European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7687/03
by Vitaliy Andreyevich SERDYUK
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 December 2008 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 18 February 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vitaliy Andreyevich Serdyuk, is a Ukrainian national who was born in 1939 and lives in Chernigiv.

A.  The circumstances of the case

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

In 1986 the applicant, at that time a military officer, was engaged in emergency relief operations at the site of the Chernobyl nuclear plant disaster, within the “Chernobyl alienation zone” (тридцятикілометрова зона або зона відчудження)¹.

On 25 August 1992 the Cabinet of Ministers adopted Resolution no. 501 on the Procedure for the Issuance of Certificates (“Chernobyl identity cards”) to Victims of the Chernobyl Nuclear Plant Disaster (посвідчення учасника ліквідації наслідків аварії на Чорнобильській АEC).

On 31 March 1993 the Plenary Supreme Court (Пленум Верховного Суду України) adopted Resolution no. 5 “On Judicial Practice on the Establishment of Facts that are of Legal Consequence”. According to this resolution, certificates acknowledging a person’s status as a Chernobyl relief worker could be issued on the basis of a court judgment establishing participation of the person concerned in any kind of Chernobyl relief work.

In 1993 the applicant applied to the Desniansky District Court of Chernigiv (Деснянський районний суд м. Чернігова, hereafter “the Desniansky Court”) seeking a declaratory judgment, acknowledging the fact that he had been involved in the Chernobyl relief works.

In its ruling of 2 December 1993 the Desniansky Court acknowledged the fact that in 1986 the applicant had been engaged for several hours in operations near the Chernobyl nuclear power plant. This decision was mainly based on witness evidence.

On 27 December 1993 and on the basis of this ruling, a Chernobyl identity card acknowledging his status as a Chernobyl relief worker was issued to the applicant. It entitled him to special State benefits and social payments.

On 8 June 1995 the Cabinet of Ministers amended Resolution no. 501 of 25 August 1992 by adopting Resolution no. 404. By virtue of these amendments, court decisions establishing direct participation in any Chernobyl relief work were removed from the list of grounds upon which a Chernobyl identity card could be issued. In Resolution no. 404, the Cabinet of Ministers further ordered the commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster (Комісія з спірних питань визначення статусу осіб, які брали участь у ліквідації наслідків аварії на Чорнобильській АЕС, hereafter “the Chernobyl disputes commissions”) of the Ministry for Protection of the Population from the Consequences of the Chernobyl Disaster (Міністерство у справах захисту населення від наслідків аварії на Чорнобильській АЕС, hereafter “the Ministry for Emergencies”) to undertake a case-by-case review of Chernobyl identity cards granted previously on the basis of a judicial ruling.

On 10 June 1997, in the context of this review process, the Chernobyl disputes commission annulled the applicant’s Chernobyl identity card, finding that the period during which he had been involved in emergency relief operations (two hours and thirty minutes of work in the alienation zone) was insufficient for the Chernobyl relief worker status. This decision was amenable to an appeal to a court of general jurisdiction.

On 25 May 1998 the Plenary Supreme Court amended its Resolution of 31 March 1993 to the effect that courts were no longer competent to establish facts related to entitlement to a Chernobyl identity card.

On 15 July 1999 the applicant unsuccessfully challenged the decision to annul his Chernobyl identity card before the Radiansky District Court of Kyiv (Радянський районний суд м. Києва) who found the impugned decision lawful and reasonable. The applicant’s subsequent appeal to the Kyiv City Court (Київський міський суд) was dismissed on 17 November 1999.

On 19 January 2001 the applicant filed a request for review of its decision of 2 December 1993 with the Desniansky Court on the ground of new circumstances. He stated that he had learned in November 2000 that his work in 1986 in three villages situated not far from Chernobyl also counted for the calculation of the overall period of relief works.

On 18 April 2001 the Desniansky Court granted the applicant’s request, quashed the judgment of 2 December 1993 and reopened the proceedings. The hearing was scheduled for 28 May 2001. By judgment of 6 July 2001 the Desniansky Court established the fact that the applicant had participated in relief works in the alienation zone and had thus been involved in relief works for a period sufficient for eligibility for the Chernobyl relief worker status. As no appeal was brought, this ruling became enforceable on 7 August 2001, whilst it remained possible for a period of one month as from the latter date to file an appeal in cassation with the Supreme Court.

