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FIFTH
SECTION
CASE OF MUSHTA v. UKRAINE
(Application
no. 8863/06)
JUDGMENT
STRASBOURG
18
November 2010
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 Mushta v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 19 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8863/06) 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 Stanislava Isakivna
Mushta (“the applicant”), on 13 February 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
1 October 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Letychivka, Cherkasy region.
- In
March 2005 the applicant instituted proceedings in the Monastyryshche
Court against her former employer, the Monastyryshche Department of
Land Resources, seeking reinstatement as an employee and recovery of
salary arrears. In the proceedings, the applicant was represented by
a lawyer.
- On
23 May 2005 the court allowed the applicant's claims in full.
- The
defendant party appealed against that judgment. The applicant
submitted comments on the appeal.
- At
a preliminary hearing on 1 July 2005 the Cherkasy Regional Court of
Appeal issued a ruling scheduling a hearing on the merits of the
appeal for 17 August 2005.
- According
to the Government, a copy of the ruling of 1 July 2005 was delivered
to the applicant in person on 15 July 2005. The Government submitted
a copy of the acknowledgment of receipt completed and signed by a
postman and a copy of a report from the Cherkasy Post Office,
indicating that the applicant had received a copy of the ruling in
person. In that report the post office mentioned that the register of
delivered mail containing the applicant's signature in that
connection had been destroyed and that a copy of it was not
available.
- The
applicant stated that neither she nor her lawyer had been informed of
the hearing on appeal in advance. According to her, the documents
submitted by the Government could not prove that she had received a
copy of the ruling of 1 July 2005, as the acknowledgment of receipt
did not bear the post mark of Post Office No. 16 of Cherkasy, which
normally delivered mail to her place of residence.
- From
10 to 29 August 2005 the applicant underwent treatment at the
Monastyryshche Central Hospital.
- On
17 August 2005 the Cherkasy Regional Court of Appeal heard the case
in the absence of the applicant and her lawyer. It found that the
applicant's dismissal had been lawful, quashed the judgment of the
first-instance court and rejected the applicant's claims in full.
According to the judgment of the Court of Appeal, it could be
appealed against in cassation to the Supreme Court within one month.
- According
to the applicant, on 7 September 2005 her lawyer learned that the
Court of Appeal had decided on the case on 17 August 2005. On the
same day he lodged with the Monastyryshche Court a request for a copy
of the decision on appeal.
- On
5 October 2005 the lawyer received a copy of the decision of
17 August 2005.
- At
the applicant's request, a copy of that decision was also provided to
her by the Monastyryshche Court on 6 October 2005.
- On
3 November 2005 the applicant lodged an appeal in cassation with the
Supreme Court, challenging the factual findings and application of
law by the Court of Appeal. The applicant also requested the Supreme
Court to renew the time-limit for lodging her appeal in cassation,
stating that she had not been informed of the decision of 17 August
2005 in due time.
- On 15 November 2005 a judge of the Supreme Court
dismissed the applicant's appeal in cassation as lodged out of time,
stating, without any further explanation, that the ground on which
the applicant had relied in requesting the renewal of the impugned
time-limit was not sufficient to justify the requested course of
action.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure of 1963 (repealed with
effect from 1 September 2005)
- The
relevant extracts from Chapter 7 (Procedural terms) of the Code of
Civil Procedure of 1963, as worded at the material time, read as
follows:
Article 84. Types of procedural terms
“The terms during which procedural acts are to be
performed shall be set by the law or by the court.”
Article 85. Consequence of missing procedural terms
“...Complaints and documents
submitted after the expiry of procedural terms shall be left without
consideration if the court does not find reasons for extension or
renewal of the term.”
Article 87. Expiry of procedural terms
“...
A term [expressed] in months shall expire on the
corresponding date of the last month of the term ...
The last day of the term shall run until [midnight]...
The term shall not be considered to
be missed if the complaint or other documents or money required by
the court have been submitted to the post office before its expiry.”
