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FIFTH
SECTION
CASE OF BYKOV v. UKRAINE
(Application
no. 26675/07)
JUDGMENT
STRASBOURG
16
April 2009
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 Bykov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 24 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26675/07) 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 Mykola Oleksiyovych Bykov (“the
applicant”), on 12 June 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
22 April 2008 the Court
declared the application partly inadmissible and decided to
communicate the complaints under Articles 6 § 1
and 13 of the Convention concerning the length of the proceedings and
the lack of remedies in that respect to the Government. It also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 3). The case was given priority
under Rule 41 of the Rules of the Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. Background information
- The
applicant was born in 1955 and lives in Syrotyne, Ukraine.
- The
applicant worked at “Obyednannya Azot”
(Сєверодонецьке
державне виробниче
підприємство
«Об'єднання
Азот»),
a State chemical company, from 1978. According to the applicant, in
December 2000 – January 2001 he was diagnosed as having chronic
lymphocytic leukaemia (хронічний
лімфолейкоз),
a blood cancer. On 26 June 2001 the diagnosis was reaffirmed by a
medical expert and he was recognised as having a work-related
illness.
- In
June 2001 the applicant was dismissed because of his absence from
work. The applicant alleged that the real reason for his dismissal
was his attempts to establish a casual link between his illness and
work.
- In
July 2001 an internal investigation relating to the applicant's
illness was held. A report of 16 July 2001 revealed a number of
shortcomings on the part of the employer, including a disregard for
minimum work safety conditions, which had led to the applicant's
illness.
- The
applicant is now in the final stages of the disease.
B. Civil proceedings
- In
January 2002 the applicant instituted civil proceedings in the
Severodonetsk Town Court against “Obyednannya Azot”
challenging the reason for his dismissal and seeking compensation for
his work-related illness.
- Shortly
after that, on 31 January 2002, the local department of the State
Social Security Fund (Сєверодонецьке
відділення
виконавчої
дирекції Фонду
соціального
страхування
від нещасних
випадків на
виробництві
і професійних
захворювань)
was joined to the applicant's case as a co-defendant.
- On
2 April 2002 the court split the dismissal claim against “Obyednannya
Azot” and the compensation claim against “Obyednannya
Azot” and the State Social Security Fund (the “Fund”)
into two separate sets of proceedings.
- On 29 May 2002 the
court stayed the compensation proceedings pending the determination
of the dismissal proceedings.
- On 23 December 2004 the Severodonetsk Town Court
discontinued the dismissal proceedings as “Obyednannya Azot”
and the applicant had reached a settlement.
- On 28 March 2005 the court went on to examine the
compensation claim.
- On
20 July 2005 and 15 August 2006 the court ordered forensic
medical and psychiatric examinations.
- According
to the applicant, on 19 January 2007, in order to expedite
examination of his case, he was required to relodge his claim against
the Fund for compensation for his work-related illness in
administrative proceedings (see paragraph 23 et seq.). He also
requested the court to discontinue examination of his claim against
the Fund in civil proceedings. At the same time, he made a fresh
claim against “Obyednannya Azot”, seeking compensation
for unlawful dismissal, and requested the court to continue the civil
proceedings in his claim against “Obyednannya Azot”
seeking compensation for his work-related illness. These requests
were granted on the same day.
- On
20 April 2007 the Severodonetsk Town Court rejected the applicant's
claims against “Obyednannya Azot”.
- On
4 December 2007 the Donetsk Regional Court of Appeal quashed this
judgment and gave a new one. In particular, it found in part for the
applicant and awarded him 1,500 Ukrainian hryvnias (UAH)
in compensation for unlawful dismissal; the claim for compensation
for the applicant's work-related illness was dismissed as
unsubstantiated.
- On
15 February 2008 the Supreme Court of Ukraine rejected the
applicant's request for leave to appeal in cassation.
- On
12 June 2008 the State Bailiffs' Service refused to institute
enforcement proceedings as the writ of enforcement lacked the
necessary information about the debtor.
- On
24 October 2008 it was concluded, following an internal investigation
held by the superior officials of the State Bailiffs' Service, that
the above refusal was lawful.
- The
judgment of 4 December 2007 is still, apparently, not enforced.
C. Administrative proceedings
- On 19 January 2007 the applicant instituted
administrative proceedings in the Severodonetsk Town Court against
the local department of the Fund seeking an amount in respect of
insurance and compensation for non-pecuniary damage as a result of
his work-related illness.
- On
19 June 2007 the court rejected the applicant's claim.
- On
14 September 2007 the Donetsk Regional Court of Appeal upheld
the decision of 19 June 2007.
- The
applicant appealed in cassation and the proceedings are still pending
before the Higher Administrative Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The applicant complained that the length of the
proceedings, including the enforcement stage, was 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...”
He
also complained that there was no effective remedy for his complaint
that the length of the civil proceedings in his case had been
excessive. He relied in that respect on Article 13 of the Convention
which reads as follows:
“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
Government submitted that the lawfulness-of-dismissal limb of the
proceedings had been terminated on 23 December 2004 when the
parties reached the settlement. In their view the applicant's
complaint relating to that aspect of the case should be rejected as
being lodged out of time.
- The
Court observes that in the course of the proceedings before the
domestic court the applicant lodged three different civil claims
which were examined in the following periods:
claim against
“Obyednannya Azot” challenging the reason for dismissal
– from January 2002 to 23 December 2004;
claim against
“Obyednannya Azot” for compensation for work-related
illness – from January 2002 to 15 February 2008;
claim against
“Obyednannya Azot” for compensation for unlawful
dismissal – from 19 January 2007 to 15 February 2008.
As to
the administrative proceedings, the Court observes that the parties
did not make any particular submissions in that regard and therefore
it finds no reason to examine these proceedings separately.
