FIFTH SECTION

DECISION

Application no. 5485/10 Mykola Mykolayovych MYKHALNYCHENKO against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 9 June 2020 as a Committee composed of:

Mārtiņš Mits , President, Ganna Yudkivska , Lәtif Hüseynov , judges, and Anne-Marie Dougin , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 10 January 2010 ,

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

1 . The applicant, Mr Mykola Mykolayovych Mykhalnychenko , is a Ukrainian national who was born in 1943 and lives in Vinnytsya .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna .

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

4 . In July 2006 a prosecutor acting in the interests of the applicant lodged a claim against the local pension fund, seeking the allocation of a “scientific pension” to the applicant.

5 . On 2 November 2006 the Leninskyy District Court of Vinnytsya rejected the claim as unsubstantiated. In particular, the court found that the applicant had failed to provide certificates confirming his scientific work experience for the period between 1972 and 1981.

6 . On 3 November 2006 the applicant lodged an appeal ( заява про апеляційне оскарження ) with the appellate court of general jurisdiction, the Vin nytsya Regional Court of Appeal .

7 . On 21 November 2006 the applicant lodged a notice of appeal with the Vinnytsya Regional Court of Appeal .

8 . On 11 December 2006 the Vinnytsya Region al Court of Appeal refused to entertain the applicant’s appeal, holding that he had failed to pay the court fee and setting a deadline for its payment on 21 December 2006.

9 . On 19 December 2006 the applicant provided an uncertified copy of a receipt for the payment of the court fee.

10 . On 22 December 2006 the Vinnytsya Region al Court of Appeal returned the applicant’s appeal unexamined, on the ground that he had failed to pay the court fee.

11 . On 11 January 2007, having paid the court fee a second time, the applicant asked for an extension of the time-limit for lodging an appeal.

12 . On 19 January 2007 the Vinnytsya Region al Court of Appeal sent back to the Leninskyy District Court of Vinnytsya the material in the file on applicant’s administrative case, explaining in the cover letter that on 22 December 2006 it had returned his appeal unexamined, as he had failed to pay the court fee; it added that his request of 11 January 2007, seeking an extension of the time-limit for lodging an appeal, was not to be examined, as the time-limit in issue had not expired. A copy of this cover letter was sent to the applicant.

13 . Following judicial reform s in Ukraine, the Kyiv Administrative Court of Appeal was established on 1 January 2005 and became opera tional on 2 April 2007. Its territorial jurisdiction covered the Vinnytsya Region.

14 . On 4 April 2007 the applicant lodged another request with the Vinnytsya Regional Court of Appeal , attaching proof of payment of the court fee and asking it to allow his request of 11 January 2007 for an extension of the time-limit for lodging an appeal.

15 . On 27 April 2007 the Vinnytsya Regional Court of Appeal issued a one-page ruling, stating that the notice of appeal had been submitted in conformity with administrative procedural law and open ing the appeal proceedings.

16 . On 14 June 2007 the Vinnytsya Regional Court of Appeal upheld the decision of the first-instance court.

17 . The applicant lodged a cassation appeal, contesting, among other things, the jurisdiction of the Vinnytsya Regional Court of Appeal to consider his claim in view of the newly established and opera tional Kyiv Administrative Court of Appeal.

18 . On 16 July 2009 the Higher Administrative Court of Ukraine upheld the decisions of the lower courts to reject the applicant ’ s claim in full. It did not comment on the issue of the jurisdiction of the Vinnytsya Regional Court of Appeal.

19 . The relevant provisions of the Code of Administrative Justice of 2005 read as follows:

Article 227

Grounds for quashing court judgments and their remittal for continued examination or re-examination

“3 . C ourt judgments shall be quashed and remitted for re-examination if :

(1) the case was considered and [a judgment] delivered by an unlawful composition of the court;

...”

Chapter VII Final and transitional provisions

“5. ... After an administrative appellate court becomes operat ional, an appellate court of general jurisdiction shall transfer to that administrative appellate court any written appeals in administrative cases in which appellate proceedings have not yet been opened. ...”

20 . In accordance with Articles 2 and 3 of the Presidential Decree of 16 November 2004 on the establishment of local and appellate administrative courts and the approval of their structure and composition, the Kyiv Administrative Court of Appeal was established as from 1 January 2005, and its territorial jurisdiction encompassed, among other areas, the Vinnytsya Region.

COMPLAINT

21 . The applicant complained under Article 6 § 1 of the Convention of a violation of his right to a “tribunal established by law”.

THE LAW

22 . The applicant complained that the Vinnytsya Region al Court of Appeal had no jurisdiction to determine his case and therefore could not be considered a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention, which reads as follows:

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

23 . The Government submitted that it was for the national courts to interpret the provisions of domestic law and that the Court should not question their interpretation, unless there had been a flagrant violation of domestic law. They further stated that the applicant had failed to lodge his appeal correctly, which had delayed the opening of appeal proceedings for more than five months.

