CASE OF SHKIRYA v. UKRAINE

FIFTH SECTION

CASE OF SHKIRYA v. UKRAINE

(Application no. 30850/11)

JUDGMENT
 

STRASBOURG

24 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Shkirya v. Ukraine,

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

Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 30850/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Mykola Mykolayovych Shkirya (“the applicant”), on 11 March 2011;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the right to a fair trial and interference with the applicant’s peaceful enjoyment of his possessions, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 3 June 2021,

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

INTRODUCTION

1.  The present case concerns the alleged failure of the national courts to determine the applicant’s additional claim, depriving him of his right of access to a court. The applicant invoked Article 6 § 1 of the Convention and Article 1 of Protocol no. 1.

THE FACTS

2.  The applicant was born in 1973 and lives in Kremenchuk. He was represented by Ms O.V. Mishchenko, a lawyer practising in Kremenchuk.

3.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

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

5.  On 20 November 2008 the applicant lodged an administrative claim with the Poltava Circuit Administrative Court against his employer, the Security Service of Ukraine, seeking payment of social benefits connected to his military service and damages for pecuniary losses. In particular, the applicant claimed compensation for not having been provided with food rations (продовольчий пайок) or kit (a set of clothes used by military men – речове майно) for the period 2007-08; payment in full for financial aid to resolve household and social issues (матеріальна допомога на вирішення соціально-побутових питань) for 2008; a 50% reimbursement of his expenses for service charges (витрати з оплати житлово-комунальних послуг) for the period 2006-08; and a reimbursement of the costs of transportation to and from his holiday destination (вартість проїзду у відпустку) for him and his family in 2007.

6.  On 16 February 2009 the applicant supplemented his claim, making additional monetary requests. He asked the Poltava Circuit Administrative Court to order the Security Service to pay him an amount corresponding to his salary for the delay in payment of compensation for his kit, and to reimburse him 50% of his expenses for his service charges for November 2008.

7.  On 6 October 2009 the Poltava Circuit Administrative Court held a hearing during which the applicant presented his claim, including his additional claim of 16 February 2009, the documents in support of his claim for reimbursement of 50% of his expenses for service charges for the period 2006-08 and a claim for reimbursement of travel expenses. The Government submitted an audio-recording of this hearing. It appears that during the hearing, a judge asked the applicant whether he had applied to superior management after receiving a negative reply from the local finance department to his application for reimbursement of 50% of his expenses for service charges for the period 2006-08. The applicant replied that he had not.

8.  On 17 November 2009 the Poltava Circuit Administrative Court rejected the applicant’s entire claim of 20 November 2008 as unsubstantiated. The court found in relation to the claim for the reimbursement of his expenses for service charges that the applicant had failed to follow the prescribed procedure, and in particular he had failed to submit expense claims to the Accounting Department. In relation to the costs of transportation to and from his holiday destination, the court acknowledged that he did have the right to receive such compensation, but that the Ministry of Finance, when drafting the 2007 Budget Act, had not made provision for this type of expenditure by the Security Service and therefore payments were not possible for transportation costs incurred in that year.

9.  The applicant appealed to the Kharkiv Administrative Court of Appeal. In his notice of appeal, he submitted, inter alia, that contrary to the findings of the first-instance court, he had filed expense claims with the Accounting Department for the reimbursement of 50% of his expenses for service charges, and he attached copies of those documents. He also contested the first-instance court’s reasoning that the reimbursement of his expenses for transportation to and from his holiday destination was not possible due to a lack of funds, arguing that the State could not rely on that as a ground for not honouring its obligations. The applicant also complained that the first‑instance court had failed to consider his additional claim of 16 February 2009.

10.  On 10 March 2010 amendments to the Jurisdiction of Courts to Examine Cases Related to Social Payments (Amendments) Act of 18 February 2010 (Закону України Про внесення змін до деяких законодавчих актів України щодо підвідомчості справ, пов’язаних із соціальними виплатами – “the Jurisdiction of Courts Act”) came into force, shifting jurisdiction over claims on social payments from administrative courts to the courts of general jurisdiction (see paragraph 22 below).

