FOURTH SECTION
DECISION
Application no. 3309/15
Oleg Petrovich CHIROK against Ukraine
and 9 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 as a Committee composed of:
Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 19 December 2014,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
1. Background to the case
2. From the beginning of April 2014 armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the “Donetsk People’s Republic” and “Luhansk People’s Republic” (the “DPR” and “LPR”).
3. In response, on 14 April 2014, the Government, who consider the armed groups to be terrorist organisations, authorised the use of force against them in the legal form of an “anti-terrorist operation”.
4. In June 2014 the armed groups started to seize offices of the National Bank of Ukraine and other regional financial institutions in the Donetsk and Luhansk regions.
5. On 24 July 2014 the Ukrainian postal service, Ukrposhta, suspended its operations on the territories of the Donetsk and Luhansk regions that were outside the control of the Government, because of frequent attacks on its vehicles and employees by armed groups.
6. On 6 August 2014 the National Bank of Ukraine suspended all financial transactions on the territories outside the control of the Government.
7. Government forces recaptured some territories in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside the Government’s control since that time. One part of the Luhansk region, not under the Government’s control, is the town of Zorynsk, Perevalskyi district of Luhansk Region.
8. In September and December 2014, following changes in the law, jurisdiction of the administrative courts and the courts of general jurisdiction in the non-controlled areas was transferred to the relevant courts in the neighbouring regions on the territory controlled by the Government.
2. Particular circumstances of the applicants
9. As of November 2014 the applicants were employed by the separate manufacturing structural department “Mine Nikanor-Nova” of the State Enterprise “Luhanskvugillia” (the “Mine”) located in the town of Zorynsk, Perevalskyi district of Luhansk Region.
10. In July 2014 the Mine stopped paying the applicants’ salaries.
11. On 25 November 2014 the trade union of the Mine sent a request to the acting Head of the Mine seeking information on the salary arrears of the Mine’s employees.
12. On 27 November 2014 the acting Head and the chief accountant of the Mine sent a reply to the trade union. It transpires from the reply that on 1 July 2014 there was a debt in salary arrears of 6,675,177 Ukrainian hryvnas (UAH – approximately 414,867 euros at the relevant time) but as of July 2014 financing of the Mine from the State budget had been stopped and it was impossible to receive payments for the sold products. All coal mining activity was stopped as of 26 July 2014 and the Mine stopped all business activity as of 28 November 2014. Consequently, there was no possibility to pay the salary arrears in question.
13. On 28 November 2014 the applicants received certificates confirming their salary arrears for the period between June and November 2014.
B. Relevant domestic law
14. The relevant domestic regulations in respect of: (a) suspension of financial transactions and activities of certain institutions, enterprises and organisations; (b) jurisdiction of administrative courts and courts of general jurisdiction; and (c) relocation of courts from the territory not controlled by the Government are summarised in Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others, §§ 20-38, 13 February 2018).
1. Order no. 193 of the Higher Administrative Court of Ukraine of 2 September 2014 “on ensuring the consideration of administrative cases within the competence of the administrative courts located in the anti-terrorist operation area”
15. Section 1 provided that administrative cases within the competence of the Luhansk Regional Administrative Court were to be considered by the Kharkiv Regional Administrative Court.
2. Order no. 56/0/38-14 of the Higher Specialised Court of Ukraine for Civil and Criminal Cases of 8 December 2014 “on establishing territorial jurisdiction of the courts’ cases”
16. The order provided that cases within the competence of the Pervomaisk District Court of Luhansk Region (which, as a court of general jurisdiction, had territorial jurisdiction over the cases emerging from the settlemets of the Pervomaisk Region, including the town of Zorynsk) were to be considered by the Lysychansk City Court of Luhansk Region.
COMPLAINTS
17. The applicants complained under Article 1 of Protocol No. 1 to the Convention that as a result of the measures envisaged by the State in view of the on-going anti-terrorist operation, the payment of their salaries had been suspended. They also complained under Article 6 § 1 and/or Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that, as a result of the relocation of the courts from the part of Eastern Ukraine not controlled by the Government, they could not bring any claims before the courts. They also complained under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention that they had been discriminated against based on their place of residence. Lastly, they complained that the existing situation infringed their right to life under Article 2 § 1 of the Convention, given their low standard of living.
THE LAW
A. Joinder of the applications
18. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
B. Complaint under Article 6 of the Convention
19. The applicants complained under Article 6 § 1 and/or Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that as of July 2014 they had not been able to bring proceedings before the courts to recover their salary arrears, since the latter had been removed from the areas of hostilities.
20. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), finds that these complaints fall to be examined 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 (see, mutatis mutandis, Frida, LLC v. Ukraine, no. 24003/07, § 24, 8 December 2016).
21. Article 6 § 1 of the Convention reads, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
22. The Court notes from the outset that in the recent case of Tsezar and Others v. Ukraine (cited above) it assessed similar complaints brought by the residents of the city of Donetsk, territory the Government do not currently control, whose pensions and other social benefits had been suspended in view of the on-going anti-terrorist operation.
