CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 novembre 2016

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UKRAINE   (Application no. 9636/07)                   JUDGMENT     STRASBOURG   24 November 2016               This judgment is final but it may be subject to editorial revision.   In the case of Nosova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Khanlar Hajiyev, President,   Faris Vehabović,   Carlo Ranzoni, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 3 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 9636/07) 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 national of Ukraine and of the Russian Federation, Ms Olga Borisovna Nosova (“the applicant”), on 4 December 1999. 2.     The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice. 3.     On 7 May 2007 the application was communicated to the Government. 4.     The applicant and the Government each filed written observations on the admissibility and merits. In addition, comments were received from the Government of the Russian Federation, which exercised their right to intervene in the proceedings as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1960 and lives in Sevastopol. 6.     The applicant worked at the joint-stock company Sevastopolskyy Morskyy Zavod (“the SMZ”). On 30   November 1996 she retired and started working for its subsidiary company, Sevmorremo. 7.     She brought several claims against her former employer, seeking salary arrears and compensation for late payment of salary. A.     Proceedings before the labour disputes commission 8.     In June 1997 the applicant lodged a claim with the labour disputes commission of the SMZ, seeking salary arrears. On 6 June 1997 the commission awarded her 462.36 hryvnias (UAH) in salary arrears (approximately 100 euros (EUR) at the material time). On 17 June 1997 it issued a certificate in respect of that decision. 9.     On 22 July 1997 the Nakhimovskyy District Court of Sevastopol (“the Nakhimovskyy Court”) instituted enforcement proceedings. The applicant received the full amount of the award in two instalments, on 6 February and 28   November 2001 respectively. B.     First set of court proceedings 10.     On 19 May 1998 the applicant brought a claim in the Nakhimovskyy Court, seeking compensation for the SMZ’s failure to pay her salary arrears in a timely manner. 11.     On 25 August 1998 the court awarded her UAH 1,709.74 (about EUR 369 at the material time) in compensation for the period 1   December   1996 to 25   July   1998. The judgment was not appealed against and became final. 12.     On 4 September 1998 the Nakhimovskyy District Bailiffs’ Service instituted enforcement proceedings in respect of the judgment, but it remained unenforced. 13.     On 9 April 2001 the President of the Sevastopol Court lodged with the Presidium of the same court a request for supervisory review ( protest ) of the Nakhimovskyy Court’s judgment of 25 August 1998. On 27 April 2001 the Presidium allowed the request, quashed the judgment and remitted the case for fresh consideration. It held that the first-instance court had failed to provide sufficient reasons for its judgment of 25 August 1998. 14.     On an unspecified date the enforcement proceedings in respect of that judgment were discontinued. C.     Second set of court proceedings 15.     In the meantime, on 17 March 1999 the applicant lodged a new claim with the Nakhimovskyy Court, seeking compensation for the SMZ’s failure to pay her salary arrears during the period 26 August 1998 to 17   March 1999. 16.     On 19 May 1999 the court rejected the applicant’s claim. It held that that claim had already been determined in its judgment of 25 August 1998. 17.     The applicant appealed in cassation, contending that her claim concerned new circumstances, in particular the new period of delay in payment of her salary arrears. On 6 June 1999 the Sevastopol Court quashed the decision of 19 May 1999 and adopted a new decision discontinuing the proceedings, relying on the same grounds as the first-instance court. D.     Third set of court proceedings 18.     On 1 March 2001 the applicant lodged another claim with the Nakhimovskyy Court. She sought compensation for the SMZ’s failure to pay her salary arrears from 1 December 1996 to 6 February 2001. 19.     On 14   June   2001 the applicant requested the Nakhimovskyy Court to examine her claims of 19 May 1998 and 1 March 2001 jointly. On 23 July 2001 the court allowed her request. 20.     On 30 August 2001 the court, following a request from the applicant, ordered an expert examination in the case and suspended the proceedings. 21.     On 25 March 2002 the applicant amended her claim and requested compensation for the non-payment of her salary arrears during the period 1   December 1997 to 28 November 2001. 22.     On 4 July 2002 the expert’s report was submitted to the court and the proceedings were resumed. 23.     On 28 January 2004 the court found against the applicant. It held that she had failed to lodge her claims within the three-month limitation period provided by Article 233 of the Labour Code, which had started to run on 6 June 1997, the day the labour disputes commission had awarded her salary arrears. 24.     On 20 May 2004 the Sevastopol Town Court of Appeal upheld the judgment of 28 January 2004. On 28 November 2006 a panel of three judges of the Supreme Court rejected the applicant’s request for leave to appeal in cassation. II.     