European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28458/05
Anatoliy Anatoliyovych KOVALEVSKYY
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 21 February 2012 as a Committee composed of:

Mark Villiger, President,
Karel Jungwiert,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 22 July 2005,

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

The applicant, Mr Anatoliy Anatoliyovych Kovalevskyy, is a Ukrainian national who was born in 1951 and lives in the city of Vinnytsya, Ukraine. He is represented before the Court by Mr V. Vorontsov, a lawyer practising in the same city. The Ukrainian Government (“the Government”) were represented by their former Agent, Mr Y. Zaytsev, succeeded by Mrs V. Lutkovska, from the Ministry of Justice of Ukraine.

The circumstances of the case

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

On 2 September 2002 the applicant was dismissed from his position in the State Committee of Ukraine for Labour Safety (Державний комітет України з нагляду за охороною праці) (hereinafter – the State Committee), allegedly for corruption.

On 2 April 2003 the Zamostyanskiy District Court reinstated the applicant and awarded him, inter alia, 4,158 Ukrainian hryvnias (UAH) in salary arrears and 1,000 UAH in compensation for non-pecuniary damage.

On 24 June 2003 the Vinnytsya Regional Court of Appeal upheld this decision.

The State Committee and the Vinnytsya Regional Deputy Prosecutor appealed in cassation. On 4 March 2004 the Supreme Court of Ukraine dismissed their appeals.

According to the Government, on 16 December 2004 the Supreme Court of Ukraine quashed the decision of 4 March 2004 under the extraordinary review procedure and remitted the case for fresh consideration in cassation. No copy of this decision was provided. There is also no evidence that the applicant has been ever informed about this decision.

On 24 February 2005 the Supreme Court of Ukraine re-considered the above cassation appeals and quashed decisions of 2 April and 24 June 2003. The court held that the lower courts had erroneously referred to the Labour Code of Ukraine while they should have taken the provisions of the “Law on Civil Service” into consideration as well as other relevant laws. The Supreme Court of Ukraine referred the case for fresh consideration to the first-instance court.

On 18 May 2006 the Zamostyanskiy District Court found in the applicant’s favour in part but held that the applicant could not be reinstated since the State Committee had been dissolved in 2005. It awarded the applicant salary arrears for the period between 2 April 2003 and 18 May 2006 and UAH 4,000 in compensation for non-pecuniary damage.

On 26 September 2006 the Vinnytsya Regional Court of Appeal upheld this judgment.

On 9 January 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the outcome of the proceedings and, in particular, that the Supreme Court of Ukraine had quashed on 24 February 2005 under the extraordinary review procedure the decisions of 2 April and 24 June 2003 in his favour, which he considered final.

THE LAW

The Government submitted that when quashing the decisions of 2 April and 24 June 2003 the Supreme Court of Ukraine acted under the ordinary cassation procedure and not under the extraordinary review procedure as submitted by the applicant.

In reply the applicant reiterated his complaints.

The Court notes that, according to the information submitted by the Government, the final decision in the applicant’s case had been quashed not on 24 February 2005, as pretended by the applicant, but on 16 December 2004. The applicant has never complained about that latter decision to this Court. Nor does he state that he did not know about the decision of 16 December 2004.

The Court further notes that in the light of these submissions, the proceedings of 24 February 2005 were normal cassation proceedings. Having carefully examined the applicant’s complaints and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Mark Villiger
Deputy Registrar President