FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63972/00 by Yevgeniy Stepanovich BIRYUKOV against Russia

The European Court of Human Rights (First Section), sitting on 9 December 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler,

Mr K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 13 September 2000 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Yevgeniy Stepanovich Biryukov, wa s a Russian national who was born in 1938 and live d in Krasnodar . Mr Biryukov died on 13 June 2003 and Mrs N. V. Polyakova, his widow, pursued his application before the Court. The applicant is represented before the Court by N. B. Kolomiets, a lawyer practising in Krasnodar . The respondent Government are represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows .

From 1991 the applicant worked as a worker in a private company. In June 1996 he was dismissed for absence from work.

1 . First set of proceedings

On 28 June 1996 the applicant brought proceedings before the Oktyabrskiy District Court of Krasnodar against his former employer requesting reinstatement, pecuniary and non-pec uniary damages and legal costs. On 29 August 1996 the court accepted the case for consideration.

On 18 September 1996 the court held a hearing at which the applicant was requested to produce additional evidence.

The next hearing scheduled for 30 September 1996 was adjourned on the respondent company ' s request because its lawyer was ill .

On 17 October 1996 the hearing was postponed to 4 November 1996 as the applicant failed to appear.

On 4 November 1996 the hearing was cancelled as the judge was ill .

On 19 November 1996 the respondent asked for additional evidence to be produced by the applicant. The court granted the request and scheduled the hearing for 22 November 1996 .

By judgment of 22 November 1996 the District C ourt found in the applicant ' s favour and ordered the employer to reinstate the applicant and pay him 10,000 Russian Roubles (RUR) by way o f non-pecuniary damages and RUR 5,000 by way of legal costs.

On 28 November 1996 the respondent appealed.

On 20 May 1997 the Krasnodar Regional Court q uashed the judgment and ordered a fresh examination of the case.

On 30 June 1997 the case was assigned to another judge of the Oktyabrskiy District Court.

From that date and until the hearing on the merits on 10 February 1999 the ca se was adjourned fourteen times. Eight of the adjournments were either requested or caused by the respondent, its representative being ill, on vacation or unavailable for other reasons. One of the adjournments which lasted one month was requested by the applicant whereas four of the adjournments related to the District Court itself. None of the adjournments , which occurred after 5 May 1998 , exceeded a period of two and a half months.

A hearing on the merits took place on 10 February 1999 . By judgment of the same day the district court dismissed the applicant ' s claim for reinstatement as the employer had by that time been liquidated and ordered the employer ' s owner to pay to the applicant RUR 18,825.33 of wages lost due to the unlawful dismissal and RUR 1,000 by way of non ‑ pecuniary damages.

On 16 February 1999 the respondent , i.e. the owner of the now liquidated company, appealed and on 30 March 1999 it lodged an additional appeal. On 8 April 1999 the applicant submitted his observations.

On 10 June 1999 the Krasnodar Regional Court disallowed the appeal and upheld the judgment.

2 . Quashing of the judgment on supervisory review

On 9 July 1999 , following the respondent ' s request for supervisory review of the judgment, a deputy regional prosecutor ordered a stay of the execution of the judgment pending the supervisory review proceedings.

On 29 July 1999 the Chairman of the Krasnodar Regional Court lodged an application for supervisory review of the judgment and the relevant appeal decision.

On 12 August 1999 the Presidium of the Krasnodar Regional Court quashed the judgment of 10 February 1999 and the decision of 10 June 1999 in so far as they related to the compensation for wages lost due to the unlawful dismissal. The Presidium considered that the court had incorrectly determined the period for the calculation of the lost wages and that it had not indicated grounds for ordering the payment from the owner of the now liquidated company. A new examination of the case was ordered.

3 . Second set of proceedings

Following the quashing of the judgment on supervisory review the case commenced anew before the Oktyabrskiy District Court.

