FIFTH SECTION

DECISION

Application no. 47924/13 Vera Nikolayevna KORDONCHIK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 26 August 2021 as a Committee composed of:

Stéphanie Mourou-Vikström, President, Ganna Yudkivska, Lado Chanturia, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 18 July 2013,

Having regard to the parties’ submissions,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Vera Nikolayevna Kordonchik, is a Ukrainian national, who was born in 1957 and lives in Simferopol.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

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

4. On 24 December 2010 the Zaliznychnyy District Court of Simferopol (“the Local Court”), in abridged proceedings ( скорочене провадження ), allowed a claim lodged by the applicant and ordered the Zaliznychnyy District Department of the Pension Fund (“the Pension Fund”) to recalculate and pay the applicant’s pension.

5. It appears that no appeal was lodged against the above judgment within the statutory ten-day time-limit and it therefore became final. Also, according to the applicant, it was fully enforced, however, no respective documents were submitted by her to the Court.

6. On 17 May 2011 the Pension Fund lodged an appeal with the Sevastopol Administrative Court of Appeal (“the Court of Appeal”) through the Local Court (as required by the legislation). It was stated in the appeal that the Pension Fund’s representative had not been present at the Local Court’s hearing and that the copy of the judgment of 24 December 2010 was only received by the Pension Fund on 13 January 2011. Without providing any further details, the Pension Fund requested a renewal of the time-limit for lodging an appeal.

7. By a ruling of 11 October 2012, 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.

8. On 8 January 2013 the Court of Appeal, sitting as a panel of three judges, overruled the judgment of 24 December 2010 and found against the applicant. It found that the first-instance court had applied the relevant domestic law incorrectly and there were no grounds for the recalculation sought by the applicant. The court indicated that, if the appeal is submitted against a court decision adopted in abridged proceedings no cassation appeal can be lodged against it.

9. As transpires from the documents submitted to the Court, that decision was sent to the applicant on 20 February 2013.

Code of Administrative Justice of 6 July 2005 (as in force at the material time)

10. Article 102 of the Code provides that a procedural time-limit can be renewed or extended, at the request of a party to the proceedings, if the court in question, determines that that party to the proceedings missed the original time-limit for valid reasons. The question of renewal or 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.

11. 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. If the time-limit for lodging an appeal is renewed it shall be considered that the court judgment has not become final.

12. Paragraph 10 of Article 183-2 provides that if an appeal is submitted against a court decision adopted in abridged proceedings, the decision by the court of appeal is final and not subject to further appeal.

COMPLAINTS

13. 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 had acted arbitrarily when it accepted the Pension Fund’s appeal as timely and re-examined the case quashing the final and binding judgment of the local court.

THE LAW

Alleged violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention

14. The applicant complained of a violation of the principle of legal certainty inherent in Article 6 of the Convention and the infringement of the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention on that account.

15. The Government stated at the outset that the materials of the applicant’s case were unavailable as they were stored in the archives situated in the Crimea, a territory outside of the Government’s control. They further noted that their observations were thus based on the information provided to the Court by the applicant.

16. The Government stated that it was primarily for the domestic courts to apply and interpret domestic law. In the present case the appellate court, when accepting the defendant’s appeal, acted in accordance with the legislation. The Government noted in that respect that higher courts should be able to correct judicial errors. With this in mind, they considered that there was no violation of the applicant’s rights under Article 6 of the Convention.

17. No comments in reply are available from the applicant as she resides in the territory where postal services are limited, and the correspondence sent to her had not been delivered. No telephone connection with the applicant exists either.

18. Despite the absence of the applicant’s observations in reply, the Court considers that it can proceed with the examination of the case for the following reasons.

19. While the Government have not invoked compliance with the six ‑ month rule as a reason for inadmissibility, the Court reiterates that the fundamental purpose of the six-month rule is to ensure legal certainty, avoid stale complaints, and provide for an examination of the Convention issues within a reasonable time (see, mutatis mutandis, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I; Sholos v Ukraine (dec.), no. 11780/05, 24 March 2009 and Sabri GüneÅŸ v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012, with further references). As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. It is therefore not open to the Court to set aside the application of the six-month rule solely because a Government has not made a preliminary objection based on this.

20. Pursuant to the Court’s established case-law, if there is no adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act takes place is considered to be “final” for the purposes of the six-month rule (see Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000). In the case of Neyman v Ukraine (dec.) (no. 68470/12, of 12 January 2021), which is factually similar to the present case, the Court found that as the applicant had never raised his complaint of the allegedly arbitrary reopening of proceedings in his case before the High Administrative Court while such an opportunity was open to him and was not clearly futile, he failed to exhaust domestic remedies. It is implicit from those conclusions that should an appeal on points of law be open to the applicant, the six-month time-limit should be calculated as of the date of the higher court’s decision.

21. On the other hand, where the issue of the arbitrary reopening of proceedings cannot be raised before a higher court, the Court has viewed that as an instantaneous act, which does not create a continuing situation, even if it entails further re-examination of the case. Accordingly, the six ‑ month time-limit has to be calculated from the date of the impugned reopening (see, mutatis mutandis, Uzhavka v Ukraine (dec.), no. 68856/13, 16 September 2014). This conclusion also has indirect support in the domestic law, in particular Article 254 of the Code of Administrative Justice (see paragraph 11 above) which stipulates that if the time-limit for lodging an appeal is renewed (and the appeal proceedings are opened) it shall be considered that the court judgment has not become final.

22. The Court notes that in the present case, given the impossibility of appeal in cassation, the six-month time-limit for the applicant started running on the date when the Court of Appeal opened the appeal proceedings, that is on 11 October 2012. The present application, which was only introduced on 18 July 2013, is therefore out of the six-month time ‑ limit.

23. The same holds true about the applicant’s complaints under Article 1 of Protocol No. 1 to the Convention.

24. Accordingly, the application must be rejected under Article 35 §§ 1 and 4 of the Convention as being out of the six-month time-limit.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 September 2021.

{signature_p_2}

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President