FIFTH SECTION

DECISION

Application no. 21258/11 Oksana Sergiyivna KORKIYAYNEN against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 4 June 2019 as a Committee composed of:

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 22 March 2011,

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, Ms Oksana Sergiyivna Korkiyaynen, is a Ukrainian national, who was born in 1963 and lives in Uman. She was represented before the Court by Mr Y. Boychenko, a lawyer practising in Strasbourg.

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 . On 10 November 2009 the applicant lodged a claim with the Uman Town Court (“the Town Court”) against her employer, seeking the recovery of salary arrears for February 2009 in the amount of 841.54 [1] Ukrainian hryvnias (UAH), which appears to have represented part of her monthly salary of UAH 1,289.60 [2] .

5 . By a ruling of 30 November 2009, the Town Court returned the claim unexamined owing to the applicant ’ s failure to substantiate the claim and to provide copies of supporting documents. The court also made reference to Article 121 § 5 of the 2004 Code of Civil Procedure (“the Code”), which provided that a court returning a claim unexamined did not prevent a claimant from resubmitting the claim if the circumstances which had served as the grounds for returning the claim ceased to exist.

6. The applicant appealed against the above ruling. She stated, in particular, that she had complied with the relevant requirements when lodging the claim and that there had been no grounds for the Town Court to conclude otherwise. On 26 January 2010 the Cherkassy Regional Court of Appeal (“the Court of Appeal”) required her to pay court fees “for information and technical support of proceedings” (“court support fees”) as provided for in Article 81 of the Code. It stated that no privileges exempting the applicant from payment of the above fees had been laid down. It also held that, in accordance with the 2005 procedure for payment of court support fees (see paragraph 13 below), the amount of court support fees required for lodging an appeal against a first-instance court decision was the same as the amount of such fees that would be applicable on lodging a claim. Lastly, it held that the amount to be paid was UAH 37 [3] and requested the applicant to pay that sum by 12 February 2010.

7. On 22 February 2010 the Court of Appeal returned the applicant ’ s appeal unexamined, owing to her failure to pay the above-mentioned court support fees.

8. The applicant lodged a cassation appeal against the ruling of 22 February 2010. She stated that Article 81 § 3 of the Code had exempted her from having to pay court support fees prior to the examination of her case concerning the recovery of salary arrears, but the Court of Appeal had breached that rule.

9. On 22 September 2010 the Supreme Court rejected the applicant ’ s cassation appeal. It stated that, under Article 81 § 3 of the Code, court support fees in some categories of cases, including those concerning the recovery of salary arrears, were to be paid by the parties after the examination of the case. It then stated, without providing further details, that the Court of Appeal had correctly returned the applicant ’ s appeal unexamined because she had not paid the above-mentioned court support fees.

10. On 22 December 2010 the applicant lodged, through the Town Court, a request with the Court of Appeal for a review of its ruling of 30 November 2009 under the procedure governing newly-discovered circumstances. She referred, in particular, to a pending “analogous case” against her, in which her employer sought to recover unspecified advance payments and leave-related payments previously made to her.

11. On 6 January 2011 the Town Court returned the request unexamined owing, in particular, to the applicant ’ s failure to specify when her employer had lodged the claim against her and what had supported her assertion in that respect.

B. Relevant domestic law

1. Code of Civil Procedure (2004)

12. Article 81 of the Code (deleted from the Code with effect from 1 November 2011) read, at the material time, as follows:

“1. Court fees for information and technical support of proceedings include expenses related to informing participants in civil proceedings about the progress in, and outcome of, the case as well as expenses related to the preparation and issuing of copies of judicial decisions.

2. The amount and procedure for the payment of court fees for information and technical support of proceedings, depending on the category of case, shall be set by the Cabinet of Ministers of Ukraine.

3. The court fees for information and technical support of proceedings shall not be payable at the moment of the court being seised of the matter and shall be payable by the parties after the examination of the case by the court in cases concerning:

...

(2) recovery of salary arrears ...”.

