SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72767/01 
by Valentina Yevgenyevna BORTAYCHUK and

Dmitriy Stepanovich BIKKIN 
against Russia

The European Court of Human Rights (Second Section), sitting on  
19 October 2004 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr L. Loucaides
 Mr C. Bîrsan
 Mr M. Ugrekhelidze
 Mr A. Kovler, 
 Mrs A. Mularoni, judges
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged on 5 May 2001,

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 and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Valentina Yevgenyevna Bortaychuk and Dmitriy Stepanovich Bikkin, are Russian nationals who were born in 1950 and 1956 respectively and live in the village of Lavrentiya in the Chukotka Region. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

1.  Proceedings involving the first applicant

On 29 December 2000 the first applicant, Mrs Bortaychuk, filed an action with the Chukotskiy District Court of the Chukotka Region against a State-run enterprise, her employer, claiming unpaid salary and damages. Several hearings were held in March and April 2002.

On 12 April 2002 the court allowed the applicant's claims in part.

On 21 November 2002 the Chukotka Regional Court quashed the judgment on the applicant's appeal.

On 19 March 2003 the Chukotskiy District Court found for the applicant in part. The applicant did not appeal and the judgment came into force.

2.  Proceedings involving the second applicant

(a) Proceedings concerning unpaid salary

On 23 May 1996 the second applicant, Mr Bikkin, an investigator, brought an action with the Chukotskiy District Court against the police, his employer, claiming his monthly salary, allegedly due to him for the period from November 1995 to May 1996, and damages in this respect.

On 5 October 1998 the court allowed the claims in part.

On 26 November 1998 the Chukotka Regional Court quashed the judgment on the applicant's appeal and remitted the case to the first instance.

On 11 February 2000, as a result of a new examination of the case, the district court allowed the applicant's claims in part.

On 30 March 2000 the regional court quashed the judgment on the applicant's appeal and remitted the case to the first instance.

On 27 March 2002 the district court found for the applicant in part. On an unspecified date this judgment was upheld by the appeal court.

(b) Proceedings concerning reinstatement

On 7 April 1998 the applicant was dismissed. On 10 June 1998 he filed an action with the Chukotskiy District Court against the police claiming reinstatement in his post of investigator and damages. According to the applicant, the case file was lost when being sent from the Chukotka Regional Court, which considered the applicant's complaint, to the district court.

On 19 May 2000 the district court received the applicant's new action, which was identical to the first one.

On 19 December 2002 the district court found for the applicant and ordered his reinstatement.

On 20 February 2003 the regional court quashed the judgment on the defendant's appeal and remitted the case to the first instance.

On 2 June 2003 the case was transferred for examination to the Anadyr Town Court of the Chukotka Region.

As of 20 November 2003 the proceedings in the case were still pending.

B.  Relevant domestic law

Under the Code of Criminal Procedure of 1960 as well as the Code of Criminal Procedure of 2001 (Article 38), which came into force on 1 July 2002, the police investigator is responsible for the institution of criminal proceedings and investigation of crimes, and takes decisions during the investigation phase.

COMPLAINTS

1.  The first applicant complained under Article 6 § 1 of the Convention about the length of the proceedings against her employer.

2.  The second applicant also complained under the same Convention provision about the length of the two sets of proceedings against his former employer. He further alleged that the courts were not independent and impartial.

THE LAW

1.  The first applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in 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...”

The Government submitted that the complaint was manifestly ill-founded. They explained that the length of the proceedings was caused, in particular, by the fact that the Chukotskiy District Court was understaffed over the last five years and that the only judge on the court granted priority to criminal cases in which accused persons were held in detention.

The applicant maintained her complaint.

The period to be taken into consideration began on 29 December 2000, when the applicant filed her civil action with the court, and ended on 19 March 2003, when the first-instance court delivered the judgment against which the applicant did not appeal. It thus lasted two years, two months and twenty-one days.

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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court observes that the present case concerned an employment dispute and did not involve any factual or legal complexity. There is no indication of any delays attributable to the applicant.

The Court further observes that the case was dealt with at two levels of jurisdiction over a period of about two years and three months, and was considered twice by the first-instance court.

Having regard to its case-law on the subject, the Court finds that even taking into account what was at stake for the applicant the length of the proceedings in the present case does not give rise to any appearance of a violation of the reasonable time requirement of Article 6 § 1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The second applicant also complained that the length of the proceedings which he brought against the police, his former employer, breached Article 6 § 1 of the Convention. He also alleged that the courts were not independent and impartial.

The Government advanced the same arguments as indicated above.

The applicant contested the Government's view.

The Court will first examine whether the proceedings in question fall within the ambit of the Convention provision relied on. It recalls that in determining the applicability of Article 6 to disputes between civil servants and their employers it has adopted a functional criterion, based on the nature of the employees' duties and responsibilities. According to this criterion, Article 6 should apply to all public employees other than those who wield a portion of the state's sovereign power, the armed forces and the police being a manifest example of activities involving the latter. In each case it must be ascertained, whether the applicant's post entails – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities (see Pellegrin v. France [GC], no. 28541/95, §§ 64-67,  
ECHR 1999-VIII).

The Court notes that both sets of proceedings which the applicant brought against the police concerned employment issues - emoluments allegedly due to the applicant and damages in the first case and his reinstatement in his post as an investigator and damages in the second. It further notes that the applicant occupied the post of police investigator. Having regard to the powers and duties conferred on such a post by the domestic law, in particular the institution of criminal proceedings and investigation of crimes, the Court considers that the applicant's post clearly entailed duties designed to safeguard the general interests of the State. Article 6 of the Convention, thus, does not apply to the proceedings in the applicant's cases.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3.  Having regard to the above considerations, the application to the case of Article 29 § 3 of the Convention should be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early J.-P. Costa 
 Deputy Registrar President

BIKKIN AND BORTAYCHUK v. RUSSIA DECISION


BIKKIN AND BORTAYCHUK v. RUSSIA DECISION