Last Updated on April 24, 2019 by LawEuro
Communicated on 15 January 2019
FOURTH SECTION
Application no.5485/10
Mykola MykolayovychMYKHALNYCHENKO
against Ukraine
lodged on 10 January 2010
STATEMENT OF FACTS
The applicant, Mr Mykola MykolayovychMykhalnychenko, is a Ukrainian national who was born in 1943 and lives in Vinnytsya.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In July 2006 a prosecutor lodged a claim in the interests of the applicant against the local pension fund, seeking allocation of a “scientific pension” to the applicant.
On 2 November 2006 the Leninskyy District Court of Vinnytsya rejected the claim as unsubstantiated. In particular, the court found that the applicant had failed to provide certificates confirming his scientific work experience for the period between 1972 and 1981.
In 2006, on a date not specified by the applicant, he lodged an appeal with the appellate court of general jurisdiction, the Vinnytsya Regional Court of Appeal.
Following judicial reform in Ukraine, the Kyiv Administrative Court of Appeal was established on 1 January 2005 and became functional on 2 April 2007. Its territorial jurisdiction covered the Vinnytsya Region.
On 27 April 2007 the Vinnytsya Regional Court of Appeal opened the appeal proceedings.
On 14 June 2007 the Vinnytsya Regional Court of Appeal upheld the decision of the first-instance court.
The applicant appealed in cassation, contesting, among other things, the jurisdiction of the Vinnytsya Regional Court of Appeal to consider his claim in view of the newly established and functional Kyiv Administrative Court of Appeal.
On 16 July 2009 the Higher Administrative Court of Ukraine upheld the decisions of the lower courts to reject the applicant’s claim in full. It did not comment on the issue of jurisdiction of the Vinnytsya Regional Court of Appeal.
B. Relevant domestic law
The relevant provision of the Code of Administrative Justice of 2005 reads as follows:
Chapter VII. Final and transitional provisions
“5… After an administrative appellate court becomes functional, an appellate court of general jurisdiction shall transfer to that administrative appellate court any written appeals in administrative cases in which appellate proceedings have not yet been opened …”
In accordance with Articles 2 and 3 of the presidential decree of 16 November 2004 “on the Establishment of Local and Appellate Administrative Courts, Approval of their Structure and Composition”, the Kyiv Administrative Court of Appeal was established as from 1 January 2005, and its territorial jurisdiction encompassed, among other areas, the Vinnytsya Region.
COMPLAINT
The applicant complains under Article 6 of the Convention that the Vinnytsya Regional Court of Appeal had no jurisdiction to determine his case and therefore could not be considered a “tribunal established by law” within the meaning of that provision.
QUESTION TO THE PARTIES
Given that the Kyiv Administrative Court of Appeal was established on 1 January 2005, was the Vinnytsya Regional Court of Appeal, dealing with the applicant’s case, a “tribunal established by law”, as required by Article 6 § 1 of the Convention?
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