On 10 August 2001 and on the basis of the judgment of 6 July 2001, the applicant filed a further request for a Chernobyl identity card with the Desniansky District Council, which informed him on 20 August 2001 that his request had been transmitted to the Department for the Protection of the Population from the Consequences of the Chernobyl Disaster of the Chernigiv Regional State Administration (Управління у справах захисту населення від наслідків Чорнобильської катастрофи Чернігівської обласної державної адміністрації; hereafter “the Department”).

On 30 August 2001 the Department refused to issue a Chernobyl identity card to the applicant as, pursuant to the applicable Resolution of the Cabinet of Ministers, a court ruling could not serve as a ground for issuing a card. By letter of 26 September 2001, it further informed the applicant that, if he wished to file a fresh application for a Chernobyl identity card, he should substantiate the period of time during which he had allegedly been involved in relief work in the alienation zone by submitting either a mission order to the alienation zone or a salary slip showing extra payments for having worked in this zone. Although the applicant could have filed an appeal with the civil court against the decision of 30 August 2001, he did not do so.

On 18 April 2002 the Supreme Court, acting on a cassation appeal lodged by the Department, quashed the judgment of 6 July 2001 and remitted the case for a fresh consideration, indicating that courts were not competent to establish facts for the purposes of obtaining the status of a Chernobyl relief worker.

On 17 June 2002 the Desniansky Court, in the parties’ presence, gave a ruling in which it refused to entertain the applicant’s request to establish the legal fact of his participation in the Chernobyl relief works, holding that it lacked competence in the matter. It pointed out that, for this purpose, a special procedure had been established and that any claim should be substantiated by specific prescribed documents. It further referred to the Resolution of the Plenary Supreme Court. The applicant appealed.

On 10 September 2002 the Chernigiv Regional Court of Appeal (Апеляційний суд Чернігівської області), in the applicant’s presence, upheld this decision. It stated, in particular, that specific administrative bodies had been designated by law to determine whether or not a person was entitled to a Chernobyl identity card, and that the courts were not competent to determine such issues. It further pointed out that decisions taken by such an administrative body could be appealed before the courts under the terms of Article 124 of the Constitution. Although this ruling was immediately enforceable, an appeal in cassation lay with the Supreme Court within a one-month time-limit. The applicant did not avail himself of this remedy.

B.  Relevant domestic law

Article 124 of the Constitution of Ukraine provides that justice is administered exclusively by the courts. The delegation of the functions of the courts, and also the appropriation of these functions by other bodies or officials is not permitted. The jurisdiction of the courts extends to all legal relations that arise in the State.

In accordance with Article 47 of the Law on the Judicial System of 7 February 2002, the Supreme Court is the highest judicial body within the system of courts of general jurisdiction in Ukraine. As prescribed by law, it examines in cassation proceedings decisions taken by lower general jurisdiction courts. Under Article 55 of this law, the Plenary Supreme Court is composed of the President of the Supreme Court, all judges of the Supreme Court, the Presidents of the higher specialised courts and their first deputies. The Plenary Supreme Court provides, inter alia, the courts of general jurisdiction with recommendations and practice directions and supervises the correctness of any recommendation or practice direction issued by higher specialised courts.

The Cabinet of Ministers Resolutions nos. 501 and 404, and the text of the Resolution of 31 March 1993 of the Plenary Supreme Court are set out in the Court’s judgment of 9 November 2004 in the case of Svetlana Naumenko v. Ukraine (no. 41984/98, §§ 68, 70 and 71).

According to the Plenary Supreme Court’s Resolution no. 15 of 25 May 1998, which amended its previous Resolution no. 5 of 31 March 1995, decisions of special administrative bodies competent to establish legal facts in relation to entitlement to the status of Chernobyl relief worker can be appealed before the first instance civil court and, subsequently, the civil court of cassation. At the material time, these courts had full jurisdiction both as regards the facts and the law.

COMPLAINTS

The applicant complained under Article 6 of the Convention that he was not able to have the court’s determination of his participation in the Chernobyl relief works. The applicant also relied on Article 2 of the Convention, Article 1 of Protocol No. 1 and Article 25 of the Universal Declaration on Human Rights, without any relevant substantiation.