RELEVANT DOMESTIC LAW AND PRACTICE 25.     The relevant domestic law and practice, as in force at the material time, can be found in Menshakova v. Ukraine (no. 377/02, §§ 31-33, 8 April 2010). 26.     On 22 February 2012 the Constitutional Court gave an official interpretation of Article 233 of the Labour Code of 1971, finding that, in so far as claims for compensation for delays in payment of the amounts envisaged by Article 116 of the Code were concerned, the three-month time-limit provided for in Article 233 started to run on the date the employee concerned became or should have become aware of the actual payment of those amounts. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6   §   1 OF THE CONVENTION 27.     In her initial submissions of 4 December 1999 the applicant complained under Article 6 § 1 of the Convention that the second set of court proceedings against the SMZ had been unfair and had had an unfavourable outcome. She alleged that the domestic courts had unlawfully refused to examine her claim of 17 March 1999. 28.     In her later submissions of 14 September 2001, she complained under the same provision of the Convention about the quashing of the judgment of 25 August 1998. 29.     On 21 January 2007 the applicant complained that the proceedings on her compensation claims of 19 May 1998 and 1 March 2001 had been unreasonably lengthy, unfair and had had an unfavourable outcome. In particular, she alleged that the domestic courts had unlawfully refused to examine the merits of those claims. She also alleged that the hearing of 28   November 2006 before the Supreme Court had not been public, as required by Article 6 § 1 of the Convention. 30.     She also complained under the same provision of the Convention about the length of the non-enforcement of the judgment of 25 August 1998. 31.     Article 6 § 1 of the Convention reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...” A.     Admissibility 32.     The Government contended that the applicant had not complained of a violation of her right of access to a court, within the meaning of Article   6 § 1 of the Convention. 33.     The Court notes that the applicant’s submissions under Article 6 § 1 of the Convention of 4 December 1999 and 21 January 2007 (see   paragraphs 27 and 29 above) were directed principally against the refusal of the domestic courts to consider the merits of her claims for compensation for late payment of her salary. That grievance essentially concerns the “right to a court” which, according to the Court’s case-law, includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court (see, for instance, Kutić v.   Croatia , no. 48778/99, § 25, ECHR 2002 II). Accordingly, the Government’s objection in that regard must be rejected. 34.     The Court also notes that the applicant’s complaints under Article   6   § 1 of the Convention – that the domestic courts refused to consider the merits of her claims for compensation for late payment of salary, quashed the judgment of 25 August 1998 and violated her right to a hearing within a reasonable time in the proceedings concerning her compensation claims of 19 May 1998 and 1   March 2001 – raise issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no grounds for declaring them inadmissible. They must therefore be declared admissible. 35.     The Court has examined the remainder of the applicant’s complaints under Article   6   §   1 of the Convention and considers that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. B.     Merits 1.     Length of the proceedings concerning the applicant’s claims of 19   May 1998 and 1 March 2001 36.     The applicant complained that the proceedings concerning her claims of 19 May 1998 and 1 March 2001 for compensation for late payment of salary had been unreasonably lengthy. 37.     The Government argued that the length of the proceedings had not been unreasonable. They stated that there had been no significant periods of inactivity attributable to the State. On the contrary, there had been some periods of delay which had been attributable to the parties to the proceedings and their conduct had complicated the proceedings somewhat. In particular, the courts had had to reconsider the case on several occasions following the applicant’s appeals. Those appeals had frequently had to be rectified by the applicant, which had also contributed to the length of the proceedings. The courts had had to adjourn several hearings because of the parties’ failure to appear and to allow them to familiarise themselves with the case file. Further adjournments had been necessary to obtain additional information requested by the parties. The Government also pointed to the fact that the applicant had amended her claims on three occasions. They did not specify the dates of the hearings or the duration of the delays in the proceedings referred to in their observations. 38.     The Government of the Russian Federation stated that there was a violation of Article 6 § 1 of the Convention on account of the length of the impugned proceedings. 39.     The Court observes that on 19 May 1998 and 1 March 2001 the applicant lodged two separate claims against the SMZ with the domestic courts, seeking compensation for late payment of her salary. On 25 August 1998 the Nakhimovskyy Court delivered a judgment in respect of the first claim. It was not challenged before the higher courts and became final. On 27 April 2001 the Presidium of the Sevastopol Court quashed that judgment and remitted the case for fresh consideration. The first-instance court joined the applicant’s first claim to the proceedings concerning her second claim, which had already been pending since 1 March 2001. 