Article 89. Renewal and extension of procedural terms
“At the request of a party ... the court may renew
or extend the terms set by the court.
The court may renew the term set by the law if it has
been missed for reasons found by the court to be justifiable.
The question concerning renewal of the expired term
shall be decided by the court ... to which a document was due to be
submitted. [T]he parties ... shall be summoned to a hearing [on that
question] though their failure to appear shall not prevent the court
from considering [it]...
A document concerning which the request for renewal of
the term has been lodged must be submitted together with the request.
A court's ... ruling refusing to renew the missed term
may be appealed against ...”
- The
relevant extracts from Chapter 22 (Court judgments) of the Code of
Civil Procedure of 1963, as worded at the material time, read as
follows:
Article 216. The [obligation to] issue copies of
decisions to parties and third parties
“The court shall send to the parties ... who were
not actually present at the court hearing ... copies of the judgment
or of the rulings by which the proceedings were suspended or
discontinued or the claim was left without consideration, within five
days of their pronouncement.”
- The
relevant extracts from Chapter 40 (Appeal procedure) of the Code, as
worded at the material time, read as follows:
Article 302. The procedure for consideration of a
case by a court of appeal
“Cases shall be considered by a
court of appeal under the rules set for
consideration of cases by a court of first instance, with the
exceptions envisaged in this Chapter.
...”
- The
relevant extracts from Chapter 41 (Cassation procedure) of the Code,
as worded at the material time, read as follows:
Article 319. The court of cassation instance
“The court of cassation instance is the Supreme
Court of Ukraine.”
Article 320. The right to challenge judicial
decisions in cassation
“The parties and other persons taking part in the
case ... have the right to challenge in cassation judgments and
rulings adopted by the first-instance court which have been
considered by the court of appeal, as well as rulings and judgments
of the court of appeal.
The grounds for [an appeal] in cassation are wrongful
application by the court of norms of substantive law or a violation
of norms of procedural law.”
Article 321. The term for lodging an appeal in
cassation
“An appeal in cassation ... shall be lodged within
one month of the day of the pronouncement of the ruling or judgment
of the appeal court.
If the time-limit ... has been missed for reasons which
the court recognises as justified, the court may, at the request of
the person who lodged the appeal ... renew that time-limit for a
period not exceeding one year from the day on which the right to an
appeal in cassation arose ...”
B. Code of Civil Procedure of 2004 (in force as of 1
September 2005)
- The
relevant extracts from Chapter 6 (Procedural terms) of Section I
(General provisions) of the Code of Civil Procedure of 2004, as
worded at the material time, read as follows:
Article 67. Types of procedural terms
“1. The terms during which procedural
acts are to be performed shall be set by the law, and if they have
not been set by the law [the terms shall be] set by the court.”
Article 69. Start of the running of procedural terms
“1. A procedural term shall start
running on the day after the calendar date of the event [to which the
term is linked]...”
Article 70. Expiry of procedural terms
“...
2. A term [expressed] in months shall expire
on the same date of the last month of the term ...
5. The last day of the
term shall run until [midnight] ...
6. The term shall not be
considered to be missed if the claim, complaint, other documents or
materials, or money have been submitted to the post office or
transferred by other means of communication before its expiry.”
Article 73. Renewal or extension of procedural terms
“1. The court shall renew or extend the
term ... at the request of a party ... if it has been missed for
justifiable reasons.
2. The question concerning renewal or
extension of the expired term shall be decided by the court ... to
which a document or evidence was due to be submitted. The persons
taking part in the proceedings shall be informed of the place and
time of consideration of that question. The presence of those persons
is not compulsory.
3. A document or evidence concerning which
the request [for renewal or extension of the term] has been lodged
may be submitted together with the request...”
- The
relevant extracts from Chapter 7 (Judicial decisions) of Section III
(Procedure for consideration of claims) of the Code, as worded at the
material time, read as follows:
Article 222. The [procedure for issuing] copies of
decisions to persons who took part in the case
“...
