FIFTH SECTION
DECISION
Application no. 24468/07
by Gennadiy Grygorovych KHLIVNYAK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 5 October 2010 as a Committee composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 16 May 2007,
Having regard to the observations submitted by the applicant and the comments in reply submitted by the Government,
Having regard to the unilateral declaration submitted by the respondent Government on 15 April 2010 requesting that the Court strike the application out of the list of cases and the applicants' reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Gennadiy Grygoriyovych Khlivnyak, is a Ukrainian national who was born in 1937 and lives in Kharkiv. He was represented before the Court by Mr M. Tarakhkalo, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. First set of proceedings
On 24 March 2005 the applicant instituted proceedings in the Leninskyi District Court of Kharkiv against the Leninskyi District Pension Fund Office (“the Pension Fund”), seeking the recalculation of his pension.
On 27 April 2005 the court rejected the applicant's claim as unsubstantiated. On 10 August 2005 the Kharkiv Regional Court of Appeal upheld the judgment of the first-instance court.
On 9 September 2005 the applicant lodged a cassation appeal with the Supreme Court.
In a letter of 3 October 2005 the Supreme Court informed the applicant that his cassation appeal had been remitted to the Higher Administrative Court.
On 1 November 2005 a judge of the Higher Administrative Court refused to consider the applicant's cassation appeal, stating that the case was to be classified as civil and thus fell within the general jurisdiction of the civil courts. The judge ruled that the applicant's cassation appeal should be referred back to the Supreme Court. The ruling was not subject to any further appeal.
On an unspecified date the applicant was informed of the above‑mentioned ruling. On 27 December 2006 he sent a request to the Supreme Court, in which he specified the decisions adopted in the case and enquired as to any developments in the consideration of his cassation appeal.
In a letter of 31 January 2007 the Registry of the Supreme Court informed the applicant that his cassation appeal had been transferred to the Higher Administrative Court on 22 January 2007.
On 7 September 2007 the applicant sent a similar request to the Higher Administrative Court. On 14 September 2007 that court informed the applicant that his cassation appeal against the rulings of the Leninskyi District Court of 7 November 2006 and of the Kharkiv Regional Court of Appeal of 13 December 2006 had been registered with it and that he would be informed of any further developments in the proceedings.
According to the applicant, his requests were not correctly understood and the replies by the judicial authorities dated 31 January and 14 September 2007 concerned another case, unrelated to the proceedings against the Pension Fund, to which he was also a party. The applicant has not provided any details of that case.
On 1 March 2008 the applicant sent an additional request to the President of the Higher Administrative Court, explaining that his previous requests concerned the proceedings against the Pension Fund and asking to be informed about the outcome of his cassation appeal in those proceedings.
On 20 March 2008 the First Vice-President of the Higher Administrative Court informed the applicant that his cassation appeal against the decisions of the Leninskyi District Court of 27 April 2005 and of the Kharkiv Regional Court of Appeal of 10 August 2005 had been referred back to the Supreme Court by the ruling of 1 November 2005.
According to the Government, the applicant's cassation appeal of 9 September 2005 was lost in early 2006 while the case file was being transferred from the Supreme Court to the Higher Administrative Court. They submitted that the applicant had had the possibility of resubmitting his cassation appeal together with a request for the extension of the time-limit envisaged by law for its submission, which would then have been considered by the Higher Administrative Court.
The applicant disagreed that such a possibility had been available in his case and refused to resubmit the cassation appeal.
B. Second set of proceedings
On 20 April 2007 the applicant instituted proceedings in the Leninskyi District Court against his former employer, the Kharkiv Institute of Economics and Management, seeking recovery of salary arrears.
On 16 November 2007 the court rejected the applicant's claim as unsubstantiated.
In decisions of 21 January and 22 April 2008 the Kharkiv Regional Court of Appeal and the Supreme Court respectively upheld the judgment of the first-instance court.
COMPLAINTS
The applicant complained under Article 6 § 1 and Article 13 of the Convention about the outcome of both sets of proceedings, which in his submission had been unfair. In particular, he alleged that the courts had wrongly assessed the facts and misinterpreted the law in his case, that they had been biased, and that he had not been given an opportunity to present his case effectively. He further complained of a violation of Article 1 of Protocol No. 1 to the Convention on account of the courts' refusal to order the recalculation of his pension in accordance with his claim.
The applicant also complained, relying on Article 3, Article 6 § 1 and Article 13 of the Convention, about the length of the first set of proceedings and of his lack of access to a court of cassation.
THE LAW
A. The complaint of lack of access to a court
The applicant complained about the failure of the domestic courts to consider the merits of his cassation appeal. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
By a letter dated 15 April 2010, the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this complaint. The declaration provided as follows:
“The Government of Ukraine acknowledge that the applicant's appeal in cassation against the judgment of the Leninskyi Distrct Court of Kharkiv of 27 April 2005 and the decision of the Kharkiv Regional Court of Appeal of 10 August 2005, lodged in September 2005, was lost in the beginning of 2006 while its transferring from the Supreme Court of Ukraine to the High Administrative Court of Ukraine. As a consequence, the applicant's appeal in cassation was not considered by the court of the cassation instance that constitutes an infringement of the applicant's right of access to a court, as guaranteed by Article 6 § 1 of the Convention.
I, Yuriy Yevgenovych Zaytsev, the Agent of the Government of Ukraine, declare that the Government of Ukraine are ready to pay Mr Gennadiy Grygoriyovych Khlivnyak ex gratia the amount of 500 (five hundred) euros.
The Government of Ukraine therefore invite the Court to strike the application no. 24468/07 out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention.
This amount of 500 (five hundred) euros, which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case”.
In his reply to the Government's submission of 15 April 2010, the applicant expressed the view that the Government had not suggested that there had been any realistic possibility that his cassation appeal of 9 September 2005 had been considered on the merits by the domestic courts.
The Court reiterates that Article 37 of the Convention provides that it may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under paragraph 1 (a) to (c) of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
The Court also notes that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government – even if the applicant wishes the examination of the case to be continued.
To this end, the Court will carefully examine the declaration in the light of the principles emerging from its case-law (see, in particular, Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003‑VI).
The Court has established in a number of cases, including those against Ukraine (see, for instance, Melnyk v. Ukraine, no. 23436/03, §§ 22-31, 28 March 2006, and Volovik v. Ukraine, no. 15123/03, §§ 53-61, 6 December 2007), its practice concerning complaints about violations of the right of access to a court.
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed, which is consistent with the amounts awarded in similar cases by the Court (see Melnyk, cited above, § 35), the Court considers that it is no longer justified to continue the examination of this part of the application.
It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of this part of the application (Article 37 § 1 in fine of the Convention).
Accordingly, this part of the application should be struck out of the list.
B. The remaining complaints
Having carefully examined the applicant's remaining complaints under Articles 3, 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's unilateral declaration in respect of the applicant's complaint under Article 6 § 1 of the Convention of lack of access to a court and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Stephen PhillipsRait Maruste
Deputy RegistrarPresident
Full & Egal Universal Law Academy