11.  On 18 March 2010 the Kharkiv Administrative Court of Appeal opened the appeal proceedings.

12.  On an unspecified date, the Security Service of Ukraine, referring to the Jurisdiction of Courts Act, lodged a request with the Kharkiv Administrative Court of Appeal seeking to divide the administrative case and transfer the claims relating to rations, kit and service charges, as well as transportation to and from the applicant’s holiday destination, to the Kyiv Court of Appeal to be considered under the rules of the Code of Civil Procedure.

13.  On 7 June 2010 the Kharkiv Administrative Court of Appeal held a hearing to consider the issue of transferring the case. According to the Government, the applicant indicated during that hearing that the case should be sent to the Poltava Regional Court of Appeal.

14.  On 2 July 2010 the Kharkiv Administrative Court of Appeal issued a ruling, transferring the majority of the case to the Poltava Regional Court of Appeal and continued the administrative proceedings in so far as they related to the claim for payment of financial aid for household and social issues. Its decision was final and was not open to appeal.

15.  On 2 July 2010 the Kharkiv Administrative Court of Appeal issued a decision, upholding the decision of the Poltava Circuit Administrative Court of 17 November 2009 and confirming that the applicant had received financial aid in accordance with the legislation in force.

16.  On 2 August 2010 the applicant lodged an appeal in cassation against the decisions of 2 July 2010 and 17 November 2009 with the Higher Administrative Court of Ukraine. He complained, inter alia, that the Poltava Circuit Administrative Court and the Kharkiv Administrative Court of Appeal had not considered his additional claim of 16 February 2009.

17.  On 9 September 2010 the Constitutional Court declared the legal provisions on the basis of which the applicant’s case had been transferred from an administrative court to a court of general jurisdiction to be unconstitutional (see paragraph 23 below).

18.  On 14 September 2010 the Poltava Regional Court of Appeal upheld the decision of the Poltava Circuit Administrative Court of 17 November 2009. The appellate court confirmed that the applicant had not submitted an expense claim to the Accounting Department and thus could not claim a violation of his right to reimbursement of 50% of his expenses for service charges. The court also confirmed that the 2007 Budget Act did not provide for any expenditure for the reimbursement of travel expenses to and from holiday destinations. The appellate court did not comment on the applicant’s additional claim of 16 February 2009. That decision was final and was not open to appeal.

19.  On 2 November 2010 the Higher Administrative Court of Ukraine refused to open cassation proceedings to review the decision of 14 September 2010 as, firstly, it could not be appealed against and, secondly, the Higher Administrative Court had no jurisdiction in this case.

20.  On 13 December 2013 the Higher Administrative Court of Ukraine upheld the decisions of the Kharkiv Administrative Court of Appeal of 2 July 2010 and of the Poltava Circuit Administrative Court of 17 November 2009.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

21.  The relevant provisions of the 2004 Code of Civil Procedure, as worded at the material time, read as follows:

Article 213: Lawfulness and reasoning of judicial decisions

“1.  A court decision must be lawful and reasoned.

2.  A decision is lawful if the court, having complied with all the requirements of the civil procedure, has adjudicated the case in line with the law.

3.  A decision is reasoned if it is based on a complete and thorough assessment of the circumstances which the parties referred to in support of their claims or objections and which were corroborated by the evidence examined at the court hearings.”

22.  The relevant provisions of the Jurisdiction of Courts to Examine Cases Related to Social Payments (Amendments) Act of 18 February 2010 (Law no. 1691-VI – “Jurisdiction of Courts Act”), which came into force on 10 March 2010, read as follows:

II. Final and transitional provisions

“...