From September 1999 until September 2000 the case was adjourned nine times. Seven of the adjournments were caused by the respondent whose representative was ill, on vacation or unavailable for other reasons. Two of the adjournments , which lasted a total of approximately four and a half months, were caused by the applicant.

By judgment of 14 September 2000 the D istrict C ourt found in the applicant ' s favour ordering the respondent company ' s owner to pay to the applicant RUR 2,750 of lost wages and RUR 500 by way of non-pecuniary damages.

Both parties appealed. On 2 November 2000 the R egional C ourt quashed the judgment on appeal and remitted the case to the District Court for a fresh examination.

The case was assigned to another judge of the Oktyabrskiy District Court.

The hearing scheduled for 24 November 2000 was adjourned to 6 December 2000 as the applicant did not appear. On 6 December 2000 the applicant did not appear either and the court decided to refuse to entertain his claim and closed the case .

On 1 February 2001 the applicant lodged a request with the District C ourt for the continuation of the proceedings in the case as he had not been informed of the hearings which he had not attended.

On 16 February 2001 the court granted the applicant ' s request and scheduled the hearing for 22 February 2001 .

On 22 February, 15 March, 11 April and 3 May 2001 the hearings were postponed because of the failure of the respondent ' s representative to appear.

On 16 and 30 May 2001 an adjournment was granted in view of the illness of the respondent ' s representative. The court fixed 26 June 2001 as a new date for the hearing.

On 26 June 2001 the hearing was adjourned to 9 July 2001 on the applicant ' s request.

On 9 July 2001 the court held a hearing at which both parties were heard. The hearing was to be continued the next day but the applicant did not appear.

On 26 July 2001 the hearing was adjourned due to the failure of the lawyers of both sides to attend.

On 13 August 2001 the proceedings in the case were adjourned because the respondent ' s representative was leaving for vacation.

On 30 October 2001 the hearing was postponed to 12 November 2001 as the applicant requested the court ' s assistance in gathering additional evidence.

On 12 November 2001 the D istrict C ourt held a hearing on the merits where the applicant was present . He was awarded RUR 20,072.95 of lost wages and RUR 1,500 by way of legal costs. The applicant ' s claim for non ‑ pecuniary damages was rejected because it was granted earlier by the judgment of 10 February 1999 which in this part remained in force .

On 20 December 2001 the Krasnodar Regional Court , on appeal, reduced the amount recovered as lost wages to RUR 4,527 and upheld the judgment for the remainder. The applicant ' s representative was present at the appeal hearing.

COMPLAINTS

1. Invoking Article 6 of the Convention, the applicant complained about the outcome of the case as determined by the Krasnodar Regional Court by the decision of 20 December 2001 .

2. The applicant complain ed further , under Article 6 of the Convention , that the length of the proceedings was not reasonable .

3. The applicant finally complain ed , under Article 6 of the Convention , about the stay of execution of the final judgment of 10 February 1999 pending supervisory review proceedings and the subsequent quashing of that judgment. The applicant also complained , under Article 1 of Protocol No. 1 to the Convention , that the quashing of the judgment by way of supervisory review had deprived him of his possessions, i.e. the funds awarded by that judgment.

THE LAW

1. The applicant complained about the findings of the domestic courts. He relied on Article 6 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court recalls that it is not its function to deal with errors of fact or of law allegedly committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 45). The Court finds that there is nothing to indicate that the national courts ' evaluation of the facts and evidence presented in the applicant ' s case was contrary to Article 6 of the Convention. The applicant was fully able to state his case and challenge the evidence; there were public hearings at two instances and the courts ' decisions do not appear arbitrary or unreasonable. Having regard to the facts, as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.

It follows that this complaint is manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4.

2. The applicant further complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 of the Convention, which , in so far as relevant, reads as follows:

“ 1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ... . ”

The Government submitted that in the course of the proceedings there were no long periods of inactivity on the part of the courts of the first and the second instances. The repeated adjournments were caused by motions entered by the respondent and the non-attendance of the applicant. The Government concluded that the length of the proceedings complied with the requirements of Article 6 § 1 of the Convention.

