European Court of Human Rights

 

 

FIFTH SECTION

CASE OF KUSHNIR v. UKRAINE

(Application no. 8531/13)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 January 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Kushnir v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Arnfinn Bårdsen, President,
          Ganna Yudkivska,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 8531/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Ukrainian national, Mr Mykola Oleksiyovych Kushnir (“the applicant”), on 14 January 2013;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaint concerning the lack of access to the court of appeal and to declare inadmissible the remainder of the application;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 17 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the first-instance court’s failure to notify the applicant of the judgment delivered in his case and, as a consequence, the applicant’s inability to lodge an appeal against that judgment.

THE FACTS

2.  The applicant was born in 1919. On 3 February 2014 Ms Svitlana Mykolayivna Melnikova, the daughter and the heir of the applicant, informed the Court that the latter had died on 15 June 2013 and expressed the wish to pursue the application on his behalf. The applicant was represented by Mr V. Rachynskyy, succeeded by Ms I. Kushnir, lawyers practising in Kyiv.

3.  The Government were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice.

THE CIRCUMSTANCES OF THE CASE

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The applicant instituted administrative proceedings in the Obolonskyy District Court of Kyiv (“the District Court”), asserting that in 2009, 2010 and 2011 the local authorities had failed to pay him the appropriate amounts of the annual lump-sum allowance to which he was entitled under the War Veterans’ Status and Social Protection Guarantees Act (Закон України «Про статус ветеранів війни, гарантії їх соціального захисту»). The applicant further claimed 1,000 Ukrainian hryvnias (UAH) as compensation for non-pecuniary damage in connection with the alleged omissions.

6.  On 21 October 2011 the District Court held that the case should be considered by way of the abridged procedure, pursuant to Article 183-2 of the Code of Administrative Justice.

7.  On 1 November 2011 the District Court allowed the applicant’s claim as regards the annual allowance which was due to him in 2011. It ordered that the Kyiv City Social Security Payments Centre (“the Centre”) should pay the applicant a lump sum amounting to eight times the minimum pension in respect of the annual allowance to which the applicant was entitled under the above-mentioned Act in 2011, less the amount that had already been paid to him for that period. The claims in respect of the other periods and the claim for non-pecuniary damage were rejected without any reasons being provided in the text of the judgment.

8.  On 10 November 2011 a copy of the judgment was sent to the Centre. The applicant was not sent a copy of the judgment. The Centre lodged an appeal, arguing that the applicant’s claims had to be dismissed in full.

9.  On 30 November 2011 the case was referred to the Kyiv Administrative Court of Appeal (“the Court of Appeal”).

10.  By letter of 2 March 2012, in reply to an enquiry from the applicant, the Court of Appeal informed the applicant that, owing to its heavy workload, his case had not yet been registered in its electronic database

11.  On 5 June 2012 the applicant lodged a request with the Court of Appeal asking, inter alia, for a copy of the District Court’s judgment.

12.  By letter of 26 June 2012, in reply to a further enquiry from the applicant, the Court of Appeal again informed him that his case had not yet been registered in its electronic database.

13.  On 24 October 2012 the applicant again requested the Court of Appeal to provide him with a copy of the District Court’s judgment of 1 November 2011, specifying that he had not been given a copy of that judgment. He further requested to be informed of the progress of the appeal proceedings.

14.  By letter of 1 November 2012, the Court of Appeal informed the applicant that his case would be considered on 7 November 2012 by means of a written procedure.

15.  On 28 November 2012 the Court of Appeal considered the appeal by the Centre as the defendant, and adopted a new judgment, increasing the amount to be paid to the applicant. In particular, it held that the Centre should pay the applicant a lump sum amounting to ten times the minimum pension in respect of the annual allowance to which he had been entitled in 2011, less the amount that had already been paid to him for that period. As to the allowances to which the applicant had been entitled in 2009 and 2010, the Court of Appeal dismissed those claims without considering them on the merits since they had been lodged out of time. The remainder of the applicant’s claims (allegations concerning non-pecuniary damage) were rejected without any reasons being specified. A copy of that judgment was not sent to the applicant by the Court of Appeal because of lack of funds.

16.  In December 2012, in reply to an enquiry from the applicant, the District Court informed him that it was not in a position to provide him with a copy of its decision of 1 November 2011 as the case was still with the Court of Appeal.

17.  On 11 January 2013 the applicant obtained copies of judgments concerning his case from the District Court.

18.  On 14 January 2013 the applicant appealed against the judgment of the Court of Appeal of 28 November 2012 to the Higher Administrative Court, complaining, inter alia, that he had not been provided with a copy of the decision of 1 November 2011 and that he was not able to appeal against it. On 18 March 2013 the Higher Administrative Court informed the applicant that, in accordance with the relevant domestic law, decisions of courts of appeal delivered under the abridged procedure were final and not amenable to appeal.

19.  On 13 February 2013, in reply to a further enquiry from the applicant, the District Court informed him that there had indeed been no evidence in the case file that a copy of the judgment of 1 November 2011 had been sent to him. It went on to note that the relevant instructions had been given to the court’s registry in order to avoid such omissions in future.

RELEVANT LEGAL FRAMEWORK

20.  Article 183-2 of the Code of Administrative Justice of 6 July 2005, as in force at the material time, provided, inter alia, that claims concerning social and pension payments should be considered by way of an abridged procedure without the parties being summoned. In the course of that procedure, the defendant should be given a ten-day time-limit for lodging objections against the claim and for submitting the relevant documents. The day following the adoption of a judgment by the first-instance court, the copies thereof should be sent to the parties by registered post. The judgment could be appealed against to a court of appeal. The decision of a court of appeal was final and not subject to further appeal.

