{"id":3419,"date":"2019-05-12T06:21:19","date_gmt":"2019-05-12T06:21:19","guid":{"rendered":"https:\/\/laweuro.com\/?p=3419"},"modified":"2019-11-04T11:39:25","modified_gmt":"2019-11-04T11:39:25","slug":"chirok-and-others-v-ukraine-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=3419","title":{"rendered":"CHIROK AND OTHERS v. UKRAINE (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nDECISION<\/p>\n

Application no. 3309\/15
\nOleg Petrovich CHIROK against Ukraine
\nand 9 other applications
\n(see list appended)<\/p>\n

The European Court of Human Rights (Fourth Section), sitting on 13\u00a0November 2018 as a Committee composed of:<\/p>\n

Faris Vehabovi\u0107, President,
\nCarlo Ranzoni,
\nP\u00e9ter Paczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n

Having regard to the above applications lodged on 19 December 2014,<\/p>\n

Having deliberated, decides as follows:<\/p>\n

THE FACTS<\/strong><\/p>\n

1.\u00a0\u00a0A list of the applicants is set out in the appendix.<\/p>\n

A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n

1.\u00a0\u00a0Background to the case<\/em><\/p>\n

2.\u00a0\u00a0From the beginning of April 2014 armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the \u201cDonetsk People\u2019s Republic\u201d and \u201cLuhansk People\u2019s Republic\u201d (the \u201cDPR\u201d and \u201cLPR\u201d).<\/p>\n

3.\u00a0\u00a0In response, on 14 April 2014, the Government, who consider the armed groups to be terrorist organisations, authorised the use of force against them in the legal form of an \u201canti-terrorist operation\u201d.<\/p>\n

4.\u00a0\u00a0In June 2014 the armed groups started to seize offices of the National Bank of Ukraine and other regional financial institutions in the Donetsk and Luhansk regions.<\/p>\n

5.\u00a0\u00a0On 24 July 2014 the Ukrainian postal service, Ukrposhta, suspended its operations on the territories of the Donetsk and Luhansk regions that were outside the control of the Government, because of frequent attacks on its vehicles and employees by armed groups.<\/p>\n

6.\u00a0\u00a0On 6 August 2014 the National Bank of Ukraine suspended all financial transactions on the territories outside the control of the Government.<\/p>\n

7.\u00a0\u00a0Government forces recaptured some territories in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside the Government\u2019s control since that time. One part of the Luhansk region, not under the Government\u2019s control, is the town of Zorynsk, Perevalskyi district of Luhansk Region.<\/p>\n

8.\u00a0\u00a0In September and December 2014, following changes in the law, jurisdiction of the administrative courts and the courts of general jurisdiction in the non-controlled areas was transferred to the relevant courts in the neighbouring regions on the territory controlled by the Government.<\/p>\n

2.\u00a0\u00a0Particular circumstances of the applicants<\/em><\/p>\n

9.\u00a0\u00a0As of November 2014 the applicants were employed by the separate manufacturing structural department \u201cMine Nikanor-Nova\u201d of the State Enterprise \u201cLuhanskvugillia\u201d (the \u201cMine\u201d) located in the town of Zorynsk, Perevalskyi district of Luhansk Region.<\/p>\n

10.\u00a0\u00a0In July 2014 the Mine stopped paying the applicants\u2019 salaries.<\/p>\n

11.\u00a0\u00a0On 25 November 2014 the trade union of the Mine sent a request to the acting Head of the Mine seeking information on the salary arrears of the Mine\u2019s employees.<\/p>\n

12.\u00a0\u00a0On 27 November 2014 the acting Head and the chief accountant of the Mine sent a reply to the trade union. It transpires from the reply that on 1\u00a0July 2014 there was a debt in salary arrears of 6,675,177\u00a0Ukrainian hryvnas (UAH \u2013 approximately 414,867 euros at the relevant time) but as of July 2014 financing of the Mine from the State budget had been stopped and it was impossible to receive payments for the sold products. All coal mining activity was stopped as of 26 July 2014 and the Mine stopped all business activity as of 28 November 2014. Consequently, there was no possibility to pay the salary arrears in question.<\/p>\n

