CASE OF BELUKHA v. UKRAINE
Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1 (length);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed
Peer Lorenzen
4. The applicant was born in 1957 and lives in the town of Artemivsk, the Donetsk region. 5. On 14 August 1997 the applicant was transferred from her position of deputy director of the Joint Stock Company “Artemivska Raiagrotekhnika” (“the Company”) to the position of economist. 6. On 17 September 1997 she instituted proceedings in the Artemivsk Town Court (“the Artemivsk Court”) against the Company, seeking reinstatement in the position of deputy director. 7. On 20 October 1997 the applicant was dismissed from the position of economist, as she refused to take up her new duties. 8. In November 1997 she lodged with the Artemivsk Court a new claim against the Company, seeking annulment of her dismissal, recovery of salary arrears and compensation. The new claim was joined to the initial proceedings. 9. On 27 January 1998 the applicant challenged the judge, Mr B., who was dealing with her case, and the Artemivsk Court, alleging that they lacked impartiality, as the Company had produced and installed window grids in the court's new building free of charge. On 30 January 1998 the President of that court, Mr V.L.G., rejected the applicant's motion on the grounds that it did not contain any reasons for the disqualification of the judge. 10. By letter of 16 February 1998, the President of the Artemivsk Court requested the Chairman of the Executive Board of the Company to provide the court with a computer. The letter read as follows: “The Artemivsk Town Court of the Donetsk Region requests you to provide a computer for the court's use.” 11. The letter also contained a handwritten resolution, allowing the request. 12. On 2 March 1998 the court found in part for the applicant. It annulled the Company's order of 14 August 1997. On 20 April 1998 the Donetsk Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. 13. On 16 December 1998 the Artemivsk Court found in part for the applicant. It ordered the Company to pay the applicant UAH 440.77 in salary arrears and other payments. The court further rejected the applicant's claim against her dismissal. 14. The applicant appealed in cassation. On 25 January 1999 the Donetsk Regional Court quashed the decision of 16 December 1998 concerning the pecuniary award and remitted that part for a fresh consideration. 15. On 2 April 1999 the Artemivsk Court found against the applicant. On 24 May 1999 the Donetsk Regional Court rejected the applicant's appeal in cassation. 16. On an unspecified date the President of the Donetsk Regional Court lodged a protest (a request for a supervisory review) with the Presidium of that court, seeking annulment of the decisions of 2 April and 24 May 1999. On 14 July 1999 the Presidium allowed the protest, quashed those decisions and remitted the case for a fresh consideration. 17. On 6 September 1999 the applicant challenged the impartiality of the Artemivsk Court. On 19 October 1999 the President of the court rejected the applicant's motion as unsubstantiated. 18. On 6 March 2000 the applicant changed her claim, seeking modification of the reasons for her dismissal, recovery of salary arrears and compensation. 19. On 9 March 2000 the Artemivsk Court found in part for the applicant. It ordered that the reasons for the applicant's dismissal be changed and awarded her UAH 8,071.75 in salary arrears and other payments. That decision was not appealed against and became final. 20. On an unspecified date the Deputy President of the Donetsk Regional Court lodged a protest with the Presidium of that court, seeking annulment of the decision of 9 March 2000 as regards the pecuniary award. On 5 July 2000 the Presidium allowed the protest, quashed the decision of 9 March 2000 in respect of the award and remitted that part for a fresh consideration. 21. On 24 October 2000 the Artemivsk Court found in part for the applicant and ordered the Company to pay her UAH 8,689.08 in salary arrears and other payments. That decision was not appealed against. 22. On an unspecified date the Acting President of the Donetsk Regional Court lodged a protest with the Presidium of that court, seeking annulment of the decision of 24 October 2000. On 20 June 2001 the Presidium allowed the protest, quashed the decision of the first instance court and remitted the case for a fresh consideration. 23. On 7 September 2001 the applicant lodged with the Artemivsk Court an appeal in cassation against the decision of 20 June 2001. On 13 September 2001 the President of the Artemivsk Court rejected the applicant's appeal in cassation, as the disputed decision could not be appealed. 24. The Artemivsk Court scheduled a hearing in the case for 31 July 2001. Following the applicant's request, the hearing was postponed until 5 October 2001. 25. On 5 November 2001 the President of the court, sitting as a single judge, found against the applicant. 26. In her appeal against the decision of 5 November 2001, the applicant raised a complaint of actual bias of the President of the Artemivsk Court, alleging that the court had received certain goods due to 'unofficial' relations between the Company's management and Mr V.L.G. 27. On 21 February 2002 the Donetsk Regional Court upheld the decision of 5 November 2001. The court did not deal with the applicant's allegations of bias on the part of the President V.L.G. 28. On 14 May 2002 the applicant appealed in cassation. On 19 August 2002 the Supreme Court of Ukraine refused to consider the applicant's appeal for being lodged out of time. It further held that the first instance court should have ruled on the admissibility of the applicant's appeal in cassation. 