AS TO THE ADMISSIBILITY OF
by Vladimir Igorevich SOMOV
The European Court of Human Rights (Fifth Section), sitting on 17 February 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 May 2002,
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 applicant, Mr Vladimir Igorevich Somov, is a Ukrainian national who was born in 1947 and lives in Artemovsk. He was represented before the Court by Mr S. A. Kirilenko, a lawyer practising in Artemovsk. The Ukrainian Government (“the Government”) were represented by their Agent Mr Y. Zaytsev and the Head of the Government Agent’s Office Mrs I. Shevchuk, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 November 2000 the applicant instituted proceedings in Artemovsk City Court, Donetsk Region (Артемовський міський суд Донецької області), seeking compensation for work-related injuries he had sustained on 30 August 1994 and 30 June 1997.
On 16 November 2001 the Artemovsk City Court rejected the applicant’s complaints as unsubstantiated.
On 11 March 2002 the Donetsk Regional Court of Appeal upheld the decision of the first-instance court. The court pronounced its decision in the applicant’s presence.
On 16 April 2002 the applicant requested the President of Artemovsk City Court to provide him with a copy of the Donetsk Regional Court of Appeal decision. He stated that the time-limit for lodging a cassation appeal had been reduced and he still had not received a copy of the court of appeal decision.
On 18 April 2002 the President of Artemovsk City Court informed the applicant about the new procedural time-limit for lodging a cassation appeal introduced on 4 April 2002 and that he could lodge an appeal before the case file was returned to the first-instance court.
On 29 May 2002 the Registry of the Constitutional Court informed the applicant that his complaints that the judgments of the domestic courts were unfair were outside the scope of its constitutional jurisdiction.
On 4 June 2002 the Registry of the Supreme Court notified the applicant that the ruling of 11 March 2002 could be appealed in cassation only through the first-instance court.
On 12 and 22 June and 9 July 2002, the Deputy President and the President of Donetsk Regional Court of Appeal informed the applicant that it was impossible to appeal against the ruling of 11 March 2002 to the Supreme Court as the time-limit for lodging an appeal in cassation had expired.
B. Relevant domestic law and practice
The Code of Civil Procedure of 1963 (with amendments)
At the time of the second-instance appeal decision, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the appeal decision or within a year of the decision of the first-instance court, if the latter decision had not been appealed under the normal appellate procedure.
On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (“the Amendment Law”), including the Article in question. It came into force on 4 April 2002. The new wording of Article 321 created a one-month time-limit for lodging a cassation application against the decision of an appeal court.
Under Article 323 of the Code a cassation appeal should be lodged via the court of first instance that had dealt with the case.
The applicant complained under Article 6 § 1 of the outcome of the proceedings. He alleged that the domestic courts erred in the assessment of the facts and their application of the law. He also alleged under the same Article and, in substance, under Article 13 of the Convention that his right to appeal in cassation was unlawfully restricted as the time-limit for lodging an appeal in cassation had been shortened.
The applicant complained that the proceedings were unfair and that his right of access to the Supreme Court had been violated by the introduction of new shorter time-limits for lodging such appeals and by the delay in furnishing him with a copy of the decision of the appeal court. He refers to Article 6 § 1 and, in substance, Article 13 of the Convention, which read in so far as relevant as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government maintained that the application should be rejected for non-exhaustion of domestic remedies, since the applicant’s case had not been examined in cassation and the applicant had never formally lodged a cassation appeal, nor had he requested the domestic courts to extend the deadline for lodging such an appeal. They also noted that the decision of the court of appeal was pronounced in the applicant’s presence and he did not need to wait for a copy of the decision to lodge an appeal in cassation.
The applicant maintained that he had tried to lodge his cassation appeal but without success.
The Court notes that the applicant’s complaints under Article 6 § 1 of the Convention are twofold. In so far as the applicant complained that he had been unfairly denied access to the court of cassation, the Court notes that the applicant did not demonstrate that he had ever lodged an appeal in cassation under procedure established by law. In reply to the Government’s observations he made general remarks, for the first time, about his attempts to lodge his cassation appeal, without indicating however when and where he had actually tried to lodge it. From the case file materials it appears that he made several complaints about the new, shorter time-limit for lodging an appeal in cassation. There is no indication however that he had actually lodged his cassation appeal formally through the first-instance court as the procedural rules required at the material time. Furthermore, if his cassation appeal had been refused by the first-instance court for procedural shortcomings the applicant could have challenged that refusal at the court of appeal and the Supreme Court. The Court therefore cannot speculate on what would have been the outcome of such proceedings or whether the application of the new procedural rules to the applicant’s case would have unfairly deprived him of access to the court of cassation (see and compare Melnyk v. Ukraine, no. 23436/03, 28 March 2006, and Kamenivska v. Ukraine (dec.), no. 18941/04, 30 August 2006, in which the applicants found themselves in similar situation). The Court therefore rejects this complaint for non-exhaustion of domestic remedies.
In so far as the applicant raises a complaint with respect to the fairness of the proceedings and their outcome, the Court reiterates that an appeal in cassation in Ukrainian civil procedure may be considered an effective remedy within the meaning of Article 35 § 1 of the Convention for lower court decisions taken after 29 June 2001 (see Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002). This aspect of the complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies too.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen