FIFTH SECTION

DECISION

Application no. 68470/12 Vadim Nikolayevich NEYMAN against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 12 January 2021 as a Chamber composed of:

Síofra O ’ Leary, President, Ganna Yudkivska , Stéphanie Mourou-Vikström , Latif Hüseynov , Jovan Ilievski , Arnfinn Bårdsen , Mattias Guyomar , judges,

and Victor Soloveytchik , Section Registrar ,

Having regard to the above application lodged on 8 October 2012,

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

The applicant, Mr Vadim Nikolayevich Neyman , is a Ukrainian national, who was born in 1971 and lives in Krasnyy Luch . He is represented before the Court by Mr D.A. Kalikhmanov , a lawyer practising in Krasnyy Luch .

The Ukrainian Government (“the Government”) are represented by their Agent, Mr I. Lishchina , from the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 5 August 2011 the Krasnyy Luch Local Court (“the Local Court”) allowed a claim lodged by the applicant and ordered the Krasnyy Luch Department of the Pension Fund (“the Pension Fund”) to recalculate the applicant ’ s pension and to pay him pension arrears. The judgment was not appealed within the statutory ten-day time-limit and became final on 16 August 2011. It was enforced in full shortly afterwards.

On 9 November 2011 the Pension Fund lodged an appeal with the Donetsk Administrative Court of Appeal (“the Court of Appeal”) against the judgment of 5 August 2011. It indicated, without providing any particular details , that it had not been notified of the time and place of the delivery of the above-mentioned judgment and thus could not have lodged an appeal in due time. It therefore requested a renewal of the time-limit for lodging an appeal.

By a ruling of 23 December 2011, the Court of Appeal opened appeal proceedings in the applicant ’ s case. The ruling contained no reference to the fact that the appeal had been lodged out of time and that the defendant had requested a renewal of the time-limit for appeal.

By a letter of 13 March 2012, the Court of Appeal sent the applicant a copy of its ruling of 23 December 2011 and a copy of the appeal lodged by the Pension Fund. The applicant received that letter on 20 March 2012.

On 10 April 2012 the Court of Appeal, sitting as a panel of three judges, overruled the judgment of 5 August 2011 and found against the applicant. It found that the first-instance court had applied the relevant domestic law on pensions incorrectly and there were no grounds for the recalculation sought by the applicant. The court indicated that an appeal on points of law could be lodged against its decision with the Higher Administrative Court.

The applicant did not lodge an appeal on points of law.

No reversal of the enforcement of the judgment was sought by the defendant under Article 380 of the Code of Administrative Justice.

Code of Administrative Justice of 6 July 2005

Article 102 of the Code provides that a procedural time-limit can be extended if the court in question, at the request of a party to the proceedings, determines that that party to the proceedings missed the original time-limit for valid reasons. The question of extension may be decided in written proceedings or at a hearing, at the court ’ s discretion. A ruling of the court refusing to renew or to extend the time-limit by which to lodge an appeal can be appealed against by the parties to the proceedings.

Paragraph 2 of Article 211 of the Code provides that interlocutory rulings of first-instance and appellate courts can be appealed against in a court of appeal and the Higher Administrative Court, respectively, provided that such rulings prevent proceedings in the case from advancing. Objections against all other rulings can only be lodged, together with an appeal on points of law, after the first-instance court judgment has been reviewed on appeal.

Under Article 254, a judgment becomes final upon the expiration of the time-limit for lodging an appeal if no appeal has been lodged. In cases where an appeal has been lodged, the judgment becomes final when the appeal is returned to the appellant, when a judge of an appellate court declines to open appeal proceedings, or when an appeal decision delivered following a review of the first-instance court ’ s judgment becomes final.

In accordance with Article 223 of the Code, the Higher Administrative Court may uphold, quash or amend judgments and rulings of the lower courts. If the decisions of lower courts are quashed it may remit the case for a fresh consideration, adopt a new decision in the case or terminate the proceedings.

Paragraph 4 of Article 380 provides that reversal of the enforcement of the judgment shall be conducted upon the motion of the party to the proceedings.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the Court of Appeal quashed the allegedly final and binding judgment of the lower court of 5 August 2011, allegedly in violation of the principle of legal certainty, and about the fact that as a result he was deprived of the award under that judgment. He considered that the Court of Appeal had acted arbitrarily when it accepted the Pension Fund ’ s appeal of 9 November as timely and re-examined the case.

THE LAW

The applicant complained of an alleged violation of the principle of legal certainty inherent in Article 6 of the Convention.

The Government considered that the applicant had not exhausted the domestic remedies as the rulings on renewal of the time-limit for appeal could have been challenged before the cassation court either separately or through an appeal on points of law. They submitted that the applicant could have argued that the allegedly incorrect decision of 23 December 2011 had constituted a breach of procedural law on the part of the appellate court.

The applicant explained that he had not lodged an appeal on points of law as the court of cassation (the Higher Administrative Court) had consistently rejected such appeals in similar pension disputes.

The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. The rule of exhaustion of domestic remedies is based on the assumption that there is an effective remedy available in respect of the alleged violation (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).

In the present case the Court notes that, in substance, the applicant alleges a violation of the principle of legal certainty in that the Court of Appeal accepted as timely the Pension Fund ’ s appeal of 9 November 2011 despite the fact that it had been submitted after the expiry of the statutory time limit for such appeals. The Government pointed to the fact that it had been open to the applicant to raise this issue at the domestic level and mentioned two possible remedies.

The Court observes that the applicant does not dispute that he could have filed a cassation appeal against the Court of Appeal ’ s judgment of 11 April 2012, as suggested by the Government. He does not claim either that the issue complained of, the alleged arbitrariness of the Court of Appeal ’ s decision to accept the Fund ’ s appeal as timely, did not fall within the scope of the cassation court ’ s control and could not be raised before that court.

In these circumstances, in accordance with the Court ’ s established case-law it is incumbent on the Government to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, for example, Gherghina v. Romania ( dec. ) [GC], no. 42219/07, § 88, 9 July 2015 ). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him or her from this requirement ( ibid . , § 89).

The Government, in their observations, demonstrated that appeal on points of law was a part of ordinary procedure and the Higher Administrative Court was competent to examine complaints like those of the applicant and to decide on them.

The applicant, in his turn, merely stated that the Higher Administrative Court had consistently rejected “such appeals in similar pension disputes”, without elaborating any further.

The Court finds the above largely insufficient. It notes that in reality the applicant never raised his complaint, at least in substance, before the domestic authorities and never explained why he considered that the appeal of the Pension Fund was not timely despite the Fund ’ s explanation that it had not been notified of the lower court ’ s judgment. His argument before the Court that trying the available domestic remedies was futile are without substance (see and compare Masyuchenko v. Ukraine ( dec. ), no. 22138/07, 27 January 2009).

Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The applicant further complained under Article 1 of Protocol No. 1 to the Convention that the quashing of the final and binding judgment had deprived him of the right to freely use his money awarded by the judgment of 5 August 2011. Noting that this complaint is premised on his view that the courts acted arbitrarily when accepting as timely the Pension Fund ’ s appeal and having regard to its finding above that the applicant failed to exhaust domestic remedies in this regard, the Court finds that the complaint under Article 1 of Protocol No. 1 must also be rejected for failure to exhaust domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 February 2021 .

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Victor Soloveytchik Síofra O ’ Leary Registrar President