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FIFTH
SECTION
CASE OF BALATSKYY v. UKRAINE
(Application
no. 34786/03)
JUDGMENT
STRASBOURG
25
October 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 Balatskyy 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
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34786/03) 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 Volodymyr Vasylyovych Balatskyy (“the
applicant”), on 27 September 2003.
- The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
- On
26 October 2006 the
Court decided to communicate the complaints concerning the lack of
access to a court and 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 1958 and lives in Blidcha, the Kyiv region.
A. Background
- In
September 2000 the applicant, a teacher at the Blidcha secondary
education school (hereinafter “the School”; Блідчанська
загальноосвітня
школа),
learned that his teaching hours, and, accordingly, his remuneration,
were reduced as compared to the previous academic year.
- Seeking
to restore his teaching hours and his remuneration, the applicant
lodged two civil actions against the School with the Ivankivsky
District Court (“the District Court,” Іванківський
районний суд
Київської
області):
civil action no. 2-384/2001 (“the reinstatement action”)
and civil action no. 473/2001 (“the unlawful transfer
action”).
B. The reinstatement action (no. 2-384/2001)
- On
10 January 2001 the applicant lodged an action alleging
that he had been unlawfully dismissed from his previous job and
seeking reinstatement and compensation for lost income.
- On
8 August 2001 the District Court dismissed the applicant's
claims as lodged outside the one-month statutory time-limit for
lodging reinstatement actions. In its judgment, the court referred to
24 November 2000 as the date of lodging (the date of
instituting the unlawful transfer action, see section C below).
- On
7 December 2001 the Kyiv Regional Court of Appeal (“the
Regional Court,” Апеляційний
суд
Київської
області)
upheld this judgment.
- On
29 March 2002 the Supreme Court rejected the applicant's
request for leave to appeal in cassation.
C. The “unlawful transfer” action
(no. 473/2001)
- On
24 November 2000 the applicant lodged an action complaining
that he had been unlawfully transferred to a position with lower
remuneration.
- On
29 November 2000 the District Court gave the applicant a
time-limit to rectify the shortcomings in his statement of claim. In
particular, the court instructed him to clarify his claims and
pertinent factual circumstances. On 12 December 2000 the
applicant submitted an addendum to his statement of claim.
- On
22 December 2000 the District Court returned the
applicant's submissions as “not lodged” on account of his
failure to rectify the shortcomings in his statement of claim. The
applicant appealed in cassation.
- By
letter of 16 January 2001, the District Court returned the
applicant's appeal in cassation, having noted that the decision of
22 December 2000 was final and not subject to appeal.
- The
applicant complained to the Regional Court about the District Court's
blocking his appeal in cassation. On 3 April 2001 the
Deputy President of the Regional Court instructed the District Court
that the decision in question could be appealed against.
- Following
these instructions, the District Court transferred the applicant's
appeal in cassation to the Regional Court. On 29 May 2001
the Regional Court quashed the decision of 22 December 2000
and remitted the case to the District Court for a fresh
consideration. The Regional Court found that the District Court had
failed to indicate the shortcomings, not rectified by the applicant's
addendum of 12 December 2000.
- On
1 August 2001 the District Court refused to initiate
proceedings in respect of the applicant's claims. It stated that the
applicant's pending reinstatement proceedings (action no. 2-384/2001
described in section B above) raised the same issues of fact and law.
The applicant appealed.
- On
21 September 2001 the Regional Court quashed the decision
of 1 August 2001 and remitted the case to the District
Court for a fresh consideration. The Regional Court found that the
applicant had lodged the action at issue prior to initiating his
reinstatement proceedings. Accordingly, this action could not be
rejected on the ground that the reinstatement proceedings were
pending.
- Subsequently,
the District Court took no further actions in the proceedings,
although the applicant submitted numerous complaints about its
inactivity to various authorities. On 29 June 2006 the
President of the District Court explained to the applicant that the
examination of the action at issue would be redundant, as there was a
definitive decision concerning his reinstatement action
(no. 2-384/2001).
- The
proceedings are pending before the District Court.
D. Other events
1. Criminal proceedings against Mrs K.
- The
applicant unsuccessfully attempted to institute criminal proceedings
against Mrs K., the School director, for various allegedly unlawful
acts directed against him.
2. Civil proceedings against the courts
- The
applicant lodged a civil complaint against the District Court for its
failure to adjudicate his claims raised in the unlawful transfer
proceedings. On 4 February 2003 the Regional Court refused
to initiate the proceedings, having found that the domestic law
envisaged no right to bring litigation against a judicial authority
for its procedural conduct in civil proceedings. The applicant
unsuccessfully attempted to challenge this decision and the conduct
of the Regional Court before the Supreme Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE UNLAWFUL TRANSFER PROCEEDINGS
- The
applicant alleged two violations of Article 6 § 1
of the Convention, which provides as follows:
“In
the determination of his civil rights and obligations ..., everyone
is entitled to a fair ... hearing within a reasonable time ... by [a]
... tribunal...”