2. At a request of a person who took part in
the case copies of a court decision shall be given to him within five
days of its pronouncement.
3. Copies of a court decision shall be sent,
within five days of its pronouncement, by registered post with
acknowledgment of receipt to persons who took part in the case, but
who were not present at the court hearing.
...”
- The
relevant extracts from Chapter 1 (Appeal procedure) of Section V
(Procedure for review of judicial decisions) of the Code, as worded
at the material time, read as follows:
Article 321. The [procedure for issuing] copies of
decisions to parties and other persons who took part in the case
“1. Decisions of the
court of appeal shall be issued ... in accordance with the procedure
envisaged by Article 222 of this Code.
2. Copies
of decisions of the court of appeal shall be re-issued by the court
of first instance keeping the case-file.”
- The
relevant extracts from Chapter 2 (Cassation procedure) of Section V
(Procedure for review of judicial decisions) of the Code, as worded
at the material time, read as follows:
Article 323. The court of cassation instance
“1. The court of cassation instance in
civil cases is the court which is envisaged by the Judiciary Act as
the court of cassation in such cases.”
Article 324. The right to challenge [judicial
decisions] in cassation
“1. The parties and other persons
taking part in the case ... have the right to challenge in cassation:
1) judgments of the court of first instance,
after they have been reviewed on appeal, judgments and rulings of the
appeal court adopted [in the course of] the consideration [of the
case] on appeal ...
2) rulings of the court of first instance ...
after they have been reviewed on appeal and rulings of the appeal
court if they obstruct further proceedings in the case.
2. The grounds for [an appeal] in cassation
are wrongful application by the court of norms of substantive law or
a violation of norms of procedural law.”
Article 325. The term for lodging an appeal in
cassation
“1. An appeal in cassation ... may be
lodged within two months of the day on which the judgment (ruling) of
the appeal court becomes final.
2. If the term ... has been missed for
reasons which the court recognised to be justifiable, the court of
cassation instance may, at the request of the person who lodged the
appeal, renew that term, though for a period not exceeding one year
from the day on which the right to an appeal in cassation arose.
3. An appeal in cassation lodged out of time
... shall be returned by the court of cassation to the person who
lodged it, if that person does not raise the question of renewal of
that term and also if the [request for] renewal is refused.
4. The question of renewal of the term ...
shall be determined by a ruling of the court of cassation instance.”
Article 335. Scope of consideration of the case by
the court of cassation instance
“1. In the course of consideration of the case in
cassation, the court shall verify, within the limits of the cassation
appeal, the accuracy of the application of norms of substantive or
procedural law by the courts of first or appeal instances, [but it]
shall have no power to establish or to hold proven facts which were
not established in the judgment or dismissed by it, [or] to decide on
the question of reliability ... of [particular] evidence or of the
weight to be given to certain evidence ...
2. The court of cassation instance shall
[examine the question of] the lawfulness of judicial decisions only
within the limits of the claims raised before the court of first
instance.
3. The court shall not be
limited by the arguments of the cassation appeal if, in the course of
the consideration of the case, [it] discerns the wrongful application
of norms of substantive law or a violation of the norms of procedural
law, constituting grounds for the compulsory quashing of the
decision.”
Article 336. Powers of the court of cassation
instance
“1. ...[T]he court of cassation
instance has the power to:
(1) adopt a ruling dismissing the cassation
appeal and leaving the [contested] decision in force;
(2) adopt a ruling fully or partly quashing
the decision and referring the case back to the court of first
instance or appeal for fresh consideration;
(3) adopt a ruling quashing the decision of
the court of appeal and leaving in force the judicial decision which
was erroneously quashed by the court of appeal;
(4) adopt a ruling quashing the judicial
decisions and terminating the proceedings in the case or leaving the
claim without consideration;
(5) quash the judicial decisions and adopt a
new judgment or vary the judgment [on the merits of the case],
without referring it back for fresh consideration ...”
