CASE OF BASYUK AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF BASYUK AND OTHERS v. UKRAINE

(Applications nos. 55156/19 and 10 others –

see appended list)

JUDGMENT
 

STRASBOURG

16 October 2025

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Basyuk and Others v. Ukraine,

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

 Kateřina Šimáčková, President,
 Georgios A. Serghides,
 Gilberto Felici,
 Andreas Zünd,
 Mykola Gnatovskyy,
 Vahe Grigoryan,
 Sébastien Biancheri, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to:

the applications (nos. 55156/19, 55683/19, 57548/19, 23109/20, 42320/20, 8216/21, 9474/21, 13672/21, 27172/21, 48852/21 and 36257/22) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Ukrainian nationals (“the applicants”), on the various dates indicated in the appended table;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 1 of Protocol No. 1 to the Convention and of part of the complaints under Article 6 of the Convention, and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated in private on 16 September 2025,

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

INTRODUCTION

1.  The case concerns the refusal, in particular on the grounds of force majeure, to grant the applicants’ claims regarding salary and/or related amounts in arrears due to them by their employer, a State entity. The applicants relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

THE FACTS

2.  The applicants’ details are provided in the appended table. They were represented by Mr V.O. Glushpenko, a lawyer practising in Kyiv.

3.  The Government were represented by their Agent, Ms M. Sokorenko.

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

5.  The applicants were employed by the State Enterprise "Donetsk Railways", particularly its local branches situated in the Donetsk and Luhansk Regions. As of May 2014, the government of Ukraine lost control over the relevant territories (see Ukraine and the Netherlands v. Russia, nos. 8019/16, 43800/14 and 28525/20, § 694, 30 November 2022). In 2014-2015 the State Enterprise "Donetsk Railways" was reorganized by way of merging with Ukrzaliznytsya (Ukrainian Railways), the latter taking over all rights and obligations of the former. In 2015 the above-mentioned local branches, now parts of Ukrzaliznytsya, continued their activities in the controlled territories and the applicants were employed there. However, as of March 2017 Ukrzaliznytsya could no longer operate in the respective regions on account of hostilities and, after a period of standstill until July 2017, the applicants were dismissed.

6.  The applicants instituted civil proceedings seeking unpaid salary for various periods, mostly for mid-2016 and early-2017, and various types of compensations related to the delay in payment of salary and dismissal as such. In the majority of cases the courts granted, in full or in part (depending on the evidence provided by the parties), the applicants’ claims for salary debts and rejected their claims for compensations referring to force majeure (for a summary description of the applicants’ claims and the courts’ decisions see appended table). Some of the cases were examined by the Supreme Court, which considered that they might have raised important issues of interpretation of the domestic law, others were not, being rejected by that court as inadmissible ratione valoris.

7.  The key question with which the courts had to deal when examining the applicants’ cases was related to the fact that the labour law as it stood at the material time did not provide for any specific rules in the event that an employer was unable to ensure timely payment of salary and related amounts in arrears because of objective impediments, particularly military activity. Ukrzaliznytsya consistently argued in that regard (in the applicants’ cases and in other, similar, previous cases) that the general provisions of civil law regarding non-fulfilment of obligations had to be applied, in particular as concerned the exemption from fulfilment of obligations owing to force majeure (Article 617 of the Civil Code; see paragraph 13 below). In support of its position, Ukrzaliznytsya commissioned a “scientific and legal conclusion” from the Ukrainian Chamber of Commerce and Industry (“the UCCI”); it was prepared in January 2018 by two experts from that institution. The “conclusion” analysed the circumstances in which the Donetsk and Luhansk branches of Ukrzaliznytsya had found themselves: their production sites and other premises had been captured or destroyed, their documentation had been seized and/or destroyed and there had been military activity in the region. The experts concluded that those circumstances amounted to force majeure.

8.  During the proceedings the applicants consistently argued that, under the legislation, the only document certifying force majeure as a ground for exemption from liability for breach of obligations was a “certificate” from the UCCI and not a “conclusion”. They submitted to the courts a letter sent to them by the UCCI, dated 25 January 2019, in which the UCCI confirmed that a “conclusion” and a “certificate” were two documents of different legal nature: a “certificate” officially confirmed the existence of force majeure, whereas a “conclusion” dealt with factual circumstances pertinent to a specific commercial entity and how they affected that entity. The letter stated that, under the legislation, “certificates” confirming force majeure could be issued to an interested party in the event that a law or a contract specified that a party was exempted from fulfilment of its obligations in such circumstances. It further stated that considering that the labour legislation did not provide for the possibility of exempting an employer from its financial obligations related to employment, the UCCI could not issue “certificates” confirming force majeure in respect of labour relations. The applicants also referred to domestic case-law, specifically case no. 805/1756/18-a (final judgment adopted by the Supreme Court on 31 October 2018), in which the courts had found that as long as the Law on Temporary Measures During the Anti-Terrorist Operation was in force (see paragraph 15 below), the only document that could serve as a basis to confirm force majeure was a UCCI “certificate”.