- The
Court agrees with the Government that examination of the
first-mentioned claim ended more than six months before the
application was submitted to the Court. Therefore this part of the
application has been submitted too late and should be rejected in
accordance with Article 35 §§ 1 and 4 of the
Convention.
- It
further observes that the last-mentioned claim was partly allowed by
the domestic courts but the final judgment is still unenforced. The
Court has pointed out in civil length-of-proceedings cases that the
enforcement proceedings are the second stage of the proceedings and
that the right asserted does not actually become effective until
enforcement (see Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 197, ECHR 2006 ...). Accordingly, the period to be
taken into consideration with regard to this claim started in January
2007 and has not yet ended. It has thus lasted
two years and two months for three levels of jurisdiction. In
the Court's view the length of the proceedings complained of did not
exceed the “reasonable time” referred to in Article 6 § 1
of the Convention. Therefore this
part of the application should be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
- As
to the applicant's claim for compensation for his work-related
illness against “Obyednannya Azot”, the Court observes
that its examination lasted six years and one month.
- 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
1. Article 6 § 1 of the Convention
- Referring
to the case of Dulskiy v. Ukraine (no. 61679/00, § 81,
1 June 2006), the Government pleaded that, by using the avenues
available to them under domestic law, the parties had contributed to
the length of the proceedings and that the State could not be held
liable for their behaviour. In particular, the Government submitted
that the stay of proceedings between 29 May 2002 and 28 March 2005
(see paragraphs 12 and 14 above) should not be imputed to them
as the parties had consented to that stay. They further asserted
that, on two or three occasions each, the applicant and the Fund had
failed to appear before the domestic courts. In their view, the
applicant had also contributed to the overall length of proceedings
by modifying his claims, requesting forensic examinations and
appealing against the courts' decisions. In the end, they came to the
conclusion that the judicial authorities had acted with due diligence
and, accordingly, there was no violation of Article 6 § 1 of the
Convention.
- The
applicant disagreed.
- 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, 27
February 1992, § 17, Series A no. 230 D) and in cases where
the applicant is seriously ill (Gheorghe v. Romania, no.
19215/04, § 60, ECHR 2007 ... (extracts)).
- Turning
to the circumstances of the present case, the Court observes that the
subject matter of the proceedings in question was not of particular
complexity. On the other hand, the Court underlines, the applicant's
claims were of particular importance for the applicant.
- In
the present case, the applicant's failure to appear two or three
times before the domestic courts mentioned by the Government are not
so aggravating as to justify more than six years of legal proceedings
in the applicant's case. As to the Government's contention that the
defendant had also caused certain delays to the proceedings in
question, the Court points out that the defendants in the applicant's
case were the State-owned company and the State body whose acts and
omissions were directly attributable to the respondent State (see,
mutatis mutandis, Serdyuk v. Ukraine,
no. 15002/02, § 33, 20 September 2007).
- Even
assuming that the stay of compensation proceedings ordered by the
Severodonetsk Town Court on 29 May 2002 was justified at that
moment in the interests of justice, its continuance until 28 March
2005, that is 34 months, is not reasonable. In this regard the Court
notes that the matter of whether the reason given for dismissing the
applicant was lawful, being the cause of that stay, was pending
before the Severodonetsk Town Court until 23 December 2004 and
did not even progress as far as a first-instance judgment. Such a
long determination of that claim protracted determination of the
compensation claim in question.
- Lastly,
the Court observes, with regard to the Government's contention that
the Severodonetsk Town Court had had to postpone the proceedings on
several occasions in view of the parties' manifold requests, that it
is the role of the domestic courts to manage their proceedings so
that they are expeditious and effective (see,
for example, Scordino v. Italy
(no. 1), cited above, § 183
and Dulskiy v. Ukraine, cited above, § 86).
- 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, and
Efimenko v. Ukraine, no. 55870/00, § 58,
18 July 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.
2. Article 13 of the Convention
- Referring
to their conclusion that there was no violation of Article 6 § 1
of the Convention in the present case, the Government contended that
there was no violation of Article 13 of the Convention either.
- The
applicant disagreed.
- The
Court has frequently found violations of Article 13 of the
Convention, stating that the current Ukrainian legislation does not
provide a remedy for complaints concerning the length of proceedings
(see Efimenko v. Ukraine, cited above, §§ 48-50
and 64 and subsequent case-law). In the present case the Court finds
no reason to depart from that case-law.
There
has accordingly also been a breach of Article 13.
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 100,000 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 award him EUR 800
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for costs and expenses incurred
before the domestic courts and UAH 5,829
for those incurred before the Court. The last-mentioned sum included,
in particular, UAH 5,600
for legal advice expenses, UAH 179
for postal expenses and UAH 50
for the fee he had paid to open the foreign currency bank account
designated for the just satisfaction award. These claims he
substantiated with the copies of relevant vouchers, except the postal
expenses' claim which he had substantiated to the amount of
UAH 138.85
only.
- The
Government left the matter of legal and postal expenses to the
Court's discretion and contested the remainder of claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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
rejects the claim for costs and expenses in the domestic proceedings.
It further observes that normally the applicants are not called on to
be legally represented in the cases like the present one and
therefore their legal expenses are not reimbursed. Although the
applicant in the instant case was not officially represented by
anyone, the Court takes the view that it would be unfair to expect
him to conduct his case himself and without legal advice, given the
state of his health. Therefore, it considers reasonable to award the
sum of EUR 500 for the proceedings before the Court.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of 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 800 (eight
hundred euros) in respect of non-pecuniary damage and EUR 500 (five
hundred euros) in respect of costs and expenses, to be converted into
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable to the
applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 16 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