2. Procedure for payment of court fees for information and technical support of proceedings (2005)

13 . The relevant provisions of the above procedure, which was applicable at the material time and which was repealed in November 2011, stated that the amount of court fees payable for information and technical support when lodging an appeal against a first-instance court decision was the same as the amount of such fees required for the examination of the claim by the first-instance court. The procedure also generally referred to the exemption under Article 81 § 3 of the Code, but did not specify whether this exemption was also applicable to proceedings on appeal and/or to proceedings in the framework of which procedural rulings were challenged.

3. Court Fees Act (2011)

14 . On 8 July 2011 the Court Fees Act was adopted (with effect from 1 November 2011). It replaced the court support fees and a State tax (another payment to be made by claimants) with a single payment – simply known as court fees. Section 5 of the Act exempted claimants from paying court fees in cases concerning the recovery of salary arrears during the examination of such cases at all levels of court.

COMPLAINT

15. The applicant complained under Article 6 § 1 of the Convention that she had been denied access to the court.

THE LAW

16. The applicant complained under Article 6 § 1 of the Convention that she had been denied access to the court on account of the refusal by the Court of Appeal to examine her appeal against the ruling of 30 November 2009. The above provision reads as follows:

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

A. The parties ’ submissions

17. The Government first submitted that the complaint should be rejected for non-exhaustion of domestic remedies. In particular, they argued that instead of challenging the procedural decisions on her claim, the applicant could have resubmitted her claim or submitted a counterclaim in the proceedings that had been instituted against her by her employer. Secondly, the Government contended that the complaint was manifestly ill ‑ founded, because the applicant had only been required to rectify her claim and to lodge it, free of charge, with the Town Court, which she had failed to do. Thirdly, the Government submitted that the applicant had lodged a number of other claims with the Town Court against her employer and various authorities, which had demonstrated that she was a litigious person who, instead of correcting her initial claim, resubmitting the claim or submitting a counterclaim, had chosen to challenge the decision to return her claim unexamined. In their view, that amounted to an abuse by the applicant of her right of application. Lastly, the Government contended that the denial of access to the Court of Appeal had not been insurmountable, because the applicant had only been required to pay UAH 37 in court fees. That amount was below any threshold of significant disadvantage and there was no important matter of principle to be determined, given that the applicant had not been prevented from lodging a new claim against her employer.

18. The applicant disagreed. First, as regards the alleged non-exhaustion of domestic remedies, she submitted that she had lodged the claim against her employer and had then chosen to challenge the decision to return that claim unexamined, under a procedure provided for by the domestic law. She had therefore duly exhausted the domestic remedies. The remedy that she had pursued had had the same objective as those suggested by the Government – the recovery of salary arrears – but the domestic courts had precluded her from making effective use of that remedy. The Government had failed to show that the remedies that they had suggested would have added anything to the possibilities offered by the remedy that she had pursued. As to the Government ’ s submission that her complaint was manifestly ill-founded, it was identical to that concerning the alleged non ‑ exhaustion of domestic remedies. As to the alleged abuse of her right of application, the applicant had used the remedies available to her under the domestic law to protect her rights and there was no evidence that she had abused her rights before the Court. Lastly, as regards the alleged lack of a significant disadvantage to her as a result of the amount of the court fees, the applicant noted that her claim had concerned the recovery of salary arrears, the amount of which had been significant for her. Therefore, her pecuniary interest in the case had not been insignificant. Moreover, she complained of a denial of access to court in view of the unclear and non ‑ transparent interpretation of the legal provisions by the courts, which had concerned important questions of principle and had caused a significant disadvantage to her, regardless of the pecuniary interest involved.