9.  Giving their interpretation, the courts analysed Article 4 of the Labour Code and Article 9 of the Civil Code (see paragraphs 12 and 13 below) and concluded that it was permitted to apply civil law to labour relations as regards those matters that were not clearly regulated by the legislation on labour. In particular, Article 117 of the Labour Code provided that an employer could be held (financially) liable for a delay in payment of the amounts due to an employee at the time of dismissal if (1) there had been a breach of deadlines established for such payment and (2) the employer was at fault. At the same time, Article 617 of the Civil Code provided for an exemption from liability in the event of non-fulfilment of obligations resulting from, inter alia, force majeure. Considering that the UCCI’s “scientific and legal conclusion” had confirmed the existence of force majeure as regards Ukrzaliznytsya’s activities during the relevant period, it had not been at fault and it could not be held liable for non‑fulfilment of its obligations before its employees.

10.  In support of their findings, the courts also referred to the judgments of the Supreme Court on the matter, delivered between 2015 and 2019, in particular a judgment of the joined Chambers of the Civil Court of Cassation within the Supreme Court, dated 10 October 2019. In that case the defendant, a private energy company located in the Donetsk Region, was sued for non‑payment of salary debt and various compensations related to dismissal. The claimant argued that the Civil Code, particularly its provisions on force majeure, could not be applied to labour relations, at least not to salary debts, and that the UCCI’s “scientific and legal conclusion” commissioned by the defendant did not constitute appropriate evidence of force majeure. The Supreme Court ruled that the defendant had been affected by objectively insurmountable circumstances which had deprived it of the possibility of paying the full settlement upon the claimant’s dismissal.

11.  The wording of the courts’ judgments in the applicants’ cases is very similar. As an example, in the case of Ms Kalmykova, the appellate court noted as follows:

“According to [the UCCI’s scientific and legal conclusion] concerning the impossibility of fulfilment by [Ukrzaliznytsya] of [its] obligations under the Ukrainian labour legislation during the dismissal of staff caused by circumstances of force majeure (objectively insurmountable circumstances), the circumstances of force majeure have been confirmed in respect of the commercial activities in the territories outside the control of the Ukrainian government, including in the city of Donetsk.

...

Considering the foregoing, the panel finds that the non-fulfilment by the respondent party of its obligations set out in Articles 47, 83, 115 and 116 of the Labour Code occurred in the absence of [its] guilt and was caused by force majeure as established by [the UCCI’s conclusion].

...

Given that there is an absence in the labour legislation of regulation of issues regarding liability for failure to fulfil obligations as a result of circumstances of force majeure and that these issues are to be regulated by the relevant provisions of civil legislation, the scientific and legal conclusion, therefore, investigated the possibility of applying the relevant provisions of civil legislation to labour relations, since [Ukrzaliznytsya] needed such scientific and legal conclusion, taking into account that at the time when the [military activity] was taking place, the current labour legislation had not been amended so as to properly respond to the events taking place in Ukraine in [the relevant territories], which significantly complicated the legal regulation of the activities of [the employers] in those territories.

The experts have substantiated and objectively proved that, in relation to [Ukrzaliznytsya], in particular its regional branch, Donetsk Railways, which includes the Donetsk Directorate of Railway Transport and the Luhansk Directorate of Railway Transport, if the failure to fulfil such obligations was caused by circumstances of force majeure, in particular acts of terrorism in the territories of Donetsk and Luhansk Regions committed by illegal armed groups, then such enterprise is not liable for the failure to fulfil obligations under Articles 47, 83 and 116 of the Labour Code of Ukraine.

Therefore, as set out in the labour legislation of Ukraine, the scientific and legal conclusion on the impossibility of fulfilling obligations upon the dismissal of employees as a result of circumstances of force majeure ... is an authoritative opinion of [the UCCI] formulated by scientists employed [by the Ukrzaliznytsya] on a contractual basis as leading experts in the relevant field of law. It must be assessed by the court when resolving the dispute.

...

Therefore, since Ukrainian legislation does not provide for the issuance of certificates on force majeure in connection with an employer’s failure to fulfil, or the untimely fulfilment, of its obligations as regards final payment to an employee following [his or her] dismissal, the appellate court concludes that the court of first instance unreasonably failed to take into account [the UCCI’s] scientific and legal conclusion, as it constituted an appropriate evidence that certified the respondent party’s lack of guilt in the failure to pay salary-related arrears to the plaintiff, who was dismissed from her position ... during circumstances of force majeure.”

