ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 23.06.2005<ДЕЛО ЗИМЕНКО (zimenko) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF ZIMENKO v.
RUSSIA
(Application No. 70190/01)
JUDGMENT <*>
(Strasbourg,
23.VI.2005)
--------------------------------
<*> This judgment
will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Zimenko
v. Russia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Mr {B.M. Zupancic} <*>, President,
--------------------------------
<*> Здесь и далее по
тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными
скобками.
Mr J. Hedigan,
Mr L. Caflisch,
Mr {C.
Birsan},
Mrs M. Tsatsa-Nikolovska,
Mr A. Kovler,
Mrs A.
Gyulumyan, judges,
and Mr V. Berger, Section Registrar,
Having
deliberated in private on 2 June 2005,
Delivers the following judgment,
which was adopted on that date:
PROCEDURE
1. The case originated in an
application (No. 70190/01) against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") by a Russian national, Mr Yuriy
Aleksandrovich Zimenko ("the applicant"), on 10 March 2001.
2. The
Russian Government ("the Government") were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of Human
Rights.
3. On 21 June 2004 the Court decided to communicate the
application. Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE
FACTS
4. The applicant was born in 1966 and lives in Ekaterinburg.
5.
On 27 May 1997 the applicant instituted proceedings to challenge his dismissal
from employment. He also claimed payment of his salary in respect of the period
of enforced unemployment and damages.
6. On 13 October 1997 the Kirovskiy
District Court of Ekaterinburg dismissed the applicant"s claim. The applicant
appealed against the judgment.
7. On 23 December 1997 the Sverdlovsk
Regional Court quashed the judgment and remitted the case for a fresh
examination. A new hearing on the merits was fixed for 4 March 1998.
8.
Between 4 March 1998 and 8 September 1998 the hearing was postponed four times
because of the parties" failure to appear.
9. Between 8 September 1998
and 21 December 1998 the hearing was postponed three times because of the
defendant"s failure to appear.
10. Between 21 December 1998 and 17 May
1999 the hearing was postponed three times: once for less than two months
because of the parties" failure to appear and twice for an overall period of
over three months because the judge was absent on sick leave.
11. On 17
May 1999 the hearing was postponed to 23 August 1999 because the judge was
engaged in unrelated proceedings.
12. On 23 August 1999 the hearing was
postponed to 26 August 1999 at the applicant"s request, so that the court could
obtain additional evidence.
13. On 26 August 1999 the Kirovskiy District
Court of Ekaterinburg partially granted the applicant"s claim. The applicant was
not provided with a copy of the judgment. On 24 February 2000 and 10 April 2000
he filed two complaints about the failure to provide him with a copy of the
judgment, to the Kirovskiy District Court of Ekaterinburg and to the Chairman of
the Sverdlovsk Regional Court respectively.
14. On 28 April 2000 the
Chairman of the Kirovskiy District Court of Ekaterinburg sent him a copy of the
judgment. On an unspecified date the applicant appealed against the
judgment.
15. On 20 June 2000 the Sverdlovsk Regional Court quashed the
judgment of 26 August 1999 on appeal and remitted the case for a fresh
examination. A new hearing on the merits was fixed for 18 December 2000.
16. On 18 December 2000 the hearing was postponed to 21 February 2001 at the
applicant"s request.
17. On 21 February 2001 the hearing was postponed to
25 April 2001 because of the parties" failure to appear.
18. Between 25
April 2001 and 23 October 2001 the hearing was postponed twice at the
defendant"s request.
19. On 23 October 2001 the hearing was postponed to
4 January 2002 because the judge was absent on sick leave. A new date for the
hearing was then fixed for 10 January 2002.
20. On 10 January 2002 the
hearing was postponed to 31 January 2002 on account of the parties" failure to
appear. On 31 January 2002 a new hearing was fixed for 5 March 2002. The hearing
was then postponed to 27 March 2002 because the court ordered the applicant to
submit a clarified statement of claim.
21. On 27 March 2002 the Kirovskiy
District Court of Ekaterinburg declared the applicant"s dismissal unlawful,
ordered that he be paid his salary in respect of the period of enforced
unemployment and partially granted the claim for damages. The applicant appealed
against the judgment.
22. On 20 June 2002 the Sverdlovsk Regional Court
reversed the judgment in the part relating to the payment of the applicant"s
salary on the grounds that the trial court had miscalculated it, and remitted
the case for a fresh examination. A new hearing on the merits was fixed for 16
October 2002.
23. Between 16 October 2002 and 30 December 2003 the
hearing was postponed three times for an overall period of ten months because
the judge was engaged in unrelated proceedings and once for a period of over
four months because of the defendant"s failure to appear. It appears that no
hearing took place on 30 December 2003. A new date for the hearing was fixed for
26 March 2004.
24. On 26 March 2004 the hearing was postponed to 22 April
2004 because of the defendant"s failure to appear. The court filed a number of
requests to establish the defendant"s whereabouts.
25. On 22 April 2004
the Kirovskiy District Court of Ekaterinburg terminated the proceedings
concerning the applicant"s claim due to the liquidation of the defendant
company.
THE LAW
I. Alleged violation of Article 6 § 1 of the
Convention
26. The applicant complained that the length of the proceedings
had been incompatible with the "reasonable time" requirement provided 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..."
