FIFTH SECTION

DECISION

Application no. 31034/18 Viktor Oleksiyovych VITRYAK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 26 May 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 20 June 2018,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Viktor Oleksiyovych Vitryak , is a Ukrainian national, who was born in 1951 and lives in Zaporizhzhya .

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

3 . On 1 March 2012 the applicant was hired as the director of the state-owned company Zaporizhzhya Expert and Technical Center of the State agency responsible for workplace safety. His contract was supposed to run until 1 March 2017.

4 . On 16 June 2015 the State agency in charge of workplace safety dismissed the applicant from his post under the 2014 Government Cleansing (Lustration) Act (GCA). That law provided for the dismissal, in particular, of the directors of State-owned companies providing administrative services who had occupied their posts at such companies for at least one year from February 2010 to February 2014.

5 . The applicant challenged his dismissal arguing that the GCA did not apply to him since his company did not provide administrative services and that, after filing his declaration required by the GCA, he had not been informed about the results of the lustration check and had not committed any fault which would justify his dismissal under his contract.

6 . On 3 February 2016 the Zaporizhzhya Leninsky District Court granted the applicant ’ s claim, ordering his reinstatement, on the grounds that the employer had failed to draw up a formal report on the lustration check, as required by the GCA.

7 . On 7 December 2017 the Zaporizhzhya Regional Court of Appeal quashed the first-instance court ’ s judgment and dismissed the applicant ’ s claim on the grounds that, since the State agency in charge of workplace safety did provide administrative services and, since the company he headed was subject to that agency, he was subject to the GCA and that the procedure for the law ’ s application to him had been conducted in a lawful manner.

8 . On 4 April 2018 the Civil Chamber of the Supreme Court upheld the judgment of the appellate court finding no indication of any illegality.

9 . The relevant provisions of the GCA can be found in Polyakh and Others v. Ukraine (nos. 58812/15 and 4 others , §§ 72-78, 17 October 2019).

COMPLAINTS

10 . Under the criminal limb of Article 6 of the Convention the applicant complained that he had been dismissed on the mere grounds that he had occupied a position at a State-owned company. He had not enjoyed any of the rights of a criminal defendant: presumption of innocence, right to be notified about the grounds for his dismissal. The punishment, dismissal, had been imposed by a State executive a gency rather than by an Article 6-compliant tribunal.

11 . Under Article 14 and Article 1 of Protocol No. 12 the applicant complained that he was dismissed for unspecified political reasons and so discriminated by comparison with other employees of his company.

THE LAW

12 . The Court held in Polyakh (cited above, §§ 151-60) that Article 6 was only applicable under its civil limb, and not under its criminal limb, to the proceedings concerning dismissals under the Government Cleansing Act.

13 . Accordingly, as far as the “criminal” aspect is concerned, these complaints are incompatible with the Convention ratione materiae and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

14 . The applicant has not made any submissions which would show that any of the requirements of Article 6 under its civil limb have been breached. Accordingly, this part of the application is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

15 . To the extent that the applicant ’ s submissions to the effect that he was dismissed without any personal guilt having been demonstrated could be seen as a complaint, in substance, under Article 8, that complaint is, in any event, inadmissible for failure to exhaust domestic remedies as the applicant has not invoked any such arguments in his appeal to the Supreme Court (see Denisov v. Ukraine [GC] , no. 76639/11, § 117, 25 September 2018). The same goes for his complaints alleging discrimination.

16 . The Court concludes that the applicant did not use an effective domestic remedy available to him. It therefore follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 June 2020 .

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Anne-Marie Dougin Mārtiņš Mits Acting Deputy Registrar President