FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26017/07
by Mykola Mykolayovych KOCHERGA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 5 April 2011 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Isabelle Berro-Lefèvre,
Ann Power,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 13 June 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mykola Mykolayovych Kocherga, is a Ukrainian national who was born in 1954 and lives in the town of Shakhtarsk, Donetsk region, Ukraine.
The applicant worked in the mining industry for more than thirty years and developed an occupational lung disease and disability confirmed by the medical commission. Under the Compulsory State Social Insurance Against Work-Related Accidents and Occupational Diseases Causing Disability Act (“the Social Insurance Act”) he was entitled to receive different types of payments from the State Insurance Fund for Work-Related Accidents and Occupational Diseases (“the Fund”). According to the applicant, the Fund provided him with the majority of payments and other social benefits due to him. However, the Fund refused to pay him compensation for non-pecuniary damage, which was equally guaranteed by the Social Insurance Act, on the ground that the State budget for 2006 had suspended the relevant provision of the Social Insurance Act and did not foresee funds for this type of payment.
The applicant challenged the above refusal in the Shakhtarsk Town Court in October 2006.
By its decision of 4 December 2006, the court found in part for the applicant and awarded him 14,000 Ukrainian hryvnias, approximately 2,100 euros at the material time.
The Fund appealed against the judgment, claiming that compensation for non-pecuniary damage was not automatic and that the applicant had to prove he had suffered such damage, which he had failed to do. It further contended that the applicant’s claim was belated and that the State Budget Act had suspended the relevant provisions of the Social Insurance Act and did not foresee expenses for this type of payment.
On 15 February 2007 the Donetsk Regional Court of Appeal quashed the decision of the first-instance court and found against the applicant on the basis that the applicant had acquired a right to compensation after the State Budget Act for 2006 had already come into force and suspended the relevant provision.
The applicant appealed on points of law. He maintained that the insurance scheme under which he had claimed compensation was formed of extra-budget funds and could not depend on the State budget. He further contested the conclusions of the court of appeal about the relevant provisions of the Social Insurance Act being suspended.
On 3 April 2007 the Supreme Court refused the applicant’s request for leave to appeal on points of law.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the decision of the appellate court and the refusal of his request for leave to appeal by the Supreme Court had been unfair.
THE LAW
1. The applicant complained that the Supreme Court of Ukraine had unfairly refused him leave to appeal on points of law. He relied on Article 6 § 1 of the Convention, which provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”
The Court notes that the applicant’s complaint concerns his request for leave to appeal to the Supreme Court of Ukraine, acting in its cassation jurisdiction.
The Court reiterates that the right to appeal in civil cases does not feature among the rights and freedoms guaranteed by the Convention. No provision of the Convention, therefore, requires a State to grant persons under its jurisdiction leave to appeal to a Supreme Court acting as a third-instance court. If a State makes provision for such an appeal, as in the instant case, it is entitled to lay down the conditions for such an appeal. When a Supreme Court determines in a preliminary examination of a case whether or not the conditions required for granting leave to appeal have been fulfilled, the manner of application of this provision must depend on the special features of the proceedings involved (see, mutatis mutandis, Monnell and Morris v. the United Kingdom, 2 March 1987, §§ 56-57, Series A no. 115; Glender v. Sweden (dec.), no. 28070/03, 6 September 2005; and Sale v. France, no. 39765/04, § 17, 21 March 2006).
The Court observes that in the instant case the issue for decision in leave-to-appeal proceedings is whether the applicant, in his written request, has demonstrated the existence of arguable grounds which would justify referral of his civil case to the Chamber of the Supreme Court.
The Court observes that leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even if the appellant was not given an opportunity to be heard in person by the cassation court and the reasoning for refusing a request for leave to appeal was not detailed (see, respectively, among other authorities, Glender v. Sweden (dec.), cited above; and Sali v. Sweden (dec.), no. 67070/01, 10 January 2006).
In the circumstances of the present case, the Court is satisfied that the question whether or not to grant leave to appeal could be adequately resolved on the basis of the case file and the written submissions of the appellant and that there was no need for detailed reasoning since it was clear that the request for leave to appeal was refused because the applicant had not demonstrated the existence of arguable grounds which would have justified referral of the case to the Chamber of the Supreme Court (see Stepenska v. Ukraine (dec.), no. 24079/02, 12 June 2006).
It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
2. Relying on the same provision of the Convention, the applicant contested the outcome of the domestic proceedings.
The Court reiterates that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to interpret and apply rules of substantive and procedural law (see, among many other authorities, Gurepka v. Ukraine, no. 61406/00, § 45, 6 September 2005). In so far as the relevant domestic decisions do not disclose any manifestly arbitrary reasoning, the Court considers that this complaint under Article 6 § 1 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekDean Spielmann Registrar President
Full & Egal Universal Law Academy