FIFTH SECTION

DECISION

Application no. 19300/12 Oleksandr Andriyovych GLAZYRIN against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 4 November 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 28 March 2012,

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 Oleksandr Andriyovych Glazyrin, is a Ukrainian national, who was born in 1954 and lives in Odesa.

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

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

4. In August 2005 the applicant brought court proceedings against the Odesa Regional State Tax Administration (“the Tax Administration”) challenging his dismissal and requiring payment of salary arrears.

5. On 26 September 2006 the Prymorskyy District Court of Odesa allowed the applicant’s claim in full.

6. On 4 September 2007 the Odesa Administrative Court of Appeal partly allowed the appeal of the Tax Administration, quashed the decision of 26 September 2006 and partly allowed the applicant’s claim ordering the Tax Administration to amend the dismissal order concerning the date of the applicant’s dismissal and to pay him respective salary arrears. The court established that the applicant had been dismissed as a result of personnel reduction by five positions, including the applicant’s position.

7. On 31 August 2011 the High Administrative Court of Ukraine (“the HACU”) upheld the decision of 4 September 2007.

8. On 27 September 2011 the applicant lodged an application seeking the review, by the Supreme Court of Ukraine (“the SCU”), of the HACU’s decision of 31 August 2011. In his submissions the applicant relied on the first of two grounds prescribed under Article 237 of the Code of Administrative Justice, stating that the domestic courts in his case had applied the same law differently than they did in two earlier rulings of the HACU. In the first ruling, dated 12 June 2007, the HACU had rejected the cassation appeal of the State Tax Service and upheld the lower courts’ decisions finding unlawful the dismissal of a civil servant based on alleged decrease of personnel; the courts had established that the number of posts at the State Tax Service had actually increased and that, therefore, there had been no grounds for the impugned dismissal. In the second ruling, dated 9 December 2009, the HACU had allowed the claimant’s cassation appeal since the impugned order, based on which the claimant had been dismissed, had not prescribed a personnel reduction. The applicant relied on the above rulings as he considered that there had been no actual personnel reduction in his case too. He also complained that the lower courts had assessed the evidence in his case wrongly.

9. On 4 October 2011 the HACU, which was competent to examine the admissibility of applications for review before transmitting them to the SCU for examination on the merits (see paragraph 12 below), rejected the applicant’s application for review. The court concluded that the rulings in earlier cases, relied upon by the applicant, did not concern similar disputes and that, therefore, there had been no divergent application of the law within the meaning of Article 237 (1) of the Code of Administrative Justice (see paragraph 10 below).

Code of Administrative Justice of 6 July 2005 (with amendments as of 16 September 2011)

10. The relevant provisions of the Code of Administrative Justice, as in force at the material time, prescribed the grounds and time-limits for lodging an application with the SCU for review of court decisions. They read as follows:

Article 20

Institutional jurisdiction

“1. Local administrative courts, as well as the High Administrative Court of Ukraine – in specific cases prescribed under this Code, examine cases as courts of first instance.

2. Appellate courts reconsider the decisions of the local administrative courts within their territorial jurisdiction.

3. The High Administrative Court reviews decisions of the local and appellate administrative courts as a court of cassation.

4. The Supreme Court of Ukraine, on the grounds prescribed under this Code, reviews the decisions of the administrative courts after the cassation review.”

Article 237

Grounds for lodging an application for a review of the courts’ decisions

“1. An application for a review of the court decisions in administrative cases may be lodged due to the following reasons:

(1) divergent application by a court (courts) of cassation instance of the same norms of material law, which has led to the rendering of different (in their content) court decisions in similar legal matters;

(2) a finding by an international judicial authority, whose jurisdiction has been recognised by Ukraine, that a [domestic] judicial decision violated the international commitments of Ukraine...”

Article 238

Time-limits for submission of an application for a review of the court decisions

“1. Application for review of a judgment shall be lodged within one month from the date of passing the judgment in relation to which the motion for revision was made, or from the date of passing the judgment to which reference is made in support of the ground described in subparagraph 1 of paragraph one of Article 237 of the present Code, if this judgment was passed later, but no later than one year after the contested judgment had been delivered.

....”

