FIFTH SECTION

CASE OF LITVINOVA v. UKRAINE

( Application no. 36223/06 )

JUDGMENT

STRASBOURG

28 October 2010

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

In the case of Litvinova v. Ukraine ,

The European Court of Human Rights (Fifth Section) , sitting as a Committee composed of:

Rait Maruste , President, Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Stephen Phillips , Deputy Section Registrar ,

Having deliberated in private on 5 October 2010 ,

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

PROCEDURE

1 . The case originated in an application (no. 36223/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, M r s Svetlana Ivanovna Litvinova (“the applicant”), on 26 August 2006 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev , of the Ministry of Justice .

3 . On 19 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol N o. 14, the application is assigned to a Committee of three Judges.

THE FACTS

4 . The applicant was born in 1962 and lives in Seb astopol .

5 . On 23 July 1998 s he lodged a claim with the Nakhimovskyy Court a gainst her former em ployer for the recovery of salary arrears .

6 . By a judgment of 21 January 1999 , the court allowed the claim and awarded the applicant certain amounts in salary arrears .

7 . On 3 June 1999 the applicant requested the c ourt to review the above judgment in the light of the newly discovered circu mstances . On 2 July 1999 t he court allowed the request and re opened the p roceedings.

8 . By a judgment of 5 October 1999 , t he court rejected the applicant ’ s claim as lodged out of time . On 2 November 1999 the Se b astopol Court upheld t hat judgment .

9 . On 23 June 2000 , following a protest of the President of the Se b astopol Court , the Presidium of the same court q uashed the decisions of 5 October and 2 November 1999 and remitted the case for fresh consideration .

10 . By a judgment of 18 September 2003 , the Nakhimovskyy Court rejected the applicant ’ s claim for the same reasons as in its judgment of 5 October 1999.

11 . On 25 November 2003 the Sebastopol Court of Appeal upheld the above judgment. The applicant state d that she had not been pr esent at the hearing on appeal because she had not been informed of it .

12 . On 15 March 2006 a panel of three judges of the Supreme Court , sitting in camera , rejected the applicant ’ s appeal in cassation against the lower courts ’ decisions as unsubstantiated.

13 . I n the course of the proceedings f ourteen hearings were adjourned due to the absence of the judge dealing with the case , the defendant ’ s failure to appear , the latter ’ s request s to adjourn the hearings , the absence of an expert and the need to collect further evidence . A forensic examination was ordered in the proceedings and lasted for about eleven months (J une 2001 - May 2002 ) .

THE LAW

I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS

14 . Relying on Article 6 § 1 of the Convention, the applicant complained that the length of the proceedings in her case had not been reasonable. The above provision reads, in so far as relevant, as follows:

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

15 . The Government disagreed and maintained that there had been no violation of the above provision.

16 . The Court notes that the proceedings at issue commenced on 23 July 1998 and were completed on 15 March 2006. Between 21 January and 2 July 1999 and between 2 November 1999 and 23 June 2000 no proceedings were pending (see Pavlyulynets v. Ukraine , no. 70767/01, §§ 41-42, 6 September 2005; Golovko v. Ukraine , no. 39161/02, § 49, 1 February 2007; and Lyutov v. Ukraine , no. 32038/04, § 24, 11 December 2008 ) . Accordingly, t he proceedings lasted in total for about six years and seven months before three judicial instances.

A. Admissibility

17 . 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

18 . 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).

19 . Turning to the facts of the case, the Court notes that the complexity of the case and the applicant ’ s conduct alon e cannot explain the overall duration of the proceedings. On the other hand, it notes that the case was pending before the Nakhimovskyy Court for three years and three months (see paragraphs 9-10 above) and before the Supreme Court for two years and four months (see paragraph 1 2 above). It further notes that the proceedings were adjourned on a number of occasions , mainly due to the absence of the judge and the defendant ’ s failure to appear (see paragraph 1 3 above). In these circumstances, the Court finds that the responsibility for the protracted length of the proceedings rested with the domestic courts .

20 . 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, for instance, Pavlyulynets v. Ukraine , cited above ; § 53 ; Moroz and Others v. Ukraine , no. 36545/02, § 62, 21 December 2006; and Golovko v . Ukraine , cited above , § 65).

21 . 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. It finds 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 violation of Article 6 § 1 of the Convention.

II . OTHER COMPLAINTS

22 . The applicant also complained under Article 6 § 1 of the Convention about the u nfavourable outcome of the proceedings , that the hearing of 25 November 2003 before the Court of Appeal had taken place in her absence and that the hearing before the Supreme Court had not been public. She further complained about a violation of Article 1 of Protocol No. 1 on account of the outcome of the proceedings .

23 . 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.

24 . 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

25 . 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

26 . The applicant claimed various amounts, allegedly due to her a t the domestic level , i n respect of pecuniary damage and 4,000 euros (EUR) for non-pecuniary damage .

27 . The Government invited the Court to reject the above claim s .

28 . The Court finds no causal link between the violation found and the pecuniary damage claimed. On the other hand, it considers that the applicant must have sustained non-pecuniary damage because of the violation found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant 1,200 euros .

B. Costs and expenses

29 . The applicant claimed reimbursement of costs of legal assistance rendered to her in the domestic proceedings and the proceedings before the Court , having provided a copy of a contract with a lawyer envisaging that she would pay him 30% of the sums awarded to her in the domestic proceedings and by the Court . She further claimed 51 . 79 U nited States dollar s [1] f or correspondence expenses , having provided copies of receipts for a sum of 363 . 81 Ukrainian hryvnia s [2] .

30 . As regards the applicant ’ s legal assistance , the Government invited the Court to reject t he claim . As regards the cost of correspondence, the y noted that the claimed amount was not fully supported by relevant documents , but left the matter to the Court ’ s discretion.

31 . According to the Court ’ s case-law, an applicant is entitled to 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 awards the applicant EUR 37 for correspondence expenses .

C. Default interest

32 . 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 applicant ’ s complaint under Article 6 § 1 of the Convention about the length of the proceedings admissible and the remain der 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 the applicant, within three months from the date on which the judgment becomes final in acco rdance with Article 44 § 2 of the Convention, EUR 1,200 ( one thousand two hundred euros) in respect of non-pecuniary damage and EUR 37 (thirty seven euros) for costs and expenses , plus any tax that may be chargeable on the above amounts , 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;

4 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 28 October 2010 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Rait Maruste Deputy Registrar President

[1] . About EUR 42

[2] . About EUR 37