- Firstly,
he complained that he was deprived of his right of access to a court
because the Ivankivsky District Court had refused to take any
decision in respect of his unlawful transfer action.
- Secondly,
he complained that the length of the aforementioned proceedings,
instituted on 24 November 2000, had exceeded a “reasonable
time”.
A. Admissibility
- The
Government submitted no observations on admissibility of these
complaints.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Access to a court
- The
Government maintained that the failure of the domestic judicial
authorities to take a final decision in the unlawful transfer
proceedings has not compromised the applicant's right of access to a
court. In this regard they noted that the applicant's claims, raised
in the reinstatement proceedings, and the claims, raised in the
proceedings at issue, were identical. Hence, the final resolution of
the applicant's reinstatement claims in the Supreme Court's decision
of 29 March 2002 (see paragraph 10 above) made it redundant
to consider the same claims under the head of an “unlawful
transfer”.
- The
applicant disagreed, maintaining that the two actions were not
identical. Inter alia, different statutory time-limits applied
for lodging them. Even had the two sets of proceedings been
identical, the courts should have adopted a formal final decision in
this regard, which they failed to do.
- The
Court reiterates that it would be inconceivable for Article 6 § 1
to describe in detail procedural guarantees afforded to litigants –
proceedings that are fair, public and expeditious – without
guaranteeing the parties that their civil disputes will be finally
determined (see Multiplex v. Croatia, no. 58112/00,
§ 45, 10 July 2003; Kutić v. Croatia,
no. 48778/99, § 25, ECHR 2002-II and Sukhorubchenko v.
Russia, no. 69315/01, § 43, 10 February 2005).
- Turning
to the facts of the present case, the Court recalls that on
24 November 2000 the applicant lodged an action alleging
that he had been unlawfully transferred to a position with lower
remuneration. By the last decision given in the case on
21 September 2001, the Court of Appeal obliged the District
Court to reconsider the issue of admissibility of his complaint,
having found unpersuasive its previous decision to dismiss it on the
ground that the reinstatement proceedings, raising the same issue,
had been pending. The District Court has since failed to take any
formal decision in the case. Its explanation that the two sets of
proceedings were identical, given to the applicant in an informal
letter of 29 June 2006 (see paragraph 19 above), which
could not be appealed against, does not, in the Court's view, provide
a plausible explanation for its failure to take a formal decision as
instructed by the Court of Appeal. More so, the Court recalls that
the applicant's reinstatement claims were finally dismissed on
account of his failure to comply with the reinstatement-specific
statutory time-limit for instituting them (see paragraphs 8-10
above). Therefore, it is not obvious that the examination of the
admissibility of the applicant's “unlawful transfer”
claim, whether or not it was identical in substance with the
reinstatement claim, would have yielded the same result.
- In
view of the above, the Court considers that the Government has not
advanced a plausible explanation for the failure of the domestic
judicial authorities to take a formal final decision in the
applicant's unlawful transfer proceedings after the case had been
sent for a fresh consideration on 21 September 2001.
- There
has accordingly been a breach of Article 6 § 1 in respect of the
applicant's right of access to a court.
2. Length of proceedings
- The
Government maintained that the overall length of proceedings was one
year and four months for three levels of jurisdiction and not
excessive.
- The
applicant disagreed.
- The
Court recalls that the delay in the proceedings at issue in the
present case has been caused by the failure of the domestic
authorities to take a formal final decision in respect of the
applicant's unlawful transfer claims. The Court has already taken
this aspect into account in its examination of the applicant's right
of access to a court above. Having regard to its findings on that
point, it considers that it is not necessary to examine separately
the issue of the length of the unlawful transfer proceedings.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- In
addition, the applicant complained under Article 6 § 1
of the Convention about the refusal of judicial authorities to
adjudicate his claims against the courts and his inability to
institute criminal proceedings against Mrs K., the School
director.
- 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
§§ 3 and 4 of the Convention.
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 compensation for the loss of income as well as
3,000 hryvnyas (467 euros (EUR)) in non-pecuniary damage for the
reduction of his teaching hours. He further claimed 10,000 hryvnyas
(1,560 EUR) in moral damage for the courts' failure to decide on
his claims relating to the allegedly unlawful transfer.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the damage allegedly sustained on account of the reduction of the
applicant's teaching hours. On the other hand, it awards the
applicant the amount claimed (EUR 1,560) in respect of
non-pecuniary damage sustained on account of the domestic courts'
failure to take a decision concerning his unlawful transfer claims.
B. Costs and expenses
- The
applicant also claimed EUR 80 for the costs and expenses
incurred before the domestic courts and before the Court, including
copying, typing, travel and postal expenses.
- The
Government contested the claim.
- The
Court considers it reasonable to award the applicant the full amount
claimed.
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 complaints concerning the lack of
access to a court and excessive length of the unlawful transfer
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 1,640
(one thousand six hundred and forty euros) in respect of
non-pecuniary damage and 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 25 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