13.\u00a0\u00a0On 28 November 2014 the applicants received certificates confirming their salary arrears for the period between June and November 2014.<\/p>\n

B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n

14.\u00a0\u00a0The relevant domestic regulations in respect of: (a) suspension of financial transactions and activities of certain institutions, enterprises and organisations; (b) jurisdiction of administrative courts and courts of general jurisdiction; and (c) relocation of courts from the territory not controlled by the Government are summarised in Tsezar and Others v. Ukraine (nos.\u00a073590\/14 and 6 others<\/a>, \u00a7\u00a7 20-38, 13\u00a0February 2018).<\/p>\n

1.\u00a0\u00a0Order no. 193 of the Higher Administrative Court of Ukraine of 2\u00a0September 2014 \u201con ensuring the consideration of administrative cases within the competence of the administrative courts located in the anti-terrorist operation area\u201d<\/em><\/p>\n

15.\u00a0\u00a0Section 1 provided that administrative cases within the competence of the Luhansk Regional Administrative Court were to be considered by the Kharkiv Regional Administrative Court.<\/p>\n

2.\u00a0\u00a0Order no.\u00a056\/0\/38-14 of the Higher Specialised Court of Ukraine for Civil and Criminal Cases of 8 December 2014\u201con establishing territorial jurisdiction of the courts\u2019 cases\u201d<\/p>\n

16.\u00a0\u00a0The order provided that cases within the competence of the Pervomaisk District Court of Luhansk Region (which, as a court of general jurisdiction, had territorial jurisdiction over the cases emerging from the settlemets of the Pervomaisk Region, including the town of Zorynsk) were to be considered by the Lysychansk City Court of Luhansk Region.<\/p>\n

COMPLAINTS<\/strong><\/p>\n

17.\u00a0\u00a0The applicants complained under Article 1 of Protocol\u00a0No.\u00a01 to the Convention that as a result of the measures envisaged by the State in view of the on-going anti-terrorist operation, the payment of their salaries had been suspended. They also complained under Article 6 \u00a7 1 and\/or Article\u00a013 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that, as a result of the relocation of the courts from the part of Eastern Ukraine not controlled by the Government, they could not bring any claims before the courts. They also complained under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention that they had been discriminated against based on their place of residence. Lastly, they complained that the existing situation infringed their right to life under Article 2 \u00a7 1 of the Convention, given their low standard of living.<\/p>\n

THE LAW<\/strong><\/p>\n

A.\u00a0\u00a0Joinder of the applications<\/strong><\/p>\n

18.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 \u00a7 1 of the Rules of Court).<\/p>\n

B.\u00a0\u00a0Complaint under Article 6 of the Convention<\/strong><\/p>\n

19.\u00a0\u00a0The applicants complained under Article 6 \u00a7 1 and\/or Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that as of July 2014 they had not been able to bring proceedings before the courts to recover their salary arrears, since the latter had been removed from the areas of hostilities.<\/p>\n

20.\u00a0\u00a0The 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.\u00a037685\/10 and 22768\/12<\/a>, \u00a7\u00a7 114 and 126, 20 March 2018), finds that these complaints fall to be examined solely under Article 6 \u00a7 1 of the Convention, which in the present case should be viewed as a lex specialis in relation to Article 13 (see, mutatis mutandis, Frida, LLC v. Ukraine, no.\u00a024003\/07, \u00a7 24, 8 December 2016).<\/p>\n

21.\u00a0\u00a0Article 6 \u00a7 1 of the Convention reads, in so far as relevant:<\/p>\n

\u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n

22.\u00a0\u00a0The Court notes from the outset that in the recent case of Tsezar and Others v. Ukraine (cited above) it assessed similar complaints brought by the residents of the city of Donetsk, territory the Government do not currently control, whose pensions and other social benefits had been suspended in view of the on-going anti-terrorist operation.<\/p>\n