B. The Court ’ s assessment

19. The Government raised several admissibility objections in respect of the applicant ’ s complaint. The Court considers that it is not necessary to examine all of them because the complaint is inadmissible on the ground that the applicant has not suffered a significant disadvantage. In this respect it notes that under Article 35 § 3 (b) of the Convention it must declare any individual application inadmissible if it considers that the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

20. The assessment of the first requirement of Article 35 § 3 (b) is relative and depends on all the circumstances of the case. The factors to be considered are, in particular, the nature of the right at issue, the extent to which the alleged breach affected its exercise, and the effects of the alleged breach on the applicant ’ s situation (see, among other authorities, Gagliano Giorgi v. Italy , no. 23563/07, §§ 55-56, ECHR 2012 (extracts), and El Kaada v. Germany , no. 2130/10, §§ 40-41, 12 November 2015).

21. In the instant case the applicant ’ s complaint relates to an alleged denial of access to court on account of the refusal by the Court of Appeal to examine her appeal against the ruling of 30 November 2009 of the Town Court, which had decided to return her claim for salary arrears unexamined on the ground that it was unsubstantiated. The Court of Appeal ’ s refusal to examine the applicant ’ s appeal against the above ruling was due to her failure to pay court support fees of 37 UAH. That refusal was confirmed by the Supreme Court when it rejected the applicant ’ s cassation appeal.

22. The applicant argued that it was her salary arrears themselves (841.54 UAH) that were at issue rather than the court support fees (37 UAH). However, the Court cannot agree with that argument. It notes that the Court of Appeal, which refused to examine the applicant ’ s appeal against the ruling of 30 November 2009, was only dealing with her complaint relating to the refusal of the Town Court to examine her claim for salary arrears. It was not dealing with the salary arrears complaint itself. The Court further notes that the applicant did not contest the obligation to pay the above court support fees. Nor did she contest the amount of those fees or claim that she had been unable to pay that amount. She only contested the point at which the above obligation arose. For its part, the Court does not see any indication that the applicant was unable to pay the fees or that the obligation to pay them – regardless of the question of when it arose – would have had a significant effect on her financial situation.

23. The Court is also mindful of the possibility – expressly mentioned in the ruling of 30 November 2009 – that the applicant could have resubmitted a substantiated claim to the Town Court in accordance with Article 121 § 5 of the Code. It has no grounds to consider that any such new proceedings, which could have been instituted by the applicant at no expense to her, would not have remedied the situation of which she complained.

24. In view of the above, the Court cannot conclude that the applicant suffered a significant disadvantage on account of the Court of Appeal ’ s refusal to examine her appeal against the ruling of 30 November 2009. The applicant neither claimed that she was unable to pay the required fees nor contested that it had been possible to resubmit her claim, which could have remedied her situation. For that reason, and in the light of the possibility open to the applicant at the time, the refusal by the Court of Appeal could only have amounted to an insignificant intervention and therefore the applicant ’ s complaint has not attained the minimum level of severity to warrant consideration by an international court (see, mutatis mutandis , Sylka v. Poland (dec.), no. 19219/07, § 27, 3 June 2014).

25. Furthermore, the Court recalls that respect for human rights does not require it to continue the examination of an application when the relevant law has changed and the case is of historical interest only (see, for instance, Ionescu v. Romania (dec.), no. 36659/04, § 37, 1 June 2010, and Kiril Zlatkov Nikolov v. France , nos. 70474/11 and 68038/12, § 65, 10 November 2016). As noted in paragraph 14 above, under the domestic law as changed on 1 November 2011, court fees are not payable for the consideration of salary-related cases at all levels of court. Therefore respect for human rights does not require the Court to continue the examination of the applicant ’ s complaint.

26. Lastly, the Court notes that the applicant ’ s case was “duly considered” by a domestic tribunal and that, in particular, her complaint about the Court of Appeal ’ s refusal to examine her appeal against the ruling of 30 November 2009 was subject to a further review by the Supreme Court.

27. Since all three requirements of the inadmissibility criterion under Article 35 § 3 (b) of the Convention have been satisfied, the application must be declared inadmissible as a whole under Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 June 2019 .

Milan Blaško Síofra O ’ Leary Deputy Registrar President

[1] . Approximately 68 euros (EUR) at the material time

[2] . Approximately EUR 104 at the material time

[3] . Approximately EUR 3 at the material time