{"id":5188,"date":"2019-05-19T07:27:44","date_gmt":"2019-05-19T07:27:44","guid":{"rendered":"https:\/\/laweuro.com\/?p=5188"},"modified":"2019-08-23T08:54:47","modified_gmt":"2019-08-23T08:54:47","slug":"azyukovska-v-ukraine-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=5188","title":{"rendered":"AZYUKOVSKA v. UKRAINE (European Court of Human Rights)"},"content":{"rendered":"

FIFTH SECTION
\nDECISION<\/p>\n

Application no. 26293\/18
\nTayisa Denisovna AZYUKOVSKA
\nagainst Ukraine<\/p>\n

The European Court of Human Rights (Fifth Section), sitting on 9\u00a0October 2018 as a Committee composed of:<\/p>\n

Andr\u00e9 Potocki, President,
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n

Having regard to the above application lodged on 22 May 2018,<\/p>\n

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

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

1.\u00a0\u00a0The applicant, MsTayisaDenisovnaAzyukovska, is a Ukrainian national, who was born in 1954 and lives in Novomoskovsk.<\/p>\n

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

2.\u00a0\u00a0The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n

3.\u00a0\u00a0On 25 January 2011 the applicant\u2019s employer, a private company, gave her formal notice of a forthcoming significant change in her working conditions. On 1 April 2011 her contract of employment was terminated, by mutual agreement of the parties. Upon the termination the applicant received a severance allowance in the amount of 3,511.37 Ukrainian hryvnias (UAH) (equivalent to approximately 310 euros (EUR)).<\/p>\n

4.\u00a0\u00a0On 3 March 2016 the applicant brought a claim against her employer alleging that the severance allowance had been calculated wrongly and that the sum she received had been by UAH 600.01 (equivalent to approximately EUR 20) lower than what had been due.<\/p>\n

5.\u00a0\u00a0On 16 May 2016 the Novomoskovsk Court (\u041d\u043e\u0432\u043e\u043c\u043e\u0441\u043a\u043e\u0432\u0441\u044c\u043a\u0438\u0439\u043c\u0456\u0441\u044c\u043a\u0440\u0430\u0439\u043e\u043d\u043d\u0438\u0439\u0441\u0443\u0434\u0414\u043d\u0456\u043f\u0440\u043e\u043f\u0435\u0442\u0440\u043e\u0432\u0441\u044c\u043a\u043e\u0457\u043e\u0431\u043b\u0430\u0441\u0442\u0456) dismissed the claim as having no basis under domestic law.<\/p>\n

6.\u00a0\u00a0On 13 July 2016 the Dnipropetrovsk Regional Court of Appeal (\u201cthe Court of Appeal\u201d) upheld that judgment on the merits having modified its reasoning.<\/p>\n

7.\u00a0\u00a0On 25 October 2017 the HigherSpecialised Court for Civil and Criminal Matters quashed the above judgment and remitted the case for a fresh consideration to the Court of Appeal.<\/p>\n

8.\u00a0\u00a0By judgment of 24 January 2018 the Court of Appeal again upheld the judgment of 16 May 2016 having found that the allowance had been calculated correctly.<\/p>\n

9.\u00a0\u00a0On 20 February 2018 the applicant lodged an appeal on points of law.<\/p>\n

10.\u00a0\u00a0By a decision of 26 March 2018 the Supreme Court, acting as a court of cassation, declared the appeal on points of law inadmissible rationevaloris, having found that the value of the subject matter of the dispute had been below the statutory threshold introduced by the revised Section 19 of the Code of Civil Procedure which stood at the amount corresponding to the minimum subsistence income multiplied by one hundred. In particular, the disputed sum of UAH 600.01 as set out in the applicant\u2019s claim and appeals has not reached the statutory threshold which, as the court established, stood at UAH 176,200 (approximately EUR 5,400 at the time).<\/p>\n

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

Code of Civil Procedure<\/p>\n

11.\u00a0\u00a0The Code of Civil Procedure was amended by Act no. 2147-VIII of 3 October 2017, the amendments entered into force on 15 December 2017.<\/p>\n

12.\u00a0\u00a0Paragraph 6 of the revised section 19 of the Code provides that, for the purposes of this provision, insignificant cases are (1) those where the subject matter of the dispute represents a value that does not exceed the amount corresponding to the minimum subsistence income multiplied by one hundred, and (2) cases of no particular complexity which had been found by a court to be insignificant, except those that can be considered exclusively by way of ordinary procedure [compared to the summary procedure] and the cases in which the subject matter of the dispute exceeds the amount corresponding to the minimum subsistence income multiplied by five hundred.<\/p>\n

13.\u00a0\u00a0Paragraph 3 of the revised section 389 provides that no appeal on points of law shall lie against the judicial decisions delivered in the insignificant cases, except in the following instances (a) an appeal on points of law raises a question of law which is of core importance for securing a consistent application of the law, (b) a party which lodges an appeal on points of law has no possibility under this Code to refute the circumstances established by a challenged judicial decision in the proceedings in another case, (c) the case raises an issue of significant public interest or of outstanding importance for the party which lodges an appeal on points of law, and (d) a first-instance court had erroneously considered the case insignificant.<\/p>\n

