KUZNETSOV A OSTATNÍ proti Ukrajině

FIFTH SECTION

CASE OF KUZNETSOV AND OTHERS v. UKRAINE

(Applications nos. 9988/16, 41238/16 and 44703/19)

JUDGMENT

STRASBOURG

12 January 2023

This judgment is final but it may be subject to editorial revision.

In the case of Kuznetsov and others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Stéphanie Mourou-Vikström, President,
Lado Chanturia,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 9988/16, 41238/16 and 44703/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr Sergiy Vadymovych Kuznetsov, Mr Oleg Stanislavovych Pidgaynyy and Mr Oleksandr Viktorovych Shepelev (“the applicants”), on the various dates indicated in the Appendix;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the applicants’ dismissal under Article 8 of the Convention and the length of reinstatement proceedings under Article 6 § 1 of the Convention and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated in private on 8 December 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the applicants’ dismissal and the length of reinstatement proceedings, under Article 6 § 1 and Article 8 of the Convention.

THE FACTS

2. The applicants’ personal details are indicated in the Appendix. The applicants were represented by Mr G.M. Avramenko, a lawyer practising in Chernihiv.

3. The Government were represented by their Agent, Mr I. Lishchina, from the Ministry of Justice.

4. The facts of the case may be summarised as follows.

5. The applicants were civil servants who had been dismissed from their positions in the civil service following the adoption of the Government Cleansing Act (the GCA). The political and legal background of the lustration process in Ukraine is summarised in Polyakh and Others (nos. 58812/15 and 4 others, §§ 6-15 and 60-103, 17 October 2019). The applicants’ individual situations are as follows.

1. Mr Kuznetsov (THE FIRST APPLICANT)

6. On 29 October 2014 the first applicant was dismissed from the position of Deputy Head of Division of the Chernihiv Regional Department of the Ministry of Revenues and Duties.

7. In November 2014 he challenged his dismissal before the Chernihiv Circuit Administrative Court (“the Chernihiv Court”). On 26 November 2014 the Chernihiv Court opened the proceedings.

8. On 23 December 2014 the Chernihiv Court suspended the proceedings at the first applicant’s request until the Constitutional Court had completed an examination of a case concerning the constitutionality of the GCA.

9. On 20 January 2020 the Chernihiv Court resumed its examination of the first applicant’s case.

10. On 7 May 2020 the Chernihiv Court decided in part in favour of him. In its decision the court relied on various international instruments and documents, including those of the Council of Europe (see Polyakh and Others, cited above, §§ 104-09). The court observed that the first applicant’s dismissal interfered with his private life. The court considered that he was removed from his post solely on the ground that he had held that post, and without showing that he had committed any unlawful acts or been in some way involved in the usurpation of power by President Yanukovich. The court concluded that the first applicant’s dismissal under a blanket rule without any assessment of his personal situation was unlawful, and ordered his reinstatement in his post. The first applicant was awarded 416,359.80 Ukrainian hryvnias (UAH) (the equivalent of 12,461.05 euros (EUR)) in compensation for lost wages.

11. On 13 October 2020 the Sixth Administrative Court of Appeal (the Court of Appeal) allowed an appeal by the first applicant and amended the judgment of the first-instance court. It endorsed the lower court’s findings as to the unlawfulness of the first applicant’s dismissal, referring to the Court’s case-law, in particular Polyakh and Others (cited above). The Court of Appeal amended the judgment of the first-instance court, however, by ordering the first applicant’s reinstatement in a post similar to the one which he had occupied, given that his original post no longer existed. It further recalculated and increased the amount of compensation awarded to him to UAH 969,910.76 (the equivalent of EUR 29,091.68).

12. On 25 February 2021 the first applicant was reinstated in his post as the Deputy Head of Division of the Chernihiv Regional Department of the State Fiscal Service (the successor to the Ministry of Revenues and Duties).

13. On 2 March 2021 he retired.

2. Mr Pidgaynyy (the second applicant)

14. On 23 October 2014 the second applicant was dismissed from the position of Head of the Department of International Legal Assistance and Extradition in the General Prosecutor’s Office.

15. On 14 November 2014 he challenged his dismissal before the Kyiv City Circuit Administrative Court (“the Kyiv Court”).

16. On 10 December 2014 the Kyiv Court suspended the proceedings and made a reference to the Supreme Court with a request that it seek the Constitutional Court’s opinion concerning the constitutionality of certain provisions of the GCA.

17. On 11 September 2019 the second applicant applied to the Kyiv Court for the resumption of the proceedings.

18. On 12 September 2019 the proceedings were resumed.

19. On 12 November 2019 the court found the second applicant’s dismissal unlawful and reinstated him in his position. The court’s reasoning was similar to that in the court decision in the first applicant’s case (see paragraph 10 above). The second applicant was awarded UAH 1,977,797.24 (the equivalent of EUR 73,082.27) in compensation for lost wages.

20. On 3 February 2020 the Court of Appeal upheld the decision of the first-instance court.

21. On 15 October 2020 the Administrative Court of Cassation, which forms part of the Supreme Court of Ukraine, upheld the lower courts’ decisions.

3. Mr Shepelev (the third applicant)

22. On 28 October 2014 the third applicant was dismissed from the position of Deputy Head of the Headquarters of the Kirovohrad Regional Police Department.