29. On 18 September 2002 the applicant requested an extension for lodging an appeal in cassation. On 19 September 2002 the Artemivsk Court granted her the extension requested, finding that the applicant had complied with the statutory time-limit for lodging her appeal in cassation. 30. On 1 October 2002 the applicant lodged with the same court her new appeal in cassation, in which she reiterated her complaint about actual bias of the President V.L.G. 31. On 21 April 2003 the panel of three judges of the Supreme Court of Ukraine, sitting in camera, rejected the applicant's request for leave to appeal in cassation, having found that there were no grounds for referring the case to the Civil Chamber of the Supreme Court. 32. According to the records provided by the Government, out of around fifty-three hearings held between September 1997 and April 2003 seven were adjourned due to the absence or at the request of the applicant. Twelve hearings were adjourned because of the absence of the representatives of the defendant company. 33. Article 18 of the Code provided five grounds on which a judge could be challenged and should withdraw from the case: if he participated at an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor, court secretary; if he was personally interested, directly or indirectly, in the outcome of the proceedings; if his relatives took part in the proceedings; if he had particular relations with the persons who took part in the proceedings; or if there were other reasons for which his impartiality could be doubted. 34. Under Articles 20-21, the persons who took part in the proceedings could lodge a motivated application for withdrawal of a judge. The application should be examined by the court hearing the case. 35. According to Article 291, the resolutions adopted by the courts concerning the applications for withdrawal of a judge could not be appealed against. The parties could, nonetheless, submit their objections against such resolutions together with their appeal against the judgment in their case. 36. Pursuant to Articles 301 and 305, the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and the evidence which allegedly had not been examined in compliance with the Code. It was entitled: to reject an appeal; to quash the judgment of the first instance court and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined; to quash the judgment of the first instance court and to discontinue the proceedings; to change the judgment or to adopt a new judgment. 37. According to Article 307, the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration: if the case had been considered by a person, who had not been entitled to sit as a judge in the case; if the judgment had been adopted or singed by a judge who had not heard the case; if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing; or if the judgment concerned the rights and obligations of persons who had not participated in the case. 38. Under Article 320, the grounds for an appeal in cassation were incorrect application of substantive law by the lower courts or violation of procedural rules. Article 328 provided that the case should be referred to the Chamber of the Supreme Court: if the appeal raised an issue of incorrect application of the procedural rules by lower courts; if a similar case was pending before the Chamber; if application of the law by lower courts run contrary to the practice of the court of cassation; or if the court of appeal had acted as a first instance court in the case. The case could also be referred to the Chamber if the decisions had significant importance for uniform application of the law, or if the appeal contained information about the erroneous application of substantive or procedural law which had led or could have led to the wrongful decision in the case. 39. Pursuant to Article 321 of the Code, an appeal in cassation was to be lodged within three months after the decision of a court of appeal had been pronounced. By the Act of 7 March 2002, which came into force on 4 April 2002 and was later repealed as of 1 September 2005, the above time-limit was reduced to one month. The time-limit for lodging an appeal in cassation could be extended by a first instance court, if it found that the initial time-limit had not been complied with for good reasons. 40. Article 329 of the Code provided for the filter of appeals in cassation by a panel of three judges of the Supreme Court who were entitled to decide whether or not leave to appeal should be granted. No participation of the parties was foreseen at that stage of proceedings. Leave to appeal was granted unless the panel unanimously decided otherwise. 41. Pursuant to Article 334, the court of cassation had power: to reject an appeal; to quash, in full or in part, the decision at issue and to remit the case for a fresh consideration to the court of first instance or the court of appeal; to quash the decision of the court of appeal and to uphold the judgment of the first instance court; to quash the decisions in the case and to discontinue the proceedings; or to change the decision on the merits of the case. 42. According to section 19 of the Act, the regional departments of justice (territorial branches of the Ministry of Justice) were responsible for technical maintenance of the district and town courts. 43. Under section 26 of the Act, the president of a district or town court exercised specific managerial and procedural functions. The president presided in court hearings, appointed judges to preside in a hearing, and distributed work among judges. He was also responsible for regular meetings with citizens, explanation of the law to them, and receiving complaints and propositions from them. The president oversaw the work of the registry and bailiffs. He organised the work on judicial statistics, standardisation of judicial practice, and training of the court staff.