23.\u00a0\u00a0In the above-mentioned judgment the Court first analysed whether the Ukrainian State authorities had taken all the measures available to them to organise the judicial system in a way that would render the rights guaranteed by Article 6 effective in the specific situation of on-going conflict. The Court observed that at the time the complaints were brought before it, the State had already introduced amendments to the law, first authorising courts in the neighbouring regions to consider cases which would have otherwise been considered by courts on the territory not controlled by the Government, and later relocating the operation of the relevant courts on the territory controlled by the Government. The Court found that by taking the above steps, the Ukrainian authorities did what was reasonably expected of them to ensure the proper functioning of the judicial system, making it accessible to the residents of the territories currently outside the control of the Government. In the absence of any evidence that the applicants\u2019 personal situation precluded them from making use of that system, the Court concluded that in the circumstances the applicants\u2019 inability to bring their claims before the courts in their city of residence did not impair the very essence of their right of access to a court. The limitation of that right, due to the objective fact of the hostilities in the areas the Government did not control, was obviously not disproportionate.<\/p>\n

24.\u00a0\u00a0The Court observes that in the present case, similar amendments were made to the law in respect of the courts located in the Luhansk region, which the Government do not control. In particular, in September\u00a02014\u2013more than three months before the present applications were lodged before the Court \u2013 the courts located on the territory controlled by the Government would have already had jurisdiction over the applicants\u2019 administrative cases, if lodged (see paragraph 15 above). On 8\u00a0December 2014 \u2013 eleven days before the present applications were lodged before the Court \u2013 the applicants\u2019 civil cases could have already been considered by the courts located on the territory controlled by the Government, if lodged (see paragraph 16 above).<\/p>\n

25.\u00a0\u00a0The Court further notes that the applicants did not allege there had been any obstacles for them to apply to the courts operating in the neighbouring regions in the territory controlled by the Government.<\/p>\n

26.\u00a0\u00a0In the absence of any evidence which would distinguish the present case from the case of Tsezar and Others (cited above) the Court sees no reasons to depart from its previous findings.<\/p>\n

27.\u00a0\u00a0The Court concludes that in the specific context of the present cases, it does not appear that the applicants were disproportionately restricted in their right of access to a court guaranteed by Article 6 \u00a7 1 of the Convention.<\/p>\n

28.\u00a0\u00a0Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article\u00a035 \u00a7\u00a7\u00a03 and 4 of the Convention.<\/p>\n

C.\u00a0\u00a0Complaint under Article 1 of Protocol No. 1 to the Convention<\/strong><\/p>\n

29.\u00a0\u00a0The applicants further complained under Article 1 of Protocol No.\u00a01 that, as a result of the measures envisaged by the State in view of the on\u2011going anti-terrorist operation, the payment of their salaries had been suspended in July 2014.<\/p>\n

30.\u00a0\u00a0Article 1 of Protocol No. 1 to the Convention reads as follows:<\/p>\n

\u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.<\/p>\n

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d<\/p>\n

31.\u00a0\u00a0The Court notes that the applicants did not show that they had applied to the relevant authorities in the territory controlled by the Government either for recovery of their salary arrears or that they had challenged the measures envisaged by the State that had led to the suspension of the payment of their salaries.<\/p>\n

32.\u00a0\u00a0The Court further notes that in the present case the authorities relocated the courts in the areas no longer under their control to the neighbouring regions in September and December 2014. Referring to its findings in respect of the applicants\u2019 complaint under Article 6 \u00a7 1 of the Convention, the Court reiterates that in the specific context in which the cases arose, the applicants were not disproportionately restricted in their right of access to a court guaranteed by that provision.<\/p>\n

33.\u00a0\u00a0Consequently, the Court finds that similarly to the case of Tsezar and Others (cited above, \u00a7\u00a7 66-72), the applicants have failed to exhaust domestic remedies. Their complaint under Article 1 of Protocol No.\u00a01 must therefore be rejected in accordance with Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n

D.\u00a0\u00a0Complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1<\/strong><\/p>\n

34.\u00a0\u00a0The applicants also complained that they had suffered discrimination in the enjoyment of their property rights on the grounds of their place of residence, contrary to Article\u00a014 of the Convention, read in conjunction with Article 1 of Protocol No. 1. In particular, they submitted that on the territories controlled by the Government, persons in a situation similar to theirs had been receiving their salaries, whilst the applicants\u2019 salaries had been suspended.<\/p>\n

