FIFTH SECTION
CASE OF TRYAPYSHKO v. UKRAINE
(Application no. 59577/12)
JUDGMENT
STRASBOURG
17 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Tryapyshko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 59577/12) 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 Sergey Mikhaylovich Tryapyshko (“the applicant”), on 6 September 2012;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the Government’s observations;
Having deliberated in private on 27 May 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The present case concerns the applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the appellate court had acted arbitrarily when it accepted the respondent’s belated appeal and re-examined the case which led to the quashing of the final and binding judgment of the local court adopted in the applicant’s favour.
THE FACTS
1. The applicant was born in 1963 and lives in the town of Chervonopartyzansk, Lugansk Region.
2. The Government were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 21 April 2011 the Sverdlovsk Town Court of the Lugansk Region (“the Local Court”), in a public hearing, allowed a claim lodged by the applicant and ordered the Sverdlovsk Town Department of the Pension Fund (“the Pension Fund”) to recalculate and pay the applicant’s pension as of 1 October 2010 based on the minimum salary for the year 2009.
5. It appears that no appeal against the above judgment was lodged within the statutory ten-day time-limit which thus became final on 3 May 2011. In November 2011 the enforcement proceedings of this judgment were opened.
6. On 17 November 2011 the Pension Fund lodged its appeal with the Donetsk Administrative Court of Appeal (“the Court of Appeal”). The appeal did not contain any explanations as regards the reasons for its belated submission as well as no request to renew the time-limit for the lodging of an appeal.
7. As transpires from a copy of the Pension Fund’s letter to the applicant of 20 April 2012, it had allegedly received the copy of the Local Court’s judgment only on 7 November 2011.
8. By a ruling of 16 December 2011, the Court of Appeal admitted the respondent’s appeal. The ruling stated, without any further details, that the appeal was in compliance with the procedural requirements.
9. On 7 June 2012 the Court of Appeal, sitting as a panel of three judges, overruled the judgment of 21 April 2011 and found against the applicant. It ruled that the first-instance court had applied the relevant domestic law incorrectly and there were no grounds for the recalculation sought by the applicant.
10. The applicant appealed in cassation to the Higher Administrative Court of Ukraine. In his cassation appeal he claimed, inter alia, that the Court of Appeal had disregarded the fact that the respondent’s appeal was belated and that it had failed to renew the time-limits for the submission of the appeal.
11. On 17 July 2012 the Higher Administrative Court of Ukraine refused to open cassation proceedings finding that the conclusion of the Court of Appeal had been in line with its settled practice and that the applicant’s other arguments were ill-founded and did not justify the re-examination of the case.
RELEVANT LEGAL FRAMEWORK
12. The relevant domestic law is summarised in the cases of Osovska and Others v. Ukraine [Committee] (no. 2075/13, §§ 8-13, 28 June 2018) and Neyman v. Ukraine (dec.) (no. 68470/12, 12 January 2021).
THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION and ARTICLE 1 of Protocol No. 1 to THE CONVENTION
13. Referring to Article 6 of the Convention and Article 1 of Protocol 1 to the Convention, the applicant complained of the violation of the principle of legal certainty on account of the allegedly arbitrary acceptance by the Court of Appeal of the respondent’s belated appeal, which resulted in the re‑examination of the case and quashing of the Local Court’s judgment adopted in his favour. The above provisions, in so far as relevant, read as follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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 ...”Admissibility
14. The Government stated at the outset that the materials of the applicant’s case were unavailable as they were stored in the archives situated in the Lugansk Region, which territory was outside the Government’s control. They noted that their observations were thus based on the information provided by the applicant to the Court.
15. As to the admissibility the Government noted that the applicant failed to provide information whether he had lodged any objections against the respondent’s appeal.
16. The Court notes that at the time of the submission of the present application the applicant lived in the territory currently outside the control of the Government of Ukraine. As the Ukrainian postal services are not operating on those territories, it has been impossible for the Court to establish contact with the applicant by mail. In particular, the letter by which the applicant was invited to submit his observations and just satisfaction claims in April 2017 was returned to the Court as undelivered. The attempts to contact the applicant using the telephone number indicated in the application form were unsuccessful. Consequently, the applicant did not provide his observations in reply to those of the Government and did not submit his just satisfaction claims.
17. Nevertheless, the Court considers that it has in its possession all the documents necessary for the examination of the present case.
18. The Court observes that the applicant had appealed on points of law to the Higher Administrative Court of Ukraine pleading a breach of the principle of legal certainty by admitting the appeal of the respondent. Nonetheless, the Higher Administrative Court of Ukraine refused to grant leave to appeal in cassation on the ground that the applicant has not demonstrated the existence of arguable grounds which would have justified the review of his case. It follows that the higher court did not provide any redress in respect of the applicant’s complaint. The Court therefore finds that there is no need to examine whether the applicant raised the same complaint before the court of appeal (see Osovska, cited above, § 20).
19. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsArticle 6 of the Convention
20. The Government claimed that it was primarily for the domestic courts to apply and interpret domestic law. In the present case the appellate court, when accepting the respondent’s appeal acted in accordance with the legislation. The Government noted in that respect that higher courts should be able to correct judicial errors. Based on the above, they considered that there was no violation of the applicant’s rights under Article 6 of the Convention.
21. The Court notes that in the applicant’s case the judgment of the local Court confirming the applicant’s entitlement to an increased pension had become final and enforceable and the enforcement proceedings had commenced. That judgment was overturned on appeal resulting in a reduction of the applicant’s pension.
22. The Court reiterates that one of the fundamental aspects of the rule of law is the principle of legal certainty (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII). Legal certainty presupposes respect for the principle of res judicata that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003‑IX).
23. The Court has previously accepted that although it is primarily within the domestic courts’ discretion to decide on any extension of the time-limit for appeal, such discretion is not unlimited. The domestic courts are required to indicate the reasons. In every case, the courts should verify whether the reasons for extending a time-limit for appeal can justify the interference with the principle of res judicata, especially when the domestic legislation does not limit the courts’ discretion as to either the time or the grounds for extending the time-limits (see Ponomaryov v. Ukraine, no. 3236/03, § 41, 3 April 2008 and Ustimenko v. Ukraine, no. 32053/13, § 47, 29 October 2015).
24. Turning to the present case, the Court notes that it has no evidence whether the Pension Fund requested the renewal of the time-limit for appeal, which is a requirement under domestic law. Its appeal did not contain any explanations as regards the reasons for its belated (or timely) submission. It is only from the copy of the Pension Fund’s letter to the applicant of 20 April 2012 that it appears that the Pension Fund had allegedly received the copy of the Local Court’s judgment on 7 November 2011 and lodged its appeal on 17 November 2011, which could, in principle, be considered reasonable.
25. The Court observes, however, that when opening the appeal proceedings, the Court of Appeal confined itself to the finding that the appeal had been lodged in compliance with the procedural formalities without advancing any reasons in that respect. Finally, as already noted above, the Higher Administrative Court also failed to address that issue although it had been clearly raised by the applicant.
26. Having regard to the above, the Court finds that the domestic courts did not provide any reasons which would have demonstrated that there had been circumstances of a substantial and compelling character which would have justified a re-opening of the applicant’s case (see Ryabykh, cited above, § 52).
27. There has accordingly been a violation of Article 6 § 1 of the Convention.Article 1 of Protocol No. 1
28. The Government claimed that as the Court of Appeal found that the Local Court had applied the domestic law erroneously and that the applicant had no right to recalculation, the applicant could not claim to have had a legitimate expectation to receive the higher pension.
29. The Court reiterates that a debt arising under a judgment which is sufficiently established to be enforceable constitutes a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301‑B). Quashing such a judgment after it had become final will constitute an interference with the beneficiary’s right to the peaceful enjoyment of that possession (see Brumărescu, cited above, § 74 and Ryabykh, cited above, § 61).
30. The Court notes that as a result of the reopening of the proceedings the applicant’s monthly pension was established at a lower rate. Having regard to its findings relating to the complaint made under Article 6 § 1 of the Convention, the Court considers that quashing of the final judgment in a manner which had been incompatible with the principle of legal certainty has frustrated the applicant’s reliance on a binding judicial decision and has placed an excessive burden on him (see Ponomaryov, cited above, §§ 46‑47).
31. There has therefore been a violation of Article 1 of Protocol No. 1.APPLICATION OF ARTICLE 41 OF THE CONVENTION
32. 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.”
33. The Court observes that the applicant was not able to submit his just satisfaction claims after the communication of the case and, accordingly, no Government’s comments are available in that respect (see paragraph 16 above).
34. However, in his initial application form the applicant claimed 40,000 euros (EUR) in respect of damages sustained on account of the violations alleged without separately specifying the amounts claimed as pecuniary and non-pecuniary damages. His calculation of the compensation is, at least partially, based on the difference in the pension amounts which he would have continued to receive had the Local Court’s judgment not been quashed and the pension he actually received after the quashing.
35. The Court notes in that respect that the Local Court did not award the applicant a particular amount, but a recalculation of his pension as of 1 October 2010 based on the minimum salary. While that meant, in principle, an increase of his pension, its particular amount could be subject to various other conditions under domestic law and the Court is not in a position to speculate as to the possible pecuniary damage sustained.
36. Nevertheless, the Court considers that as a result of the violation found the applicant suffered non-pecuniary damage which cannot be compensated for by the mere finding of a violation. Having regard to the straightforward nature of the case and the Court’s case law on the matter, including as to just satisfaction awards (see Ponomaryov, § 61, and Ustimenko, § 58, both cited above), and ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 1,000.
37. The Court finds that it is not called upon to make any award as regards costs and expenses.
38. 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 application admissible;Holds that there has been a violation of Article 6 of the Convention;Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 17 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President
Full & Egal Universal Law Academy