40.     The claims were considered jointly and on 28 November 2006 the Supreme Court adopted a final decision in the applicant’s case, rejecting both claims as out of time. The proceedings – which started on 19 May 1998 and ended on 28 November 2006 – therefore lasted five years and ten months at three levels of jurisdiction, excluding the period between 25   August 1998 and 1 March 2001 when no court proceedings were pending (see Yemanakova v. Russia , no. 60408/00, § 41, 23 September 2004, and Efimenko v. Ukraine , no. 55870/00, § 51, 18 July 2006). However, in the present analysis, the Court will take into account the fact that for the most part of that latter period there were enforcement proceedings pending as regards the judgment of 25 August 1998, which was eventually quashed (see paragraphs 11-13 above). 41.     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). 42.     The Court notes that the dispute at hand concerned compensation for late payment of salary. It was therefore an ordinary civil case, the adjudication of which did not require any complicated procedures to be followed. Moreover, the proceedings ended in a decision rejecting the applicant’s claims as time-barred. 43.     The Court further notes that, although the applicant might have caused some delays in the proceedings, principally by making changes to her claims, lodging appeals and being absent from several hearings, the domestic courts were responsible for the substantial delay of about two and a half years between May 2004 and November 2006, during which no hearings took place (see paragraph 24 above). Moreover, no acceptable justification was provided as regards the eighteen-month period which it took the Nakhimovskyy Court to determine the purely legal issue before it – the application of the guarantee of compensation for late payment of salary under the Labour Code of 1971 – which did not require hearing witnesses or examining at length the parties’ oral submissions (see paragraph 22-23 above). 44.     The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the issue in the present case (see   Frydlender , cited above; Rudysh v. Ukraine , no. 18957/03, §§ 16 and 19-22, 15 November 2007; and Kostychev v. Ukraine , no. 27820/04, §§   13 and 16-18, 8 April 2010). 45.     Having examined all the material submitted, the Court considers that the Government have not put forward any facts or arguments 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 proceedings were excessively lengthy and failed to meet the “reasonable time” requirement. There has, accordingly, been a breach of Article 6 § 1 of the Convention in that regard. 2.     Quashing of the judgment of 25 August 1998 46.     The applicant also complained that the judgment of 25 August 1998 had been quashed by means of the supervisory review procedure, which had been contrary to the principle of legal certainty. 47.     The Government contended that the procedure for the supervisory review of final judicial decisions had been set out in the procedural regulations in force at the material time, had contained guarantees of a fair trial, and had been aimed at correcting mistakes made by the lower courts. Moreover, individuals taking part in civil proceedings had frequently had recourse to that procedure. Accordingly, the Government considered that the procedure had not contradicted the rule of law or the principle of legal certainty. 48.     The Government of the Russian Federation stated that there was a violation of Article 6 § 1 of the Convention on account of the quashing of the judgment of 25 August 1998. 49.     The Court notes that this complaint raises issues of legal certainty similar to those with which the Court has already dealt in a number of cases and found violations of Article 6 § 1 of the Convention (see, for instance, Agrotehservis v. Ukraine , no. 62608/00, §§ 42-43, 5 July 2005, and Timotiyevich v. Ukraine , no. 63158/00, §§ 32-33, 8 November 2005). The Government have not put forward any reasons for the Court to depart from those findings in the present case. Accordingly, it holds that there has been a violation of Article 6 § 1 of the Convention with respect to the quashing of the judgment of 25 August 1998. 3.     Access to a court 50.     The applicant also complained that the domestic courts had refused to consider the merits of her claims for compensation for late payment of salary. She argued that their refusal to consider her compensation claims had resulted from an incorrect application of the relevant domestic law and that eventually the Supreme Court had taken a different stance in similar cases. She referred to several decisions of the Supreme Court taken in 2011 and 2013, but did not provide any copies. 51.     The Government contended that the applicant had had access to a court, as required by Article 6 § 1 of the Convention, as her compensation claims had been examined by courts at different levels of jurisdiction. 52.     