23. In the above-mentioned judgment the Court first analysed whether the Ukrainian State authorities had taken all the measures available to them to organise the judicial system in a way that would render the rights guaranteed by Article 6 effective in the specific situation of on-going conflict. The Court observed that at the time the complaints were brought before it, the State had already introduced amendments to the law, first authorising courts in the neighbouring regions to consider cases which would have otherwise been considered by courts on the territory not controlled by the Government, and later relocating the operation of the relevant courts on the territory controlled by the Government. The Court found that by taking the above steps, the Ukrainian authorities did what was reasonably expected of them to ensure the proper functioning of the judicial system, making it accessible to the residents of the territories currently outside the control of the Government. In the absence of any evidence that the applicants’ personal situation precluded them from making use of that system, the Court concluded that in the circumstances the applicants’ inability to bring their claims before the courts in their city of residence did not impair the very essence of their right of access to a court. The limitation of that right, due to the objective fact of the hostilities in the areas the Government did not control, was obviously not disproportionate.
24. The Court observes that in the present case, similar amendments were made to the law in respect of the courts located in the Luhansk region, which the Government do not control. In particular, in September 2014 – more than three months before the present applications were lodged before the Court – the courts located on the territory controlled by the Government would have already had jurisdiction over the applicants’ administrative cases, if lodged (see paragraph 15 above). On 8 December 2014 – eleven days before the present applications were lodged before the Court – the applicants’ civil cases could have already been considered by the courts located on the territory controlled by the Government, if lodged (see paragraph 16 above).
25. The Court further notes that the applicants did not allege there had been any obstacles for them to apply to the courts operating in the neighbouring regions in the territory controlled by the Government.
26. In the absence of any evidence which would distinguish the present case from the case of Tsezar and Others (cited above) the Court sees no reasons to depart from its previous findings.
27. The Court concludes that in the specific context of the present cases, it does not appear that the applicants were disproportionately restricted in their right of access to a court guaranteed by Article 6 § 1 of the Convention.
28. Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 1 of Protocol No. 1 to the Convention
29. The applicants further complained under Article 1 of Protocol No. 1 that, as a result of the measures envisaged by the State in view of the on‑going anti-terrorist operation, the payment of their salaries had been suspended in July 2014.
30. Article 1 of Protocol No. 1 to the Convention 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.”
31. The Court notes that the applicants did not show that they had applied to the relevant authorities in the territory controlled by the Government either for recovery of their salary arrears or that they had challenged the measures envisaged by the State that had led to the suspension of the payment of their salaries.
32. The Court further notes that in the present case the authorities relocated the courts in the areas no longer under their control to the neighbouring regions in September and December 2014. Referring to its findings in respect of the applicants’ complaint under Article 6 § 1 of the Convention, the Court reiterates that in the specific context in which the cases arose, the applicants were not disproportionately restricted in their right of access to a court guaranteed by that provision.
33. Consequently, the Court finds that similarly to the case of Tsezar and Others (cited above, §§ 66-72), the applicants have failed to exhaust domestic remedies. Their complaint under Article 1 of Protocol No. 1 must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
D. Complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1
34. The applicants also complained that they had suffered discrimination in the enjoyment of their property rights on the grounds of their place of residence, contrary to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1. In particular, they submitted that on the territories controlled by the Government, persons in a situation similar to theirs had been receiving their salaries, whilst the applicants’ salaries had been suspended.
35. Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
36. In case of Tsezar and Others (cited above, §§ 73-78) the Court has rejected similar complaints as being manifestly ill-founded. The Court found that the first three applicants did not find themselves in an “analogous situation” compared to those who resided on the territory controlled by the Government. The Court sees no reasons to depart from the above findings in the present case.
37. The complaint is, consequently, manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
E. Complaint under Article 2 of the Convention
38. Lastly, the applicants complained, without providing any details, that the existing situation infringed their right to life under Article 2 § 1 of the Convention, given their low standard of living.
39. In so far as relevant, Article 2 reads as follows:
“1. Everyone’s right to life shall be protected by law. ...”
40. Regardless of other reasons of inadmissibility, the Court finds no reason to depart from its findings that the applicants had at their disposal remedies which were available and potentially effective (see paragraphs 32‑33 above). Those remedies should have been used prior to their applications before the Court being lodged.
41. It follows that this part of the applications must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 6 December 2018.
Andrea TamiettiFaris Vehabović
Deputy RegistrarPresident
APPENDIX
No.
Application
no.
and date of introduction
Applicant’s name
date of birth
place of residence
nationality
3309/15
19/12/2014
Oleg Petrovich CHIROK
04/12/1976
Zorynsk
Ukrainian
29721/15
19/12/2014
Aleksandr Nikolayevich CHUMAK
03/07/1985
Zorynsk
Ukrainian
29723/15
19/12/2014
Nikolay Petrovich TSYGOLNIK
04/10/1956
Zorynsk
Ukrainian
29727/15
19/12/2014
Aleksandr Mikhaylovich DAVYD
15/11/1968
Zorynsk
Ukrainian
29728/15
19/12/2014
Aleksandr Vasilyevich DAVYD
23/11/1960
Zorynsk
Ukrainian
29729/15
19/12/2014
Galina Anatolyevna DEGTYARYEVA
13/10/1967
Zorynsk
Ukrainian
29730/15
19/12/2014
Yelena Petrovna DEMIDOVA
26/03/1975
Zorynsk
Ukrainian
29731/15
19/12/2014
Maksim Aleksandrovich DEMIN
02/04/1984
Zorynsk
Ukrainian
29744/15
19/12/2014
Svetlana Nikolayevna TSYGOLNIK
26/01/1979
Zorynsk
Ukrainian
32482/15
19/12/2014
Dmitriy Vladimirovich TSYGOLNIK
06/06/1977
Zorynsk
Ukrainian
Full & Egal Universal Law Academy