FIFTH SECTION
DECISION
Application no. 43464/18
Kateryna Makarivna MOLDAVSKA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 14 May 2019 as a Chamber composed of:
André Potocki, President,
Ganna Yudkivska,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 5 September 2018,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Kateryna Makarivna Moldavska, is a Ukrainian national, who was born in 1944 and lives in Mykolaiv.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In June 2017 the Deputy Prosecutor of the Mykolaiv Local Prosecutor’s Office lodged a claim with the Mykolaiv Region Commercial Court (the Mykolaiv Court) in the interests of the State challenging a decision of the Kobliv Village Council to sell a plot of land situated near the waterline to the applicant and I. for their commercial needs (they had a shop situated on that land plot).
4. On 25 July 2017 the applicant authorised a lawyer, Mr M., to represent her before the domestic courts and other institutions for the period of three years without indication of any particular proceedings. The requisite form of authority was certified by a notary. It did not identify M. as a licensed advocate.
5. On 7 August 2017 the Mykolaiv Court rendered a judgment by which it allowed the prosecutor’s claim and annulled the sales contract between the Kobliv Village Council and the applicant and I. concerning the land plot in question on the ground that under the legislation in force land in the coastal area could not be privatised.
6. The applicant lodged an appeal against the judgment of 7 August 2017.
7. On 1 November 2017 the Odessa Commercial Court of Appeal upheld the judgment of 7 August 2017. The applicant had been represented by her lawyer, M., at the hearing before the Court of Appeal.
8. On 20 November 2017 M. lodged an appeal on points of law against the decisions of 7 August and 1 November 2017 with the Higher Commercial Court.
9. Following judicial reform in Ukraine the case was transferred to the Supreme Court of Ukraine.
10. On 12 March 2018 the Supreme Court adopted a ruling refusing to entertain the applicant’s appeal on points of law since M. had not submitted proof that he was a licensed advocate. The Supreme Court noted that, under the amendments to the Constitution of Ukraine that had been introduced on 30 September 2016, it was obligatory as of 1 January 2017 for appellants to be represented by a licensed advocate in all proceedings initiated after that date before the Supreme Court sitting as a court of cassation.
B. Relevant domestic law
1. Constitution of Ukraine
11. As worded prior to 30 September 2016, the pertinent provision of the Constitution read as follows:
Article 59
“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel.
In Ukraine, the purpose of advocacy is to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other State bodies.”
12. Following the amendments introduced as of 30 September 2016, the pertinent provisions provided that:
Article 59
“Everyone has the right to professional legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel.”
Article 131-1
“In Ukraine, the function of the Bar is to provide professional legal assistance.
The independence of the Bar is guaranteed.
The fundamentals of the organisation and functioning of the Bar and advocates’ activities in Ukraine shall be defined by law.
Only an advocate may represent another person before the court and defend a person against prosecution.
Any exceptions for representation before the court in labour disputes, disputes as to the protection of social rights, disputes related to elections and referendums or in insignificant disputes, and for representation before the court of minors or adolescents, fully or partially legally incapable persons shall be determined by law.”
Chapter ХV Transitional Provisions
“16-1. Upon the Law of Ukraine on amending the Constitution of Ukraine (as to justice) taking effect:
...
11) in accordance with Article 131-1 § 1 (3) and Article 131-2 of this Constitution, representation before the Supreme Court and the courts of cassation shall be exercised exclusively by public prosecutors and advocates as from 1 January 2017; before the appellate courts as from 1 January 2018; before the first instance courts as from 1 January 2019.
...
Representation before the courts in cases pending prior to the Law of Ukraine on amending the Constitution of Ukraine (as to justice) taking effect shall be exercised according to the rules effective prior to this Law entering into force until final court decisions that cannot be challenged have been rendered”.
2. Code of Commercial Procedure
(a) Wording prior to 15 December 2017
13. Under Article 28 of the Code of Commercial Procedure (“the Code”), as in force prior to 15 December 2017, at the time of lodging an appeal on points of law, individuals could either represent themselves or have a representative whose powers had been confirmed in a form of authority certified by a notary.
(b) Wording from 15 December 2017
14. By virtue of the Amendments Act of 3 October 2017, a new fully revised text of the Code was adopted. This new wording of the Code came into force on 15 December 2017. The pertinent Articles are the following.
15. Article 12 of the Code, which defines types of commercial judicial proceedings, defines summary proceedings as “intended for the consideration of insignificant cases or cases of negligible complexity, in which priority is given to a quick resolution of the case” (§ 3). It defines insignificant cases as “cases in which the value of a claim does not exceed one hundred times the minimum level of subsistence established for able-bodied persons” and “cases of negligible complexity, recognised by the court as insignificant, except for cases which are subject to consideration only under the rules of general proceedings, and cases in which the value of a claim exceeds five hundred times the minimum level of subsistence established for able-bodied persons” (§ 5).
16. Article 16 § 2 of the Code stipulates that “representation in the courts, as a type of legal assistance, shall be performed exclusively by a licensed advocate (providing professional legal assistance), subject to exceptions established by law.”
17. Article 57 provides that minors and persons lacking capacity shall be represented by their lawful representatives, such as parents, tutors or guardians.
18. Article 58 stipulates that “a licensed advocate or a lawful representative shall act as a representative in court proceedings” with the exception of insignificant cases, in which any person who has attained the age of 18 and has civil procedural capacity can act as a representative, provided he or she does not belong to a category of persons who cannot act as representatives at all, because of a conflict of interests. A list of the categories of such persons is stipulated in Article 59 of the Code.