24 . They submitted that the circumstances of the case justified a departure from the standard rule set out in Chapter VII (Final and transitional provisions) of the Code of Administrative Justice. In particular, it was evident that in order to avoid the violation of the “reasonable time” requirement for the consideration of cases, the applicant’s case could not have been transferred to the newly established Kyiv Administrative Court of Appeal, which already had a heavy caseload.

25 . The Government noted that the Court of Appeal had applied the domestic law and issued a well-reasoned decision, showing no signs of arbitrariness. Moreover, it could not be said that the composition of the Court of Appeal had lacked impartiality or independence. They argued that in a judicial reform of this magnitude, the Court of Appeal could be regarded as “a tribunal established by law”, as it had applied the provisions of the Code of Administrative Justice regulating appeal proceedings and had not acted outside the legal framework governing the exercise of its functions.

26 . Finally, the applicant had not complained that the formation or jurisdiction of the first-instance court or the Higher Administrative Court of Ukraine had been unlawful, and even if there had been any irregularity in the jurisdiction of the Court of Appeal, it had been fully resolved during the subsequent cassation review.

27 . The applicant upheld his complaint .

28 . The Court reiterates that, under Article 6 § 1 of the Convention, a “tribunal” must always be “established by law”. This phrase reflects the principle of the rule of law, which is inherent in the entire system of the Convention and its Protocols. The phrase “established by law” covers not only the legislation concerning the establishment and jurisdiction of a tribunal, but also the composition of the bench in each case (see, for instance, Lavents v. Latvia , no. 58442/00, § 114 , 28 November 2002 ); it also covers compliance by the tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine , nos. 29458/04 and 29465/04, § 24 , 20 July 2006 ).

29 . Turning to the circumstances of the present case, the Court notes that the applicant lodged his appeal with the Vinnytsya Regional Court of Appeal in November 2006, and requested an extension of the time-limit for lodging an appeal with that c ourt on 11 January and 4 April 2007. The Kyiv Administrative Court of Appeal became operational on 2 April 2007. The Vinnytsya Regional Court of Appeal opened the appeal proceedings on 27 April 2007. Under Chapter VII ( Final and transitional provisions ) of the Code of Administrative Justice (see paragraph 19 above), the applicant’s case should have been transferred to the newly operational administrative court of appeal, as the appellate proceedings had not yet been opened by the Vinnytsya Regional Court of Appeal .

30 . The Government submitted that the departure from the above ‑ mentioned transitional provision had been justified by the “reasonable time” requirement, the magnitude of the judicial reform and the fact that the Kyiv Administrative Court of Appeal already had a heavy caseload .

31 . The Court reiterates that Article 6 § 1 imposes on the Contracting States the duty to organise their legal systems in such a way that their courts are able to meet each of the requirements of that provision (see, for instance, Sürmeli v. Germany [GC], no. 75529/01, § 129, ECHR 2006 ‑ VII). It should, however, avoid excessive formalism when it is called upon to consider a domestic legal system in the light of the Convention. It observes that in Kovaleva and Others v. Russia (( dec. ), no. 6025/09, 25 June 2009), it rejected a similar complaint to the one in the present case – namely that the right of the applicants’ company to a tribunal established by law had been infringed because its appeal had not been adjudicated by the newly established commercial court of appeal – on the ground that the commercial court of appeal had not started its activities at the material time and the transition from the old system to the new one had not been completed. The situation in the present case was different, but the same approach is justified in view of the fact that the applicant had lodged his appeal with the Vinnytsya Regional Court of Appeal before 2 April 2007, the date when the Kyiv Administrative Court of Appeal became operational, and that the Vinnytsya Regional Court of Appeal had opened the appeal proceedings the very same month, o n 27 April 2007 . It would be excessively formalistic to consider in such circumstances that the applicant’s case had not been adjudicated by a tribunal that was competent under domestic law, in violation of his right to a tribunal “established by law” under Article 6 § 1 of the Convention.

32 . It is true that the Higher Administrative Court of Ukraine did not comment on the applicant’s complaint that the Vinnytsya Regional Court of Appeal lacked jurisdiction in view of the newly established and operational Kyiv Administrative Court of Appeal, whereas Article 227 § 3 of the Code of Administrative Justice of 2005 (see paragraph 19 above) provides that court judgments are to be quashed if they have been delivered by an unlawfully composed court. This is, however, not sufficient to invalidate the Government’s argument that any irregularity as to the jurisdiction of the Vinnytsya Regional Court of Appeal was resolved at cassation level by the Higher Administrative Court of Ukraine.

33 . On the basis of the foregoing, the Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 July 2020 .

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Anne-Marie Dougin Mārtiņš Mits              Acting Deputy Registrar President