CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 février 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s65E06E64 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Published on 4 March 2024   FIFTH SECTION Application no. 27358/16 Larysa Oleksiyivna CHEREDNICHENKO against Ukraine and 3 other applications (see list appended) communicated on 15 February 2024 STATEMENT OF FACTS A list of the applicants is set out in the appendix. The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. Application no. 27358/16 On 14 October 2014 the applicant instituted civil proceedings against her employer, public utility company D., claiming salary arrears and other related payments for the period between 1 May and 1 October 2014. On 28 January 2015 the Artemivskyy Local Court of Donetsk Region granted the applicant’s claim in part. It examined a certificate issued on 28   August 2014 by the Ukrainian Chamber of Commerce and Industry (“CCI”), which confirmed force majeure circumstances related to the performance of commercial activity by the company D. and caused by the hostilities in Donetsk Region. It disregarded that document, having established that the defendant had several sub-divisions, which were located outside Donetsk Region and continued functioning. On 13 May and on 21 October 2015 the Zaporizhzhya Regional Court of Appeal and the Higher Specialised Court in Civil and Criminal Matters (“HSC”), respectively, upheld the above judgment, which came into legal force on 13 May 2015 and was enforced in full on 22 June 2015. On 23 March 2016 the Supreme Court of Ukraine (“SCU”), following the defendant’s application for review of the court decisions owing to their non ‑ compliance with the SCU’s findings in its resolution in another case dated 11   November 2015, overruled and dismissed the applicant’s claim in full. Relying on the aforementioned certificate, the SCU concluded that the company D. was not responsible for its failure to pay salary and other related payments to the applicant. By decision of the Donetsk Regional Court of Appeal dated 4   April 2017, upheld in cassation on 27 February 2019, the applicant was ordered to return salary arrears and other payments received in consequence of the enforcement of the judgment of 28 January 2015. Application no. 42489/16 On 24 November 2008 the applicant, an appellate court judge, lodged an administrative claim against the Ministry of Finance, the State Treasury and the State Judicial Administration (“SJA”) seeking to collect a salary debt accumulated during the period between 1 June 2005 and 1 January 2006 as well as compensation for the loss of income. The applicant alleged that pursuant to a special law concerning judges, the amount of judges’ salary was to be calculated as a percentage of the salary of the Head of the SCU, which increased during the aforementioned period. On 12 February 2013 the Khmelnytskyy Circuit Administrative Court granted the applicant’s claim in part and dismissed the remainder concerning the compensation claim. On 23 May 2013 and on 11 June 2015 the Vinnytsya Administrative Court of Appeal and the Higher Administrative Court (“HAC”), respectively, upheld the above judgment, which came into legal force on 23 May 2013 and was enforced in full on 2 September 2015. On 25 November 2015 the SCU rejected the applicant’s request for review of the court decisions in the part dismissing his claim for compensation. The SCU noted that the legal matters in the case were different from those in other cases to which the applicant referred as examples of divergent application of the same norms of substantive law by the HAC. On 30 March 2016 the SCU allowed the SJA’s application for review of the court decisions (the latter relied on the HAC’s decision in another case dated 20 October 2015), quashed them and dismissed the applicant’s claim in full. The SCU reasoned that the amount of judges’ salary and its payment were regulated by two different legislative acts (the special law and the general one) and that notwithstanding the special law which established the amount of judges’ salary to be paid, the general law on salary payment depended on the State Budget which did not provide for any additional payments at the material time. Application no. 66917/16 On 7 November 2007 the applicant and bank U. concluded a credit agreement and her land plot was mortgaged. On 16 March 2010 the Rivne City Court ordered the recovery of the applicant’s debt. On 26 June 2012 the bank was authorised to sell the applicant’s land plot and her house built on it. On 26 March 2013 the applicant’s property was sold at public auctions to a certain D. for the repayment of her debt. Afterwards, in March 2013 the applicant instituted civil proceedings seeking to declare the auctions invalid as well as to annul D.’s title over her property. She claimed a breach of procedure, relying on a by-law – the Temporary Regulation on the Order for Conducting Auctions of Real Estate approved by the Ministry of Justice (“the Temporary Regulation”). On 31 January 2014 the Rivne City Court dismissed the applicant’s claim noting that the auctions had been carried out in accordance with the applicable legislation, in particular the Law on Mortgages, which was of higher legal value than the by-law the applicant relied on. On 7 April 2014 the Rivne Regional Court of Appeal quashed the above judgment and found for the applicant. It reasoned that contrary to the Temporary Regulation, the applicant’s property had been put up for auction with only one potential buyer. On 25 March 2015 the HSC upheld the decision of the appellate court since it had correctly applied the substantive law in question. On 30 March 2016 the SCU granted D.’s application for review of the HSC’s decision of 25 March 2015 based on, inter alia , a different application of the same provisions of substantive law by the SCU in its resolution in another case dated 18 November 2015. The SCU stressed that the Law on Mortgages did not prohibit the conduct of auctions with only one buyer and had precedence over the Temporary Regulation. As a result, the SCU set aside the decisions of the appellate and cassation courts and upheld the judgment of the first-instance court of 31 January 2014 finding against the applicant. A copy of the final decision was sent to the applicant on 18 April 2016 and allegedly received by her on 19 May 2016 (a written statement of her neighbour was provided as a proof of the date of such receipt). The applicant later requested a review of her case under newly discovered circumstances, but to no avail. Application no. 74213/17 Since 31 May 2013 the applicant used to work at the State-owned energy company Ch. located in Crimea. After Russia asserted