CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 12 mai 2011

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UKRAINE   (Application no. 11944/05)                       JUDGMENT       STRASBOURG   12 May 2011     This judgment is final but it may be subject to editorial revision. In the case of Lipisvitska v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Boštjan M. Zupančič, President,   Ganna Yudkivska,   Angelika Nußberger, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 12 April 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 11944/05) 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, Ms Larysa Stanislavivna Lipisvitska (“the applicant”), on 26 March 2005. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3.     On 22 February 2010 the Court decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1968 and lives in Kyiv. A.     First set of proceedings 5.     On 20 October 1999 the applicant instituted civil proceedings against the Radyansky Nursery School No. 154 in Kyiv (“the school”), a municipal institution, where she was working as a teacher. The other defendant was the school’s principal. The applicant in particular claimed compensation for belated return of her work-record book ( трудова книжка ). 6.     On 13 April 2000 she lodged another claim seeking the issue of the work-record book’s duplicate containing rectified records. This claim was subsequently joined to the previous one. 7.     On 22 May 2000 the Radyansky District Court of Kyiv (“the Radyansky Court”), later on renamed into the Svyatoshynsky District Court of Kyiv (“the Svyatoshynsky Court”), rejected the applicant’s claim. On 18   October 2000, the Kyiv City Court (“the Court of Appeal”) upheld this judgment. On 2 February 2001 the Radyansky Court rejected the applicant’s request to reverse its judgment in the light of newly discovered facts. This decision was upheld on 11 April 2001 by the Court of Appeal. 8.     According to the Government, during the proceedings leading up to 18   October 2000, the applicant filed five procedural requests, two requests to extend the time-limit for lodging an appeal, and two appeals, which met procedural requirements, but delayed the proceedings for about ten days. 9.     By a final judgment of 2 October 2002, the Supreme Court partly allowed the applicant’s appeal in cassation and changed the first instance judgment. Relying on section 2.10 of the Instruction on keeping work-record books of employees, it ordered the school to issue a duplicate of the rectified work-record book containing no record of the applicant’s dismissal that had been found unlawful in other court proceedings. 10.     On 26 December 2002 the applicant obtained a writ of execution in respect of the judgment of 2 October 2002 and on the next day, she filed it with the State Bailiffs’ Service (“the bailiffs”) which, on 22 January 2003, commenced enforcement of this judgment. In the period to May 2005 the bailiffs twice suspended and re-opened the enforcement proceedings. In May 2005 they requested the Svyatoshynsky Court to interpret the final judgment as it was not sufficiently clear for enforcement purposes. Their request was, however, rejected on 15   June   2005. 11.     On 16 August 2005 the bailiffs ordered the return of the writ of execution to the applicant. On 4 April 2006 the Shevchenkivsky District Court of Kyiv (“the Shevchenkivsky Court”) quashed the order. 12.     On 27 June 2007 the Supreme Court rejected the applicant’s and the bailiffs’ request to interpret its judgment. 13.     In April 2009 the applicant lodged a complaint with the Shevchenkivsky Court against the bailiffs alleging irregularities in the enforcement proceedings. On 16   June 2009 the bailiffs suspended the enforcement proceedings pending the outcome of this complaint. On 20   October 2009 the complaint was sent to the Svyatoshynsky Court which, on 21 September 2010, ordered the school to hand in the issued duplicates. 14.     According to the applicant, as of 15 November 2010 , her work-record book and unduly issued duplicates were with the domestic courts and for this reason she was not able to become employed. B.     Second set of proceedings 15.     In February 2003 the applicant lodged another claim with the Shevchenkivsky Court against the same defendants. She requested in particular to quash her dismissal order. On 20 October 2003 the court rejected her claims. On 29 December 2003 and 27 December 2004 the Court of Appeal and the Supreme Court, respectively, dismissed the applicant’s appeals. II.     RELEVANT DOMESTIC LAW The Labour Code of Ukraine of 10 December 1971, as amended Article 24 provides that when signing an employment contract the employee shall submit her work-record book to the employer. Under Article 47, on the day of the employee dismissal, the employer shall return to her the work-record book that contains proper records. Under Article 48, the work-record book is the main document attesting the employment record. It shall contain information on the holder’s employment, rewards and distinctions. Resolution the Cabinet of Ministers no. 301 of 27 April 1993, as amended Section 2 provides that when obtaining employment, employees shall submit the work-record book that contains proper records. Only those persons who are employed for the first time may be employed without the work-record book. Order of the Ministries of Labour, Justice and Social Security no. 58 of 29   July 1993 Under Section 2.10, if a record on dismissal or transfer to another job has been found to be null and void, a duplicate of the work-record book containing no such a record shall be issued on request of the employee. THE LAW I.     COMPLAINT ABOUT THE LENGTH OF THE FIRST SET OF PROCEEDINGS 16.     The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement and that she had no effective domestic remedy in respect of her length complaint. She relied on Articles 6   §   1 and 13 of the Convention which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.     Admissibility 17.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Article 6 § 1 of the Convention 18.     