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FIFTH
SECTION
CASE OF RUDYSH v. UKRAINE
(Application
no. 18957/03)
JUDGMENT
STRASBOURG
15
November 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 Rudysh 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 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 18957/03) 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, Mrs Mariya Dmytrivna Rudysh (“the
applicant”), on 27 May 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
15 November 2006 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 1940 and lives in Stryy, the Lviv region. She
is a former director of a municipal preschool educational
establishment (“the Establishment,” Дитяча
дошкільна
установа №1
санаторного
типу).
- In
May 1996 the applicant was dismissed, following the
City Council's
(Стрийська
Рада народних
депутатів
Львівської
області)
decision to liquidate the Establishment.
- In
June 1996 the applicant lodged a civil action against the
Municipal Education Department (Відділ
освіти виконавчого
комітету Стрийської
міської ради),
seeking her reinstatement and compensation for unlawful
dismissal. Subsequently, the applicant also
challenged the legality of the decision to liquidate the
Establishment. The Drogobych Court (Дрогобичський
міський
суд
Львівської
області)
decided to examine the two complaints jointly and held some three
hearings before September 1997.
- No
procedural actions are reported to have taken place between
September 1997 and December 2000.
- Between
December 2000 and October 2001 the court scheduled some seven
hearings, one of them having been adjourned on account of the
applicant's absence, and two – on account of the absence of the
defendant.
- On
12 October 2001 the court dismissed the applicant's claims,
having found that the liquidation of the Establishment and the
applicant's dismissal had been carried out in compliance with
applicable law.
- On
12 November 2001 the applicant appealed.
- On
11 March 2002 the Lviv Regional Court of Appeal
(Апеляційний
суд Львівської
області)
upheld the judgment of 12 October 2001.
- On
6 June 2002 the applicant appealed in cassation.
- On
14 February 2003 the Supreme Court rejected the applicant's
request for leave to appeal in cassation.
THE LAW
I. COMPLAINT ABOUT THE EXCESSIVE LENGTH OF THE PROCEEDINGS
- The
applicant complained about the unreasonable length of the proceedings
in her case. The Government contested her claim.
- The
Court finds that this complaint falls to be examined under Article 6
§ 1 of the Convention which reads 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. ...”.
- The
Court notes that the proceedings at issue were instituted in 1996.
However, the period to be taken into consideration began only on
11 September 1997, when the recognition by Ukraine of the
right of individual petition took effect. Nevertheless, in assessing
the reasonableness of the time that elapsed after that date, account
must be taken of the state of proceedings at the time. The period in
question ended on 14 February 2003. It thus lasted five
years and five months for three levels of jurisdiction.
A. Admissibility
- 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
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 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 notes that the case at issue was somewhat
complex, as in addition to complaining about her allegedly unlawful
dismissal, the applicant also challenged the liquidation of the
preschool establishment. However, the Court finds that the complexity
of the case cannot explain the overall length of the proceedings. It
notes that no procedural actions are reported to have taken place for
a period exceeding three years, between September 1997 and December
2000 (see paragraph 7 above), and this delay has remained unexplained
by the respondent Government.
- 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., Frydlender, cited above; Pavlyulynets v.
Ukraine, no. 70767/01, §§ 49 50,
6 September 2005; and Moroz and Others v. Ukraine,
no. 36545/02, § 59, 21 December 2006).
- 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 further complained under Articles 6 § 1
and 13 of the Convention about the unfair dismissal of her claims and
under Article 1 of Protocol No. 1 about an unlawful
liquidation of the preschool establishment. She also invoked
Article 17 of the Convention to the facts of the present case.
- 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 132,000 hryvnyas (18,860 euros (EUR)) in
compensation for the loss of income and EUR 20,000 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, it considers that the applicant must have sustained
non pecuniary damage on account of the length of her
reinstatement proceedings. Ruling on an equitable basis, it awards
her EUR 800 under that head.
B. Costs and expenses
- The
applicant also claimed 1,000 hryvnyas (EUR 145) for the costs
and expenses incurred before the domestic courts and before the
Court. She presented receipts for EUR 20 in postal expenses
concerning her correspondence with the Court.
- The
Government left the matter to the Court's discretion.
- 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 20 under this head.
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 820 (eight
hundred and twenty 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 15 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
