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FIFTH
SECTION
CASE OF INKOVTSOVA v. UKRAINE
(Application
no. 39946/03)
JUDGMENT
STRASBOURG
26 July
2007
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention.
In the case of Inkovtsova 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 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39946/03) 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 Nadezhda Mikhaylovna Inkovtsova (“the
applicant”), on 23 October 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
1 December 2005 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 1942 and lives in Sevastopil.
- In
1996 the applicant, at the material time an employee of the National
Maritime Institute (the “Institute”;
Морський
гідрофізичний
інститут
Національної
Академії Наук
України),
provided services of a typist and a linen-keeper on board the
Institute's ship, which was chartered by the private company “Sata”
(the “Company”; Мале
приватне підприємство
“Сата”)
for international sea voyages. Pursuant the contract between the
Institute and the Company, the latter was responsible for the payment
of trip allowances (іноземна
валюта
взамін
добових)
to the crew.
- On
14 January 1997 the applicant instituted civil proceedings in the
Leninsky District Court of Sevastopil (the “District Court”;
Ленінський
районний суд
м. Севастополя)
against the Institute, seeking salary and trip allowance arrears in
the amounts of 414.66 Ukrainian hryvnyas (UAH)
and 1,422 U.S. dollars (USD)
respectively. The Company was summoned to participate in the
proceedings on the defendant's side.
- On
11 March 1997 the District Court, having heard the case in the
Company's absence, allowed the applicant's claims in full, having
awarded her the salary arrears from the Institute and the trip
allowance arrears from the Company. This decision became final.
- On
19 September 1997 the Presidium of the Sevastopil City Court (the
“City Court”; Севастопольський
міський суд),
following a “protest” lodged by its President, quashed
the judgment of 11 March 1997 in respect of the trip
allowance award by way of supervisory review procedure and remitted
the case for a fresh consideration in that respect.
Particularly, the Presidium found that the District Court had
insufficiently explored the contractual relationship between the
parties and their payment obligations towards the applicant in the
light of the applicable law.
- On
25 November 1997 the District Court, having held one
hearing for which only the applicant appeared, ordered the Institute,
as her employer, to pay her the full amount claimed. The Company had
not been summoned to participate in the proceedings.
- On
20 January 1998 the City Court quashed this judgment on the
Institute's appeal in cassation and remitted the case for a fresh
consideration. It found that the District Court again had
insufficiently explored the contractual relationship between the
parties and that it should have summoned the Company to participate
in the proceedings. The court further considered that it was not
necessary for it to assume first-instance jurisdiction over the case,
as the matter was not complex.
- On
5 March 1998 the City Court returned the case-file to the
District Court. The District Court summoned the Company to
participate in the proceedings as a co-defendant and between April
and May 1998 scheduled three hearings, two of them being
adjourned on account of a co-defendant's absence.
- On
12 May 1998 the District Court heard the case in the
Company's absence and found the Company liable to pay the applicant
USD 1,422 in trip allowance arrears converted into the national
currency. In its reasoning the court referred to the provisions of
the freight contract and partial payments made by the Company to this
end. The Company appealed, but its appeal was returned as “not
lodged” on account of its failures to comply with procedural
formalities. The judgment became final.
- On
an unspecified date the Company paid the applicant UAH 300
of the award due.
- On
27 October 2000 the City Court quashed the judgment of 12 May 1998
by way of supervisory review procedure, following a “protest”
lodged by its President, and remitted the case for a fresh
consideration to the District Court. In particular, the Presidium
noted that the District Court had not given due regard to the fact
that the applicable law allowed the applicant to claim trip allowance
from either her employer or the ship charterer, irrespective of the
fact that the freight contract vested the payment obligation in the
latter.
- Between
April and August 2001 the court held three hearings, one of them
adjourned on account of the applicant's absence. On 8 August 2001
the District Court, having heard the testimonies of the parties and
the ship captain, dismissed the applicant's claims. In particular, it
found that the documentary evidence necessary to establish the
existence and amount of the debt was not in accordance with
applicable accounting rules and therefore insufficient.
- On
28 September 2001 the District Court found that the applicant's
appeal against the judgment of 8 August 2001 did not comply
with the requirements of procedural law and gave her a time-limit to
rectify its shortcomings. On 11 October 2001 the District Court found
that the applicant had insufficiently followed its instructions and
returned the appeal to the applicant as “not lodged”. On
18 December 2001 the City Court upheld this decision on the
applicant's appeal.
- On
18 March 2002 the applicant lodged an appeal in cassation
against the decisions to return her appeal against the judgment of
8 August 2001 as “not lodged”. On 20 May 2003
the Supreme Court rejected the applicant's request for leave to
appeal in cassation.
THE LAW
I. COMPLAINTS ABOUT THE LENGTH OF PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
unreasonable. She invoked Aritcles 6 § 1 and 13
of the Convention, which provide, insofar as relevant, as follows:
Article 6 § 1
“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. ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court notes that the applicant's complaint about the length of
proceedings 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 considered that the period to be taken into consideration
began on 11 September 1997, when the recognition by Ukraine
of the right of individual petition took effect, and that it thus
lasted five years and eight months until 20 May 2003, when
the final decision was taken in the applicant's case.
- The
Court agrees with the Government as to the starting and the ending
date of the proceedings and notes that during this period the merits
of the applicant's claims were examined by two levels of jurisdiction
and the issue of admissibility of her appeal - by three levels. It
further considers that, in assessing the reasonableness of the time
that elapsed after 11 September 1997, account must be taken
of the state of proceedings at the time.
