FIFTH SECTION  CASE OF NIKONENKO v. UKRAINE  (Application no. 14089/03)   JUDGMENT   STRASBOURG  29 May 2008    FINAL  29/08/2008  This judgment may be subject to editorial revision.In the case of Nikonenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Rait Maruste,  Volodymyr Butkevych, Mark Villiger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 6 May 2008,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 14089/03) 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 Olena Volodymyrivna Nikonenko (“the applicant”), on 10 April 2003.2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.3. On 7 April 2006 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.THE FACTSTHE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1957 and lives in Makiyivka.5. On 1 December 1997 the applicant instituted civil proceedings in the Tsentralno‑Misky District Court of Makiyivka (Центрально-міський суд м. Макіївка) against the Makiyivka Municipal Medical Association (Макіївське міське медичне територіально-педіатричне об’єднання), seeking reinstatement in the position of a speech therapist and compensation for the loss of income.6. On 21 January 1999 the court found against the applicant. The applicant appealed in cassation.7. On 11 March 1999 the Donetsk Regional Court (Донецький обласний суд)[1] quashed this judgment and remitted the case for a fresh consideration on the grounds that the first-instance court had failed to examine all the material circumstances of the case.8. On 18 January 2000 the case-file was destroyed by fire in the court building. In April 2000 the proceedings were renewed.9. Between April 2000 and January 2001 the Tsentralno-Misky Court scheduled some twenty-four hearings. Three of these hearings were adjourned on account of the defendant’s failure to appear, two on account of the applicant’s absences and six hearings were adjourned on account of the absence of witnesses, mostly the defendant’s employees. On some five occasions the court adjourned the hearings following the court’s decision to allow the applicant’s demands to summon witnesses and request additional documents from the defendant.10. On 12 January 2001 the Tsentralno-Misky Court found against the applicant. The applicant appealed in cassation.11. On 15 February 2001 the Donetsk Regional Court quashed the judgment of 12 January 2001 and remitted the case for a fresh consideration, having found that the first-instance court had failed to comply with a number of procedural requirements, in particular, those concerning renewal of the proceedings after the loss of the case-file. Further, the court held that still not all relevant circumstances had been explored.12. Between April and December 2001 the first-instance court scheduled eleven hearings, some seven of them being adjourned following the court’s decision to allow the applicant’s demands that the defendant provides additional documents.13. By letter of 24 September 2001 the court reprimanded Mrs M., the defendant’s chief officer (головний лікар), for repetitive failures of its representative to provide the documents needful for the resolution of the case. In particular, the court noted that the defendant had been repeatedly providing incomplete, inaccurate or irrelevant records, causing the court to adjourn the hearings, and obliged her to ensure the provision of a number of missing documents. The court further requested the chief officer to ensure the appearance of the defendant’s employees summoned by it as witnesses.14. In October and November 2001 Mrs M. submitted to the court clarifications concerning various inaccuracies in the records provided earlier.15. On 5 December 2001 the Tsentralno-Misky Court rejected the applicant’s claims, having found that she had been dismissed in accordance with applicable law. On 21 December 2001 the court provided expanded reasoning for its conclusions, responding to the applicant’s arguments, which it had not dealt with in its previous judgments. The applicant appealed.16. On 18 February 2002 the Regional Court upheld the judgment of 5 December 2001. The applicant appealed in cassation.17. On 4 January 2003 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.THE LAWI. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION18. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down 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...”19. The period to be taken into consideration began on 1 December 1997 and ended on 4 January 2003. It thus lasted five years and one month for three levels of jurisdiction.A. Admissibility20. The Court notes that this complaint 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. Merits21. The Government submitted that the length of the proceedings in the applicant’s case was not unreasonable. They maintained that primary factors delaying the final resolution of the case were the fire in the court building, which was a force majeure, and the applicant’s own conduct, in particular, her repetitive demands to summon witnesses and provide additional documents.22. The applicant disagreed. She maintained that the proceedings concerning her reinstatement were of paramount importance to her, in particular, since she was a single mother with no other sources of income. She further submitted that the fire happened on account of the authorities’ negligence and that her demands for documents were triggered by the defendant’s repetitive failures to provide what was necessary for resolution of her claims.23. 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). The Court reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).24. Turning to the facts of the present case, the Court does not find that loss of the applicant’s case-file by fire can be attributed to the Government in absence of any evidence that it had been caused by negligence of the court personnel. It further notes that the trial court regularly scheduled hearings in the applicant’s case.25. On the other hand, the Court observes that significant delays in the proceedings were caused by repetitive remittals of the case for a fresh consideration on account of the failures of the trial court to explore all relevant circumstances and to comply with the rules of procedure. As regards adjournments of hearings, the Court notes that, although on a number of occasions it was the applicant who requested them demanding additional documents or presence of witnesses, the final discretion as to whether to grant such requests always remained with the judicial authorities, who bear ultimate responsibility for management of their proceedings so that they are expeditious and effective (see e.g. Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006-...). Additionally, regard being had to the reasons adduced by the appellate court for remittals of the case for a fresh consideration and the correspondence between the Tsentralno-Misky Court and the defendant’s chief officer (see paragraphs 13-14 above), it appears that before September 2001 little had been done to ensure submission of comprehensive information by the defendant, who was a State entity, as well as employer of most of the witnesses.26. 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 e.g. Karnaushenko v. Ukraine, no. 23853/02, §§ 59, 30 November 2006; and Moroz and Others v. Ukraine, no. 36545/02, § 60, 21 December 2006 and Golovko v. Ukraine, no. 39161/02, § 63, 1 February 2007).27. Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that, on balance, in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.28.

Article of the Convention at issue: Article 6
Outcome: violation