27. The period to be
taken into consideration began only on 5 May 1998, when the Convention came into
force in respect of Russia. However, in assessing the reasonableness of the time
that elapsed after that date, account must be taken of the state of the
proceedings in May 1998.
The period in question ended on 22 April 2004.
It thus lasted 5 years, 11 months and 17 days. The overall length of the
proceedings, including the period before 5 May 1998, is 6 years, 10 month and 26
days.
A. Admissibility
28. The Government submitted that the applicant
was no longer a victim since the domestic courts had granted his claim.
29. The applicant contested the Government"s statement. He maintained, inter
alia, that the domestic courts had not granted his claim for the payment of his
salary.
30. However, even assuming that the partial granting of the
applicant"s claim may be regarded as a favourable outcome of the proceedings,
the Court notes that such an outcome was not directly connected with the length
of the proceedings and cannot therefore be considered, either directly or by
implication, as a recognition of a violation of Article 6 or as reparation for
the damage allegedly caused to the applicant by the length of the proceedings
(see, mutatis mutandis, Byrn v. Denmark, No. 13156/87, Commission decision of 1
July 1992, Decisions and Reports (DR) 74, p. 5). Accordingly, the Government"s
objection should be dismissed.
31. The Court notes that the application
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
32. The Government
submitted that the delays in the proceedings were caused by the defendant and by
the applicant himself who, despite having been summoned by the courts, had
failed to appear at the hearings on a number of occasions. Furthermore, the
delays were due to the fact that the applicant had altered his claim several
times and had requested the court to obtain additional evidence. The Government
concluded that the State could not be held responsible for the lengthy
consideration of the applicant"s claim.
33. The applicant maintained that
the Government"s allegations as regards his failure to appear at the hearing
despite the summons were unsubstantiated. He claimed that he did not appear at
the hearings only because he had never been notified of them in due time and
that the Government had failed to produce any evidence of such notification. He
further submitted that a hearing was postponed due to his request to obtain
additional evidence only once, on 23 August 1999, for three days. In his view,
taking into account the overall length of the proceedings, such a delay should
not even be taken into consideration. The applicant contended that the length of
the proceedings was "unreasonable".
34. 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).
35. The Court considers that the case was not particularly
difficult to determine. Consequently, it takes the view that an overall period
of over six years could not, in itself, be deemed to satisfy the "reasonable
time" requirement in Article 6 § 1 of the Convention.
36. The Court
notes that the parties disagreed on certain factual matters concerning the
applicant"s notification of the hearings. However, the Court does not find it
necessary to decide on this matter because of the following considerations. The
Court notes that between 5 May 1998 and 22 April 2004 the case was postponed a
number of times at the parties" requests or because of their failure to appear
at the hearing. The aggregated length of such delays is approximately one year
and nine months. The Court further notes that a period of three years and two
months falling within its competence ratione temporis remains to be accounted
for. Within this period the aggregated length of the delays incurred because of
the judge"s sick leave and participation in unrelated proceedings, including the
delay caused by the courts" failure to provide the applicant with a copy of the
first instance judgment in due time, is over two years. The Court also notes
that on 20 June 2002 the Sverdlovsk Regional Court reversed in part the judgment
of the Kirovskiy District Court of 27 March 2002 on appeal and remitted the case
for a fresh examination because the first instance court had miscalculated the
amount to be paid to the applicant. Moreover, the domestic courts continued the
proceedings even after the defendant company had ceased to exist. It follows
that the above delays were caused by repeated omissions by the domestic courts.
Furthermore, the proceedings were eventually terminated because of the
liquidation of the defendant company, and no final judgment on the merits was
delivered in respect of the applicant"s claim for payment of his salary.
37. The Court recalls that employment disputes generally require particular
diligence on the part of the domestic courts (Ruotolo v. Italy, judgment of 27
February 1992, Series A No. 230-D, p. 39, § 17). Having regard to the overall
length of the proceedings and taking into account the period preceding the entry
into force of the Convention (see Ventura v. Italy, No. 7438/76, Commission
decision of 9 March 1978, Decisions and Reports (DR) 12, p. 38), the Court
concludes that the applicant"s case was not examined within a reasonable time.
There has accordingly been a violation of Article 6 § 1 of the
Convention.
II. Application of Article 41 of the Convention
38. 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
39. The applicant claimed 10,000 euros (EUR) in
compensation for non-pecuniary damage.
40. The Government did not express
an opinion on the matter.
41. The Court accepts that the applicant
suffered distress, anxiety and frustration caused by the unreasonable length of
the proceedings. Making its assessment on an equitable basis, the Court awards
the applicant EUR 3,000 in compensation for non-pecuniary damage, plus any tax
that may be chargeable.
B. Costs and expenses
42. The applicant did not
make any claims for the costs and expenses incurred before the domestic courts
and before the Court.
43. Accordingly, the Court makes no award under
this head.
C. Default interest
44. 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 application
admissible;
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 according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros) in compensation for non-pecuniary damage, to be converted into the
national currency of the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(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;
4. Dismisses the remainder of the applicant"s claim for just
satisfaction.
Done in English, and notified in writing on 23 June 2005,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{Bostjan M.
ZUPANCIC}
President
Vincent BERGER
Registrar
