CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 novembre 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s7ED160F0 { text-decoration:none } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s9FE6B50C { width:200.28pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s67F06EFC { font-family:Arial; font-size:10pt; color:#000000 } .s4B8D41EE { font-family:Arial; font-size:10pt } FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 18291/04 by Oleg Anatolyevich BALAGUTA against Ukraine The European Court of Human Rights (Fifth Section), sitting on 4   November 2008 as a Chamber composed of:   Rait Maruste, President,   Karel Jungwiert,   Volodymyr Butkevych,   Renate Jaeger,   Isabelle Berro-Lefèvre,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva, judges, and Stephen Phillips, Deputy Section Registrar, Having regard to the above application lodged on 5 May 2004, 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, Mr Oleg Anatolyevich Balaguta, is a Ukrainian national who was born in 1965 and lives in Feodosiya. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 July 1997 the applicant lodged a claim with the Feodosiya Town Court against his former employer seeking recovery of salary arrears for additional work allegedly performed by him in December 1996 and January   1997, recovery of salary arrears for the period from 1 February 1997 to 22   May 1997, compensation for the delays in payment of salary and compensation for non-pecuniary damage resulting from such delays. On 7 July 1997 the Feodosiya Court returned the applicant’s claim without consideration on the ground that by the decision of 2 June 1997 the Labour Dispute Commission had already ordered the respondent to pay the applicant the salary arrears sought. On 6 February 1998 the Presidium of the Crimea Supreme Court, following the protest introduced by its President upon the applicant’s request, quashed the ruling of 7 July 1997 and remitted the case for a fresh consideration to the first instance court. On 13 May 1998 the Feodosiya Court allowed the applicant’s claim in part. On 22 July 1998 the Crimea Supreme Court quashed that decision upon the applicant’s appeal and remitted the case for a fresh consideration on the ground that the first instance court had failed to examine all the circumstances of the case. On 17 August 1999 the Feodosiya Court again allowed the applicant’s claim in part. On 30 August 1999 the applicant appealed in cassation. On 12 November 1999 he modified his appeal. On 16 February 2000 the Crimea Supreme Court held that the applicant’s appeal in cassation had been lodged out of time and transferred it to the first instance court for a decision as to its admissibility. The court also found that the text of the judgment did not contain a description of all the applicant’s claims. On 13 July 2000 the Feodosiya Court granted the applicant leave to appeal in cassation finding that the appeal had been lodged out of time due to the applicant’s illness and rectified the shortcomings in the text of its judgment of 17 August 1999. On 6 December 2000 the Crimea Supreme Court quashed that judgment finding that the court of first instance had misapplied law and remitted the case for a fresh consideration to the same court. On 12 July 2001 the applicant amended his claims. On 13 September 2001 the Feodosiya Court awarded the applicant 1,023.02 Ukrainian hryvnas (UAH) [1] in salary arrears for the period from 1   February to 22 May 1997 and rejected the remainder of his claims as not being based on law. On 27 February 2002 the Crimea Court of Appeal rejected the applicant’s appeal and upheld that judgment. On 8 November 2002 the applicant was informed about the ruling of the court of appeal. Following the applicant’s request, on 4 December 2002 the Feodosiya Court renewed the time-limit for lodging his appeal in cassation. On 21 October 2003 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation as unsubstantiated. On 25 November 2003 the applicant received a copy of that decision. Out of seventeen hearings held by the courts, three were adjourned either at the request of the applicant or due to his failure to appear, two were adjourned due to both parties’ failure to appear, six were adjourned due to the respondent’s failure to appear and two were adjourned due to absence of the judge. COMPLAINTS The applicant complained under Article 6 § 1 of the Convention about the unfairness, outcome and length of the proceedings. He also complained of a violation of Article 4 § 2 of the Convention on account of the failure of his former employer to pay him salary. THE LAW 1.     The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. Article 6 § 1 of the Convention provides as relevant 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 maintained that the period to be taken into consideration ended on 27 February 2002 when the Crimea Court of Appeal partially allowed the applicant’s claims. The Government stated that there had been no significant periods of inactivity attributable to the State. In their view, the applicant’s case was of some complexity and the parties were responsible for the delays in the proceedings, in particular, according to the Government, the applicant requested adjournments of the hearings on several occasions. The applicant disagreed. The Court observes that the proceedings lasted from 1   July   1997 to 25   November 2003, excluding the intervals between 7   July   1997 and 11   September 1997, when the Convention entered into force in respect of Ukraine, and from 11 September 1997 to 6   February   1998, when no proceedings were pending. The period falling within the Court’s competence ratione temporis lasted about five years and eight months during which the case was considered at three instances. The Court recalls that the “reasonable” length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent 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). Turning to the circumstances of the present case, the Court notes that the subject matter of the dispute was not complex. It mainly concerned the applicant’s salary for about three months and his entitlement to some other payments. The Court concludes that although the proceedings at issue were of certain importance for the applicant, what was at stake for him did not call for a particularly expeditious decision on his claims. The Court observes that out of seventeen court hearings, three were adjourned either at the request of the applicant or due to his failure to appear. The applicant also failed to appear before the court for two other hearings. The case was reconsidered following the applicant’s appeals. In this context the Court recalls that, although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no.   41413/98, 5 April 2001). However, since remittal is usually ordered because of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system ( Wierciszewska v. Poland , no.   41431/98, § 46, 25 November 2003). The Court notes that, in the period under consideration, the higher courts on two occasions remitted the applicant’s case to lower courts which indeed prolonged the proceedings unnecessarily. Having regard to all the circumstances of the case and in particular to the responsibility of the applicant for part of the delays, the Court finds that the overall duration of the proceedings in the period under consideration did not in itself exceed what may be considered “reasonable”. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 2.     The applicant also complained under Article 6 § 1 of the Convention of an allegedly unfair hearing and the outcome of the proceedings in his case. The applicant further complained under Article 4 § 2 about the failure of his former employer to pay him salary. The Court finds that, in the light of all the materials in its possession, and insofar as the matters complained of are within its competence, that these complaints 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 must be also rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Stephen Phillips   Rait Maruste Deputy Registrar   President [1] .     About 211.83 euros (EUR).