- The
Court also takes note that the period, during which the proceedings
were pending before the domestic courts, was some three years and
three months, excluding eight days between 11 and
19 September 1997 and twenty-nine months between
12 May 1998 and 27 October 2000, when there
existed final judgments in the case. In this context, the Court notes
that these final judgments, which were given in the applicant's
favour, remained unenforced, but the parties have not furnished any
information on whether the formal enforcement proceedings had been
instituted.
- The Court reiterates that the reasonableness of the
length of the 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
Government pointed out that the judicial authorities scheduled
hearings at reasonable intervals, while the parties were responsible
for failures to attend and for delaying the proceedings by lodging
appeals and requests for supervisory review.
- The
applicant contested these arguments, noting that on two occasions the
case had been remitted for a fresh consideration of the authorities'
own motion after the judgment had become final and that the City
Court repetitively failed to provide sufficient guidelines to the
District Court, leading to further re-considerations. She also noted
that the case was important for her, as it concerned remuneration for
her labour.
- The
Court recalls that the applicant provided services of a typist and a
linen-keeper during international sea voyages. It finds that the trip
allowance was an important supplement to her salary as a source of
subsistence. Consequently, what was at stake for the applicant called
for expeditious decision on her claims (Ruotolo v. Italy,
judgment of 27 February 1992, Series A no. 230-D, p. 39, §
17 and Golovko v. Ukraine, no. 39161/02, §§ 54-55,
1 February 2007).
- The
Court further finds that the case at issue was not particularly
complex. The applicant claimed a certain sum of money and the
judicial authorities decided her claims based on documents and
testimonies, submitted by the parties and one witness during the few
hearings held in the case. Furthermore, on one occasion the appellate
court specifically stated that the case was simple, explaining its
refusal to act in it as a first-instance court (see paragraph 10).
- The Court considers that certain protractions can be
attributed to the applicant. Notably, she did not attend one hearing
and failed to rectify the procedural shortcomings of her appeal
against the judgment of 8 August 2001. However, the Court
cannot share the Government's argument that the applicant delayed the
proceedings by lodging several appeals. Having lodged them timely,
the applicant cannot be blamed for using the avenues available to her
under domestic law in order to protect her interests (see, e.g.
Silin v. Ukraine, no. 23926/02, § 29,
13 July 2006). Given the above considerations, the Court
concludes that the applicant did not contribute in a significant way
to the length of the proceedings.
- The
State authorities, on the other hand, can be held responsible for
several delays, particularly, for three remittals of the case for
reconsideration, the quashing of the final judgments and several
prolonged periods of inactivity.
- In
particular, the City Court refused to adjudicate the merits of the
case and repetitively remitted the case for a fresh consideration
referring to the trial court's failure to establish the contractual
responsibilities of the parties. Although the Court is not in a
position to analyse the quality of the case-law of the domestic
courts, 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 deficiency in the operation
of a judicial system (Wierciszewska v. Poland, no. 41431/98, §
46, 25 November 2003). In this regard the Court notes that
it was only during the fourth examination of the merits, which took
place four and a half years after the applicant had lodged her claims
and presented the debt evidence, that the District Court heard both
co-defendants and the ship captain and found the debt evidence
flawed.
- Moreover,
the judicial activity was not continuous throughout the proceedings.
Two of the three remittals took place by way of the supervisory
review procedure set in motion not by either party, but by the City
Court, after a period of time had elapsed from the final disposition
of the case. The Court recalls that in a number of cases it has found
that the supervisory review procedure by itself constituted an
infringement of the guarantees enshrined in Article 6 § 1
of the Convention (see e.g., Tregubenko v. Ukraine,
no. 61333/00, § 38, 2 November 2004).
However, in context of the proceedings at issue the applicant raised
no specific complaint and, therefore, the matter is only taken into
account as a contributing factor in the context of the length of
proceedings (see, e.g., Volosyuk v. Ukraine,
no. 60712/00, §§ 34-35, 29 June 2006).
- The
Court further notes considerable periods of inactivity in the
proceedings between the quashing of a judgment on 27 October 2000
and scheduling the first hearing for 12 April 2001 (five
and a half months) and between the applicant's lodging of her
cassation appeal on 18 March 2002 and its examination by
the Supreme Court on 20 May 2003 (fourteen months).
- In
sum, having regard to the circumstances of the instant case as a
whole, the Court concludes that there was unreasonable delay in
disposing of the applicant's case. There has accordingly been a
breach of Article 6 § 1.
- The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also invoked Articles 6 § 1, 13 and 14
of the Convention complaining that the proceedings were generally
unfair and that they resulted in an unlawful dismissal of her claims
concerning the trip allowance.
- The Court recalls that the
applicant failed to fulfil procedural requirements established by
applicable law in lodging her appeal against the judgment of
8 August 2001, and thus has not exhausted the
available domestic remedies in respect of the above claims.
Therefore, this part of the application should be rejected in
accordance with Article 35 §§ 1, 3 and 4 for
non-exhaustion of domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicant claimed USD 1,422 (EUR 1,222) in respect of
pecuniary damage and USD 5,000 (EUR 4,297) in respect of
non-pecuniary damage.
-
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, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards her EUR 400 under that head.
B. Costs and expenses
- The
applicant also claimed USD 1,000 (EUR 860) under this head.
She presented the receipts for legal fees and printing services for
the total amount of UAH 507 (EUR 80).
-
The Government noted that the applicant failed to substantiate the
amount claimed.
- 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. In the present case, regard being had to the information in
its possession and the above criteria, the Court awards the applicant
EUR 80.
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 that there is no need to examine the same
complaint under Article 13 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 480
(four hundred eighty euros) in respect of non-pecuniary damage, costs
and expenses, 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 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
