Tsezar and Others v. Ukraine

Information Note on the Court’s case-law 215

February 2018

Tsezar and Others v. Ukraine - 73590/14, 73593/14, 73820/14 et al.

Judgment 13.2.2018 [Section IV]

Article 6

Administrative proceedings

Article 6-1

Access to court

Inability to access court in region no longer controlled by the Government: no violation

Facts – In 2014 following an outbreak of conflict in eastern Ukraine affecting the Donetsk and Luhansk regions, jurisdiction of the courts in the non-controlled areas was transferred to the relevant courts in neighbouring regions on territory controlled by the Government. Subsequently all social benefit payments in the settlements of the Donetsk and Luhansk regions that were outside the control of the Government were suspended.

In the Convention proceedings, the applicants complained under Article 6 § 1 and/or Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that they could not challenge the suspension of their social benefits before the domestic courts, since the latter had been removed from the areas of hostilities.

Law

Article 6 § 1 of the Convention: The Court examined the complaints solely under Article 6 § 1 of the Convention. It noted that it was impossible, for the tribunals located in the city where the applicants resided to adjudicate their claims as a result of the hostilities. In the absence of any intentional restriction or limitation on the exercise of the applicants’ right of access to court the question was whether the Ukrainian State authorities had taken all the measures available to organise their judicial system in the specific situation of ongoing conflict in a way that would render the rights guaranteed in Article 6 effective in practice concerning the applicants.

The Court reiterated that, in order for the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his or her rights. The fact that the courts in Donetsk had become inoperative meant that the applicants were prevented from filing claims with them and constituted a limitation on the applicants’ right of access to a court. However, such limitations on the right of access were deemed permissible under Article 6 § 1 if they did not impair the very essence of the right, pursued a legitimate aim and were not disproportionate.

The Court noted that Ukraine had introduced amendments to the law authorising courts in the neighbouring regions to consider cases which would have otherwise been considered by courts on the occupied territory and had later relocated the operations of the relevant courts to the territory controlled by the Government. These courts would have had jurisdiction over the applicants’ administrative cases at the time they brought the application before the European Court.

The Court invoked the principles it had laid down in Khlebik v. Ukraine, namely that if the domestic authorities had taken the steps reasonably expected of them to ensure the proper functioning of the judicial system by making it accessible to the residents of the territories currently outside the control of the Government then the rights guaranteed under Article 6 would be rendered effective.

The absence of any evidence that the applicants’ personal situation had precluded them from making use of the system led the Court to conclude that the applicants’ inability to bring their claims before the courts in their city of residence had not impaired the very essence of their right of access to court. The limitation of that right was due to the objective fact of the hostilities in the areas the Government did not control and, taking into account the objective obstacles that the Ukrainian authorities had to face, was not disproportionate.

Conclusion: no violation (unanimously).

Article 1 of Protocol No. 1: On the basis of finding that none of the applicants were disproportionately restricted in their right of access to a court guaranteed under Article 6, the Court concluded that by failing to raise their complaints before the domestic courts they had not provided the national authorities with an opportunity to prevent or put right Convention violations through their own legal system.

Conclusion: inadmissible (failure to exhaust domestic remedies).

Article 14 in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1: The first three applicants had complained that they had been discriminated against on the grounds of their place of residence. The Court found, however, that the fact that they were residing in a region where the hostilities had forced the Government to adopt remedial measures which were not needed elsewhere meant that they were not in an “analogous situation” compared to persons residing on the Government controlled territory.

Conclusion: inadmissible (manifestly ill-founded).

(See Khlebik v. Ukraine, 2945/16, 25 July 2017, Information Note 209)

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This summary by the Registry does not bind the Court.

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