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12.  The relevant provisions of the Labour Code, as in force at the material time, provided as follows:

Article 4. Labour legislation

“Labour legislation comprises the Labour Code and other legislative acts of Ukraine adopted in accordance with it”.

Article 40. Termination of the employment contract at the initiative of the employer

“An employment contract of an indefinite period, as well as a fixed-term employment contract, may be terminated by the employer before the expiry of its validity only in the following cases:

(1) changes in the organisation of production processes and work, including liquidation, reorganisation, bankruptcy or repurposing of the enterprise, institution or organisation; reduction in the number or staff of employees; ... ”

Article 47. Obligation of the employer or an authorised body to settle accounts with the employee and issue a work record

“The employer or authorised body shall, on the day of dismissal, issue the employee with a properly executed work record and to settle accounts with him or her within the terms specified in Article 116 of this Code ... ”

Article 116. Terms of settlement upon dismissal

“Upon dismissal of an employee, the payment of all amounts due to him or her by the enterprise, institution or organisation shall be made on the day of dismissal. If the employee does not work on the day of dismissal, the specified amounts shall be paid no later than one day following the presentation by the dismissed employee of the demand for settlement. The employer or authorised body shall notify the employee in writing of the accrued amounts due upon dismissal before payment of the specified amounts.

In the event of a dispute over the amounts due to the employee upon dismissal, the employer or authorised body must in any event pay the undisputed amount within the period specified in this article”.

Article 117. Liability for delay in payment upon dismissal

“In the event of non-payment on account of a fault on the part of the employer or the authorised body of the amounts due to the dismissed employee within the terms specified in Article 116 of this Code and in the absence of a dispute over their amount, the [employer] shall pay the employee his or her average earnings for the entire period of delay until the day of actual payment.

In the event of a dispute over the amounts due to the dismissed employee, the employer or authorised body shall pay the compensation specified in this article if the dispute is resolved in favour of the employee. If the dispute is resolved partially in favour of the employee, the amount of compensation for the period of delay shall be determined by the body that decides on the merits of the dispute”.

13.  The relevant provisions of the Civil Code, as in force at the material time, provided as follows:

Article 9. Application of the Civil Code of Ukraine to the regulation of relations in the spheres of commerce, use of natural resources, environmental protection, labour and family relations

“1. The provisions of this Code shall apply to the regulation of relations arising in the spheres of use of natural resources and environmental protection, as well as to labour and family relations, unless they are regulated by other acts of legislation. ...”

Article 617. Grounds for exemption from liability for breach of an obligation

“1. A person who has violated an obligation shall be released from liability for such violation if he or she proves that the violation occurred as a result of an accident or force majeure ... ”

14.  The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows:

Article 76. Evidence

“1.  Evidence is any data on the basis of which the court establishes the presence or absence of circumstances (facts) that substantiate the claims and objections of the participants of the case and other circumstances that are important for resolving it.

2.  This data can be established by the following means:

(1) written material and electronic evidence;

(2) expert opinions;

(3) witness testimonies.

Article 78. Admissibility of evidence

“ ...

2.  The circumstances of the case, which by law must be confirmed by certain evidence, may not be confirmed by other means.”

Article 89. Evaluation of evidence

“1.  The court evaluates evidence according to its internal conviction which is based on a comprehensive, complete, objective and direct examination of the evidence available in the case.

2.  No evidence shall be [considered by the court] to have pre-established power. The court shall evaluate the relevance, admissibility and reliability of each item of evidence separately, as well as the sufficiency and correlation of the evidence in its entirety.

3.  The court shall evaluate both the evidence collected in the case as a whole and each item of evidence ... contained in the case and shall give reasons for the rejection or acceptance of each item of evidence ...”

15.  Section 10 of the Law on Temporary Measures during the Anti‑Terrorist Operation, as in force at the material time, provided as follows:

Section 10. Confirmation of circumstances of force majeure

“During the period of validity of this Law, the only proper and sufficient document confirming the occurrence of circumstances of force majeure that take place on the territory of the anti-terrorist operation, as a basis for an exemption from responsibility for non-fulfilment (or improper fulfilment) of obligations, shall be a certificate issued by [the UCCI].”

16.  Section 14(1) of the Law, as in force at the material time, provided as follows:

Section 14(1). Issuance of certificates regarding circumstances of force majeure

“1.  The [UCCI] and the regional chambers of commerce and industry authorised by it shall certify the circumstances of force majeure and issue a certificate confirming such circumstances within seven days from the date of application by the subject of economic activity ... A certificate of force majeure is issued free of charge to small business enterprises.