The Court first recalls that it will take into account only those periods when the case was actually pending before the courts, thus excluding from calculation those periods between the adoption of the final and binding judgments and their revocation in the course of the extraordinary proceedings (see Pavlyulynets v. Ukraine , no. 70767/01, §§   41-42, 6 September 2005). Moreover, the court proceedings and the enforcement proceedings are stages one and two in the total course of proceedings (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 197). The enforcement proceedings should not be thus dissociated from the action and the proceedings are to be examined in their entirety (see Sika v. Slovakia no.   2132/02, §§ 24-27, 13 June 2006). 19.     The Court notes that the relevant period started on 20 October 1999 and ended with a res judicata ruling on 18 October 2000 (see paragraph 8 above). The applicant’s appeal in cassation and her request in the light of newly discovered facts (see paragraphs 7 and 9 above) did not reopen the proceedings for the Convention purposes (see Prystavska v. Ukraine (dec.), no. 21287/02, ECHR 2002 ‑ X). Therefore, the time from 18 October 2000 to 2   October 2002 cannot be taken into account. 20.     Accordingly, the period relevant for the purposes of Article 6 § 1 of the Convention, given that the enforcement proceedings are still pending (see paragraphs 13 above and 24 below), has thus been more than nine years and three months for three levels of jurisdiction. 21.     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, e.g., Frydlender v. France [GC], no.   30979/96, § 43, ECHR 2000-VII). 22.     As to the complexity of the case, the Court finds that the subject matter of the litigation at issue was not particularly complex. 23.     Taking into consideration that without the work-record book or its duplicate, the applicant could not be employed lawfully in Ukraine (see Relevant domestic law, above), the Court further considers that the proceedings before 18 October 2000, when a res judicata ruling was adopted, were of importance for the applicant. As regards the period after 2   October 2002, when the bailiffs have been enforcing the final judgment, the proceedings have been a subject to an expeditious conclusion. 24.     The Government submitted that the proceedings were protracted by the applicant’s failure to respect procedural requirements when challenging the decisions of domestic courts and then by obstructing the enforcement proceedings which were still pending. 25.     The Court accepts that requests to extend the time-limit for lodging appeals as well as additional claim lodged by the applicant somewhat affected the length of proceedings before 18 October 2000. However, it finds that she cannot be blamed for using the avenues available to her under domestic law in order to protect her interests (see, Silin v. Ukraine , no.   23926/02, § 29, 13 July 2006). As regards the period after 2 October 2002, the Court finds no period of inactivity that can be attributed to the applicant. 26.     As to the conduct of the authorities, the Court finds no substantial delay that can be attributed to them before 2 October 2002. Afterwards, however, the competent authorities have failed to take the necessary measures to enforce the final judgment and, therefore, deprived Article 6 § 1 of the Convention of any useful effect. 27.     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 or Sika , cited above). 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. 2.     Article 13 of the Convention 28.     The Government submitted that Article 13 of the Convention was not violated in the present case. 29.     The Court has frequently found violations of Article 13 of the Convention, stating that the current Ukrainian legislation does not provide a remedy for complaints concerning the length of proceedings (see Efimenko v. Ukraine , no. 55870/00, §§ 48-50 and 64, 18 July 2006 and subsequent case-law). In the present case the Court finds no reason to depart from its previous findings. There has accordingly also been a breach of Article 13. II.     COMPLAINT ABOUT THE LENGTH OF THE SECOND SET OF PROCEEDINGS 30.     The Court notes that the proceedings in question lasted from February 2003 to 27 December 2004 that is about one year and eleven months which does not exceed the ”reasonable time” requirement referred to in Article 6 § 1 of the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.     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, costs and expenses 32.     The applicant claimed 36 euros (EUR) in respect of pecuniary and EUR 3,500 in respect of non-pecuniary damage. 33.     The Government contested the non-pecuniary damage claim finding it exorbitant, whereas leaving the pecuniary damage claim, treated as the postal expenses before the Court, to the Court’s discretion. 34.     The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v.   Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI). 35.     The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum , it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article   41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Brumărescu v. Romania (just satisfaction) [GC], no.   28342/95, §   20, ECHR 2001-I). 36.     It is noted that in the present case the obligation of the State to enforce the final judgment in respect of the applicant is not in dispute. Consequently, the Court considers that the most appropriate form of redress would be prompt enforcement of the final decision referred to in the paragraph   9 above. However, the applicant has also suffered distress and frustration on account of the length of the proceedings. Ruling on an equitable basis, the Court awards her EUR 3,100 in respect of non ‑ pecuniary damage. 37.     To conclude, the Court agrees with the Government that the pecuniary damage claim originated in the applicant’s postal expenses before the Court. Regard being had to the documents in its possession and to its case-law, it considers that the sum claimed should be awarded in full. B.     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 complaints concerning the excessive length of the first set of proceedings and the lack of a remedy in that respect admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention in respect of length of the proceedings;   3.     Holds that there has been a violation of Article 13 of the Convention in respect of length of the proceedings;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months, EUR   3,100 (three thousand one hundred euros) in respect of non-pecuniary damage and EUR   36 (thirty six euros) in respect of costs and expenses 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Boštjan M. Zupančič Deputy Registrar   President