CASE OF BESTIYANETS v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
André Potocki;Karel Jungwiert;Mark Villiger
4. The applicant was born in 1951 and lives in Kyiv. 5. On 28 January 2000 the applicant instituted civil proceedings in the Shevchenkivskyy District Court of Kyiv (hereafter – “the Shevchenkivskyy Court”) against its former employer, the Kyiv Motorcycle Factory (“the factory”), seeking his reinstatement and compensation for the related pecuniary and non-pecuniary damages, salary and other payments’ recovery, as well as disability allowance (in respect of a traffic accident which had happened with the applicant shortly before his dismissal and which the factory denied to be work-related). 6. On 20 November 2000 the court severed the applicant’s claims for certain payments’ recovery and for disability allowance into separate sets of proceedings. 7. On 27 December 2000 the Shevchenkivskyy Court rejected the applicant’s reinstatement claim. On 7 May and 8 October 2001 the Kyiv City Court and the Supreme Court respectively upheld that judgment. 8. In 2005 the applicant unsuccessfully sought re-opening of the proceedings on the basis of some newly-discovered circumstances. 9. On 8 June 2001 the Shevchenkivskyy Court allowed in part the applicant’s claim for recovery of certain payments, such as salary arrears, compensation for unused leave, dismissal allowance, and sick leave payment. On 28 August 2002 the judgment was enforced. 10. In January 2002 the Shevchenkivskyy Court transferred the applicant’s claim for disability allowance to the Podilskyy District Court of Kyiv (“the Podilskyy Court”), in line with the instruction of the Kyiv City Court of Appeal (“the Court of Appeal”). 11. The applicant reiterated all his initial claims before the Podilskyy Court. 12. On 25 December 2003 the court rejected the claim for disability allowance. As regards the other claims, it decided to leave them without examination, for they had already been adjudicated on 27 December 2000 and 8 June 2001 (see paragraphs 7 and 9 above). 13. On 6 June 2005 the Court of Appeal quashed the above judgment, because it had been delivered in the applicant’s absence and without his knowledge, and remitted the case to the first-instance court for fresh examination. 14. On 23 June 2005 the Podilskyy Court sent the file to the Shevchenkivskyy Court on the latter’s request. It was required for the examination of the applicant’s request for re-opening of the reinstatement proceedings (see paragraph 8 above). 15. On 24 June 2005 the Podilskyy Court stayed the proceedings until the file would be returned. 16. On 4 October 2005 the judge rejected the applicant’s request for leave to appeal against the aforementioned decision. That ruling was, by mistake, not sent to the applicant, until November 2008. 17. On 28 March 2008 the Podilskyy Court resumed the proceedings. 18. On 10 June 2008 it adjourned the hearing till 25 June 2008 because of the unspecified misbehaviour of the applicant’s representative. The court also decided that the applicant’s presence was obligatory. 19. On 25 June 2008 the applicant did not appear at the hearing, and the Podilskyy Court again adjourned it till 8 July 2008. 20. On 24 November 2008 it dismissed the claim without examination on merits for the applicant’s repeated failure to attend hearings. 21. On 25 August 2004 the applicant brought another claim to the Shevchenkivskyy Court against the factory in respect of salary recovery, this time confined to two specific days. 22. On 16 August 2005 the court terminated the proceedings given that this claim had already been examined by the courts as a part of the applicant’s another claim. On 27 December 2005 and 17 May 2006 the Court of Appeal and the Supreme Court respectively upheld that ruling. 23. On 24 April 2008 the applicant supplemented his claim regarding the disability allowance with an additional complaint regarding the alleged conspiracy of the factory’s administration and trade union again him. 24. On 2 June 2008 the Podilskyy Court decided to refer the applicant’s claim in that part to the Shevchenkivskyy Court for examination. The applicant unsuccessfully challenged that referral before higher-level courts. 25. On 9 June 2009 the Shevchenkivskyy Court started the proceedings. According to the applicant, this set of his proceedings is pending.