2.  Circumstances of force majeure constitute extraordinary and unavoidable circumstances that objectively make it impossible to fulfil obligations stipulated by a contract or obligations arising out of legislative and other regulatory acts, [those circumstances] comprising: threat of war or armed conflict or serious threat of such conflict including but not limited to enemy attacks, blockades, military embargoes, acts of a foreign enemy, general military mobilisation, hostilities, declared and undeclared war, acts of a public enemy, disturbances, acts of terrorism, sabotage, piracy, riots, invasion, blockades, revolution, insurrection, uprisings, mass riots, curfew, expropriation, forced takeover or seizure of enterprises, requisition, public demonstrations, blockades, strikes, accidents, unlawful actions of third parties, fires, explosions, long interruptions in the operation of transport regulated by relevant decisions and acts of State authorities, closure of sea straits, embargoes, prohibition (restriction) of export/import; and circumstances caused by exceptional weather conditions and natural disasters, namely epidemics, severe storms, cyclones, hurricanes, tornadoes, storms, floods, accumulation of snow, glaze ice, hail, the frost and freezing of the sea, straits, ports or mountain passes, earthquakes, lightnings, fires, drought, landslides and other natural disasters.”

THE LAW

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

18.  The applicants complained of the courts’ refusal to grant their claims for salary and various dismissal-related payments, in particular with reference to the UCCI’s “scientific and legal conclusion” which, according to them, had been unlawful. They also complained about the actual amounts awarded by the domestic courts allegedly in disregard of pertinent evidence or its erroneous evaluation. They relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

19.  The Court, being the master of characterisation to be given in law to the facts of the case, considers that the applicants’ complaints fall to be examined under Article 1 of Protocol No. 1 only (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). That provision reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

20.  The Court further notes that the applicants’ complaints concerned two separate aspects of their claims as raised before the domestic courts. Firstly, the applicants complained about the actual amounts awarded to them, mainly consisting of the sums of the salary debts themselves, which they considered had been based on an erroneous assessment of the evidence presented by the parties. Secondly, the applicants complained about the rejection of part of their claims, mainly concerning compensation for late salary payment upon their dismissal, on grounds of force majeure. They disagreed with the domestic courts’ reliance on the UCCI “conclusion”, as opposed to a “certificate”, to confirm force majeure. Some of the applicants (applications nos. 8216/21, 9474/21, 13672/21, 27172/21, 48852/21 and 36257/22) also complained about the very fact that the domestic courts had interpreted the labour law so as to permit the use of civil-law concepts, particularly as regards exemption from liability on the grounds of force majeure.

21.  The Court considers that those two aspects of the applicants’ claims must be examined separately and will now turn to the question of admissibility of those complaints.

22.  The Government provided general comments on the applicants’ complaints arguing that they were manifestly ill-founded as the interference complained of had been lawful, effected in the public interest and proportionate. The applicants disagreed.

23.  The Court reiterates that the applicants’ complaints are two-fold, as described in paragraph 20 above, and need to be treated separately. In what concerns the first aspect of the applicants’ complaints, they argued that the actual amounts awarded by the domestic courts had been unfairly low, in particular as they had been based on evidence adduced by the respondent party which had been inacceptable or incorrect or which had been erroneously evaluated by the courts.

24.  In that connection the Court reiterates that it is not its task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the facts and evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Radomilja and Others, cited above, § 150).

25.  On the basis of the material before it, the Court does not discern any manifest arbitrariness in the domestic courts’ assessment of the evidence presented in respect of this part of the applicants’ claims. In so far as the applicants can be understood to be complaining that the domestic courts’ stand regarding force majeure (as described in paragraph 43 below) influenced the manner in which they determined the unpaid salary amounts, the Court observes that the domestic courts reached their conclusions in that regard on the basis of the fact that those claims had not been duly substantiated by evidence (see paragraph 6 above and the appended table) and cannot be said to have referred to force majeure in respect those applicants’ claims. The Court thus considers that no issue arises in that connection.

26.  The Court therefore considers that this aspect of the applicants’ complaints is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

27.  The Court further notes that the remaining part of the applicants’ complaints is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must, therefore, be declared admissible.

(a)   The Government

28.  The Government argued that the interference with the applicants’ rights had been lawful. In that connection they emphasised the difficult situation in which the country had found itself after the outbreak of hostilities in 2014 and the need to adapt to new realities, including in terms of adapting its legal system. The domestic courts had examined the applicants’ cases in detail and delivered duly reasoned judgments which, moreover, had been based on the extensive case-law of the higher courts in the relevant category of employment disputes.

