Resolution CM/ResDH(2008) 26 [1]

Execution of the judgment of the European Court of Human Rights

Melnyk against Ukraine

(Application No. 23436/03, judgment of 28 March 2006, final on 28 June 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to access to a court in civil proceedings (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Ukraine ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 1007th meeting of the Ministers ' Deputies (15 ‑ 17 October 2007), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2008)26

Information about the measures taken to comply with the judgment in the case of Melnyk against Ukraine

Introductory case summary

The case concerns a violation of the applicant ' s right of access to a court in proceedings against her former employer to obtain reinstatement in her position and to receive compensation. The violation was due to the retroactive application by the Court of Cassation of new provisions of the Code of C ivil P rocedure on time ‑ limits for appeals in cassation which resulted in the dismissal of the applicant ' s appeal on a point of law as being out of time.

The European Court considered that while the retroactive application of civil law was not contrary to the Convention as such, in the present case there was no transitory measure expressly providing retroactivity of the new text. In addition, to comply with the new shorter time-limit for appeals, the applicant would have been required to lodge her appeal even before the new wording of the Code entered into force. In these circumstances the Court concluded that the retroactive application of the new provisions of the Code had undermined the principle of legal certainty and was not proportionate to the purpose of the legislative change (violation of Article 6§1).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

The applicant requested the Court to award her damages, without any substantiation or quantification of her claim. The Court awarded her EUR 500 in respect of non-pecuniary damage.

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

500 EUR

-

500 EUR

P aid on 26/09/2006

b) Individual measures

Following the Court ' s judgment, on 07/07/2006, the authorities informed the applicant of the possibility provided by the legislation in force to apply for review of proceedings under exceptional circumstances. The applicant has lodged no application for such revision.

II. General measures

The judgment of the European Court has been translated and placed on the Ministry of Justice ' s official website. It has also been published in the Official Herald of Ukraine No. 29 of July 2006, while a summary of the judgment was published in the Government Currier , No. 128 of 13/07/2006.

By letter of the Government Agent before the European Court of Human Rights of 07/07/2006, the attention of the Supreme Court of Ukraine was drawn to the Court ' s conclusions in this case so that it might take them into account in its daily practice.

III. Conclusions of the respondent state

The government considers that g iven the time elapsed since the adoption of the new Code of Civil P rocedure, the problem is not likely to arise in the future and that the measures taken have fully remedied the consequences for the applicant of the violation of the Convention found by the Court in this case, that these measures will prevent new, similar violations and that Ukraine has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 27 March 2008 at the 1020th meeting of the Ministers’ Deputies