EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF ZIMENKO v. RUSSIA
(Application No. 70190/01)
JUDGMENT <*>
(Strasbourg, 23.VI.2005)
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<*> This judgment will become final in the circumstances set
out in Article 44 з 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,
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<*> 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 з 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 з 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 з 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 з 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, з 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 з 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, з 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 з 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 з 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 з 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 зз 2 and 3 of the Rules of Court.
{Bostjan M. ZUPANCIC}
President
Vincent BERGER
Registrar
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