FIFTH SECTION
DECISION
Application no. 68856/13
Kostyantyn Kostyantynovych UZHAVKA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 September 2014 as a Committee composed of:
Ann Power-Forde, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 22 October 2013,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Kostyantyn Kostyantynovych Uzhavka, is a Ukrainian national, who was born in 1965 and lives in Pervomaysk.
The facts of the case may be summarised as follows.
In April 2008 the applicant initiated an administrative dispute against the local social security authority for recalculation of his war veteran’s allowance (related to his past military service in Afghanistan).
On 20 May 2008 the Pervomaysk Town Court allowed the applicant’s claim in part.
On 20 October 2009 the Odessa Administrative Court of Appeal upheld that decision. The appellate court’s ruling became enforceable immediately, but could be challenged on points of law within a month. In the absence of any such appeal on points of law, it became final.
On 3 May 2012 the Higher Administrative Court allowed the defendant’s request for renewal of the time-limit for lodging an appeal on points of law and reopened the proceedings. That decision, a copy of which was sent to both parties, was final and not amenable to appeal.
On 1 August 2012 the Higher Administrative Court allowed the cassation appeal of the social security authority. By a final ruling it quashed the lower courts’ decisions and remitted the case to the first-instance court for a fresh examination.
On 30 January 2013 the Pervomaysk Court rejected the applicant’s claim.
On 16 July 2013 the Odessa Administrative Court of Appeal also found against the applicant.
On 13 September 2013 the Higher Administrative Court rejected the applicant’s request for leave to appeal on points of law.
COMPLAINTS
The applicant complained, relying on Articles 1 and 46 of the Convention, about the non-enforcement of the judgment of 20 May 2008 during the period from 20 October 2009 to 1 August 2012 and about the eventual quashing of that judgment.
THE LAW
The applicant complained that, although the judgment in his favour of 20 May 2008 became enforceable once upheld by the appellate court on 20 October 2009, it had remained unenforced. The applicant further complained about the quashing itself of the aforementioned final judgment.
The above complaints fall to be examined under Article 6 of the Convention, which reads, 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 ...”
The Court reiterates that the fundamental purpose of the six-month rule is to ensure legal certainty, avoid stale complaints, and provide for an examination of the Convention issues within a reasonable time (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012, with further references). As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies.
Pursuant to the Court’s established case-law, if there is no adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act takes place is considered to be “final” for the purposes of the six-month rule (see Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000).
Where the quashing of a final judgment is not amenable to appeal, like in the present case, the Court has viewed that quashing as an instantaneous act, which does not create a continuing situation, even if it entails the reopening of proceedings (see, for a factually comparable case, Khanyan v. Armenia (dec.), no. 19065/05, 5 July 2007, with further references).
Accordingly, the six-month time-limit for the applicant in the present case, as regards his complaint about the quashing of the judgment in his favour, started running on the date of the impugned quashing, that is on 3 May 2012. This complaint, which was introduced only on 22 October 2013, is therefore out of the six-month time-limit.
The same holds true about the applicant’s other complaint on the non-enforcement of the judgment in his favour.
The Court notes that non-enforcement of a judgment is a continuing situation (see, among others, Trunov v. Russia, no. 9769/04, § 15, 6 March 2008). In cases involving a continuing situation, the six-month period runs from the cessation of that situation (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). Thus, in a number of cases the Court has rejected non-enforcement complaints pursuant to Article 35 § 1 of the Convention if they were introduced more than six months after the date when the judgment ceased to be binding and enforceable (see Babich and Azhogin v. Russia (dec.), nos. 9457/09 and 9531/09, 15 October 2013, with further references).
In the present case the six-month time-limit started running on 1 August 2012, when the judgment in question had been quashed by a final ruling and thus ceased to be enforceable. This complaint is therefore belated too.
It follows that the application should be rejected under Article 35 § 1 of the Convention as being out of the six-month time-limit.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Stephen PhillipsAnn Power-Forde
Deputy RegistrarPresident
Full & Egal Universal Law Academy