Last Updated on November 1, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 62198/16
Oleksandr Mykolayovych SHVETS
against Ukraine
The European Court of Human Rights (Fourth Section), sitting on 27 November 2018 as a Committee composed of:
Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 19 October 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Oleksandr Mykolayovych Shvets, is a Ukrainian national who was born in 1976 and lives in Kyiv. He was represented before the Court by Ms I. Koval, a lawyer practising in Kyiv.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was born in 1976 and lives in Kyiv.
5. On 10 August 2010 he married D. On 25 November 2011 their daughter was born. The family lived in a flat in Kyiv.
6. Relations between the applicant and D. deteriorated and on 20 December 2014 D. took the child and moved out of the flat without the applicant’s agreement or knowledge. Subsequently, the applicant found out that D. and the child had moved to D.’s parents in the city of Kherson.
7. On 17 April 2015 D. lodged a claim against the applicant with the Svyatoshynshynskyy District Court of Kyiv, seeking an order for the child to live with her and compelling the applicant to pay her a monthly amount of child support.
8. On 18 June 2015 the applicant lodged a counterclaim, asking the court to order D. to immediately hand the child over to him in Kyiv, where she had been living before her removal.
9. On 4 November 2015 the court decided that the child should spend alternate months with the applicant and D., until the age of ten. The court found that both parents were able to take care of her and provide her with all the conditions necessary for her development. In its decision it was noted that the court was critical of the fact that D. had unilaterally changed the place of the child’s residence by moving from Kyiv to Kherson.
10. Both parents appealed.
11. On 13 January 2016 the Kyiv Court of Appeal reversed the decision of the first-instance court and adopted a new decision. It determined that the child should live with D. and ordered the applicant to pay her a monthly amount of child support.
12. The applicant appealed on points of law, arguing that the courts had failed to examine all the circumstances of the case and that the decisions had been unlawful and discriminatory.
13. On 28 March 2016 the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the Court of Appeal.
14. On 20 April, 21 June and 14 July 2016 the applicant asked the Supreme Court to review the case on the grounds that there had been a divergent application of the law and that the decision of 28 March 2016 had not been consistent with the legal position of the Supreme Court in similar cases.
15. On 21 April, 23 June and 2 September 2016 the Supreme Court rejected the requests as unfounded. Having examined the cases relied on by the applicant, the Supreme Court considered that they did not disclose a divergence in the application of the law by the courts or any inconsistency between the decision of 28 March 2016 and the legal position of the Supreme Court.
B. Relevant domestic law and international texts
16. The Code of Civil Procedure of 18 March 2004 (as worded at the relevant time) provided that the parties and other participants to the proceedings could submit an application for review of the case to the Supreme Court after it had been examined by the court of cassation (Article 354 § 1). The grounds for review included, among others, a divergent application of the same substantive-law provisions by the court(s) of cassation, which resulted in the adoption of inconsistent decisions on similar legal relations; and inconsistency of a judgment of the court of cassation with legal opinion on the application of substantive-law provisions in similar legal relations as laid down in the resolution of the Supreme Court (Article 355 § 1 (1) and (4)). The application for review could be submitted to the Supreme Court within three months of the date of the impugned decision or within three months of the date of the later decision in another case disclosing a divergence in the application of the law (or later Supreme Court resolution setting out a binding legal opinion), but no later than one year after the impugned decision (Article 356 §§ 1 and 4). The application for review had to be submitted to the Supreme Court directly (Article 358 § 1).
17. Other relevant provisions of the domestic law as well as international texts can be found in M.S. v. Ukraine (no. 2091/13, §§ 46-48, 11 July 2017).
COMPLAINT
18. The applicant complained under Articles 6, 8 and 14 of the Convention that the court decisions concerning the determination of the child’s place of residence had not been properly reasoned, that the courts had failed to consider his role in the child’s life and that, by examining the circumstances of the case in only a limited way as regards the mother’s ability to bring up the child, they had breached the principles of legal certainty, equality of arms and impartiality.
THE LAW
19. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the complaint from the standpoint of Article 8 of the Convention alone.
20. This provision reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
21. The Government submitted that the applicant had not complied with the six-month time-limit provided for in Article 35 § 1 of the Convention. They argued that the final decision in the case had been adopted on 28 March 2016 by the Higher Specialised Court for Civil and Criminal Matters (see paragraph 13 above) while the applicant had lodged his application to the Court belatedly, on 19 October 2016. The applicant’s attempts to seek a review of the case by the Supreme Court could not be taken into account because that remedy was regarded as extraordinary. In that regard the Government relied on the case of Karuna v. Ukraine ((dec.), no. 43788/05, 3 April 2007), concerning the review of administrative cases by the Supreme Court on similar grounds. In that case the Court found that the applicant had exhausted domestic remedies without applying to the Supreme Court.
22. The applicant contended that the Supreme Court had to be considered an effective remedy in his case and that he therefore had not missed the six-month time-limit.
23. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies (see Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016). However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006‑III). In other words, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Znaykin v. Ukraine, no. 37538/05, § 67, 7 October 2010). Thus, the pursuit of remedies which fall short of the above requirements will have consequences for the identification of the “final decision” and, correspondingly, for the calculation of the starting point for the running of the six-month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002).
24. The Court has also held that in cases where proceedings are reopened or a final decision is reviewed, the running of the six-month period in respect of the initial set of proceedings or the final decision will be interrupted only in relation to those Convention issues which served as grounds for such a review or reopening and were the object of examination before the extraordinary appeal body (see Sapeyan v. Armenia, no. 5738/03, § 24, 13 January 2009).
25. In the present case the decision of the first-instance court (see paragraph 9 above) was reviewed on the merits by the appellate court and the court of cassation (see paragraphs 11 and 13 above), and the dispute was then finally determined by the domestic courts. The applicant then unsuccessfully attempted to challenge the final judicial determination of the case before the Supreme Court, relying on its competence to review cases on limited grounds, such as a divergent application of substantive-law provisions or inconsistency with the legal opinion of the Supreme Court in other cases (see paragraph 14 above). However, these particular grounds for review have no relation to the Convention issues raised by the applicant before this Court. Notably, the applicant never argued that his Convention rights had been violated as a result of divergent or inconsistent judicial practice. Accordingly, while that particular remedy might be appropriate for certain grievances, it was not adequate in the present case given that such a special review procedure was not supposed to address the substance of the applicant’s complaint.
26. The Court concludes that in the present case the Convention issues raised by the applicant were finally determined by the court of cassation on 28 March 2016 (see paragraph 13 above), and that there was no further ordinary remedy to exhaust thereafter. In these circumstances, given that the applicant lodged his application on 19 October 2016, the complaint was lodged outside of the six-month time-limit.
27. Accordingly, the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 December 2018.
Andrea Tamietti Faris Vehabović
Deputy Registrar President
Leave a Reply