14.\u00a0\u00a0Paragraph 2 of the revised section 394 provides that a rapporteur shall declare an appeal on points of law inadmissible if it had been lodged against a judicial decision which is not susceptible to appeal on points of law.<\/p>\n

15.\u00a0\u00a0Paragraph 4 of the transitional provisions provides that the appeals on points of law in civil cases which had been lodged before, and were under examination at the time when, this [amended] version of the Code entered into force … shall be examined afresh in accordance with the rules which are in force after this [amended] version of the Code became effective.<\/p>\n

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

16.\u00a0\u00a0The applicant complained that by application of the rationevaloris admissibility threshold established by section 19 of the Code of Civil Procedure she had been deprived of access to the Supreme Court, in breach of the requirements of Article 6 \u00a7 1 of the Convention. She also complained, relying on the same Article, about fairness and length of the proceedings.<\/p>\n

17.\u00a0\u00a0She also submitted that she had no effective remedy in respect of the alleged lack of access to a court, contrary to Article 13 of the Convention.<\/p>\n

18.\u00a0\u00a0Lastly, she complained, relying on Article 1 of Protocol No. 1, that she had been refused a severance allowance in the amount of UAH 600.01 to which she had been allegedly entitled.<\/p>\n

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

A.\u00a0\u00a0Complaint under Article 6 \u00a7 1 as regards access to the Supreme Court<\/strong><\/p>\n

19.\u00a0\u00a0The applicant complained that by application of the rationevaloris admissibility threshold established by section 19 of the Code of Civil Procedure she had been deprived of access to the Supreme Court and that she had no effective remedy in respect of the alleged violation. She referred to Articles 6 \u00a7 1 and 13 of the Convention. Given that where the right claimed is a civil right, the role of Article 6 \u00a7 1 in relation to Article 13 is that of a lexspecialis (see Vasilescu v. Romania, 22 May 1998, \u00a7 43, Reports of Judgments and Decisions 1998\u2011III), the Court, being the master of characterisation to be given in law to the facts of the case, will examine the present part of the application only under Article 6 \u00a7 1 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n

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

20.\u00a0\u00a0The Court reiterates that the right of access to a court is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which regulation may vary in time and in place according to the needs and resources of the community and of individuals (see Stanev v. Bulgaria [GC], no. 36760\/06, \u00a7 230, ECHR 2012).The manner in which Article 6 \u00a7 1 applies to courts of appeal or of cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation\u2019s role in them; the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal (see, among others, Zubac v. Croatia [GC], no. 40160\/12<\/a>, \u00a7 82, 5 April 2018, LevagesPrestations Services v. France, 23 October 1996, \u00a7 45, Reports of Judgments and Decisions 1996\u2011V and Brualla G\u00f3mez de la Torre v. Spain, 19 December 1997, \u00a7 37, Reports of Judgments and Decisions 1997\u2011VIII).<\/p>\n

21.\u00a0\u00a0The Court has already been confronted with the issue of the operation of the rationevaloris restriction on access to the superior courts in the Contracting Parties\u2019 legal systems (see Zubac, cited above, \u00a7\u00a7 80-86 for the overview of the general principles on access to the superior courts and the rationevalorisrestrictions) and found that this restriction is a legitimate and reasonable procedural requirement having regard to the very essence of the supreme court\u2019s role to deal only with matters of the requisite significance (see Zubac, cited above, \u00a7 83).<\/p>\n

22.\u00a0\u00a0In the instant case, therefore, it is the Court\u2019s task to ascertain that the inadmissibility of the appeal to the Supreme Court had not impaired the very essence of the applicant\u2019s right to a court within the meaning of Article\u00a06 \u00a7 1 (see Brualla G\u00f3mez de la Torre, cited above,\u00a7 36). In doing so, the Court will proceed to examine whether the requirements for lodging an appeal could be regarded as foreseeable for the applicant (see Zubac, cited above, \u00a7\u00a7 87-89 and LevagesPrestations Services v. France, cited above, \u00a7\u00a042) and whether, having regard to the manner in which the proceedings were conducted before the lower courts, the applicant\u2019s right of access to a court had not been unduly hindered (see, mutatis mutandis, Zubac, cited above, \u00a7\u00a084).<\/p>\n

23.\u00a0\u00a0The Court notes that the applicant\u2019s appeal on points of law was declared inadmissible pursuant to sections 19 and 389 of the Code of Civil Procedure as the value of the subject matter of the dispute (UAH 600.01) as specified by the plaintiff had been below the statutory threshold. The new rules on procedure which introduced the mentioned threshold took effect on 15 December 2017, i.e. two months before the applicant lodged her appeal on points of law (20 February 2018). These rules had been applied to the appeal proceedings which were under way in the applicant\u2019s case. The Court considers such an approach to be in line with the generally recognised principle of the immediate effect of procedural changes to pending proceedings (see, among other authorities, Melnyk v. Ukraine, no. 23436\/03, \u00a7 27, 28 March 2006, Kozlica v. Croatia, no. 29182\/03, \u00a7 33, 2 November 2006 andVorobyeva v. Ukraine (dec.), no. 27517\/02, 17 December 2002, where the applicant was required to exhaust a remedy which was introduced whilst the judicial proceedings in her case were still pending).<\/p>\n

