffs complaining about their failure to collect the
judgment debt due to her. These proceedings ended on 22 February 2005
by a ruling of the Regional Court, upholding the decision to leave
the applicant's complaint without consideration. The applicant did
not appeal in cassation.
- On
an unspecified date the enforcement proceedings were re-opened and on
14 December 2004 the applicant was paid the remaining award
of UAH 950.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE REINSTATEMENT
PROCEEDINGS
- The
applicant complained about the length of her reinstatement
proceedings, including their enforcement stage. She invoked
Article 6 § 1 of the Convention, which reads, in
so far as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
A. Admissibility
- The
Government submitted that Article 6 § 1 was
inapplicable to the proceedings at issue, as the dispute concerned a
civil servant's career and therefore was not a “civil”
dispute for the purposes of the impugned Convention provision.
- The
Court recalls that the applicant claimed to have been wrongfully
dismissed from a position of a logistics specialist at a local
administration and that pursuant the national law her claim was
treated as an ordinary labour dispute. Accordingly, as the domestic
system has not barred access to a court for the post of the category
of staff in question, Article 6 § 1 applies to
the circumstances of the present case (see Vilho Eskelinen and
Others v. Finland [GC], no. 63235/00, §§ 62-64,
19 April 2007).
- The
Court further observes that the court proceedings and the enforcement
proceedings are stages one and two in the total course of proceedings
(see Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 197). Therefore, the enforcement proceedings should not
be dissociated from the action and the proceedings are to be examined
in their entirety (see, Estima Jorge v. Portugal, judgment of
21 April 1998, Reports of Judgments and Decisions 1998-II,
§ 35 and, as a recent authority, Sika v. Slovakia,
no. 2132/02, §§ 24-27, 13 June 2006).
- The
Court considers that the applicant's complaint raises issues of fact
and law under the Convention and finds no ground for declaring it
inadmissible. The Court must therefore declare it admissible.
B. Merits
- In
their observations on the merits of the applicant's complaints, the
Government contended that there had been no violation of
Article 6 § 1.
- The
applicant disagreed.
- The
Court reiterates that the applicant lodged her civil action for
reinstatement on 30 June 1998. This action eventually led
to the adoption of a court judgment on 4 December 2001,
which became final on 11 May 2002. The Court notes,
however, that no proceedings were pending during the nineteen-month
period between the taking of the final decision in the applicant's
case on 5 April 1999 leaving the applicant's claim without
consideration and its quashing on 24 November 2000.
Therefore, the length of proceedings in their
judicial phase was two years and three months, during which period
the applicant's claims were considered by the courts of three levels
of jurisdiction.
- The
Court further notes that on 4 December 2001 the Gorodok
Administration, a State entity, became obliged to pay compensation to
the applicant pursuant a court judgment adopted on the same date and
that on 4 February 2002 formal enforcement proceedings were
instituted in this regard. However, the applicant was able to collect
the full amount of the judgment debt only three years later, on
14 December 2004.
- 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 notes that the delay in the proceedings at issue was mostly
caused by the remittal of the case for a fresh consideration and by
the non-enforcement of a final judgment given in the applicant's
favour. 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, e.g., Sika v. Slovakia, cited above, § 35;
Svetlana Naumenko v. Ukraine, no. 41984/98,
9 November 2004; and Zolotukhin v. Ukraine,
no. 11421/03, 13 December 2005).
- 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. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant further complained that the length of the enforcement
proceedings in her case had infringed her right to the peaceful
enjoyment of her possessions, as guaranteed by Article 1 of Protocol
No. 1.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and finds that it must also be declared admissible.
- The
Court recalls its case-law that the impossibility for an applicant to
obtain the enforcement of a judgment in his or her favour constitutes
an interference with the right to the peaceful enjoyment of
possessions, as set out in the first sentence of the first paragraph
of Article 1 of Protocol No. 1 (see, among other authorities, Burdov
v. Russia, no. 59498/00, § 40, ECHR 2002-III;
Jasiūnienė v. Lithuania, no. 41510/98, §
45, 6 March 2003 and Voytenko v. Ukraine,
no. 18966/02, § 53, 29 June 2004). The Court finds no
ground to depart from its case-law in the present case.
- There
has, accordingly, been a violation of Article 1 of Protocol
No. 1 of the Convention.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant additionally complained under Article 6 § 1 of the
Convention about the unreasonable length of her administrative
proceedings against the Bailiffs and about the general unfairness of
both sets of her proceedings, particularly as the domestic courts
erred in assessment of facts and application of the law.
- 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 there is no
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 be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 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 61.68 euros (EUR) in respect of pecuniary
damage on account of devaluation of her judgment award during the
non-enforcement period. She did not present any official documents
justifying her calculations. Additionally, the applicant submitted
that she had suffered non-pecuniary damage caused by the length of
proceedings and the delay in enforcement of the judgment in her case,
particularly as at the material time she was an unemployed single
mother with two dependent children. However, she was not able to
specify the amount of this claim and requested the Court to rule on
an equitable basis.
- The
Government submitted that the applicant had failed to substantiate
her claims.
- The
Court agrees with the Government as regards the applicant's failure
to substantiate her pecuniary damage claim, and, accordingly,
dismisses it. On the other hand, the Court takes the view that the
applicant must have suffered some non-pecuniary damage as a result of
the violations found (see e.g. Duma v. Ukraine,
no. 39422/04, § 26, 30 November 2006 and Silka v.
Ukraine, no. 3624/03, § 23, 18 January 2007).
Making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court awards the sum of EUR 800 in
respect of non-pecuniary damage.
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 reinstatement proceedings, including their enforcement
stage, admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of
Article 1 Protocol No. 1 of the Convention;
4. 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 800
(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 19 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
