Published on 9 October 2023

FIFTH SECTION

Application no. 55156/19 Yuliya Mykolayivna BASYUK against Ukraine and 10 other applications (see list appended) communicated on 18 September 2023

SUBJECT MATTER OF THE CASES

The applications concern the refusal on the grounds of force majeure to grant the applicants’ claims regarding salary and related arrears due to them by their employer.

The applicants were employed by the local branches of the Ukrzaliznytsya , the Ukrainian Railways, a State-owned entity, situated in the parts of the Donetsk and Luhansk Regions outside Government control as of 2014. In 2015 those local branches were re-registered in the controlled territories and the applicants were employed there. However, as of 2017 the Ukrzaliznytsya could no longer operate in the respective regions due to hostilities, and the applicants were dismissed.

The applicants instituted civil proceedings seeking collection of unpaid salary and compensation for the delay in its payment. While their claims were granted by the local courts, fully or in part, they were rejected on appeal as the defendant was “objectively deprived” of the possibility to ensure the timely payment of salaries due to the force majeure circumstances (military actions and cessation of activities) as confirmed by the “scientific and legal conclusion” of the Ukrainian Chamber of Commerce and Industry (UCCI). Some of the cases were examined by the Supreme Court (SCU) which upheld the appellate courts’ findings, others not (being rejected as inadmissible ratione valoris ).

The applicants assert that according to the legislation, the only document certifying force majeure as a ground for exemption from liability for breach of obligations is a certificate of the UCCI and not a “conclusion”. Therefore, the courts’ refusal to grant their claims with reference to the “scientific and legal conclusion” was, according to them, unlawful. Also, they assert generally that the non-payment of their earned salaries interfered with their right to peaceful enjoyment of possessions. In this respect they invoked Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

All applicants invoked Article 6 also in relation to the alleged overall unfairness of the proceedings, raising, in particular, various issues relating to the reasoning of the court decisions, evidence and alleged lack of equality of arms.

QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the courts’ judgments duly reasoned and was the principle of equality of arms respected in the light of:

(i) the alleged disregarding of the applicants’ pertinent arguments and pieces of evidence (all applications);

(ii) the alleged disregarding of the requests to summon and hear experts (application no. 42320/20);

(iii) the acceptance of allegedly inadmissible documents provided by the respondent (applications nos. 55156/19, 55683/19 and 23109/20);

(iv) the fact that the applicants allegedly did not receive a copy of the ruling on the opening of the appeal proceedings and/or of the defendant’s appeal/cassation appeal or annexes to them (applications nos. 55156/19, 55683/19, 23109/20, 13672/21, 48852/21 and 36257/22);

(v) the alleged failure to ensure the applicants’ participation in two appellate court’s hearing via videoconferencing (application no. 23109/20).

2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

If so, was that interference in accordance with the conditions provided for by law and in the public interest, within the meaning of Article 1 of Protocol No. 1?

Did that interference impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

55156/19

Basyuk v. Ukraine

09/10/2019

Yuliya Mykolayivna BASYUK 1964 Kyiv Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

2.

55683/19

Kosenko v. Ukraine

09/10/2019

Olga Grygorivna KOSENKO 1961 Kyiv Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

3.

57548/19

Didenko v. Ukraine

23/10/2019

Dmytro Volodymyrovych DIDENKO 1984 Kostyantyniavka Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

4.

23109/20

Kotelnykova v. Ukraine

08/05/2020

Svitlana Viktorivna KOTELNYKOVA 1976 Rodakove Lugansk region Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

5.

42320/20

Yakovleva v. Ukraine

12/09/2020

Nataliya Volodymyrivna YAKOVLEVA 1965 Mozhnyakivka Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

6.

8216/21

Kalmykova v. Ukraine

23/01/2021

Olga Ivanivna KALMYKOVA 1967 Rodakove Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

7.

9474/21

Piven v. Ukraine

30/01/2021

Olena Kostyantynivna PIVEN 1987 Donetsk Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

8.

13672/21

Dogayev v. Ukraine

20/02/2021

Vitaliy Mykolayovych DOGAYEV 1973 Frunze Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

9.

27172/21

Gulko v. Ukraine

14/05/2021

Yuliya Kostyantynivna GULKO 1988 Makarove Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

10.

48852/21

Lyubymov v. Ukraine

17/09/2021

Yuriy Fedorovych LYUBYMOV 1963 Rodakove Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO

11.

36257/22

Korolyova v. Ukraine

09/07/2022

Iryna Yuriivna KOROLYOVA 1974 Yasynuvata Donetsk region Ukrainian

Vitaliy Oleksandrovych GLUSHPENKO