- The
relevant extracts from Section XI (Final and transitional provisions)
of the Code, as worded at the material time, read as follows:
“1. This Code shall enter into force as
from 1 September 2005...
3. [The following
normative acts] shall be repealed with the entry into force of this
Code:
The Code of Civil Procedure of ...
1963...
11. Decisions adopted by
courts of appeal before the entry into force of this Code may be
appealed against in cassation if the term for [lodging] an appeal in
cassation has not expired under the Code of Civil Procedure of 1963.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that her right to a fair trial was violated,
alleging that she had been unlawfully denied access to the court of
cassation. She invoked 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 contended that the application was partially based on
untrue submissions by the applicant, in particular as regards her
having been informed of the date and time of the hearing on appeal
(see paragraphs 9-10 above). They requested the Court to strike the
application out of its list of cases on the ground that the applicant
had abused the right of petition.
- The
applicant disagreed.
- The
Court reiterates that, except in extraordinary cases, an application
may only be rejected as abusive if it was knowingly based on untrue
facts (see, for instance, Varbanov v. Bulgaria, no. 31365/96,
§ 36, ECHR 2000-X).
- In
the present case, regard being had to the parties' submissions and
other material in the Court's possession, the question of whether the
applicant was informed of the hearing on appeal remains undetermined.
Thus, the Court is unable to conclude that the
applicant has knowingly based her allegations of the failure of the
Court of Appeal to inform her of that hearing on untrue information
(see Popov v. Moldova (no. 1), no. 74153/01, §
45, 18 January 2005; and Daniliuc v. Moldova, no. 46581/99,
§ 32, 18 October 2005).
Accordingly, the Court discerns no indication that the applicant
abused her right of petition, within the meaning of Article 35 §
3 (a) of the Convention, and dismisses the Government's preliminary
objection.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions of the parties
- The
applicant complained of lack of access to a court. She argued that
the Supreme Court had disregarded the fact that she had missed the
time-limit for lodging an appeal in cassation because of the failure
of the Court of Appeal to inform her of the hearing on 17 August2005
and to send her a copy of its decisions in accordance with
Article 216 of the Code of Civil Procedure of 1963, which had
been applicable to the proceedings on appeal by virtue of the
provisions of Article 302 of that Code.
- The
Government stated that there had been no violation of Article 6
of the Convention in the applicant's case. In particular, they
submitted that the applicant had been duly informed of the hearing on
appeal on 17 August 2005 and had been able to request the
adjournment of that hearing, that her lawyer had also been aware of
that hearing, which was confirmed by his request of 7 September 2005,
and that after the hearing of 17 August 2005 the decision
of the Court of Appeal together with other materials of the case had
been available at that court. On these grounds, the Government
contended that the applicant and her lawyer had had a real
opportunity to submit an appeal in cassation within the time-limit
set by the law.
- The
Government further argued that Article 216 of the Code of Civil
Procedure of 1963 was applicable to the proceedings before the
first instance courts, and not to the proceedings on appeal.
- According
to the Government, the Supreme Court's refusal to allow the
applicant's request to renew the time-limit for lodging her appeal in
cassation had been based on the above-mentioned considerations.
2. The Court's assessment
- The
Court reiterates that the right to a court, of which the right of
access is one aspect, is not absolute; it may be subject to
limitations permitted by implication, particularly regarding the
conditions of admissibility of an appeal. However, these limitations
must not restrict the exercise of the right in such a way or to such
an extent that its very essence is impaired. They must pursue a
legitimate aim and there must be a reasonable degree of
proportionality between the means employed and the aim sought to be
achieved.
- The
rules on time-limits for appeals are undoubtedly designed to ensure
the proper administration of justice and legal certainty. Those
concerned must expect those rules to be applied. However, the rules
in question, or the application of them, should themselves correspond
to the principle of legal certainty and should not prevent litigants
from making use of an available remedy (see Melnyk v. Ukraine,
no. 23436/03, §§ 22-23, 28 March 2006).