29.  In that connection they provided references to several judgments delivered in 2021 and 2022, most notably the judgment of the Grand Chamber of the Supreme Court dated 26 October 2022 (case no. 905/857/19). In that judgment the Grand Chamber of the Supreme Court had been called upon to decide whether there existed divergent application of the law in respect of two judgments – the judgment of the joined Chambers of the Civil Court of Cassation within the Supreme Court, dated 10 October 2019 (see paragraph 10 above), and another judgment adopted subsequently, on the issue of whether an employer could be exempted, on the basis of force majeure, from the obligation to pay outstanding salary debt (as opposed to various types of compensations related to dismissal). In addition to resolving that issue, the Grand Chamber of the Supreme Court also stated in its judgment that, in accordance with section 10 of the Law of Ukraine on Temporary Measures During the Anti-Terrorist Operation, “the only proper document [italics in the original text]” which confirmed the circumstance of force majeure which had taken place in the relevant territories as a basis for an exemption from liability for non-fulfilment or improper fulfilment of obligations was a “certificate” issued under section 14(1) of the Law on Chambers of Commerce and Industry in Ukraine. At the same time, the circumstances that could be classified as force majeure could also be confirmed by appropriate evidence, in particular expert opinions and witness statements. The courts could also take into account, in the context of the rule of exemption from the need to prove certain facts, circumstances recognised by the parties to the case or circumstances recognised as common knowledge. Therefore, the courts could establish the existence of circumstances of force majeure on the basis of various evidence available in the case.

30.  The Government argued that, in the light of the considerations above, the legal framework applicable to the applicants’ disputes had been sufficiently accessible and foreseeable and that the applicants’ assertion that force majeure could only be established on the basis of the UCCI “certificate” was ill-founded.

31.  Overall, the Government emphasised that it was not for the Court, in view of its subsidiary nature, to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it was for the national courts to assess the evidence before them and to apply domestic law.

32.  The Government also emphasised that all the applicants had had at their disposal a judicial remedy which they had used. Those applicants who had been awarded certain amounts had been able to secure their actual payment. They argued, therefore, that the applicants had lost their victim status.

(b)   The applicants

33.  The applicants emphasised that salary and related compensations that had allegedly been due to them had constituted their possessions and, accordingly, the refusal to grant them those payments had been an interference with their property rights. Moreover, those payments had been of extreme importance for the applicants after their dismissal, as many of them had continued to live in the areas affected by hostilities and had been unable to find other jobs.

34.  They argued that, unlike the first instance courts, the higher courts had not provided a due and correct analysis of the evidence available or of the applicable legislation. In particular, the applicants reiterated their assertion that the UCCI’s 2018 “scientific and legal conclusion” had not been an appropriate evidence to confirm circumstances of force majeure. In that context they submitted that the judgment of the Grand Chamber of the Supreme Court dated 26 October 2022 (case no. 905/857/19), referred to by the Government, had in fact confirmed that only a UCCI “certificate” could certify force majeure.

35.  The Court notes that the applicants were entitled, under the provisions of labour legislation, to obtain salary and various other payments to be paid by their employer, a State entity, upon dismissal. That legislation did not contain any exceptions or special provisions regarding the employers’ liability in the event of any exceptional circumstances preventing such employer to ensure full settlement upon dismissal. The Government argued that in the applicants’ cases, the employer, a State entity, had been exempted from liability for certain payments in the exceptional circumstances of force majeure as caused by the outbreak of an armed conflict. Such exemption had been made possible through the domestic courts’ interpretation of the existing provisions of labour law read in conjunction with civil law. The Court considers that the applicants’ entitlement under the general labour legislation, as it would have stood in normal times, to the payments in question was sufficiently clear to generate, at least, a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 and that the refusal to grant their respective claims must be seen as an interference with the applicants’ property rights (see, mutatis mutandis, Sukhanov and Ilchenko v. Ukraine, nos. 68385/10 and 71378/10, § 32, 26 June 2014, and Kolesnyk and Others v. Ukraine (dec.), nos. 57116/10, 74847/10 and 10642/11, § 82, 3 June 2014).

36.  The Court reiterates that to be compatible with Article 1 of Protocol No. 1 to the Convention an interference must fulfil three conditions: it must be lawful, pursue a legitimate aim and strike a fair balance between the general interest of the community and the individual’s fundamental rights (see Beyeler v. Italy [GC], no. 33202/96, §§ 108-14, ECHR 2000-I).

37.  The existence of a legal basis in domestic law does not suffice, in itself, to satisfy the principle of lawfulness which, in addition, presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 187, ECHR 2012, and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012). The lack of a sufficiently precise and foreseeable statutory provision may be remedied by the domestic courts by giving a clear and precise interpretation of the provision (see Vijatović v. Croatia, no. 50200/13, § 54, 16 February 2016). Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Radomilja and Others, cited above, § 149, with further references).

38.  Furthermore, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest and if there is a reasonable relationship of proportionality between the means employed by the authorities and the aim which they seek to achieve. The requisite balance will not be achieved if the person concerned has had to bear an individual and excessive burden.

39.  Turning to the present case, the Court notes at the outset that while all applicants complained of the domestic courts’ reliance on a UCCI “conclusion” (as opposed to a “certificate”) regarding the existence of a force majeure, some applicants (see paragraph 20 above) complained also regarding the application of civil law to labour relations. The Court observes that the two mentioned issues are closely related and that in the domestic proceedings all applicants focused mainly on the use of the UCCI “conclusion” as opposed to a “certificate”.

