FIFTH SECTION
DECISION
Applications nos. 40139/14 and 41418/14
Sergiy Valentynovych MALYSH against Ukraine
and Anatoliy Ivanovych IVANIN against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 9 September 2014 as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged with the European Court of Human Rights on 20 and 21 May 2014 respectively,
Having deliberated, decides as follows:
THE FACTS
The applicant in the first case, Mr Sergiy Valentynovych Malysh, is a Ukrainian national, who was born in 1961 and lives in Chasiv Yar (“the first applicant”).
The applicant in the second case, Mr Anatoliy Ivanovych Ivanin, is a Ukrainian national, who was born in 1931 and lives in Kostyantynivka (“the second applicant”).
The facts of the applicants’ cases, as submitted by the applicants, may be summarised as follows.
A. Domestic proceedings
The applicants instituted separate sets of proceedings before the administrative courts claiming that their special pension and insurance payments had been wrongly calculated by the authorities. The courts rejected the applicants’ claims as unsubstantiated, finding that the impugned payments had been in accordance with the law and with due regard to the applicants’ specific circumstances. The final decisions were taken by the Donetsk Administrative Court of Appeal on 10 September 2013 in the first applicant’s case and by the Higher Administrative Court on 24 October 2013 in the second applicant’s case. The applicants did not take part in the hearings on 10 September and 24 October 2013 respectively.
On 9 October 2013 the Higher Administrative Court refused to examine the first applicant’s cassation appeal, finding that no cassation appeal lay against the appeal court’s decision of 10 September 2013.
The applicants did not indicate the dates on which they were informed of the decisions in their cases.
B. The applicants’ initial submissions to the Court
1. The first applicant’s initial submissions
On 26 December 2013 the first applicant made submissions to the Court from which it appeared that he intended to lodge an application under the Convention. By a letter of 21 January 2014, the Court invited the first applicant to submit, by 19 March 2014 at the latest, a duly completed application form together with copies of all relevant documents. The Court’s letter enclosed copies of the Convention, an official application form and the Court’s information note for persons wishing to apply to the Court. On 28 March 2014 the Court received the first applicant’s application form, in which he complained principally about the outcome and unfairness of the domestic proceedings in his case. By a letter of 11 April 2014, the Court informed the first applicant that he had not complied with the requirements set out in Rule 47 of the Rules of Court, as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies, in particular copies of his appeals. The first applicant was further informed that his complaints could not be examined by the Court and that the six-month period referred to in Article 35 § 1 of the Convention was interrupted only when a complete application was sent to the Court.
2. The second applicant’s initial submissions
On 18 March 2014 the second applicant sent an application form to the Court, in which he complained about the outcome and alleged unfairness of the domestic proceedings in his case. On 26 March 2014 the Court received the second applicant’s application. By a letter of 3 April 2014, the Court informed the second applicant that he had not complied with the requirements of Rule 47 of the Rules of Court, as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies, in particular copies of his claim and appeals. The second applicant was also informed that his complaints could not be examined by the Court and that the six-month period referred to in Article 35 § 1 of the Convention was interrupted only when a complete application was sent to the Court.
C. The applicants’ complete applications to the Court
On 20 and 21 May 2014 respectively the first and second applicants lodged new applications forms with the Court concerning the same subject-matter as in their initial submissions. The applicants’ new applications enclosed copies of the domestic courts’ decisions and of the applicants’ claims and appeals. In his new application, the second applicant stated that, due to his age and poor state of health, claiming that he suffered from a disability, it had taken him a long time to get to the places where he could receive the help and information necessary for the preparation of his application to the Court. He provided no further details or documents concerning his health problems or the alleged complications he faced in the preparation of his application.
COMPLAINTS
The first applicant complained under Article 6 § 1 of the Convention that the domestic courts had ignored his legal arguments, in particular those based on the Constitutional provisions. He further complained under Article 8 of the Convention and Article 1 of Protocol No. 1 that the authorities had failed to pay him a pension in accordance with the law. The applicant also complained about a violation of Article 13 of the Convention, without providing specific details in that regard.
The second applicant complained about a violation of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 principally arguing that the domestic courts had failed to established correctly the facts, had ignored relevant evidence in the case, had relied on unlawfully obtained evidence and had erred in the application of law.
THE LAW
The applicants complained about a violation of a number of provisions of the Convention on account of the outcome of the domestic proceedings in their cases.
The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
The Court further considers that it is necessary to examine whether the applicants have complied with the six-month rule as required by Article 35 § 1 of the Convention, which reads, in so far as relevant, as follows:
“1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”
The relevant extracts from Rule 47 of the Rules of Court, as amended by the Court on 17 June and 8 July 2002, 11 December 2007 and 22 September 2008 and as in force before 1 January 2014, read as follows:
“...
2. Applicants shall furthermore
(a) provide information, notably the documents and decisions referred to in paragraph 1 (h) of this Rule, enabling it to be shown that the admissibility criteria (exhaustion of domestic remedies and the six-month rule) laid down in Article 35 § 1 of the Convention have been satisfied;
...
