Information Note on the Court’s case-law 48
December 2002
Prystavska v. Ukraine (dec.) - 21287/02
Decision 17.12.2002 [Section II]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Expiry of six month period notwithstanding recourse to new cassation procedure: inadmissible
In December 1998, the applicant instituted legal proceedings in the District Court against the local accommodation office and the local authority seeking an order for repairs to her apartment. She also sought damages over her unsatisfactory living conditions. Her claims were allowed in part, but her claim for damages was rejected. She appealed to the Regional Court, which dismissed her appeal in March 2001. Following the enactment of the Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure, the applicant lodged a complaint with the Supreme Court on 16 July 2001. Her application was rejected by a panel of three judges in November 2001.
Inadmissible: The pursuit of inadequate or ineffective remedies will have consequences for determining the final decision for the purpose of applying the six-month rule. There was no reason to doubt that the new procedure established by the Law of 21 June 2001 was an effective remedy with regard to judgments handed down after its entry into force (29 June 2001). However, for previous judgments, the new procedure did not constitute a domestic remedy within the meaning of Article 35 § 1, since such judgments were res judicata. Therefore, an application to Supreme Court was akin to a request to re-open proceedings, a right not guaranteed by the Convention. In consequence, the six-month period began to run on the date of the decision of the Regional Court (March 2001) and the application, which was introduced in April 2002, was therefore out of time.
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