Published on 3 June 2024
FOURTH SECTION
Application no. 29046/18
Elena OVSYANNIKOVA
against Armenia
lodged on 22 May 2018
communicated on 17 May 2024
SUBJECT MATTER OF THE CASE
The applicant brought a civil claim against the police, two high-ranking police officers and a politician for publicly insulting her during a demonstration. Having been unsuccessful, on 14 December 2016 the applicant lodged an appeal before the Civil Court of Appeal. She asked the appellate court to exempt her from the payment of the court fee or to delay its payment because she was in a difficult financial situation taking care of her two minor children. To support this claim, the applicant submitted a certificate that she had been registered as an unemployed person looking for employment and the birth certificates of her children. On 13 January 2017 the appellate court rejected the applicant’s request and returned the appeal (refused its admission) on the grounds that the certificate stating that she had been in search for a suitable job did not in and of itself prove her difficult financial situation. The court referred to Article 213 § 3 of the Code of Civil Procedure (“the CCP”), according to which the applicant could correct her mistake that is to say pay the court fee and re-submit her appeal within two weeks. It also specified that its decision was subject to appeal before the Court of Cassation within the same time-limit. The applicant appealed against that decision before the Court of Cassation, which declared her appeal inadmissible on 24 May 2017 (served on 16 June 2017). On 30 June 2017 the applicant re-submitted her appeal before the Civil Court of Appeal after, as she claims, having paid the court fee. As regards the observance of the two‑week time-limit for re-submission of the appeal, she relied on the Constitutional Court’s decision of 7 February 2017 (no. ՍԴՈ-1344) which, as far as relevant, reads as follows:
“... in all those cases where the Court of Cassation rejects the appeal against the appellate court’s decision on returning the appeal and upholds it upon review, the appellant must have an opportunity to correct the mistakes indicated by the appellate court and re-submit the appeal within two weeks from the moment of receiving the Court of Cassation’s decision.”
On 17 July 2017 the appellate court returned (refused its admission) the applicant’s appeal once again, finding that the applicant had missed the two‑week time-limit indicated in Article 213 § 3 of the CCP as referred to in its decision of 13 January 2017 (see above). As for the decision of the Constitutional Court of 7 February 2017 (see above), the appellate court concluded that it was not applicable to the applicant’s case stating that the given decision concerned cases when the Court of Cassation would reject an appeal having examined it on the merits but not cases when it would not grant leave for appeal. On 1 November 2017 the Court of Cassation declared the applicant’s appeal on points of law against that decision inadmissible for lack of merit. The decision was served on the applicant on 22 November 2017.
The applicant complains that – as a result of the way in which the domestic courts dealt with her case – she was put in a situation where she was essentially obliged to choose between her right to appeal against an interim decision (on returning the appeal), with which she did not agree, and her right to re-submit her appeal upon correcting the shortcomings identified in the same decision. As a result, she was deprived of access to a higher court, in breach of the requirements of Article 6 § 1 of the Convention. The applicant also complains of lack of an effective domestic remedy with reference to Article 13 of the Convention.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicant’s right of access to a court within the meaning of Article 6 § 1 of the Convention on account of the Civil Court of Appeal’s dismissal of her appeal of 30 June 2017 for being lodged out of time?
In particular, did the Civil Court of Appeal’s interpretation of the procedural time-limit stipulated in Article 213 § 3 of the Code of Civil Procedure in force at the material time result in a disproportionate restriction of the applicant’s right of appeal (see Zubac v. Croatia [GC], no. 40160/12, §§ 76-99, 5 April 2018, and Çela v. Albania, no. 73274/17, §§ 20-41, 29 November 2022)?
The parties are invited to submit a copy of the receipt showing the payment of the court fee upon re-submitting by the applicant of an appeal on 30 June 2017.