11. Articles 239-244 of the Code, as in force at the relevant time, set out further procedural rules for the examination of an application for review, the competence of the SCU and the effects of its decisions.

12 . In particular, an application for review was to be lodged via the HACU, which had to decide on the admissibility of the application within fifteen days. If it found the application admissible, the HACU would transfer the request to the SCU, which, in turn, would decide the case within one month.

13. If the SCU established that the contested court decision was unlawful, it quashed it, in full or in part, and remitted the case for fresh consideration to the court of cassation.

14. The decision of the SCU in proceedings for review on the ground of divergent application of the material law is binding on all courts of Ukraine. The courts are required to bring their case-law in compliance with the decision of the SCU.

COMPLAINTS

15. The applicant complains under Article 6 § 1 of the Convention about the unfairness and the excessive length of the civil proceedings in his case.

THE LAW

16 . The applicant complains that the unreasonable length of the court proceedings in his case between August 2005 and October 2011 was in breach of Article 6 § 1 of the Convention, which reads as follows, in so far as relevant:

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

17. The Government submitted that the present application was inadmissible, since the applicant had failed to comply with the six-month time-limit for lodging his application with the Court. With reference to Karuna v. Ukraine (dec.) (no. 43788/05, 3 April 2007), they submitted that the applicant’s request lodged with the HACU seeking a review of the decision of the HACU of 31 August 2011 by the SCU was an extraordinary remedy, which the applicant was not supposed to exhaust and that therefore, the six-month time-limit started to run from the decision of the HACU of 31 August 2011.

18. The applicant disagreed. He stated that under Ukrainian law he had had a reasonable expectation that the SCU could restore his infringed rights.

19. The Court notes at the outset that the applicant’s case was examined between August 2005 and August 2011 by the courts of three instances, including at a cassation level. The applicant further sought a review by the SCU of the decision of the HACU of 31 August 2011 on grounds of alleged divergent case law (see paragraph 8 above).

20. While Article 6 § 1 of the Convention is not normally applicable to extraordinary appeals seeking the reopening of terminated judicial proceedings, the nature, scope and specific features of the proceedings on a given extraordinary appeal in the particular legal system concerned may be such as to bring the proceedings of that kind of appeal within the ambit of Article 6 § 1 of the Convention and of the safeguards of a fair trial that it affords to litigants (see, mutatis mutandis , Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 50, ECHR 2015). The actual name given to the proceedings in the domestic legal system or the fact that the national jurisdictions have considered them as an extraordinary remedy cannot be considered determinant: what is decisive is the nature and the scope of the proceedings at issue (see San Leonard Band Club v. Malta , no. 77562/01, § 41, ECHR 2004-IX).

21. The Court reiterates that while the special features of the cassation ‑ type procedure may affect the manner in which the prescribed procedural guarantees of Article 6 § 1 of the Convention operate (see Delcourt v. Belgium , 17 January 1970, § 26, Series A no. 11), those guarantees should be applicable to it in the same way as they apply to cassation proceedings (see, for instance, Bochan (no. 2) , § 53, cited above; Maresti v. Croatia , no. 55759/07, § 23, 25 June 2009; Mushta v. Ukraine , no. 8863/06, § 39, 18 November 2010 and, mutatis mutandis , San Leonard Band Club , § 41, cited above).

22. The Court notes the Government’s submissions as to the extraordinary nature of the review by the SCU with reference to the decision in Karuna (cited above). However, it observes that the Code of Administrative Justice of 6 July 2005 was amended after the decision in Karuna , which requires the analysis of the applicability of Article 6 of the Convention to the review proceedings as regulated by this Code as in force at the material time.

23. Furthermore, the Court does not consider it necessary to address this issue in the present case since the application is in any way inadmissible for the following reasons: even assuming the applicability of Article 6 of the Convention to the review by the SCU, the civil proceedings in the applicant’s case lasted for six years and two months at most. The Court therefore concludes that the total length of those proceedings is not excessive given that the case has been examined by domestic courts at four instances (see, mutatis mutandis, L.Z. v. Slovakia (dec.), no. 27753/06, 27 September 2011).

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

25. In general terms the applicant complains of the unfairness of the court proceedings in his case.

26. The Court considers that, in the light of all the materials in its possession and insofar as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

27. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 November 2021.

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Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President