35.\u00a0\u00a0Article 14 of the Convention reads as follows:<\/p>\n

\u201cThe enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\u201d<\/p>\n

36.\u00a0\u00a0In case of Tsezar and Others (cited above, \u00a7\u00a7 73-78) the Court has rejected similar complaints as being manifestly ill-founded. The Court found that the first three applicants did not find themselves in an \u201canalogous situation\u201d compared to those who resided on the territory controlled by the Government. The Court sees no reasons to depart from the above findings in the present case.<\/p>\n

37.\u00a0\u00a0The complaint is, consequently, manifestly ill-founded and must be rejected pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n

E.\u00a0\u00a0Complaint under Article 2 of the Convention<\/strong><\/p>\n

38.\u00a0\u00a0Lastly, the applicants complained, without providing any details, that the existing situation infringed their right to life under Article 2 \u00a7 1 of the Convention, given their low standard of living.<\/p>\n

39.\u00a0\u00a0In so far as relevant, Article 2 reads as follows:<\/p>\n

\u201c1. Everyone\u2019s right to life shall be protected by law. …\u201d<\/p>\n

40.\u00a0\u00a0Regardless of other reasons of inadmissibility, the Court finds no reason to depart from its findings that the applicants had at their disposal remedies which were available and potentially effective (see\u00a0paragraphs\u00a032\u201133 above). Those remedies should have been used prior to their applications before the Court being lodged.<\/p>\n

41.\u00a0\u00a0It follows that this part of the applications must be rejected in accordance with Article 35 \u00a7\u00a7 1 and 4 of the Convention for failure to exhaust domestic remedies.<\/p>\n

For these reasons, the Court, unanimously,<\/p>\n

Decides to join the applications;<\/p>\n

Declares the applications inadmissible.<\/p>\n

Done in English and notified in writing on 6 December 2018.<\/p>\n

Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Faris Vehabovi\u0107
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

 <\/p>\n

APPENDIX<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication<\/strong><\/p>\n

no.<\/strong><\/p>\n

and date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

date of birth<\/strong><\/p>\n

place of residence<\/strong><\/p>\n

nationality<\/strong><\/td>\n<\/tr>\n<\/thead>\n

1.<\/td>\n3309\/15<\/p>\n

19\/12\/2014<\/td>\n

Oleg Petrovich CHIROK<\/strong><\/p>\n

04\/12\/1976<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

2.<\/td>\n29721\/15<\/p>\n

19\/12\/2014<\/td>\n

Aleksandr Nikolayevich CHUMAK<\/strong><\/p>\n

03\/07\/1985<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

3.<\/td>\n29723\/15<\/p>\n

19\/12\/2014<\/td>\n

Nikolay Petrovich TSYGOLNIK<\/strong><\/p>\n

04\/10\/1956<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

4.<\/td>\n29727\/15<\/p>\n

19\/12\/2014<\/td>\n

Aleksandr Mikhaylovich DAVYD<\/strong><\/p>\n

15\/11\/1968<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

5.<\/td>\n29728\/15<\/p>\n

19\/12\/2014<\/td>\n

Aleksandr Vasilyevich DAVYD<\/strong><\/p>\n

23\/11\/1960<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

6.<\/td>\n29729\/15<\/p>\n

19\/12\/2014<\/td>\n

Galina Anatolyevna DEGTYARYEVA<\/strong><\/p>\n

13\/10\/1967<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

7.<\/td>\n29730\/15<\/p>\n

19\/12\/2014<\/td>\n

Yelena Petrovna DEMIDOVA<\/strong><\/p>\n

26\/03\/1975<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

8.<\/td>\n29731\/15<\/p>\n

19\/12\/2014<\/td>\n

Maksim Aleksandrovich DEMIN<\/strong><\/p>\n

02\/04\/1984<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

9.<\/td>\n29744\/15<\/p>\n

19\/12\/2014<\/td>\n

Svetlana Nikolayevna TSYGOLNIK<\/strong><\/p>\n

26\/01\/1979<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n

10.<\/td>\n32482\/15<\/p>\n

19\/12\/2014<\/td>\n

Dmitriy Vladimirovich TSYGOLNIK<\/strong><\/p>\n

06\/06\/1977<\/p>\n

Zorynsk<\/p>\n

Ukrainian<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n