The applicant contended that the State was responsible for the various delays in the proceedings which made their overall length incompatible with the Article 6 guarantees.

A. Period to be considered

The proceedings commenced on 28 June 1996 , when the applicant lodged his civil action with the Oktyabrskiy District Court of Krasnodar. However, the period which falls within the Court ' s competence ratione temporis began only on 5 May 1998 , when the recognition by Russia of the right of individual petition took effect. The proceedings ended on 20 December 2001 with the decision of the Krasnodar Regional Court .

The proceedings lasted five years, five months and twenty two days of which the period between 10 June and 12 August 1999 during which no proceedings were pending is excluded (see Markin v. Russia (dec.), no. 59502/00, 16 September 2004 ) . T hree years, seven months and fifteen days of the said period falls to be examined by the Court.

The Court notes that in assessing the reasonableness of the length of the pr oceedings account must be taken of the state of proceedings on the date of entry of the Convention into force in respect of the Contracting State (see, for example, Billi v. Italy , judgment of 26 February 1993, Series A no. 257-G, § 16). In this respect the Court notes that by 5 May 1998 the proceedings had lasted for a year, ten months and seven days.

B. Reasonablene ss of the length of proceedings

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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of 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 considers that the present case did not involve legal or factual complexity.

The Court notes further that the proceedings concerned the applicant ' s reinstatement in employment and the matters at stake were undoubtedly important for him. The Court recalls that employment disputes must be dealt with particular expedition (see Obermeier v. Austria , judgment of 28 June 1990, Series A no. 179, pp. 23-24, § 72).

As regards t he applicant ' s conduct, the Court finds that his non ‑ attendance at certain hearings and requests for adjournments caused only delay s of minor importance to the overall length of the proceedings.

As regards the conduct of the judicial authorities, t he overall period attributable to them made up about three and a half years . D uring that time the case was adjourned on a number of occasions , mainly on the respondent ' s requests , for periods lasting from one month in December 1998 to five months between 5 May and 3 November 1998 . T he proceedings were delayed for three months between 24 November 2000 and 22 February 2001 because of the court ' s failure to notify the applicant of the hearings, which entailed his non-attendance and the subsequent decision, quashed later, to discontinue the proceedings. Lastly, the Court notes that the case was remitted twice to the first instance, during which time the judicial authorities remained responsible for ensuring that the proceedings as a whole were not excessively prolonged.

T he Court observes however that the first instance court dealt with the case each time within the limit of one year , which does not appear to be excessive . The time taken for the appeal court ' s consideration of the case varied from one and a half month to four months.

The Court recalls that a delay at some stage may be accepted if the overall duration of the proceedings cannot be deemed excessive (see, for example, Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, p. 16, § 37). The Court considers that in the present case, although some of the above delays could possibly have been avoided, they are not such as to warrant the conclusion of a violation , given the total duration of the proceedings of three and a half years.

Based on the foregoing considerations, the Court concludes that the length of the civil proceedings in the present case does not disclose any appearance of a violation of the “reasonable time” require ment under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

3 . The applicant complained finally under the same Convention provision about the quashing on supervisory review of the final judgment of 10 February 1999 and the preceding stay of its execution pending the supervisory review proceedings. He also complained that the quashing of the judgment breached his rights under Article 1 of Pr otocol No. 1 to the Convention which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court notes that the se complaints were lodged with the Court on 13 September 2000 , more than six months after the decision of 12 August 1999 , whereby the Presidium of the Krasnodar Regional Court set aside the judgment of 10 February 1999 as upheld on 10 June 1999 , and the preceding stay of execution of the said judgment. The complaints must therefore be rejected as lodged out of time in accordance with Article 35 §§ 1 and 4 of the Convention (see Sardin v. Russia (dec.), no. 69582/01, 12 February 2004 ).

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President