40.  The Court deems it appropriate to examine that question first.

41.  The crux of the applicants’ argument is that they considered that under domestic law force majeure could only be confirmed by a UCCI “certificate” and not any other document or evidence. The Government, for their part, argued that under domestic law circumstances of force majeure could be established on the basis of any evidence submitted to the courts.

42.  The Court reiterates that its role in such cases is limited to ascertaining whether the applicable domestic law was sufficiently precise and foreseeable and whether its interpretation by the domestic courts was not arbitrary or manifestly unreasonable.

43.  In the present case the domestic courts were facing a new situation which was not directly foreseen in the legislation and had to provide their interpretation of the way existing legal provisions applied to legal relations that had been drastically affected by the outbreak of the armed conflict. The Court acknowledges that it was important to do so in order not to leave questions in such an important sphere of legal relations as employment disputes without an answer. In that connection the Court observes that the domestic courts delivered first judgments in cases involving non-payment of salary and other dismissal-related amounts on account of military operations and occupation at least as early as 2015 (see paragraph 10 above), including in cases concerning Ukrzaliznytsya. It also appears that the courts’ position, although changing over time on the issue of whether the employer could be exempted, on the basis of force majeure, from the payment of the salary itself, remained largely unchanged in respect of the acceptance of UCCI’s “scientific and legal conclusions” as evidence to confirm force majeure. That position was once again confirmed in the judgment of the Grand Chamber of the Supreme Court of 26 October 2022 (see paragraph 29 above). The Court considers that that is a strong indication that there existed, therefore, a body of settled practice on this particular matter, including regarding the very fact that civil law concepts such as force majeure applied in respect of labour relations.

44.  While it may be considered that the reasoning provided by the domestic courts in the applicants’ cases was somewhat unclear, it was in line with the above-mentioned practice. In addition, the Court does not discern any manifest unreasonableness or arbitrariness in the finding that circumstances of force majeure could be proved by various evidence, apart from the UCCI “certificates” as the only document confirming it, but also by expert and witness evidence as well as other means of proof. This finding appears to have had special importance in situations such as that of the present case involving active military activity and occupation, which necessarily limited the possibility of accessing and gathering evidence. Considering the circumstances above, the Court finds that the domestic courts’ reliance on the UCCI “conclusion” cannot be seen as a breach of the lawfulness requirement of Article 1 Protocol No. 1.

45.  The Court further notes that there is no doubt that the interference with the applicants’ property rights regarding the rejection of part of their claims on grounds of force majeure pursued an aim in the public interest. As regards proportionality, the Court notes that that rejection did not concern unpaid salary but only various types of compensations, principally for late salary payment upon dismissal (see the appended table; see also paragraph 25 above). The Court does not overlook that the amounts of those compensations were rather high. Nevertheless, in the circumstances of an armed conflict and the drastic consequences for the country’s economy, the authorities must be allowed a wide margin of appreciation in what concerns adaptation to the new realities, particularly regarding consequences affecting labour relations. The Court emphasises that it is not its task to give its own interpretation of the domestic law or certain legal concepts. Being bound by its subsidiary role, the Court accepts that the refusal to grant part of the applicants’ claims on the basis of force majeure was not disproportionate in the circumstances (see, mutatis mutandis, Mamatas and Others v. Greece, nos. 63066/14 and 2 others, §§ 88-89, 21 July 2016 and Da Silva Carvalho Rico v. Portugal (dec.), no. 13341/14, §§ 41-45, 1 September 2015).

46.  There has, accordingly, been no violation of Article 1 of Protocol No. 1 to the Convention with regard to the rejection of part of the applicants’ claims on grounds of force majeure.

47.  Some of the applicants (applications nos. 55156/19, 55683/19, 57548/19, 23109/20, 42320/20, 48852/21, 13672/21 and 36257/22) also complained of various alleged breaches of the fair trial requirements under Article 6 of the Convention (including failure to call and question expert witnesses, to send the respondent party’s submissions to the claimants and to ensure the claimants’ participation in certain court hearings).

48.  Having regard to all the material in its possession, and in so far as they fall within its competence, the Court finds that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that those parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT

Done in English, and notified in writing on 16 October 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Victor Soloveytchik Kateřina Šimáčková
 Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  joint dissenting opinion of Judges Serghides and Zünd;

(b)  partly dissenting opinion of Judge Serghides.

JOINT DISSENTING OPINION
OF JUDGES SERGHIDES AND ZÜND

1.  This case concerns the refusal of Ukrainian courts to grant the applicants arrears related to salary due to them by their employer, a State entity, on grounds of force majeure. Our colleagues in the majority find no violation of Article 1 of Protocol No. 1 to the Convention. We respectfully disagree.