THE LAW

I. LOCUS STANDI OF THE APPLICANT’S daughter

21.  The applicant’s daughter has requested to pursue the application on her father’s behalf. The Government pointed out that the applicant’s daughter had not been a party to the domestic proceedings and had not been affected by the alleged violation and therefore had no right to pursue the application lodged by the applicant.

22.  The Court notes that where an applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references therein). In such cases, the decisive point is whether the heirs can in principle claim a legitimate interest in asking the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (see Singh and Others v. Greece, no. 60041/13, § 26, 19 January 2017).

23.  The Court notes that the applicant’s daughter expressed her wish to pursue the application. The Court sees no reason to doubt that she has a legitimate interest in doing so, and holds that she has standing to continue the present proceedings in the applicant’s stead (see, among other authorities, Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005; Benyaminson v. Ukraine, no. 31585/02, § 83, 26 July 2007; Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 67, 3 December 2015 and Singh and Others, cited above, § 27). However, reference will still be made to “the applicant” throughout the present text.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

24.  The applicant complained that his right of access to the Court of Appeal had not been secured. He relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.    The parties’ submissions

25.  The applicant submitted that, unlike the Centre as the defendant in his case, he had been deprived of the possibility to lodge an appeal as no copy of the judgment issued at the hearing of 1 November 2011 had been sent to him in due time by the first-instance court.

26.  The Government submitted that the applicant had failed to exhaust the available domestic remedies, since he had failed to lodge a further appeal with the Higher Administrative Court in order to challenge the decision of the Court of Appeal of 28 November 2012, delivered following an examination of the defendant’s appeal.

27.  They further contended that the judgment of the Court of Appeal had not been based on any new facts and had been more favourable to the applicant than the one delivered by the first-instance court. They therefore concluded that the applicant’s complaint had in any event been manifestly ill-founded.

B.    The Court’s assessment

1.     Admissibility

28.  The Court first observes that, contrary to the Government’s allegations, the available evidence suggests that the applicant did in fact challenge the judgment of the Court of Appeal of 28 November 2012 before the Higher Administrative Court (see paragraph 18 above). However, that court did not accept the applicant’s appeal for examination, explaining to him that the judgment was not amenable to appeal (ibid.). The Court therefore dismisses the Government’s objection as regards the non-exhaustion of domestic remedies by the applicant.

29.  The Court further notes that the present complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2.     Merits

30.  The Court reiterates that the right of access to a court entails the entitlement to receive adequate notification of judicial decisions, particularly in cases where an appeal might be sought within a specified time-limit (see, inter alia, Sukhorubchenko v. Russia, no. 69315/01, §§ 50‑54, 10 February 2005; and Mikulová v. Slovakia, no. 64001/00, §§ 52-58, 6 December 2005).

31.  It is not in dispute in the present case that no copy of the District Court’s judgment of 1 November 2011 had been sent to the applicant within the time-limit laid down in the domestic law, and further attempts by the applicant to obtain a copy of the relevant judgment proved futile until 11 January 2013, by which time the final decision had already been taken by the Court of Appeal.

32.  It should also be noted that the applicant was not present at the hearing in the first-instance court, as the hearing had been conducted on the basis of the parties’ written submissions and therefore without summoning them. Therefore, he was not aware of the contents of the decision taken following the examination of his claim, including the reasoning given by the court, meaning that he would have been unable to appeal against it in due time without having a paper copy.

33.  The fact that in its judgment the Court of Appeal increased the amount awarded to the applicant by the first-instance court in respect of one of his claims has no bearing on the issue of his access to the Court of Appeal.

34.  In view of the foregoing, the Court concludes that the applicant’s access to the Court of Appeal was impaired by the shortcomings in notifying him of the first-instance court’s judgment in his case.

35.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  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

37.  The applicant claimed 3,000 euros (EUR) in respect of non‑pecuniary damage.

38.  The Government contested that claim.

39.  The Court, ruling on an equitable basis, awards the applicant EUR 1,500 in respect of non-pecuniary damage.

B.    Costs and expenses

40.  The applicant also claimed 3,500 Ukrainian hryvnias (UAH) (about EUR 127) for the costs and expenses incurred before the Court and UAH 162 (about EUR 6) for postal expenses. In support of his claim the applicant provided a signed legal-aid contract, concluded between himself and Mr Rachynskyy on 10 January 2013, according to which the applicant undertook to pay Mr Rachynskyy UAH 3,500 after completion of the proceedings at the Court, irrespective of the outcome of the proceedings. He also submitted receipts as proof of the postal expenses.

41.  The Government submitted that the applicant’s claim in respect of his lawyer’s fee had not been duly substantiated.

42.  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 allow the applicant’s claim in full and awards him EUR 135 under this head.

C.    Default interest

43.  The Court considers it appropriate that the default interest rate 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,

1.      Holds that the applicant’s heir, Ms Svitlana Mykolayivna Melnikova, has standing to pursue the application;

2.      Declares the application admissible;

3.      Holds that there has been a violation of Article 6 § 1 of the Convention;

4.      Holds

(a)   that the respondent State is to pay Ms Svitlana Mykolayivna Melnikova, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 135 (one hundred and thirty-five euros), plus any tax that may be chargeable to her, 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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Martina Keller                                                                   Arnfinn Bårdsen
Deputy Registrar                                                                       President