2.  After this Act comes into force, the administrative courts will continue with the consideration of cases if proceedings have already been opened under Article 18 § 1 (3) of the Code of Administrative Justice. Administrative claims, notices of appeal or cassation appeal, or submissions that have been lodged [in accordance with] Article 18 § 1 (3) of the Code of Administrative Justice with the relevant administrative courts in administrative cases, prior to the present Law coming into force, and [in respect of cases] in which proceedings have not yet been opened, shall be transferred by those courts to the relevant courts, which will consider [those cases] under the rules of civil justice [namely, under general jurisdiction].”

23.  The Constitutional Court of Ukraine, in its decision of 9 September 2010 in a case concerning the compliance of the provisions of the Jurisdiction of Courts Act with the Constitution of Ukraine, held, inter alia, as follows:

Decided:

“1.  To declare the following provisions of the Jurisdiction of Courts ... Act ... to be unconstitutional: ...

–  paragraph 2 of section II ...”

THE LAWSCOPE OF THE CASE

24.  The Court notes that the applicant raised a new complaint in his reply to the Government’s observations on the admissibility and merits of the case. In particular, he complained that his right of access to a court had been violated because on 2 November 2010 the Higher Administrative Court had refused to open cassation proceedings.

25.  The Court considers that this new complaint does not constitute an elaboration on the applicant’s original complaints to the Court, on which the parties have already commented. The Court considers, therefore, that it is not appropriate to take up this matter in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

26.  The applicant complained that the domestic courts had failed to examine his additional claim of 16 February 2009, that they had disregarded his main argument in support of his claim for the reimbursement of his expenses for service charges and that his right to have his case considered by a tribunal established by law had been breached. The applicant relied on Article 6 § 1 and Article 13 of the Convention.

27.  The Court decided to examine the complaints solely under Article 6 § 1 of the Convention, which in the present case should be viewed as a lex specialis in relation to Article 13.

28.  Article 6 § 1 of the Convention reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”The parties’ submissions

29.  The Government referred to the audio-recording of the hearing of 6 October 2009, which confirmed that the court in question had examined the applicant’s additional claim of 16 February 2009 and the documents submitted in support of his claim for reimbursement of his expenses for service charges. They admitted that the Poltava Circuit Administrative Court had not addressed the applicant’s additional claim in its decision of 17 November 2009. In relation to the complaint of a violation of the applicant’s right to a hearing by a tribunal established by law, the Government submitted that the applicant failed to prove that the Poltava Regional Court of Appeal had acted outside the legal framework governing the exercise of its functions.

30.  The applicant maintained his complaint. In relation to the legality of transfer of his case, he submitted that in accordance with the legislation in force, the Kharkiv Administrative Court of Appeal had been obliged to transfer the case to a court of general jurisdiction.The Court’s assessmentAdmissibility

31.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

(a)   Access to a court

32.  The Court reiterates that the right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, 29 November 2016, and the authorities cited therein).

33.  In the present case, the applicant supplemented his claim, making additional monetary requests on 16 February 2009 (see paragraph 6 above). The first-instance court did not address this issue in its decision of 17 November 2009 (see paragraphs 8 above). The applicant complained of the failure of the first-instance court to consider his additional claim before the Kharkiv Administrative Court of Appeal and the Higher Administrative Court of Ukraine (see paragraphs 9 and 16 above). Those courts did not comment on this issue either (see paragraphs 18 and 19 above).

34.  Furthermore, the Court notes that the Government acknowledged that the Poltava Circuit Administrative Court had not addressed the additional claim in its decision of 17 November 2009 (see paragraph 29 above). It is, therefore, not disputed that the applicant did not obtain a judgment on the merits regarding his additional claim of 16 February 2009.

35.  The above circumstances are sufficient to enable the Court to conclude that the applicant was deprived of his right of access to a court. There has therefore been a violation of Article 6 § 1 of the Convention.