2.  The applicants were employed by the State Enterprise “Donetsk Railways”, particularly its local branches situated in the Donetsk and Luhansk Regions. In 2014/15 Donetsk Railways was reorganised by way of a merger with “Ukrainian Railways”, the latter taking over all rights and obligations of the former. Those local branches, now part of Ukrainian Railways, continued their activities in the territories controlled by the Ukrainian government and the applicants were employed there. As from March 2017, Ukrainian Railways no longer operated in the relevant regions on account of hostilities. The applicants were dismissed in July 2017 (see paragraph 5 of the judgment).

3.  The applicants instituted civil proceedings seeking unpaid salary, mostly for mid-2016 and early-2017 (paragraph 6 of the judgment), i.e. for periods in which they still were working for Ukrainian Railways, and compensation related to the delay in payment of the salary. The domestic courts granted the applicants’ claims for salary debts but rejected claims for related amounts in arrears because of alleged objective impediments, considered force majeure (paragraphs 6 and 7 of the judgment).

4.  The majority rightly note that the applicants were entitled to obtain salary and related payments upon dismissal, and that these entitlements are to be considered as proprietary rights falling within the ambit of Article 1 of Protocol No. 1 to the Convention (paragraph 35 of the judgment). Interference in such rights must be lawful, pursue a legitimate aim and strike a fair balance between the general interest and the individual’s fundamental rights (paragraph 36 of the judgment).

5.  In our view, it is not necessary to deal with the question whether in abstracto Ukrainian law provides for a legal basis for restricting labour rights on force majeure grounds or whether it does not. In any event, in concreto such restriction does not pursue a legitimate aim, nor does it preserve a reasonable relationship of proportionality between the means employed and the aim which they seek to achieve. In addition, the burden imposed on the applicants is not only largely excessive but bears no relation to the alleged force majeure.

6.  It is worth recalling that in mid-2016 and early 2017 the applicants fulfilled their obligations under the employment contract, whereas Ukrainian Railways did not pay their salary related to the work. It was only from March 2017 that Ukrainian Railways no longer operated in the region where the applicants worked. That is why the domestic courts obliged Ukrainian Railways to pay the salary owed. It would not have been adequate and reciprocal, if one party, the employees, fulfilled their obligation and the other, the employer, did not. However, the domestic courts rejected the claims for arrears and inflation losses due to belated payment on the alleged ground of force majeure. They did not give any reasoning, nor do the majority explain, why it should not have been possible for the employer to pay the salary on time, while the employees had been able to fulfil their contractual obligations.

7.  It is particularly striking to note the absurdity of accepting salary claims, on the one hand, while rejecting claims for other pecuniary obligations related to salary, on the other. It should either be truly possible to pay the money owed or not – either there is force majeure or there is not. Distinguishing between different pecuniary debts for work rendered in a certain period is not only arbitrary but unreasonable.

8.  We do not rule out the possibility that hostilities may render the fulfilment of obligations impossible and thus constitute force majeure. However, to impose the burden exclusively on employees, who have fulfilled their obligations, is contrary to any fair balance.

9.  For the above reasons we would have found a violation of Article 1 of Protocol No. 1 to the Convention and have thus voted against point 3 of the operative provisions of the judgment.

STATEMENT OF PARTIAL DISSENT OF JUDGE SERGHIDES

1.  As indicated in its introduction, the judgment concerns the refusal, in particular, on the grounds of force majeure, to grant the applicants’ claim regarding salary and/or related amounts in arrears due to them by their employer, a State entity. The applicants relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

2.  In a joint separate opinion with my eminent colleague, Judge Zünd, appended to the present judgment, we briefly explain why we voted against point 3 of the operative provisions of the judgment, namely, why we disagreed that there had been no violation of Article 1 of Protocol No. 1.

3.  This statement of partial dissent concerns a point not covered in my joint opinion with Judge Zünd. Its purpose is merely to state my disagreement with paragraph 19 of the judgment, namely, in not examining separately the complaint under Article 6 of the Convention mentioned in paragraph 18 of the judgment and in absorbing it under Article 1 of Protocol No. 1 to the Convention. I would use similar argumentation to that which I used, inter alia, in my partly dissenting opinion in Tomenko v. Ukraine (no. 79340/16, 10 July 2025, paragraphs 1-6 of the opinion) to which I simply refer.

APPENDIX

No.

Application no.

Case name

Applicant
Year of Birth
Place of Residence
Nationality

Application lodged on

Unpaid salary

Compensation for late salary payment upon dismissal

Other salary-related amounts (if applicable):

1) average earnings due for the delay of payment during a transfer in post

2) compensation for the loss of a part of income on account of untimely salary payment (inflation)

Decision establishing the final award

1.