24.\u00a0\u00a0Further, having regard to the fact that the amendments in question had been officially published, the Court is satisfied that the new admissibility requirement had been sufficiently foreseeable to the applicant at the time when she sought to avail herself of the right to appeal before a court of cassation (see, mutatis mutandis, Zubac, cited above, \u00a7\u00a7 85, 87-89, Lansch\u00fctzer GmbH v. Austria (dec.), no. 17402\/08, \u00a7 33, 18 March 2014 and Nakov v. the Former Yugoslav Republic of Macedonia (dec.), no.\u00a068286\/01, 24 October 2002).<\/p>\n

25.\u00a0\u00a0It should be also noted that the appeal on points of law to the Supreme Court had been made after the applicant\u2019s claims had been considered by the Novomoskovsk Court and the Dnipropetrovsk Regional Court of Appeal, each of which had full jurisdiction (see, mutatis mutandis, Brualla G\u00f3mez de la Torre, cited above, \u00a7 38, LevagesPrestations Services, cited above, \u00a7 48 and Nakov, cited above). Further, the Supreme Court noted that the applicant had not demonstrated the existence of grounds which would have justified granting a leave to appeal on an exceptional basis as provided in paragraph 3 of section 389 of the Code.<\/p>\n

26.\u00a0\u00a0The Court lastly observes that with respect to assessment of the application of rationevaloris restrictions on access to the superior courts it had previously taken account of the existence or not of issues related to the fairness of the proceedings conducted before the lower courts (see Zubac, cited above, \u00a7 84 with further references). Insofar as the applicant called into questions the fairness of the proceedings before the courts of first and second instance, the Court finds no indication that the procedural guarantees of Article 6 \u00a7 1 had been infringed (see paragraph 30 below).<\/p>\n

27.\u00a0\u00a0Having regard to the above considerations, the Court concludes that there is no appearance that the very essence of the applicant\u2019s right to a court within the meaning of Article 6 \u00a7 1 had been impaired.<\/p>\n

28.\u00a0\u00a0It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n

B.\u00a0\u00a0Other alleged violations of the Convention<\/strong><\/p>\n

29.\u00a0\u00a0The applicant further argued, relying on Article 6 \u00a7 1 of the Convention, that the proceedings had been unfair and their overall length (slightly more than two years at three levels of jurisdiction) had been excessive. She lastly complained under Article 1 of Protocol No. 1 that she had been refused the severance allowance to which she had been allegedly entitled.<\/p>\n

30.\u00a0\u00a0As regards the applicant\u2019s remaining complaints under Article 6 \u00a7 1 of the Convention, the Court notes that the applicant\u2019s allegations of unfairness are confined to her disagreement with the manner in which the domestic courts interpreted the relevant legislation governing modalities and amounts of the severance pay. The Court reiterates in this respect that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see K\u00e1roly Nagy v. Hungary [GC], no. 56665\/09, \u00a7 62, ECHR 2017). The Court\u2019s sole task in connection with Article 6 of the Convention is to examine applications alleging that the domestic courts have failed to observe specific procedural safeguards laid down in that Article or that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing (see, among many other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no.\u00a038433\/09, \u00a7 197, ECHR 2012). With regard to the caseathand, the Court finds no evidence in the case file to suggest that the applicant had suffered a violation of any of the procedural rights guaranteed by Article 6.<\/p>\n

31.\u00a0\u00a0Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n

32.\u00a0\u00a0Lastly, with regard to the applicant\u2019s complaint made under Article 1 of Protocol No. 1, the Court observes that the domestic courts of two levels of jurisdiction, having interpreted the applicable legislation on employment and welfare benefits, found that the domestic law had conferred no right on the applicant to a severance allowance in the extra amount of UAH 600.01 (in addition to what had been paid) as claimed by her. It follows that this complaint is incompatible rationemateriae with the provisions of the Convention within the meaning of Article 35 \u00a7 3 (a) and must be rejected in accordance with Article 35 \u00a7 4 thereof (see, mutatis mutandis, Kopeck\u00fd\u00a0v.\u00a0Slovakia [GC], no. 44912\/98, \u00a7 60, ECHR 2004\u2011IX).<\/p>\n

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

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

Done in English and notified in writing on 8 November 2018.<\/p>\n

Milan Bla\u0161ko\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 Andr\u00e9 Potocki
\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

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FIFTH SECTION DECISION Application no. 26293\/18 Tayisa Denisovna AZYUKOVSKA against Ukraine The European Court of Human Rights (Fifth Section), sitting on 9\u00a0October 2018 as a Committee composed of: Andr\u00e9 Potocki, President, M\u0101rti\u0146\u0161 Mits, Lado Chanturia, judges and Milan Bla\u0161ko, Deputy…<\/p>\n

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