FIFTH SECTION
DECISION
Application no. 26727/16
Tetyana Vasylivna KHOSHA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 22 May 2018 as a Committee composed of:
Erik Møse, President,
Síofra O’Leary,
Lәtif Hüseynov, judges
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 22 April 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Tetyana Vasylivna Khosha, is a Ukrainian national, who was born in 1952 and lives in Kharkiv. She was represented before the Court by Ms O.M. Ashchenko, a lawyer practising in Kharkiv.
2. The Ukrainian Government (“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 9 June 2011 the Moskovskyy District Court of Kharkiv (“the District Court”) ordered uprating of the applicant’s pension based on the rise in the average wages in the country.
5. On 29 July 2011 the enforcement proceedings were commenced and later terminated as the applicant’s pension had been uprated in accordance with the judgment.
6. On 7 April 2015 the Department of the Pension Fund for the Moskovskyy District of Kharkiv (“the defendant”) lodged an appeal against the judgment of 9 June 2011 having argued that it had not formally received a copy thereof until 30 March 2015.
7. On 25 May 2015 the Kharkiv Administrative Court of Appeal opened the appeal proceedings. On 23 June 2015 the court quashed the judgment of 9 June 2011 and rejected the applicant’s claim. The decision of 23 June 2015 was not susceptible to appeal on points of law.
8. On 23 September 2015 the applicant requested to have access to her case file at the District Court. On 28 September 2015 she was allowed access to the file.
9. On 30 October 2015 the applicant requested the District Court to provide her with a copy of the court of appeal judgment of 23 June 2015.
10. On 3 November 2015 she received a copy of that judgment, as confirmed by a certificate issued by the District Court.
COMPLAINTS
11. The applicant complained under Article 6 § 1 of the Convention that the quashing of the judgment of 9 June 2011 had violated the principle of legal certainty. She further complained under Article 1 of Protocol No. 1 to the Convention of an interference with her right to the peaceful enjoyment of possessions.
THE LAW
12. Relying on Article 6 § 1 of the Convention, the applicant complained that the renewal of the time-limit for ordinary appeal and the quashing of the final judgment in her case had violated the principle of legal certainty. She also complained that the court of appeal judgment had infringed her right to the peaceful enjoyment of possessions as ensured by Article 1 of Protocol No. 1.
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 read, in so far as relevant, as follows:
Article 6 (right to a fair hearing)
“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...”
A. The submissions by the parties
13. The Government referred to the fact that on 28 September 2015 the applicant had access to the domestic file which should have contained the court of appeal judgment of 23 June 2015. They argued that the applicant had missed the six-month deadline for applying to the Court which in their view shall be counted from the date of disclosure of the domestic case-file materials to the applicant.
14. The applicant disagreed. She maintained that contrary to the domestic law requirements, a copy of the judgment of 23 June 2015 had not been formally served on her. She further claimed that the fact that the domestic case-file materials had been disclosed to her did not imply that she had been provided with a copy of the final judgment. The applicant relied on a certificate issued by the District Court confirming that she had received a copy of that judgment on 3 November 2015 at her request. She argued that the latter date should be taken as a starting point for calculation of the six‑month period.
B. The Court’s assessment
15. The Court recalls that, under the terms of Article 35 § 1 of the Convention, it may only examine complaints which have been submitted within six months from the date on which the final domestic decision was taken.
16. Where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999‑II) or from the date when the applicant and/or his or her representative had effective and sufficient knowledge of the final domestic decision (see Baghli v. France, no. 34374/97, § 31, ECHR 1999‑VIII and Koç and Tosun v. Turkey (dec.), no. 23852/04, 13 November 2008).
17. In the present case the Government did not deny that the court of appeal judgment of 23 June 2015 had not been served on the applicant, but maintained that the applicant had sufficient knowledge of that judgment on the date when the case-file materials were disclosed to her, i.e. on 28 September 2015.
18. The applicant did not contest the Government’s submission that on that date the domestic file contained a copy of the mentioned judgment. She rather argued that a copy of that judgment had not been provided to her on the date of the disclosure.
19. The Court has previously held that a party to the proceedings must take reasonable steps in order to familiarise itself with the full text of the written judgment when it becomes available (see Trukh v. Ukraine (dec.), no. 50966/99, 14 October 2003). The applicant has not explained why she waited until 30 October 2015 to request the court registry to provide her with an official copy of the judgment. Nor can the Court discern any objective circumstances which would have prevented the applicant from doing so earlier (see, mutatis mutandis, Ölmez v. Turkey (dec.), no. 39464/98, 1 February 2005). The Court concludes that 28 September 2015 should be taken as the starting point for calculation of the six-month period and that the applicant has failed to show due diligence in obtaining a written copy of the final domestic decision of which she had been aware.
20. It follows that the application has been lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 June 2018.
Milan BlaškoErik Møse
Deputy RegistrarPresident
Full & Egal Universal Law Academy