55156/19

Basyuk v. Ukraine

Yuliya Mykolayivna BASYUK
1964
Kyiv
Ukrainian

09/10/2019

16,233.05 Ukrainian hryvnias (UAH)

and UAH 15,740.98 (for two periods) – granted

UAH 48,610.28 – rejected with reference to UCCI conclusion

n/a

Donetsk Regional Court of Appeal, 21/03/2019

2.

55683/19 Kosenko v. Ukraine

Olga

Grygorivna KOSENKO
1961
Kyiv
Ukrainian

09/10/2019

UAH 19,532.31 and UAH 15,368.14 – granted partially after recalculation (UAH 12,398.83 and respectively UAH 7,646.11)

UAH 53,181.16 – rejected with reference to UCCI conclusion

n/a

Donetsk Regional Court of Appeal, 20/03/2019

3.

57548/19 Didenko v. Ukraine

Dmytro Volodymyrovych DIDENKO
1984
Kostiantynivka
Ukrainian

23/10/2019

UAH 25,459.98 – granted

UAH 113,529.60 – rejected with reference to UCCI conclusion

1) n/a

2) UAH 4,098.83 – granted

Donetsk Regional Court of Appeal, 03/04/2019

4.

23109/20 Kotelnykova v. Ukraine

Svitlana Viktorivna KOTELNYKOVA
1976
Rodakove,

Luhansk region
Ukrainian

08/05/2020

UAH 21,971.49 – granted partially after recalculation

Unused leave – UAH 16,497.60

Unemployment benefit – UAH 7,578.23

Both claims granted partially after recalculation

UAH 190,981.44 – rejected with reference to UCCI conclusion

n/a

Supreme Court, 09/04/2020

5.

42320/20 Yakovleva v. Ukraine

Nataliya Volodymyrivna YAKOVLEVA
1965
Mozhniakivka
Ukrainian

12/09/2020

UAH 33,143.09 – granted partially after recalculation

UAH 192,414.40 – rejected with reference to UCCI conclusion

1) UAH 184,530.56 – rejected for the lack of proof of transfer

2) UAH 7,890.07 – granted partially

Kyiv Court of Appeal, 30/06/2020

6.

8216/21

Kalmykova v. Ukraine

Olga

Ivanivna KALMYKOVA
1967
Rodakove
Ukrainian

23/01/2021

UAH 32.810,38 – granted partially after recalculation

UAH 245,268.48 – rejected with reference to UCCI conclusion

1) UAH 175,139.52 – rejected for the lack of proof of transfer

2) UAH 8,391.12 – granted partially

Kyiv Court of Appeal, 25/11/2020

7.

9474/21

Piven

v. Ukraine

Olena Kostyantynivna PIVEN
1987
Donetsk
Ukrainian

30/01/2021

UAH 22,068.62 – rejected for the lack of proof of debt

UAH 278,167.04 – rejected with reference to UCCI conclusion

1) UAH 148,594.56

2) UAH 5,538.90

Both claims rejected with reference to UCCI conclusion

Kyiv Court of Appeal, 25/11/2020

8.

13672/21 Dogayev v. Ukraine

Vitaliy Mykolayovych DOGAYEV
1973
Frunze
Ukrainian

20/02/2021

UAH 44,522.40 – rejected for the lack of proof of debt

UAH 200,405.76 – rejected with reference to UCCI conclusion

1) UAH 207,054.64

2) UAH 12,119.22

Both claims rejected with reference to UCCI conclusion

Kyiv Court of Appeal, 21/10/2020

9.

27172/21

Gulko

v. Ukraine

Yuliya Kostyantynivna GULKO
1988
Makarove
Ukrainian

14/05/2021

UAH 32,345.59 – granted in full

UAH 233,267.20 – rejected with reference to UCCI conclusion

1) UAH 153,882.96 – rejected with reference to UCCI conclusion

2) UAH 8,172.24 – granted partially after recalculation

Kyiv Court of Appeal, 17/03/2021

10.

48852/21 Lyubymov v. Ukraine

Yuriy

Fedorovych LYUBYMOV
1963
Rodakove
Ukrainian

17/09/2021

UAH 62,573.81 – rejected for the lack of proof of debt

UAH 243,834.88 – rejected with reference to UCCI conclusion

1) UAH 194,094.80

2) UAH 16,916.53

Both claims rejected with reference to UCCI conclusion

Kyiv Court of Appeal, 17/06/2021

11.

36257/22 Korolyova v. Ukraine

Iryna Yuriivna KOROLYOVA
1974
Yasynuvata Donetsk region
Ukrainian

09/07/2022

UAH 42.441,68 – rejected for the lack of proof of debt

UAH 642,588.96 – rejected with reference to UCCI conclusion

1) UAH 546,080.40

2) UAH 12.948,39

Both claims rejected with reference to UCCI conclusion

Supreme Court, 21/06/2022