FIFTH SECTION
CASE OF STATIVKA v. UKRAINE
(Application no. 64305/12)
JUDGMENT
STRASBOURG
7 September 2023
This judgment is final but it may be subject to editorial revision.
In the case of Stativka 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. 64305/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 September 2012 by a Ukrainian national, Mr Oleksandr Yevgenovych Stativka, who was born in 1971 and lives in Kharkiv (“the applicant”), and who was represented by Mr V.I. Veklenko, a lawyer practising in Bogodukhiv;
the decision to give notice of the complaint concerning access to court under Article 6 § 1 of the Convention to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, from the Ministry of Justice, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 13 July 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the allegedly inconsistent and unpredictable manner in which the domestic courts ultimately refused to entertain the applicant’s claims for a recalculation of salary-related payments. The applicant complained of a lack of access to a court under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
2. On 4 May 2011 the applicant lodged a claim with the Luhansk District Administrative Court (“the District Court”) against his former employer, the local Military Enlistment Office (“the Office”), challenging the latter’s refusal to recalculate salary-related payments.
3. On 6 May 2011 the District Court returned the claim unexamined for having been submitted too late.
4. On 7 October 2011 the Donetsk Administrative Court of Appeal (“the Court of Appeal”) quashed the above-mentioned ruling and sent the case to the District Court for reconsideration. It found that the applicant’s claim concerned conditions of remuneration and was not therefore subject to any limitation period, as provided for by Article 233 § 2 of the Labour Code.
5. On 13 December 2011 the District Court partly allowed the claim, referring, in particular, to Article 233 § 2 of the Labour Code, and ordered the Office to recalculate various salary-related arrears and pay them to the applicant.
6. On 15 February 2012 the Court of Appeal quashed the judgment of 13 December 2011 and returned the claim unexamined on the grounds that the applicant had missed the time-limit for lodging his claim. It held that the lower court’s reference to Article 233 § 2 of the Labour Code had been wrong as in its opinion that provision concerned only existing arrears and not disputed ones. It referred instead to Article 99 § 2 of the Code of Administrative Justice, which established a six-month limitation period for lodging administrative claims.
7. The applicant lodged a cassation appeal with the Higher Administrative Court (“the HAC”), arguing, in particular, that the finding by the Court of Appeal that Article 233 § 2 of the Labour Code had not been applicable had been wrong, in particular in view of its final ruling of 7 October 2011, in which it had found that that provision had been applicable in his case. He also relied on other similar cases in which the domestic courts, including the HAC, had not rejected claims as having been lodged outside the limitation period. In a summary ruling of 19 March 2012, the HAC refused to grant leave to the applicant’s cassation appeal, stating that there were no signs of incorrect application of the domestic law and that the applicant’s arguments did not allow for the conclusion that the relevant substantive or procedural law had been violated.
8. On 15 October 2013 the Constitutional Court provided an official interpretation of Article 233 § 2 of the Labour Code on account of the inconsistency in its application by the courts, and found that it applied both to existing and to disputed salary-related payments. Article 233 § 2 of the Labour Code was substantially amended in July 2022 and no longer provides for the possibility of seeking recalculation of salary-related payments without any time-limits.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION9. 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.
10. The Court reiterates that the right to a court, of which the right of access is one aspect, is not absolute: it may be subject to limitations permitted by implication, particularly as regards the conditions of admissibility of an appeal. However, those limitations must not restrict the exercise of the right in such a way or to such an extent that its very essence is impaired. They must pursue a legitimate aim and there must be a reasonable degree of proportionality between the means employed and the aim sought to be achieved. The rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and legal certainty. Those concerned must expect such rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Melnyk v. Ukraine, no. 23436/03, §§ 22 and 23, 28 March 2006, and Kravchenko v. Ukraine, no. 46673/06, §§ 41 and 42, 30 June 2016).
11. The Court notes that although the parties disagreed as regards the interpretation and application of specific procedural regulations, it is not necessary to examine whether the relevant rules were accurately applied by the domestic courts. The Court considers that in the present case its task is to examine whether the contested application of domestic rules of procedure could be regarded as foreseeable from the point of view of the applicant (see Melnyk, cited above, § 26, and Kravchenko, cited above, § 43).
12. In this connection, it refers to the circumstances of the present case, in which the same court within the same proceedings took the opposite stance as to the statutory time-limits which would be applicable to the applicant’s case. Furthermore, the inconsistency of the domestic courts on this matter was confirmed by the fact that it served as a ground for constitutional proceedings as to the interpretation of Article 233 § 2 of the Labour Code (see paragraph 8 above).
13. Therefore, the Court considers that in the circumstances of this case the application of procedural limitations by the Court of Appeal was not clear and foreseeable from the applicant’s point of view and thus was not in compliance with the principle of legal certainty. There is nothing in the applicant’s behaviour to justify his having to bear the burden of the consequences of that uncertainty .
14. There has accordingly been a violation of Article 6 § 1 of the Convention.
OTHER COMPLAINT15. The applicant also complained under Article 1 of Protocol No.1 to the Convention. Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses incurred before the Court.
17. The Government considered those claims unsubstantiated and excessive.
18. The Court awards the applicant EUR 1,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
19. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 500, covering costs for the proceedings before the Court, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint concerning lack of access to a court under Article 6 § 1 admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1 to 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred 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 7 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President