4. Failure to comply with the requirements set out in paragraphs 1 and 2 of this Rule may result in the application not being examined by the Court.
5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.
...”
The relevant extracts from Rule 47 of the Rules of Court, as amended by the Court on 6 May 2013 and as in force from 1 January 2014 onwards, read as follows:
“...
3.1 The application form shall be ... accompanied by
...
(b) copies of documents and decisions showing that the applicant has complied with the exhaustion of domestic remedies requirement and the time-limit contained in Article 35 § 1 of the Convention;
...
6. (a) The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark.
(b) Where it finds it justified, the Court may nevertheless decide that a different date shall be considered to be the date of introduction.
...”
Paragraph 1 of the Practice Direction on the Institution of Proceedings, issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended on 22 September 2008, 24 June 2009 and 6 November 2013, provides, in so far as relevant, as follows:
“...Except as provided otherwise by Rule 47 of the Rules of Court, only a completed application form will interrupt the running of the six-month time-limit set out in Article 35 § 1 of the Convention...”
The Court reiterates that the purpose of the six-month rule is to promote security of the law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under uncertainty for a prolonged period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-42, 29 June 2012). It is not open to the Court to set aside the application of the six‑month rule (see Belaousof and Others v. Greece, no. 66296/01, § 38, 27 May 2004).
The six-month period generally runs from the final decision in the process of exhaustion of domestic remedies and is interrupted on the date of introduction of an application. According to the Court’s case-law based on Rule 47 as worded before the amendments of 6 May 2013 entered into force on 1 January 2014, the date of introduction of the application was as a rule considered to be the date of the first communication from the applicant setting out – even summarily – the object of the application, on condition that a duly completed application form was then submitted within the time‑limit fixed by the Court (see, for instance, Kemevuako v. the Netherlands (dec.), no. 65938/09, §§ 19-20, 1 June 2010). From 1 January 2014 the amended Rule 47 applied stricter conditions for an application to the Court. In particular, for the period of six months to be interrupted, the application has to fulfil all the conditions set out in Rule 47. Accordingly, a duly completed application form accompanied by copies of the relevant supporting documents must be sent to the Court within the time-limit laid down by the Convention. Incomplete applications are no longer taken into consideration for the purpose of interrupting the running of the six-month period (see Rule 47 § 6 (a) and paragraph 1 of the Practice Direction on the Institution on Proceedings, both quoted above).
The Court further stresses that Rule 47, as in force both before and after 1 January 2014, required applicants to provide copies of all relevant documents in support of their applications, including documents relating to exhaustion of domestic remedies. This requirement is aimed at ensuring that the Court is provided with all the requisite material to conduct a meaningful initial examination of applications and in particular the question whether applicants’ Convention complaints have been duly raised at the domestic level. Thus, failure to provide copies of relevant claims, appeals or other domestic submissions, without an adequate explanation, will normally render impossible the examination of the application by the Court and will generally result in the application not being allocated to any of the Court’s judicial formations.
Turning to the concrete circumstances of the applicants’ cases, the Court observes that the final domestic decisions were taken on 10 September and 24 October 2013 respectively. Since the applicants did not suggest that a different date should be taken into consideration, the Court finds that in the applicants’ cases the six-month period started to run on those dates.
As to the date of introduction of the applications, the Court notes that the applicants provided duly completed application forms accompanied by copies of all relevant documents on 20 and 21 May 2014 respectively, that is, more than six months after the final decisions in their cases. While, according to Rule 47 § 6 (b), the Court “may decide that a different date shall be considered to be the date of introduction”, it finds no justification for such a decision in the present case.
In particular, the applicants were duly informed by the Court that their initial submissions were incomplete and that that the six-month period would be interrupted only when a complete application was sent to the Court.
Although in the first applicant’s case the date of his first communication was 26 December 2013, that is, before the entry into force of the amended Rule 47, such first communication did not interrupt the running of the six‑month period, as the applicant failed to submit a complete application within the time-limit set by the Court (19 March 2014) (see, mutatis mutandis, Kemevuako, cited above, §§ 19-25), notably the applicant did not provide copies of documents relating to exhaustion of domestic remedies, for which no explanation was given.
As to the second applicant’s case, the Court observes that his claims that he experienced difficulties in the preparation of his application are vague and are not supported by any evidence or a persuasive argument. Therefore, the Court finds that he did not provide an adequate explanation for his failure to comply with the requirement under Rule 47 § 3.1 (b) that the application form shall be accompanied by copies of documents pertaining to the rule of exhaustion of domestic remedies. In particular, the applicant did not provide copies of his domestic claim and appeals.
In the light of the foregoing, the Court finds that the present applications were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to join the applications;
Declares the applications inadmissible.
Claudia WesterdiekMark Villiger
RegistrarPresident
Full & Egal Universal Law Academy