23. On 19 November 2014 he challenged his dismissal before the Kirovohrad Circuit Administrative Court (“the Kirovohrad Court”).

24. On 20 November 2014 the Kirovohrad Court opened the proceedings in the third applicant’s case.

25. On 16 June 2015 the Kirovohrad Court examined a request by the third applicant for it to ask the Supreme Court to request the Constitutional Court’s opinion about the constitutionality of certain provisions of the GCA. Given that such a request was already pending before the Constitutional Court, the Kirovohrad Court suspended the proceedings until the termination of the constitutional proceedings.

26. On 29 January 2020 the proceedings were resumed following a request by the third applicant.

27. On 9 June 2020 the Kirovohrad Court found his dismissal unlawful and reinstated him in his position. The court’s reasoning was similar to that in the court decision in the first applicant’s case (see paragraph 10 above).The court further noted that the third applicant had not asked for compensation for lost wages and thus it made no award. The court indicated that it was open to him to make such a request for compensation in separate proceedings, with no time-limits.

28. On 22 June 2020 the third applicant was reinstated in his position.

29. On 10 July 2020 he was dismissed at his own request.

30. On 1 October 2020 the Third Administrative Court of Appeal upheld the decision of the first-instance court. The third applicant did not lodge a cassation appeal.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

31. The relevant legal framework and practice are summarised in Polyakh and Others (cited above, §§ 71-102).

THE LAW

1. JOINDER OF THE APPLICATIONS

32. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

33. The applicants complained that their reinstatement proceedings had lasted an unreasonably long time, in breach of 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 ...”

1. Admissibility

34. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2. Merits

35. The applicants argued that because of the suspension of proceedings in their cases, caused by the Constitutional Court’s review of the GCA, their reinstatement claims had been examined with serious delays.

36. The Government did not submit any observations.

37. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

38. In the leading case of Karnaushenko v. Ukraine (no. 23853/02, 30 November 2006), the Court has already found a violation in respect of issues similar to those in the present case.

39. In the present case, the applicants’ reinstatement proceedings lasted for almost six years (see the Appendix for more details).

40. Having examined all the material submitted to it, the Court has not found any fact or argument capable of justifying the overall length of the proceedings at the national level. 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.

41. There has accordingly been a violation of Article 6 § 1 of the Convention.

3. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

42. The applicants complained that they had been dismissed unlawfully in violation of Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Admissibility

43. The Government submitted, in their factual update about the termination of the proceedings in the applicants’ cases, that the applicants could not any longer claim to be victims as they had been reinstated in their positions and had been awarded compensation.

44. The applicants reiterated their complaint and noted that a violation of their rights under Article 8 had been established by the domestic courts.

45. The Court notes that all three applicants were reinstated in their respective positions and received the compensation that they requested. The applicants had failed to substantiate what constituted the gist of their complaint after those developments. In the light of the above, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

4. APPLICATION OF ARTICLE 41 OF THE CONVENTION

46. 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.”

1. Damage

47. The applicants claimed the following amounts in respect of pecuniary damage:

the first applicant – 438,386.35 Ukrainian hryvnias (UAH – the equivalent of 13,081.79 euros (EUR)), representing index-linked inflation of the amount awarded by the domestic court in lost wages (see paragraph 10 above);

the second applicant – UAH 633,304.93 (the equivalent of EUR 18,898.31), representing index-linked inflation of the amount awarded by the domestic court in lost wages (see paragraph 19 above);

the third applicant – UAH 2,403,732.20 (the equivalent of EUR 71,729.22) representing lost wages (see paragraph 27) and index-linked inflation of the amount of lost wages.

48. Each applicant also claimed EUR 5,000 in respect of non-pecuniary damage.

49. The Government considered the claimed amounts unsubstantiated.

50. The Court does not discern any causal link between the violation found and the pecuniary damage alleged (see, inter alia, Polyakh and Others v. Ukraine (nos. 58812/15 and 4 others, § 333, 17 October 2019; it therefore rejects this claim. However, in the light of the findings in the present case, it awards the applicants the following amounts in respect of non-pecuniary damage, plus any tax that may be chargeable: EUR 2,000 to the first applicant; EUR 600 to the second applicant; and EUR 2,000 to the third applicant.

2. Costs and expenses

51. The applicants also claimed EUR 1,000 each in respect of costs and expenses.

52. The Government submitted that the applicants had failed to substantiate their claims with sufficient documentary evidence.

53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court also points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Chamber may reject the claim in whole or in part (see Malik Babayev v. Azerbaijan, no. 30500/11, § 97, 1 June 2017). In the present case the applicants submitted legal aid contracts entered into for the amount of UAH 30,000 (the equivalent of slightly more than EUR 1,000 in all three cases) and the confirmation that the lawyer had received those amounts. In light of the details provided and the amounts of the contracts, the Court considers that the costs and expenses claimed shall be paid in full, that is EUR 1,000 to each of the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the complaint concerning the length of the proceedings under Article 6 § 1 of the Convention admissible and the remainder of the applications inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) to the first applicant – EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) to the second applicant – EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) to the third applicant – EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iv) to each of the applicants EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, 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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 12 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President

APPENDIX

List of cases: