FIFTH SECTION

CASE OF MITSEV Y v. UKRAINE

( Application no. 25713/06 )

JUDGMENT

STRASBOURG

16 February 2012

This judgment is final but it may be subject to editorial revision.

In the case of Mitsev y 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 24 January 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 25713/06 ) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, twin brothers, Mr Sergey Serafimovich Mitsev (“the first applicant”) and Mr Anatoliy Serafimovich Mitsev (“the second applicant” ), on 29 A p ril 2006 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska , of the Ministry of Justice .

3 . On 6 September 2010 the President of the Fifth Section decided to give notice of the application to the Government .

THE FACTS

4 . The applicants were born in 1936 and live in Kharkiv .

5 . The applicants used to work at a State enterprise as employees handling a sports stadium. On 10 January 2001 they were dismissed due to downsizing.

6 . O n 8 February 2001 they instituted separate sets of p roceedings before the K yiv skyy District Court of City of Kharkiv against their former employer, seeking reinstatement and compensation .

7 . On 9 February 2001 the court joined the two sets of proceedings. The first applicant further represent ed the second applicant in the joined proceedings .

8 . On 5 June 2001 the first applicant file d a complaint with the court , alleging that on 30 May 2001 the judge had refused to allow him to study the case file and that on 31 May 2001 he had been beaten by the presiding judge on the premises of the court .

9 . On 18 February 2002 the first applicant challenged the presiding judge. The judge declined to withdraw from the case.

10 . On an unspecified day the first applicant lodged a complaint with the Council of Judges against the presiding j udge , alleging that the length of the proceedings was excessive . In a letter of 8 July 2003 , addressed to the acting president of the court , the Council of Judges noted that the case had not been dealt with on the merits since 2001 and invited the latter to take action .

11 . On 27 August 2003 , upon the first applicant ’ s new request, the presiding judge withdrew from the case .

12 . On 27 January 2004 the first applicant challenged the newly appointed presiding judge. The next day the motion was refused.

13 . On 28 January 2004 the court delivered a judgment confirming the legality of the applicants ’ dismissal . The court ordered amendments to be made in one of the applicant s ’ labour book and awarded him a sum in salary arrears . The first applicant appealed.

14 . On 19 October 2004 the Kharkiv Court of Appeal upheld the judgment.

15 . On 4 May 2007 the Appellate Court of Lugansk Region, acting as a court of cassation , rejected the first applicant ’ s appeal in cassation .

16 . The latter unsuccessfully sought extraordinary review of the case .

17 . In the course of the proceeding s the applicant s amended their claims and requested the national court to seek additional documents , including those from third persons, on several occasions . Out of thirty-o ne scheduled hearings, seven were adjourned because of the failure of the respondent ’ s representative to appear, four hearings were postponed as the judge was busy with another case or absent for other professional or private reasons, and four were adjourned due to the applicant s ’ non-appearance. The national court had to renew , at the first applicant ’ s request, the time-limit for lodging appeal which resulted in a delay of about three months.

THE LAW

I. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS

18 . The applicant s 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 ... ”

19 . The Gov ernment contested that argument . According to them, the case was not complex and the parties and the applicants in particular had contributed to the length by lodging additional claims, procedural requests and appeals, sometimes not in accordance with the procedure; and that the delays had been caused mainly because of the parties ’ failure to appear before the courts on a number of occasions. The Government submitted that the examination of the case by the court of cassation had been somewhat delayed due to the high case-load at the Supreme Court . That problem was resolved by legislative measures in February 2007, according to which the backlog of cassation appeals was distributed between courts of appeal.

20 . The Court notes that the period to be taken into consideration began on 8 February 2001 and ended on 4 May 200 7 . It thus lasted about six years and three months for three level s of jurisdiction.

A. Admissibility

21 . 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

22 . 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 ) .

23 . Turning to the facts of the present case, the Court notes that the proceedings concerned a labour dispute which , as the parties agree, was not of any particular complexity .

24 . The Court further observes that at the domestic level the applicant s sought reinstatement in their position s and recovery of pecuniary and non-pecuniary damages . The Court reiterates that employee s who consider that they ha ve been wrongly suspended by their employer have an important personal interest in securing a judicial decision on the lawfulness of that measure promptly and that special diligence is necessary in employment disputes (see, among many other authorities , Krasnoshapka v. Ukraine , no. 23786/02, §§ 46-47, 30 November 2006 ). The Court therefore considers that the proceedings were of undeniable importance for the applicant s , and what was at stake for them, called for an expeditious decision on t he i r claims.

25 . The Court acknowledges that the parties to the dispute and in particular the applicant s somewhat contributed to the length of the proceedings , i n particular, by amending their claims and requesting additional documents. Procedural inconsistencies on their part also resulted in a delay of about three months for which they are responsible. The Court however considers that the applicants ’ behaviour alone cannot justify the overall length of the proceedings.

26 . The Court observes that the major delays were caused by the lengthy consideration s of the case by the courts of first and cassation instances . In particular, it took the first-instance court about three years to decide on the case despite it s non - complexity . The justification for the further delay of three years before the court of cassation, provided by the Government (see paragraph s 1 4 and 1 5 above), may not be accepted in the present case . In particular, by the time the legislative amendments referred to by the Government were introduced , the applicants ’ cassation appeal had been waiting for consideration for over two years.

27 . In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.

28 . 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).

29 . 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

30 . Relying on Articles 6 and 13 of the Convention , the applicant s further complained about the outcome and unfairness of the proceedings .

31 . In the light of the materials in its possession, the Court finds that the applicant ’ s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols under this head .

32 . It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

34 . The applicants claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

35 . The Government co ntested the claim.

36 . The Court, making its assessment on equitable basis, as required by Article 41 of the Convention, awards each applicant EUR 8 0 0 in compensation for non-pecuniary damage.

B. Costs and expenses

37 . The applicants did not claim costs and expenses ; the Court therefore makes no award .

C . Default interest

38 . 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

1. Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds

(a) that the respondent State is to pay each applicant , within three months, EUR 8 0 0 ( eight hundred euros ), plus any tax that may be chargeable , in respect of non-pecuniary damage to be converted into Ukrainian hryvnia 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 poin ts;

4 . Dismisses the remainder of the applicants ’ claim for just satisfaction.

Done in English, and notified in writing on 16 February 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Mark Villiger Deputy Registrar President