FIFTH SECTION
CASE OF KOPCHINSKIY v. UKRAINE
(Application no. 65647/12)
JUDGMENT
STRASBOURG
12 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Kopchinskiy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
María Elósegui,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 65647/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 October 2012 by an Ukrainian national, Mr Aleksandr Yuzikovich Kopchinskiy, born in 1962 and living in Kyiv (“the applicant”) who was represented by Mr S.A. Zayets, a lawyer practising in Irpin;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Mr Ivan Lishchyna, of the Ministry of Justice;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 21 September 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged failure of the domestic courts to examine the applicant’s claims on the merits (Article 6 § 1 of the Convention).
ADMINISTRATIVE PROCEEDINGSFirst set of proceedings2. The applicant worked as an attorney. On 20 November 2007 the Qualification and Disciplinary Commission of the Sevastopol Bar Association (“the Commission”) decided to reprimand the applicant for his alleged failure to ensure proper defence of a certain Z. On 21 March 2008 the Higher Qualification and Disciplinary Commission of the Bar of Ukraine (“the Higher Commission”) decided to annul the applicant’s attorney’s license.
3. On 10 December 2007 the applicant instituted administrative proceedings before the Nakhimovskyi District Court of Sevastopol (“the Nakhimovskyi Court”) challenging the decision of the Commission. Later on, he amended his claims seeking to also declare void the decision the Higher Commission.
4. On 26 December 2008 the Nakhimovskyi Court terminated the proceedings in the case on the grounds that on 21 April 2008 (see paragraph 8 below) it had already delivered a decision on an identical claim lodged by the applicant against the same defendants. The decision of 26 December 2008 was upheld on appeal on 14 June 2011.
5. Following a cassation appeal by the applicant, on 20 April 2012 the Higher Administrative Court quashed the decisions of 26 December 2008 and 14 June 2011 and terminated the proceedings, ruling that the case was to be considered in civil proceedings.
6. On 19 June 2012 the Higher Administrative Court refused to grant the applicant leave to appeal to the Supreme Court.
Second set of proceedings7. On 9 April 2008 the applicant lodged a new identical administrative claim with the Nakhimovskyi Court against the above-mentioned decisions of the Commission and the Higher Commission.
8. On 21 April 2008 the Nakhimovskyi Court terminated the proceedings in the case, ruling that the claim was not to be considered in administrative proceedings.
9. The applicant appealed to the Sevastopol Administrative Court of Appeal and then at a later stage asked for his claim not to be examined.
10. The Sevastopol Administrative Court of Appeal examined the applicant’s claim and noted in a decision of 26 July 2011 that the dispute should be considered within the framework of administrative proceedings. It quashed the decision of 21 April 2008 and closed the proceedings in accordance with the applicant’s request, stating that the applicant’s identical claims are pending before a civil court (see paragraphs 12-17 below).
Civil proceedings11. On 26 May 2008 the applicant instituted civil proceedings before the Leninskyi District Court of Sevastopol challenging the above decisions of the Commission and the Higher Commission.
Claims against the Commission12. On 8 May 2009 the Leninskyi Court declined to consider the claim concerning the Commission, finding that the same claim was being considered by an administrative court. It is unclear to which of the above administrative proceedings the decision of 8 May 2009 referred. The decision of 8 May 2009 was upheld on appeal, but on 21 April 2010 the Supreme Court quashed it and remitted this claim to the first-instance court for a fresh examination.
13. The applicant requested that the Leninskyi Court terminate the proceedings on the grounds that the case should not be examined in civil proceedings. On 30 July 2010 the Leninskyi Court allowed the request and terminated the proceedings.
Proceedings against the Higher Commission14. On 8 May 2009 the Leninskyi Court transferred the claim against the Higher Commission to the Pecherskyi District Court of Kyiv (“the Pecherskyi Court”) for consideration. The decisions of 8 May 2009 were upheld on appeal.
15. On 16 January 2013 the Pecherskyi District Court received the applicant’s claim against the Higher Commission.
16. On 15 February 2013 the Pecherskyi Court terminated the proceedings in question on the grounds that the case fell to be examined in administrative proceedings.
17. On 11 September 2013 the Higher Specialised Civil and Criminal Court of Ukraine upheld the decision of 15 February 2013, which therefore became final.
THE COURT’S ASSESSMENT
Admissibility18. The Government did not comment on the admissibility of the application. The applicant maintained his complaints.
19. The Court notes that the applicant himself terminated the civil proceedings against the Commission (see paragraph 13 above). The applicant also terminated the administrative proceedings on the same matter (paragraph 10 above). For this reason, the Court considers that the applicant himself prevented the domestic courts from examining the claims in respect of the decision of the Commission on the merits. It follows that he cannot be considered a victim of the alleged violation complained of. Accordingly, this part of the application must be declared inadmissible as incompatible ratione personae with the provisions of the Convention and be rejected under Article 35 §§ 3 and 4 of the Convention.
20. As regards the applicant’s claims against the Higher Commission, the Court notes that this complaint 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.
Merits21. The Government contested the applicant’s arguments. They stated that the applicant instituted several proceedings on the same subject matter which complicated examination of his claims by the courts. They further noted that the applicant himself asked some of the courts to terminate proceedings in his case. They also noted that following the decision of 15 February 2013 (see paragraph 16 above) the applicant could have instituted further administrative proceedings, but failed to do so. In view of the above circumstances, the applicant himself prevented the courts from examining his claims on the merits.
22. The applicant maintained his complaints. He submitted that from the national legislation and practice it was unclear which courts had jurisdiction over claims against bar associations.
23. The general principles concerning access to a court in a situation where the Ukrainian courts found that they did not have jurisdiction to decide on the matter have been summarised in Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 51-53, 28 February 2008).
24. The Court observes that the fact that in the present case the applicant lodged several claims on the same matter with the courts indeed complicated the proceedings.
25. However, the Court also notes that both the civil and administrative courts refused to examine the applicant’s claim against the Higher Commission on its merits. In particular, the highest jurisdiction in the framework of administrative proceedings decided that the claim fell to be examined by civil courts (see paragraph 6 above). The highest jurisdiction in the framework of civil proceedings decided that the claim fell to be examined by administrative courts (see paragraph 17 above). Accordingly the proceedings in the applicant’s case were terminated without his claims being examined on the merits.
26. In the Court’s view, that situation amounts to a denial of justice which impaired the very essence of the applicant’s right of access to a court, as secured by Article 6 § 1 of the Convention. It follows that there has been a violation of that provision.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,225 in respect of the costs of legal representation before the Court.
28. The Government contested those claims.
29. Having regard to the documents in its possession, the Court considers it reasonable to grant the applicant EUR 3,600 in respect of non-pecuniary damage and grant his claim in respect of costs and expenses in full.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint Article 6 § 1 of the Convention concerning the claims against the Higher Commission admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention of the Convention;Holds(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,225 (one thousand two hundred and twenty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 12 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President