19. Article 247 defines the categories of cases which can or cannot be examined under the summary procedure.
20. Article 287 provides that no appeal on points of law shall lie against judicial decisions delivered in insignificant cases, except
(a) where an appeal on points of law would raise a question of law which is of core importance for securing a consistent application of the law
(b) where the party which would be lodging the appeal on points of law has no other opportunity under this Code to dispute circumstances established by a challenged judicial decision in proceedings in another case
(c) where the case raises an issue of significant public interest or of outstanding importance for the party which would be lodging the appeal on points of law
(d) where a first-instance court had erroneously considered the case to be insignificant.
21. Under Article 292 § 4 (1) an appeal on points of law must not be accepted for examination and must be returned to the person who lodged it if that person lacks the civil procedural capacity to do so, if it is not signed, or if it has been signed by a person not entitled to do so or by a person whose official status has not been indicated.
COMPLAINT
22. The applicant complained under Article 6 § 1 of the Convention of an unlawful restriction of her access to a court of cassation.
THE LAW
23. The applicant complained that her representative had not been allowed to lodge an appeal on points of law and that such a restriction had not been foreseeable at the time of attempting to lodge such an appeal. She also argued that there was an exception to the rule on representation by a licensed advocate if the case was insignificant but that the legislation at the time of appeal had not specified which cases should be considered to be insignificant. She referred to Article 6 § 1 of the Convention, which provides in so far as relevant as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
24. The Court reiterates that the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which regulation may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018).
25. The Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations” (ibid., § 80). However, the manner in which Article 6 § 1 applies to courts of appeal or of cassation depends upon the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation’s role in them (ibid., § 82).
26. The Court further reiterates that the requirement that an appellant be represented by a qualified lawyer before a court of cassation, such as the requirement applicable in the present case, cannot be seen in itself as contrary to Article 6. This requirement is clearly compatible with the characteristics of the Supreme Court as the highest court examining appeals on points of law and it is a common feature of the legal systems in several member States of the Council of Europe (see, for instance, Siałkowska v. Poland, no. 8932/05, § 106, 22 March 2007, and Gillow v. the United Kingdom, 24 November 1986, § 69, Series A no. 109). Even a broader restriction on the free choice of defence counsel, limiting it to a licensed advocate before all courts, may not in itself raise an issue under Article 6 of the Convention since specific legal qualifications can be required to ensure the efficient defence of a person. However, such a restriction on the applicant’s right must have a sufficient basis in domestic law to avoid being arbitrary.
27. In the case of Zagorodniy v. Ukraine (no. 27004/06, 24 November 2011), which concerned the situation prior to the constitutional reform of 2016 (see paragraph 11 above), the Court was called upon to examine the issue of the applicant’s representation before the Ukrainian courts by a legally trained individual who was not a licensed advocate. Such a possibility had been envisaged by the Constitution but had not been sufficiently elaborated in the procedural legislation, leading the Court to the conclusion that Mr Zagorodniy’s right to freely choose his legal representative had been restricted in a manner incompatible with the requirements of Article 6 §§ 1 and 3 of the Convention (see Zagorodniy v. Ukraine, cited above, § 55). The Court is now required to examine the situation with respect to the applicant’s right to freely choose her legal representation following the constitutional amendments described above (see paragraph 12).
28. In the circumstances of the present case, the applicant and her representative had to have been aware of the unequivocal transitional provisions of the Constitution concerning the need for representation before the Supreme Court to be conducted exclusively by licensed advocates as from 1 January 2017. The only exception to this rule was made for cases that were already pending on 30 September 2016 when the amendments to the Constitution were introduced, which was not the case for the applicant. Furthermore, the pertinent Articles of the Code of Commercial Procedure, as worded before the amendments came into force on 15 December 2017, do not appear to contain any provision that could have misled the applicant as to the applicability of the above constitutional provisions to her case. Thus, the compulsory representation restriction was both foreseeable and reasonable.
29. The Court further notes that a procedural requirement such as compulsory representation by a licensed advocate should not make a litigant’s right of access to the court conditional on her or his financial situation. This means that it should be possible for the litigant to apply for legal aid in order to comply with such a procedural requirement (see, mutatis mutandis, Shamoyan v. Armenia, no. 18499/08, § 35, 7 July 2015). In the present case, the applicant made no assertion that she had been unable to have recourse to or designate and afford a licensed advocate or had been in need of State legal aid in order to have such representation.
30. The Court does not see a need to examine the applicant’s arguments that her case could have been considered “insignificant” and therefore that she might have been entitled to enjoy an exception from the compulsory representation rule, given that insignificant cases are not appealable on points of law to a court of cassation under the relevant procedural provisions. Thus, no issue of access to the Supreme Court could have arisen if her case had indeed been considered insignificant and therefore her appeal on points of law would have been inadmissible ratione valoris (see, for instance, Zubac, cited above, § 83, with further references; and for more details in Ukrainian context, Azyukovska v. Ukraine (dec.) [Committee], no. 26293/18, 9 October 2018).
31. Having regard to the above considerations, the Court concludes that there is no appearance that the very essence of the applicant’s right to a court within the meaning of Article 6 § 1 was impaired.
32. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 June 2019.
Milan BlaškoAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy