FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18941/04 by Oksana Grygorivna KAMENIVSKA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 30 August 2006 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and M r s C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 6 April 2004 ,

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, Ms Oksana Grygorivna Kamenivska , is a Ukrainian national who was born in 1945 and lives in the city of Lviv . She was represented before the Court by Mr I. O. Nazaruk , a lawyer practicing in Lviv . The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Yu. Zaytsev , of the Ministry of Justice.

A. The circumstances of the case

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

1. Background of the case

On 9 September 1944 the Polish Committee of National Liberation and the former Soviet Socialist Republic of Ukraine concluded an agreement about the mutual evacuation of Ukrainian population from Poland and Polish population from Ukraine .

In 1946 the applicant ’ s family was moved from the Hrubieszów region in Poland to the Ternopil region in Ukraine.

On 22 December 1995, the Verkhovna Rada of Ukraine introduced amendments to the Law “on the Status of War Veterans and their Social Welfare Guaranties” of 22 October 1993, granting the war participant status to some categories of persons, including those, who were moved to the territory of Ukraine after 1945 from the territories of other states.

2. Judicial proceedings

On 22 August 2001 the applicant instituted proceedings in the Zaliznychny Local Court of Lviv against the local social welfare department, challenging the refusal of the latter to grant her the status of war participant in accordance with Article 9 of the Law “on the Status of War Veterans and their Social Welfare Guaranties”.

On 26 November 2001 the court rejected the applicant ’ s claim . The court found that she met one of the conditions under the said Law, namely that she had been moved to the territory of Ukraine after 1945 . However, being born in 1945 , she did not fulfil the further requirement that persons, who were born after 31 December 1932 , had to prove the fact of their work during the war.

On 4 March 2002 the Lviv Regional Court of Appeal upheld the decision of the first instance court, having established that the first-instance court applied the relevant law correctly. On 31 May 2002 the applicant posted her cassation appeal, which was received by the court on 5 June 2002 .

On 5 August 2002 the Zaliznychny Local Court rejected the applicant ’ s request for a cassation appeal as having been submitted too late. The court stated that, under the new wording of Article 321 of the Code of Civil Procedure (hereinafter - “the CCP”), which had entered into force on 4 April 2002, the time-limit for lodging an appeal in cassation was one month, and that the applicant had exceeded that time-limit by only submitting her appeal on 5 June 2002.

The applicant appealed against this decision, stating that she posted her c assation appeal on 31 May 2002 and this date should be considered as date of lodging of her appeal .

On 21 October 2002 the Lviv Regional Court of Appeal upheld the ruling of 5 August 2002 , stating that the applicant had lodged her appeal on 31 May 2002 , which had been outside the new one-month time - limit established by law.

On 17 October 2003 the panel of three judges of the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation against the rulings of 5 August and 21 October 2002 .

B. Relevant domestic law and practice

1. The Code of Civil Procedure of 1963 (with amendments)

At the time of the second instance appellate decision, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the appellate decision or within a year of the decision of the first instance court, if the latter decision was not appealed under the normal appellate procedure.

On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (hereinafter – “the Amendment Law”), including the Article in question. It came into force on 4 April 2002 . The new wording of Article 321 created a one - month time-limit for lodging a cassation application against the decision of an appellate court.

2. The Law of Ukraine “on Status of War Veterans and their Social Welfare Guaranties”

The Law provides for different social benefits to the war veterans, war participants, and other categories of persons touched by the Second World War.

Article 14 of the Law, in its wording of 22 December 1995, provided a wide range of social benefits for the war participants, including free medical services and free use of public transport, reduction of fees, priority in obtaining some other social benefits, etc. The persons entitled to the war participant status were listed in Article 9 of the Law, which read in so far as relevant:

Article 9. Persons to be considered war participants

“The following persons shall be considered the war participants:

... 2) persons, who worked ... during the Great Patriotic War [1] ...

... persons who were resettled after 1945 to the territory of Ukraine from the territory of other states ... shall also be considered as war participants ...

... For persons, who were born after 31 December 1932 , the status of war participant can be established only in presence of documents and other evidence that unequivocally prove the fact of their work during the war ... ”

Both parties submitted a number of decisions of the first-instance and regional courts in cases similar to one of the applicant. These decisions demonstrate discrepancy in the application of the above quoted paragraph 2 of Article 9 of the Law. Some of the courts considered that the fact of resettlement is an autonomous requirement to obtain the war participant status, some others read it, like in the applicant ’ s case, in conjunction with the requirement of proving the fact of work, if the person concerned was born after 31 December 1932 .

Such ambiguity was eliminated by the Amendment Law of 2 October 2003 , when the repatriates were listed separately in a new paragraph 11 of Article 9, which read as follows:

“ ... 11) persons who were resettled after 9 September 1944 to the territory of Ukraine from the territory of other states.”

COMPLAINTS

The applicant complained that she did not have a fair hearing and that her cassation appeal was rejected, relying on Articles 6 § 1 and 13 of the Convention. She further complained that the domestic authorities unlawfully refused her the war participant status, and , therefore , deprived her of numerous social benefits attributed to such status in violati on of Article 1 of Protocol No. 1 and Article 3 of Protocol No. 4. The applicant finally complained under Article 14 that some other persons in similar situations had been granted the war participant status.

THE LAW

1. The applicant complained about unfair hearing and refusal of her cassation appeal for having been submitted too late. She invoked Article 6 § 1 and 13 of the Convention, which read, in so far as relevant, as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

(a). The Government maintained that the application should be rejected for non-exhaustion of domestic remedies, since the applicant ’ s dispute as to the war participant status had not been examined in cassation and the applicant did not request the domestic courts to extend the deadline for lodging a cassation appeal. They considered that such a request is an effective remedy to be used.

The applicant replied that she had not missed the deadline for lodging her cassation appeal and the new procedural law had been applied retroactively in her case. She maintained that she had exhausted all effective domestic remedies by challenging the refusal of the first instance court to accept her cassation appeal before the higher courts.

The Court notes that the applicant ’ s complaints under Article 6 § 1 of the Convention are twofold. Insofar as the applicant raises this complaint with respect to the fairness of the original proceedings and their outcome, the remedy invoked by the Government could be relevant to the above proceedings since the applicant failed to appeal to the Supreme Court. The Court recalls that, as it has previously held, an appeal in cassation in the Ukrainian civil procedure may be considered an effective remedy, within the meaning of Article 35 § 1 of the Convention, for lower court decisions taken after 29 June 2001, and therefore has to be exhausted (see Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002). This aspect of the complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

However, insofar as the applicant complain about a lack of access to the court of cassation, the Court notes that the applicant challenged the first-instance court ’ s decision to reject her cassation appeal as having been lodged out of time before all instances. Accordingly, the Government ’ s objection to this complaint should be rejected as being irrelevant.

(b ) . The Court reiterates that the right to a court, of which the right of access is one aspect (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36), is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict the exercise of the right in such a way or to such an extent that its very essence is impaired. They must pursue a legitimate aim and there must be a reasonable degree of proportionality between the means employed and the aim sought to be achieved (see the Guérin v. France judgment of 29 July 1998 , Reports of Judgments and Decisions 1998-V, p. 1867, § 37).

The rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see the Pérez de Rada Cavanilles v. Spain judgment of 28 October 1998 , Reports 1998-VIII, p. 3255, § 45). The Court underlines that, since the issue concerns the principle of legal certainty, it raises not only a problem of the interpretation of a legal provision in the usual way, but of an unreasonable construction of a procedural requirement which may prevent a claim being examined on the merits, thereby entailing a breach of the right to the effective protection of the courts (see, mutatis mutandis , the Miragall Escolano and others v. Spain judgment, no. 38366/97, § 37, ECHR 2001-I; Zvolský and Zvolská v. the Czech Republic judgment, no. 46129/99, § 51, ECHR 2002-IX).

Moreover, the manner in which Article 6 applies to courts of appeal or cassation must depend 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 ’ s role in them (see, for instance, the Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, § 56, and the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 15, § 31); the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal ( Levages Prestations Services v. France judgment of 23 October 1996, Reports 1996-V, p. 1544, § 45).

The Court notes that, in the instant case, the applicant appealed in cassation after her case had been considered by the first instance and appellate courts. The Court recalls again that such appeal in cassation in the Ukrainian civil procedure may be considered an effective remedy, within the meaning of Article 35 § 1 of the Convention, for lower court decisions taken after 29 June 2001, and therefore has to be exhausted (see Vorobyeva v. Ukraine , cited above ). This was the applicant ’ s situation when the decision of the appellate court was adopted on 4 March 2002 .

The Court further notes that the applicant ’ s request for leave to lodge an appeal was declared inadmissible on the ground that it had not been filed within the time-limit provided by Article 321 of the CCP. In the Court ’ s opinion, as with the case of Melnyk v. Ukraine ( no. 23436/03, § 26 , 28 March 2006 ), it is necessary to examine whether the calculation of the period for the running of the time-limit could be regarded as foreseeable from the point of view of the applicant.

The Court recalls the generally recognised principle of the immediate effect of procedural changes to pending proceedings (see Brualla Gómez de la Torre v. Spain , judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII , § 35). This principle was confirmed in the case of Vorobyeva v. Ukraine (cited above), where the applicant failed to exhaust the remedy which was introduced whilst the judicial proceedings were still pending.

The Court notes in the present case that, in the absence of any transitional or retroactive specification in the amended provisions, the applicant could reasonably have expected the new deadline to have been brought forward to 4 May 2002 ( one month after the Amendment Law came into force). The applicant would still have had a month to lodge her appeal after the amendments had been promulgated, even though this new deadline curtailed the original time-limit under the old provisions of the CCP (i.e. 4 June 2002, three months after the decision of the Lviv Regional Court of Appeal, against which the cassation appeal was made).

In the present case, the applicant failed to comply with the new time-limit. The immediate effect of this new procedural rule does not appear to be contrary to Article 6 § 1 of the Convention and the Court cannot speculate on whether or not the applicant ’ s cassation appeal would be rejected had she complied with the new time-limit. In this respect, this case is different from the Melnyk case (cited above), in which the applicant lodged her cassation appeal within the above new time-limit, but the domestic courts rejected it as being submitted too late, which suggested that the new procedural rule had been applied retroactively and, therefore, in violation of Article 6 § 1 of the Convention. In the Court ’ s opinion the refusal of the applicant ’ s cassation appeal by the domestic courts in the instant case was not arbitrary or otherwise manifestly unreasonable to raise an issue under Article 6 § 1 of the Convention .

The Court further reiterates that where the right claimed is a civil right, the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis , the requirements of Article 13 being absorbed by those of Article 6 § 1 (see, Brualla Gómez de la Torre v. Spain , cited above , § 41).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained under Article 1 of Protocol No. 1 that she was not awarded social benefits associated with the war participant status. She also complained under Article 14 of the Convention that the refusal to grant her the war participant status was discriminatory, since other persons in similar situations had been granted it. The relevant provisions of the Convention read as follows:

Article 1 of Protocol No. 1

“Every 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.

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.”

Article 14

“The 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.”

The Government maintained that the applicant ’ s complaint concerned neither an “existing possession” nor a “legitimate expectation” to receive such a possession.

The applicant disagreed, claiming that the domestic courts ’ case-law clearly demonstrated that she could expect that the war participant status be granted to her.

The Court considers that in the circumstances of the instant case it does not have to decide on the question whether the provisions of the Law “on the Status of War Veterans and their Social Welfare Guaranties” provided the applicant with at least “reasonable expectations” within the meaning of Article 1 of Protocol No. 1. Even assuming the applicability of the above Article to the facts of the present case, the Court notes that the applicant failed to appeal in cassation against the decisions of 26 November 2001 and 4 March 2002 in conformity with the applicable procedural rules . Therefore, her complaints under Article 1 of Protocol No. 1, taken separately or in conjunction with Article 14, must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant finally complained about a violation of her rights as guaranteed by Article 3 of Protocol No. 4, which read s as follows:

Article 3 of Protocol No. 4

“1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.

2. No one shall be deprived of the right to enter the territory of the state of which he is a national.”

The Court does not see any factual background for this complaint against Ukraine, but even assuming that it is made in the context of the events of 1946, it follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

4. Accordingly, the application of Article 29 § 3 of the Convention in the present case must be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . Part of the Second World War between 22 June 1941 and 9 May 1945 .