- The
Court notes that, according to its established case-law concerning
Ukraine, the above guarantees enshrined in Article 6 are applicable
to proceedings before courts of cassation in civil matters (see
Melnyk, cited above, § 25).
- Turning
to the circumstances of the present case, the Court observes that the
applicant had access to a court of cassation, in that her appeal
reached the Supreme Court. However, it was not considered because the
latter court found that it had been lodged out of time and that the
applicant's request for the renewal of the time-limit was unfounded.
- Although
the applicant contended that the decision of the Supreme Court had
been unlawful, the Court does not find it necessary to examine
whether the relevant rules were accurately applied by that court. The
latter was definitely better placed to interpret the domestic rules
of procedure, in particular those concerning procedural time-limits.
Nevertheless, the Court considers that it is necessary to examine
whether their application in the present cases could be regarded as
foreseeable from the point of view of the applicants (see Melnyk,
cited above, § 26).
- In this context, the Court notes that under the
provisions of Article 216 of the Code of Civil Procedure of
1963, read in the light of Article 302 of that Code, the
applicant was entitled
to be served ex
officio
with a written copy of the decision of the Court of Appeal (see
paragraphs 19-20 above). This is indirectly confirmed by the
amended provisions of the Code of Civil Procedure of 2004 concerning
the same procedural matter (see paragraphs 23-24 above). The
Government's submissions to the contrary are not supported by any
evidence or persuasive arguments.
- Therefore,
the applicant, who and whose lawyer had not actually been present at
the hearing on appeal, had legitimate grounds to expect a copy of the
decision on appeal to be sent to her within
the five-day time limit enabling her to
prepare and submit an appeal in cassation.
- In
these circumstances, the question of whether the applicant or her
lawyer knew about that hearing in advance does not appear to be
directly relevant for the examination of the applicant's complaint.
- The
Court further notes that the applicant's lawyer inquired about the
decision on appeal within a relatively short period of time (see
paragraph 13 above). Although the one-month time-limit had not
expired when he learnt of the decision of 17 August 2005, the lawyer
and the applicant had to wait for a copy of that decision, which the
lawyer immediately requested, in order to prepare a cassation appeal.
Having obtained a copy of the impugned decision on 5 October 2005,
the applicant could have reasonably expected the one-month time-limit
to have been brought forward to 6 November 2005, as there were no
specific rules setting a procedure to be followed in such situation.
- The
Court notes that the applicant submitted an appeal in cassation
within less than a month and the entire period which lapsed after the
delivery of the impugned decision was far from reaching the one-year
maximum period set by Article 321 of the Code of Civil Procedure of
1963 and by Article 325 of the Code of Civil Procedure of 2004 (see
paragraphs 21 above). In her submissions before the Supreme Court the
applicant gave reasons for missing the time-limit and requested its
extension.
- On
the whole, the Court finds that the applicant and her lawyer acted
with due diligence in the case and that it was not the applicant's
fault that she did not submit an appeal in cassation within the
original time-limit set by the law. Even assuming that the
Government's explanations as to the reasons for the Supreme Court's
refusal to renew the time-limit are accurate, the Court considers
that in the circumstances of the case the application of procedural
limitations by the domestic court was not clear and foreseeable from
the applicant's point of view and thus was not in compliance with the
principle of legal certainty.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. 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 5,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contended that the claim was unsubstantiated.
- The
Court considers that the applicant must have suffered some distress
and anxiety on account of the violation of her right of access to a
court. Ruling on an equitable basis, as required by Article 41 of the
Convention, it awards her EUR 2,000 under this head.
B. Costs and expenses
- The
applicant made no claim as to costs and expenses. Therefore, the
Court makes no award under this head.
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
- Declares the application admissible;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 18 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