(b)   Tribunal established by law

36.  The Court reiterates that under Article 6 § 1 of the Convention, a “tribunal” must always be “established by law”. This phrase reflects the principle of the rule of law, which is inherent in the entire system of the Convention and its Protocols. The phrase “established by law” covers not only the legislation concerning the establishment and jurisdiction of a tribunal, but also the composition of the bench in each case (see, for instance, Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002); it also covers compliance by the tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006).

37.  The Court notes that the present complaint concerns two issues, namely whether the partial transfer of the applicant’s case from the Kharkiv Administrative Court of Appeal to the Poltava Regional Court of Appeal was in accordance with the legislative changes, and whether the Poltava Regional Court of Appeal had jurisdiction to hear the applicant’s case following the Constitutional Court’s decision of 9 September 2010.

38.  In relation to the former complaint, the applicant agreed that the Kharkiv Administrative Court of Appeal had acted within the framework of the legal provisions in force (see paragraphs 13 and 30 above). Therefore, there is no dispute that the case was transferred lawfully at the material time.

39.  In relation to the applicant’s complaint that the Poltava Regional Court of Appeal was not a “tribunal established by law”, the Court observes that the Constitutional Court, in its decision of 9 September 2010, declared the rules on transfer of cases from the administrative courts to the courts of general jurisdiction to be unconstitutional (see paragraphs 22 and 23 above).

40.  On 14 September 2010, the Poltava Regional Court of Appeal examined the applicant’s case (see paragraph 18 above), although there was no legal basis in domestic law following the decision of the Constitutional Court for it to do so.

41.  It these circumstances, the Court considers that the applicant’s case had not been adjudicated by a tribunal that was competent under domestic law, in violation of his right to a tribunal “established by law” under Article 6 § 1 of the Convention.

42.  Accordingly, there has been a violation of Article 6 § 1 of the Convention.

(c)   Lack of reasoning

43.  The Court reiterates that Article 6 § 1 of the Convention obliges the domestic courts to give reasons for their judgments. This duty cannot be understood as requiring a detailed answer to every argument, and the question of compliance with that duty can only be determined in the light of the circumstances of the case (see, for instance, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I; Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006; Benderskiy v. Ukraine, no. 22750/02, §§ 42-47, 15 November 2007; and Bogatova v. Ukraine, no. 5231/04, §§ 18-19, 7 October 2010).

44.  In the present case, the applicant argued that the documents he had submitted in support of his claim for reimbursement of 50% of his expenses for service charges for the period 2006-08 had not been considered by the national courts.

45.  The Court points to the audio-recording of the hearing of 6 October 2009 (see paragraph 7 above). During that hearing the applicant presented his supporting documents to the Poltava Circuit Administrative Court and stated that he had not applied to superior management after receiving a negative reply to his application from the local finance department. Therefore, it cannot be held that the applicant’s arguments and his supporting documents were not duly considered by the national courts.

46.  The foregoing considerations are sufficient to enable the Court to conclude that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the ConventionALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

47.  The applicant complained that his travel expenses to and from a holiday destination in 2007 (512.50 Ukrainian hryvnias (UAH), about 75.40 euros (EUR) at the relevant time) had not been reimbursed. He relied on Article 1 of Protocol No. 1, which 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.”

Admissibility

48.  The Government argued, with reference to Svystun and Others v. Ukraine ((dec.), nos. 25250/16 and 2 others, 3 November 2016), that the present complaint should be declared inadmissible for lack of significant disadvantage, as the alleged damage amounted to less than 200 euros. They further argued that the applicant had not submitted any evidence suggesting that the non-payment of the reimbursement had had a significant impact on his personal life.

49.  The applicant submitted that he had suffered significant disadvantage and that in any case pecuniary interest was not the only criterion for determining whether an applicant had suffered a significant disadvantage.