THE LAW

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

The Court considers it relevant to establish the nature of the proceedings.

The main proceedings which the applicant pursued were those relating to the initial judicial certificate of 2 December 1993, that is, the grant of State benefits (27 December 1993), the subsequent review of that decision by the Chernobyl disputes commission (10 June 1997), the applicant’s challenge to that decision (17 November 1999) and his request for a review of the certificate of 2 December 1993 which gave rise to an unchallenged decision of 6 July 2001. That decision was quashed by the Supreme Court on 18 April 2002, and from then on, all courts (the Desniansky Court on 17 June 2002 and the Regional Court of Appeal on 10 September 2002) found that as the law had changed, it was for the administrative authorities in the first place to determine entitlement to status of Chernobyl relief worker, and for the courts then to review any appeal.

The subsidiary proceedings were the applicant’s fresh request of 19 August 2001 for a State benefits on the basis of the court decision of 6 July 2001. The applicant was informed that court decision could no longer form the basis for a finding that a person was entitled to status of Chernobyl relief worker, but that he could make a claim to the administrative authority.

The Court reiterates that, according to its established case-law, Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see e.g. Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997 II). The right of access to court requires an individual to be permitted access to the remedies which exist in the domestic system, and it also requires that the degree of access afforded under the national legislation be sufficient to secure the individual’s “right to a court” having regard to the rule of law in a democratic society. Limitations on the right of access are permitted, but the limitations must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired; a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 24, § 57).

In the present case, the applicant had extensive access to the courts in respect of the first set of proceedings. Both during the initial phase (leading to the judgment of 6 July 2001) and in the later phase (when that judgment was reviewed) the applicant was able to make any submissions he wished, and those submissions were duly considered by the courts. It is true that in the course of the review proceedings the courts found that it was no longer possible to base a claim for the status of Chernobyl relief worker on a court certificate, but in so doing, the courts were determining the substance of the applicant’s claim, rather than limiting his access to court.

As to the second set of proceedings, the Court notes that under the amended law, application could be made to an administrative authority for status of Chernobyl relief worker, and the authority would decide the degree of involvement and whether to award the benefit. A negative decision could give rise to an appeal before the civil court. In the event of such an appeal the domestic courts had jurisdiction to examine all questions of fact and law and were not bound by the determination of the relevant facts made by these authorities (to contrast with Beaumartin v. France, 24 November 1994, §§ 38-39, Series A no. 296 B; Terra Woningen B.V. v. the Netherlands, 17 December 1996, §§ 53-55, Reports of Judgments and Decisions 1996 VI; more recently, Koskinas v. Greece, no. 47760/99, § 30, 20 June 2002). The applicant was informed of the procedure when he attempted to base a claim on the judgment of 6 July 2001, but he failed to appeal (to a court) against the decision of the authority so informing him, and he failed to make an application to the administrative authority (which could have been challenged before a court). In this respect, too, the applicant had access to court, but failed to avail himself of it.

Accordingly, and assuming that Article 6 § 1 of the Convention is capable of applying to both sets of proceedings, there is no appearance that the introduction of a procedure before the administrative authorities whose acts were amenable to a full judicial review amounted to curtailing the applicant’s right of access to court. In light of the above, the Court considers 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.

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”

To the extent that the applicant can be understood as wishing to complain of the annulment of his Chernobyl identity card and the resultant loss of entitlement to various benefits which have been accepted – in so far as granted by the domestic authorities – as falling within the scope of Article 1 of Protocol No. 1 (see Svetlana Naumenko v. Ukraine, no. 41984/98, § 104, 9 November 2004), the Court notes that the last decision in these proceedings was taken by the Kyiv City Court on 17 November 1999 which is more than six months before the date on which the application was submitted to the Court. Accordingly, this complaint must be rejected as having been filed out of time, pursuant to Article 35 §§ 1 and 4 of the Convention.

In so far as the applicant relies on this provision in relation to his renewed request for a Chernobyl identity card, the Court notes that he failed to file application to this effect with the Chernobyl disputes commission, with the possibility to challenge the decision taken on such a new request before the competent court.

In these circumstances, the Court considers – even assuming that the applicant’s claim to entitlement to a Chernobyl identity card would suffice to attract the protection of Article 1 of Protocol No. 1 – that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President