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FIFTH
SECTION
CASE OF
PUSTOVIT v. UKRAINE
(Application
no. 34332/03)
JUDGMENT
STRASBOURG
18
November 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Pustovit v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 19 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34332/03) 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 Oleksandr Ivanovych Pustovit (“the applicant”),
on 2 October 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
16 March 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol no. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in the city of Kyiv, Ukraine.
1. First set of proceedings
- On
23 August 1996 the applicant instituted proceedings against his
former employer, the State Institute for Electric Welding, in the
Leningradsky District Court of Kyiv (“the District Court”)
challenging his dismissal and claiming payment of salary arrears and
compensation for non-pecuniary damage.
- In
the period from August 1996 to 25 February 1998 the applicant's case
was considered by the courts at two levels of jurisdiction.
- The
last hearing in 1998 was held by the District Court on 25 February
1998. Then the case file was lost. On 31 May 2000 the District Court
resumed the proceedings.
- On
9 June 2000 the District Court ordered reconstruction of the case
file.
- On
26 July 2001 the District Court partly allowed the applicant's
claims.
- On
14 March 2002 the Kyiv City Court of Appeal quashed that judgment and
remitted the case to the first-instance court for fresh
consideration.
- On
17 October 2002 the District Court partly allowed the applicant's
claims.
- On
23 January 2003 the Kyiv City Court of Appeal quashed the judgment of
17 October 2002 and found against the applicant.
- On
15 April 2003 the Supreme Court gave a final decision in the
applicant's case by which it dismissed his appeal in cassation.
- The
applicant tried to review his case under extraordinary procedure, but
his efforts were to no avail.
2. Second set of proceedings
- In
March 2005 the applicant instituted proceedings against the President
of the State Institute for Electric Welding in the Svyatoshin
District Court of Kyiv challenging the orders issued by his former
employer under which he had been dismissed. On 31 March 2005 the
court declined to consider his claims on the ground that the same
claim had already been considered by the domestic courts and there
had been a final decision in that respect.
- On
12 May 2005 the Kyiv City Court of Appeal upheld this ruling.
- According
to the applicant's submissions, in June 2005 he lodged an appeal in
cassation against the rulings of 31 March 2005 and 12 May 2005 with
the Supreme Court. The applicant did not inform this Court about the
outcome of the cassation proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the first set of the
proceedings had been 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...”
- The
Government contested that argument.
- 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. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings on that date which had by then
already lasted some twelve months since 23 August 1996. The period in
question ended on 15 April 2003.
It thus lasted about five years and seven 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 (see Ruotolo v. Italy,
27 February 1992, § 17, Series A no. 230 D).
- 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, and Ruotolo, cited above).
- 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 ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Articles 6 § 1 and 13 of the
Convention about unfairness of the proceedings and that his claim
lodged in 2005 had not been considered. He further relied on Article
14 and Article 1 of Protocol No. 1, referring to the same issues.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession, and in so far 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 414,750 Ukrainian hryvnias (UAH, about 34,600
euros) in respect of pecuniary damage and 100,000 euros (EUR) 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, ruling on an equitable basis, it awards the applicant
EUR 800 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 223.21 (about EUR 19) for the postal
expenses and copying documents. He further claimed UAH 493 (about EUR
41) plus UAH 1,162.44 (EUR 97) for translation services.
- The Government submitted that the applicant failed to
show that all expenses were incurred in connection with the
proceedings before this Court. In respect to
the claims of UAH 223.21 and UAH 493, the Government left the
matter to the Court's discretion. They
did not comment on the claim of UAH 1,162.44.
- 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 100 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 first set 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 800 (eight
hundred euros) in respect of non-pecuniary damage as well as EUR 100
(one hundred euros) for costs and expenses, plus any tax that may be
chargeable, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(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 18 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
