FIFTH SECTION

DECISION

Application no. 21743/02 
by Vadim Mikhaylovich MAKAROV 
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 9 May 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 15 May 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vadim Mikhaylovich Makarov, is a Ukrainian national who was born in 1971 and lives in the town of Yenakiyevo, Donetsk region.

A.  The circumstances of the case

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

On 22 August 2001 the Zhdanovsky City Court awarded the applicant salary arrears against the Zuyevskaya coal-mine (the “ZCM”), but rejected his claim for moral damages. The court referred to Resolution No. 4 of the Plenary of the Supreme Court of 31 March 1995, which provided that moral damages may be awarded in labour disputes only in cases where their payment is authorised by contract or the dispute involves insecure working conditions. The applicant’s claim for compensation for moral damage suffered as the result of the ZCM’s failure to respond to his request for information about the delays in payment of his salary was not mentioned in the judgment.

The applicant challenged this judgment in the part rejecting his moral damages claim. On 10 October 2001 the registry of the Donetsk Regional Court of Appeal summoned the applicant to a hearing scheduled for 29 November 2001.

However, the hearing before the Court of Appeal took place a month earlier, on 29 October 2001. The court did not examine the issue of the applicant’s absence.

The court upheld the rejection of the applicant’s claim for moral damages, but for different reasons. It acknowledged that the delays in payment of the applicant’s salary had caused him moral suffering. However, the court found that the applicant had learned about his employer’s failure to pay him salary arrears on 20 March 2001, when he was dismissed, but only lodged his claim against the ZCM on 6 August 2001. Therefore, he had failed to respect the three-month time-limit, laid down in Article 233 of the Labour Code, without good reason.

The applicant’s claim concerning the ZCM’s failure to provide him with information was likewise rejected by the Court of Appeal for failure to comply with the said time-limit. The court indicated that the applicant’s request concerned information about the delay in payment of his salary, and was thus regulated by labour law rather than the Law “On applications”, referred to by the applicant.

On 4 February 2002 the chamber of three judges of the Supreme Court decided not to refer the applicant’s case for consideration on the merits to a chamber of fifteen judges of the Supreme Court, as his claims contained no implicit violation of substantive or procedural law.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the proceedings in his case were unfair. In particular, he complains that the domestic courts erred in their application of domestic law and that he was not heard by the appellate instance. He further alleges that there has been a violation of Article 13 of the Convention as he had no effective remedies in respect of his complaints under Article 6 § 1 of the Convention.

THE LAW

Notice of the application was given to the Government, who submitted their observations on the admissibility and merits of the applicant’s complaints on 10 December 2004. On 1 February 2005 the applicant was invited to submit his observations in reply. However, the Court notes that the applicant has failed to do so. The registered letter to the applicant dated 18 May 2005 warning him of the possibility that his case might be struck out of the Court’s list was returned to the Court as not collected by the applicant. Moreover, the applicant failed to respond to a second registered letter dated 23 September 2005 sent to another address.

Having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the applicant does not intend to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of this application to be continued. Accordingly, the application of Article 29 § 3 of the Convention should be discontinued.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

MAKAROV v. UKRAINE DECISION


MAKAROV v. UKRAINE DECISION