The Court notes that it has already dealt with an almost identical issue in another case against Ukraine and found no violation of Article 6 § 1 of the Convention (see Menshakova , cited above, §§ 54-59). In that case, it was noted that, despite the difference in the formal outcome of the proceedings concerning similar compensation claims brought by the applicant, the domestic courts had based their approach on the argument that compensation for late payment of salary pursuant to Article 117 of the Labour Code could have been claimed only in respect of the period before a dispute concerning claims for salary arrears had been determined. For the Court, that interpretation of the substantive provisions of the Labour Code had not appeared arbitrary or unfair, and the procedural limitations on the applicant’s access to the courts had not been applied disproportionately. The Court does not see any reason to reach a different conclusion in the present case, as the domestic courts’ position was the same – Article 117 of the Labour Code provided for an entitlement to compensation in respect of delays in payment of salary arrears taking place before their amount had been determined, which in the applicant’s case was on 6 June 1997. None of the decisions relied on by her – the Constitutional Court’s decision of 22   February 2012 and the Supreme Court’s decisions taken in arguably similar cases from about five to seven years after the proceedings had ended – demonstrate that the domestic courts’ interpretation at issue was deficient or manifestly unreasonable (see paragraphs 26 and 50 above). Moreover, it has not been demonstrated that the present case concerns a situation of divergent domestic case-law potentially capable of placing an applicant in a state of uncertainty as regards his or her claimed entitlement to compensation. Accordingly, the Court holds that there has been no violation of Article 6 § 1 of the Convention with respect to the applicant’s complaint of lack of access to a court. II.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 53.     In her submissions of 21 January 2007, the applicant complained that her right to peaceful enjoyment of her possessions within the meaning of Article 1 of Protocol No. 1 to the Convention had been violated owing to the domestic courts’ refusal to consider the merits of her compensation claims. Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 54.     The Government argued that the applicant’s claims had been rejected by the courts in accordance with domestic law and that did not constitute an unjustified interference with her right to peaceful enjoyment of her possessions. 55.     The Court notes that the applicant’s complaint in respect of her compensation claim of 17 March 1999 should be rejected as out of time pursuant to Article 35 §§ 1 and 4 of the Convention, as the proceedings had ended in June 1999, more than six months before the applicant first complained of that issue (21 January 2007). 56.     The Court rejects the applicant’s complaint in respect of her compensation claims of 19 May 1998 and 1 March 2001 as manifestly ill ‑ founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention, for the same reasons as in Menshakova (cited above, §§ 64-67). III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 57.     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 58.     The applicant claimed 203,603.94 hryvnias (UAH) in respect of pecuniary damage (approximately 7,135 euros (EUR)), which represented the amount of compensation she was allegedly entitled to receive in the domestic proceedings. She also claimed EUR 4,500 euros in respect of non ‑ pecuniary damage. 59.     The Government stated that the applicant was not entitled to any compensation in respect of pecuniary damage, as that had been determined by the domestic courts. As to non-pecuniary damage, the Government considered her claim unsubstantiated. 60.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects that part of the claim. On the other hand, making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable to award the applicant EUR 2,100 in respect of non-pecuniary damage. B.     Costs and expenses 61.     The applicant claimed 65.17 United States dollars (about EUR 60) for postal expenses incurred in the Convention proceedings. 62.     The Government contested a part of that claim. 63.     Regard being had to the information in its possession, the Court considers it reasonable to award the applicant the amount requested. C.     Default interest 64.     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 complaints under Article 6 § 1 of the Convention that the domestic courts refused to consider the merits of her claims for compensation for late payment of salary, quashed the judgment of 25 August 1998, and violated her right to a hearing within a reasonable time in the proceedings concerning her compensation claims of 19 May 1998 and 1 March 2001 admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings concerning the applicant’s claims for compensation for late payment of salary of 19 May 1998 and 1 March 2001;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention with respect to the quashing of the judgment of 25 August 1998;   4.     Holds that there has been no violation of Article 6 § 1 of the Convention with respect to the applicant’s complaint of lack of access to a court;   5.     Holds (a)     that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and (ii)     EUR 60 (sixty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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;   6.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Anne-Marie Dougin   Khanlar Hajiyev   Acting Deputy Registrar   President