KISLAYA v Ukraine - 21050/02 [2007] ECHR 432 (2 May 2007)

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The European Court of Human Rights (Fifth Section), sitting on 2 May 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego, judges,
and Mrs C. Westerdiek, Section Registrar,

The applicant, Ms Tatyana Nikolayevna Kislaya, is a Ukrainian national who was born in 1950 and resides in the city of Lugansk, Ukraine.

The facts of the case, as submitted by the applicant, may be summarised as follows.

Since 1972 the applicant has been employed by the State enterprise “Luganskiy stankostroitelnyi zavod” («Луганський верстатобудівний завод») (“the enterprise”). On 13 June 2000, following a number of disciplinary measures, the applicant was dismissed from her position allegedly for failure to perform her duties. According to the applicant, her dismissal was caused by her membership in the executive committee of the Independent Trade-Union of Defence Industry Workers (“ITUDIW”).

In June 2000 the applicant instituted proceedings in the Leninskyy District Court of Lugansk against the enterprise challenging her dismissal and disciplinary measures against her, and claiming salary arrears.

On 13 December 2001 the Supreme Court of Ukraine quashed the above judgments under the new cassation procedure and remitted the case for a fresh consideration to the first instance court.

On 20 May 2002 the Leninskyy District Court found in part for the applicant, reinstated the applicant in her position and awarded her 1,364 Ukrainian hryvnas (UAH) in salary arrears and court expenses and UAH 1,000 in compensation for non-pecuniary damage. The court also ordered the immediate enforcement of this judgment as regards the reinstatement of the applicant.

On 18 November 2002 the Lugansk Regional Court of Appeal (former Lugansk Regional Court) quashed the judgment of 20 May 2002 to the extent that it concerned the award of the salary arrears, court expenses and a compensation for non-pecuniary damage and remitted this part of the case for a fresh consideration. The part of the judgment concerning the reinstatement of the applicant was upheld and became final.

Since this part of the judgment remained unenforced, the applicant complained to the Leninskyy District Court about the inactivity of the Bailiffs’ Service. On 25 December 2002 the court found such inactivity unlawful.

On 5 March 2003 the Supreme Court of Ukraine rejected the applicant’s cassation appeal against the decision of 18 November 2002.

On 26 May 2003 the applicant was formally reinstated in her position. However, according to the applicant, she was not allowed to access her working place.

On 27 February 2004 the Leninskyy District Court awarded the applicant UAH 7,389.60 in salary arrears, UAH 2,344.32^¹ in compensation for the lengthy delay concerning her reinstatement and UAH 2,000 in compensation for non-pecuniary damage.

On 21 June 2004 the Lugansk Regional Court of Appeal changed this judgment. It rejected the applicant’s claim for compensation for non pecuniary damage and reduced the award of salary arrears to UAH 2,463^¹. The applicant was also awarded UAH 164.50^² in costs and expenses.

The applicant appealed against these judgments in cassation. Proceedings are still pending.

In February 2001 the applicant together with other members of the ITUDIW requested the administration of the enterprise to start negotiations for signing the collective agreement for 2001. They further requested the administration to provide them with a copy of a branch industrial collective agreement, to authorize free entrance to the territory of the enterprise for the members of the executive committee of the ITUDIW including the applicant, to provide adequate facilities for the functioning of the ITUDIW (an office and means of communication) and to allow the ITUDIW to sign the current collective agreement.

As the administration of the enterprise failed to answer these requests, the applicant instituted proceedings in the Leninskyy District Court against the enterprise for hindering the functioning of the ITUDIW. On 18 June 2001 the court found in part for the applicant and ordered the administration of the enterprise to authorise free access of the applicant to the working places of the members of the ITUDIW and to provide the applicant with a copy of the branch industrial collective agreement. On the same date the court, by another decision, left without consideration the rest of the applicant’s complaints as it was the ITUDIW itself and not the applicant who should have lodged them.

On 22 November 2001 the Lugansk Regional Court of Appeal quashed the judgment of 18 June 2001 and remitted the case for a fresh consideration.

On 13 June 2003 the Leninskyy District Court closed the case on the ground that the actions complained of concerned the ITUDIW and not the applicant personally. On 3 December 2003 the Lugansk Regional Court of Appeal upheld this judgment. The applicant appealed against these decisions. By letter of 28 September 2005 the Supreme Court informed the applicant that her case has been transferred to the High Administrative Court of Ukraine. Proceedings are still pending.

In February 2002 the administration of the enterprise instituted proceedings in the Zhovtnevyy District Court of Lugansk against the applicant claiming compensation for pecuniary damage caused by negligent performance of her duties. The applicant introduced a counter claim.

On 9 April 2002 the court ordered to arrest the applicant’s property in order to secure the administration’s claims. On 1 July 2002 the Lugansk Regional Court of Appeal upheld this decision. On 27 November 2002 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation.

On 25 September 2003 the Zhovtnevyy District Court rejected both claims as lodged out of time and unsubstantiated, respectively. On 11 December 2003 the Lugansk Regional Court of Appeal upheld this judgment. On 31 January 2006 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation.

On 22 December 2003 the applicant was dismissed again. In January 2004 the applicant instituted proceedings in the Leninskyy District Court of Lugansk challenging her dismissal and claiming salary arrears.

On 15 June 2005 the court reinstated the applicant in her position and awarded her UAH 2,517.96^¹ in salary arrears and in compensation for non pecuniary damage. On 29 September 2005 the Lugansk Regional Court of Appeal upheld this judgment. The applicant appealed in cassation. Proceedings are still pending.

The applicant complained under Article 6 § 1 of the Convention about the length of proceedings in her cases. She also complained under the same Article about the lengthy non-enforcement of the judgments in her favour.

The applicant complained under Article 1 of Protocol No. 1 about the lengthy non-enforcement of the monetary part of these judgments.

The applicant further complained that the administration of the enterprise had interfered with her right to be a member of an independent trade-union and had persecuted her for active participation in such trade-union in violation of Articles 10 and 11 of the Convention.

The applicant complained under Article 13 of the Convention about the absence of effective remedies for her complaints.

The applicant finally alleged being discriminated on the ground of “other believes” in violation of Article 14 of the Convention.

A. Complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1

The applicant complained under Article 6 § 1 of the Convention about the length of the first and fourth sets of proceedings and about the lengthy non-enforcement of the judgments in her favour.

The applicant also complained under Article 1 of Protocol No. 1 about the lengthy non-enforcement of the monetary part of these judgments.

The applicant finally complained under Article 13 of the Convention about the absence of effective remedies for her complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

“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.”

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 ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

The Court, having examined the remainder of the applicant’s complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of were within its competence, they did 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 rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

Decides to adjourn the examination of the complaints under Article 6 § 1 of the Convention about the length of the first and fourth sets of proceedings and about the lengthy non-enforcement of the judgments in the applicant’s favour; the complaint under Article 1 of Protocol No. 1 about the lengthy non-enforcement of the monetary part of these judgments; and the complaint under Article 13 of the Convention about the absence of effective remedies for these complaints;

1. At the material time approximately 363.18 euros (EUR)

1. At the material time approximately EUR 392.45

2. At the material time approximately EUR 26.21

1. At the material time approximately EUR 417.40

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You are here: BAILII >> Databases >> European Court of Human Rights >> KISLAYA v Ukraine - 21050/02 [2007] ECHR 432 (2 May 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/432.html Cite as: [2007] ECHR 432