50.  The Court notes that the applicant’s claim related to the reimbursement of a relatively small amount. Previously, the Court has rejected claims over similar small amounts as inadmissible (see, for instance, Preobrazovatel-Service and 331 others v. Ukraine (dec.) [Committee], no. 510/07, § 19, 7 June 2018, where the Court found that the delays in enforcement concerned the payment of relatively small amounts and rejected the claims, since the applicants had not suffered a significant disadvantage).

51.  The Court further notes that “respect for human rights”, as defined in the Convention and the Protocols thereto, does not require examination of the present complaints on the merits, as the Court has already considered similar issues in a number of other cases (see, for instance, Suk v. Ukraine, no. 10972/05, §§ 20-25, 10 March 2011; Fedulov v. Russia, no. 53068/08, §§ 74-81, 8 October 2019; and Shebaldina v. Ukraine [Committee], no. 75792/11, §§ 18-24, 18 June 2020).

52.  In view of the foregoing, the Court concludes that the present complaint must be declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

53.  Referring to Article 1 of Protocol No. 1, the applicant complained that the State authorities had deprived him of his possessions when dismissing his claims for reimbursement of his expenses for service charges.

54.  The Court refers to its findings under Article 6 § 1 of the Convention (see paragraph 46 above) and concludes that since the applicant failed to follow the prescribed procedure for the reimbursement of his expenses for service charges, he cannot argue that he had a “legitimate expectation” for the purposes of Article 1 of Protocol No. 1. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.APPLICATION OF ARTICLE 41 OF THE CONVENTION

55.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

56.  The applicant claimed 5,039.60 Ukrainian hryvnias (UAH) for the reimbursement of his expenses for service charges for the period 2006-08 (about 580 euros (EUR) at the relevant time), UAH 512.50 for the reimbursement of holiday travel expenses in 2007 (about EUR 75.40 at the relevant time) and UAH 8,603.84 for the delay in payment of compensation for kit (about EUR 990 at the relevant time). The applicant also claimed EUR 5,000 in respect of non-pecuniary damage.

57.  The Government contested those claims, arguing that there had been no violation of the applicant’s rights under the Convention and thus no award should be made in respect of pecuniary damage. They further argued that the claim in respect of non-pecuniary damage was unsubstantiated.

58.  The Court does not discern any causal link between the violation found and the first two claims in respect of pecuniary damage: it therefore rejects those claims. The claim in respect of the delay in payment of compensation for the applicant’s kit is premature, as the national courts have not yet ruled on it. In this respect, the Court notes that the applicant is entitled under Ukrainian law to request a rehearing of his case in the light of the Court’s finding that the domestic courts did not comply with Article 6 (compare Bochan v. Ukraine, no. 7577/02, § 97, 3 May 2007). Lastly, ruling on an equitable basis, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage.Costs and expenses

59.  The applicant also claimed UAH 17,143.82 (EUR 741.13) in respect of the costs and expenses incurred before the domestic courts and the Court, made up as follows: UAH 98.46 (EUR 9.27) for postal expenses incurred before the national courts; UAH 87.33 (EUR 8.20) for the registration fee in cassation proceedings; UAH 1,190 (EUR 114.85) for travel expenses (travel to the hearings before the Poltava Circuit Administrative Court and Kharkiv Administrative Court of Appeal); UAH 918.03 (EUR 37.33) for postal expenses incurred before the Court; and UAH 14,850 (EUR 571.48) for legal services before the Court.

60.  The Government contested the claim for the reimbursement of travel expenses to national court hearings and part of the claim for postal expenses, as it was not possible to identify the payer. They further argued that the amount claimed in respect of legal services was excessive. In relation to the remaining part of the claim for postal expenses and the court registration fee, the Government left this issue to the Court’s discretion.

61.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the applicant’s claims should be allowed in full.Default interest

62.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint concerning the lack of access to a court, and in particular the right to obtain a determination of the dispute by a court, as well as the right to a tribunal established by law admissible, and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 741.13 (seven hundred and forty-one euros and thirteen cents), 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 24 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Mārtiņš Mits
Deputy RegistrarPresident

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