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FIFTH
SECTION
CASE OF
DEMENOVA v. UKRAINE
(Application
no. 21922/07)
JUDGMENT
STRASBOURG
15
March 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Demenova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 21922/07) 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, Ms Lyubov Vladimirovna Demenova (“the
applicant”), on 17 May 2007.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- On
30 August 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
- The
applicant was born in 1957 and lives in
Melitopol.
- On
29 July 1999 the applicant instituted proceedings in the Melitopol
Court against the Simferopol State University, her former employer,
seeking recovery of salary arrears and compensation for unused leave.
- On
19 July 2001 the court rejected the applicant’s claims as
unsubstantiated.
- On
21 February 2002 the Zaporizhzhya Regional Court of Appeal quashed
that judgment and remitted the case to the first-instance court for
fresh consideration.
- On
22 March 2005 the first-instance court left the applicant’s
claims without consideration, holding that she had repeatedly failed
to appear at court hearings.
- On
21 June 2005 the court of appeal quashed that decision, finding that
there was no proof that the applicant had been duly informed about
the date and place of the first instance court’s hearing, and
remitted the case to the first instance court for consideration on
the merits.
- On
12 December 2006 the court ordered modification of the record
concerning the applicant’s dismissal and ordered the respondent
to pay her certain sum, having rejected the remainder of her claims.
On 22 March 2007 the Court of Appeal upheld that judgment.
- On
18 September 2007 the Supreme Court rejected the applicant’s
appeal in cassation.
- Out
of sixty hearings scheduled in the applicant’s case ten were
adjourned due to the applicant’s absence or upon her request,
eleven hearings were adjourned due to the absence of the respondent
or his representative or upon their requests, seven were adjourned
due to both parties’ failure to appear. Nine hearings were
adjourned due to the judge’s illness, two were adjourned due to
the judge’s absence, and one was adjourned due to the
liquidation of the court dealing with the applicant’s case.
THE LAW
I. LENGTH OF PROCEEDINGS COMPLAINT
- The
applicant complained that the length 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 submitted that there had been no delays attributable to
the domestic authorities and the delays in the proceedings had been
due to the conduct of the parties who had failed to appear, lodged
appeals and procedural requests. In the Government’s view, the
applicant was not interested in an expeditious examination of her
case.
- The
Court notes that the period to be taken into consideration began in
July 1999 and ended on 18 September 2007. It thus lasted for about
eight years and two months.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
17. 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 observes that the subject matter of the
dispute was of no particular legal or factual complexity. The Court
also observes that the applicant worked as a university professor and
her salary was her source of subsistence. Consequently, it finds that
what was at stake for the applicant called for expeditious decision
on her claims (Golovko v. Ukraine, no. 39161/02, §§
54-55, 1 February 2007). As regards the applicant’s conduct,
the Court notes that she contributed to the length of the proceedings
by failing to attend some of the hearings, requesting adjournments
and lodging appeals and procedural requests. However, the Court is of
the opinion that primarily responsibility for protraction of the
proceedings rests with the domestic courts. In particular, it
observes that the proceedings were prolonged by two remittals for
which the applicant cannot be held responsible. The Court also notes
that the courts were responsible for the adjournment of a number of
hearings (see paragraph 12 above).
- The
Court concludes that, given the importance of the proceedings for the
applicant, the domestic authorities did not act with a due expedition
while examining her claims and the overall duration of the
proceedings exceeded what may be considered “reasonable”.
Accordingly, there has been a breach of Article 6 § 1.
II. OTHER COMPLAINTS
- The
applicant complained under Article 4 of the Convention that her
former employer had violated her labour rights. She also complained
under Article 6 § 1 of the Convention about the outcome and
unfairness of the proceedings. The applicant complained under Article
1 of Protocol No. 1 that her former employer had failed to pay the
sums due to her.
- Having
carefully examined the remainder of the applicant’s complaints
in the light of all the material in its possession, and in so far as
the matters complained of is 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 or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
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 90,000 Ukrainian hryvnias
in respect of pecuniary damage and 2,200 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 1,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims for costs
and expenses; therefore the Court makes no award.
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 applicant’s complaint under
Article 6 § 1 of the Convention 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, EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the national currency 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 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 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark
Villiger
Deputy Registrar President
