BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF ANDRIYEVSKA v. UKRAINE
(Application no. 34036/06)
JUDGMENT
STRASBOURG
1 December
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Andriyevska
v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ann Power-Forde,
Ganna Yudkivska,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34036/06)
against Ukraine lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian
national, Ms Tamara Mykolayivna Andriyevska (“the applicant”),
on 10 August 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev, succeeded by Ms Valeria Lutkovska.
3. The
applicant alleged, in particular, that her right of access to
a court under Article 6 § 1 of the Convention had been violated.
- On
10 May 2010 the President of the Fifth Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in
Pavlograd.
A. Proceedings against Oranta State Insurance Company
- In
June 2003 the applicant instituted proceedings for damages against
Oranta State Insurance Company in the Babushkinskyy District Court of
Dnipropetrovsk (“the Babushkinskyy Court”).
- On
18 April 2005 the court dismissed the claim as unsubstantiated.
- On
1 September 2005 and 18 May 2006 the judgment was upheld by the
Dnipropetrovsk Regional Court of Appeal and the Supreme Court of
Ukraine, respectively.
B. Proceedings against the local police department
- In
June 2003 the applicant also instituted proceedings against her
former employer, the local police department, seeking recovery of
some retirement-related and other payments.
- On
10 May 2005 the Babushkinskyy Court found against her.
- On
17 November 2005 the Dnipropetrovsk Regional Court of Appeal upheld
the judgment. It stated in the operative part that the applicant had
the right to challenge the decision before the Higher Administrative
Court within one month.
- The
applicant appealed in cassation.
- On
3 February 2006 the Higher Administrative Court declined jurisdiction
to consider her appeal in cassation on the ground that the case was
of a “civil” rather than an “administrative”
nature and therefore the Supreme Court was the correct court of
cassation.
- The
applicant resubmitted her appeal in cassation to the Supreme Court.
On 5 June 2006 the latter, referring to Article 210 of the Code of
Administrative Justice, declined jurisdiction asserting that, in
fact, the Higher Administrative Court was the appropriate forum for
the case.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
- The
relevant domestic law and documents of the Council of Europe are
quoted in the judgment in Bulanov and Kupchik v. Ukraine
(nos. 7714/06 and 23654/08, §§
20-25, 9 December 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE APPLICANT’S RIGHT OF ACCESS TO A
COURT
- The
applicant complained that she had been unlawfully denied access to a
court of cassation. She relied on Article 6 § 1 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 ...”
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
domestic remedies available to her.
- While
agreeing that both the Higher Administrative Court and the Supreme
Court (rulings of 3 February and 5 June 2006 respectively) had
declined jurisdiction to consider the applicant’s appeal in
cassation, the Government considered that the domestic legislation
afforded the applicant the possibility to remedy that situation.
- Namely,
they referred to Article 237 of the Code of Administrative Justice
(see paragraph 15 above), pursuant to which the applicant could
request the Supreme Court to review the aforementioned rulings in the
light of the conflicting application of the law as an exceptional
circumstance.
- The
applicant disagreed.
- In
its judgment regarding the case of Bulanov and Kupchik, the
Court already examined and dismissed a similar objection raised by
the Government in comparable circumstances (cited above, § 32).
Namely, the Court held there that the procedure suggested by the
Government concerned an extraordinary review, which was not a remedy
within the meaning of Article 35 § 1 of the Convention.
- The
Court finds no reasons to hold otherwise in the present case and
dismisses the Government’s objection. It further notes that
this complaint is neither manifestly ill-founded within the meaning
of Article 35 § 3 (a) of the Convention nor inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- The
applicant maintained that her right of access to
a court had been infringed by the refusal of jurisdiction over her
cassation appeal by both the Higher Administrative Court and the
Supreme Court.
- The
Government did not submit observations on the merits of this
complaint.
- The
Court notes that it already examined a similar complaint in the
aforementioned Bulanov and Kupchik case and found a violation
of Article 6 § 1 of the Convention on account of the lack
of the applicants’ access to a court of cassation in civil
proceedings (§§ 34-40). It does not see any reason to hold
otherwise on the merits of the present case.
- There
has therefore been a violation of Article 6 § 1 of the
Convention in respect of the applicant’s right of access to a
court.
II. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 6 § 1 of the Convention
that both sets of proceedings brought by her had lasted an
unreasonably long time. She further challenged the outcome of the
proceedings against Oranta State Insurance Company and complained
that the lower courts had wrongly dismissed her claims in the
proceedings against the local police department. The applicant
additionally relied on Articles 1 and 13 of the Convention without
being any more specific.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government contested the claim as unsubstantiated and, in any event,
exorbitant.
- Ruling
on an equitable basis, the Court awards the applicant EUR 2,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 1,500 Ukrainian hryvnias (UAH) for legal fees
(about EUR 130), UAH 613.17 in respect of postal expenses (about EUR
53), UAH 229.30 for the domestic court fees (about EUR 20), UAH
118.50 for transport expenses (about EUR 10), EUR 50 for translation
services, and UAH 41.60 for taping and copying services (about EUR
4).
- The
Government considered that not all the expenses were related to the
present application. Furthermore, they noted that the applicant had
not provided any documents proving that she had in fact been legally
represented. They considered that the applicant had supported her
claim for postal expenses related to her correspondence with the
Court in the amount of UAH 357.65 (about EUR 30).
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicant the sum of EUR 80
covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention of lack of access to court admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to
be converted into the national currency of the respondent State at
the rate applicable on the date of settlement:
(i) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
80 (eighty euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 1 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann Registrar President