its jurisdiction over Crimea (see Ukraine v. Russia (re Crimea) (dec.) [GC], nos. 20958/14 and   38334/18, 16 December 2020), the applicant fled to Kyiv and started performing his duties from there. On 19 March 2014 the applicant resigned from his position at the company Ch. According to the applicant, he was forced to do so by a new pro-Russian management of the company Ch. On 18 April 2014 the applicant instituted civil proceedings against the main office of the company Ch. in Kyiv seeking reinstatement in his position, payment of unpaid wages, average earnings during the period of forced absence and non-pecuniary damages. On 28 October 2015 the HSC upheld the decisions of the lower courts granting the applicant’s claim in part. The courts reasoned that the new management of the company Ch. in Crimea was not empowered by Ukrainian law to dismiss the applicant, so this measure together with non-payment of the salary arrears were unlawful. On 13 May 2016 the respondent requested the SCU to review the aforementioned decisions based on a different application of the substantive law in other cases, notably in the HSC’s decision of 16 March 2016 and the SCU’s resolution of 23   March 2016 on the same legal matters. On 12 April 2017 the SCU set aside the decisions of the lower courts in their part concerning the reinstatement and the compensation but upheld them in respect of the salary for March 2014. Having referred to special legislation concerning the temporarily occupied territories of Ukraine, the SCU stressed that the alleged dismissal had no legal consequences for the applicant, so he should be still considered as an employee of the company Ch. Having relied on the CCI’s certificate dated 3 December 2014, which confirmed force majeure circumstances related to the performance of commercial activity by the company Ch. in Crimea, the SCU added that the company Ch. could not be held liable for its failure to pay the salary payments to the applicant related to the alleged dismissal. Relevant domestic law Code of Civil Procedure of 2004 The relevant extracts from the Code, as worded at the material time, read as follows. Article 353. Review of the court decisions by the Supreme Court of Ukraine “1. The Supreme Court of Ukraine reviews the court decisions in civil cases exclusively on the grounds and according to the procedure established by this Code.” Article 354. Right for review of the court decisions “1. Parties and other persons, who participated in the proceedings, have a right to lodge an application for review of the court decisions in civil cases after their review in cassation. ... Article 355. Grounds for lodging an application for review of the court decisions “1. An application for review of the court decisions in civil cases may be lodged only on the following grounds: (1) divergent application by a cassation court (courts) of the same norms of substantive law, which has led to the rendering of different (in their content) court decisions in similar legal matters; (2) divergent application by a cassation court of the same norms of procedural law in the framework of challenging the court decision impeding further proceedings in the case or having been taken in breach of the rules of judicial or statutory jurisdiction of courts as to the consideration of civil cases; (3) establishment by an international judicial institution, the jurisdiction of which is recognised by Ukraine, of a violation by Ukraine of international obligations while considering the case in a court; (4) non-compliance of the decision of the cassation court with the conclusion set out in a resolution of the Supreme Court of Ukraine regarding the application of substantive law in similar legal matters.” Article 356. Time-limits for submission of an application for review of the court decisions “1. An application for review of the court decisions shall be lodged within three months from the date of passing the judgment in relation to which the motion for revision was made, or from the date of passing the judgment to which reference is made in support of the grounds prescribed by subparagraphs 1 and 2 of the first paragraph of Article 355 of the present Code, if this judgment was passed later, but no later than one year after the contested judgment had been delivered. ... 3. An application for review of the court decisions based on subparagraph 4 of the first paragraph of Article 355 of this Code, may be lodged within three months from the date of passing the judgment in relation to which the motion for revision was made, or from the date of passing of the resolution by the Supreme Court of Ukraine to which reference is made in support of the ground prescribed by subparagraph 4 of the first paragraph of Article 355 of the present Code, but no later than one year after the contested judgment had been delivered. 4. In case of failure to comply with time-limits according to paragraphs 1-3 of this Article for valid reasons, the court may renew this term within one year of the court decision subject to review upon the person’s motion. The panel of judges should decide on the renewal of the term upon deciding on opening the proceedings in the case.” Article 358. Procedure for lodging the application for review “1. The application for review should be lodged directly with the Supreme Court of Ukraine. ... Article 360-3. Powers of the Supreme Court of Ukraine “1. A panel of judges shall adopt, by a majority vote, one of the following decisions: (1) allowing the application for review in full or in part; or (2) dismissing the application. ... Article 360-4. Resolution of the Supreme Court of Ukraine allowing the application “1. The court shall allow the application if one of the grounds envisaged in the first paragraph of Article 355 of this Code is established. 2. If the grounds envisaged in subparagraphs 1, 2, and 4 of the first paragraph of Article 355 of this Code are established, the court shall have the right to: ... (2) in case of incorrect application of the substantive law resulting in wrong resolution of the dispute: a) quash the court decision(s) and take a new court decision or change the court decision; b) quash the contested court decision(s) and uphold the court decision(s) that was mistakenly quashed by the courts of appeal and/or cassation. ... Code of Administrative Justice of 2005 The relevant extracts from the Code, as worded at the material time, read as follows. Article 235. Review of the court decisions by the Supreme Court of Ukraine “1. The Supreme Court of Ukraine reviews the court decisions in administrative cases exclusively on the grounds and according to the procedure established by this Code.” Article 236. Right for review of the court decisions “1. Parties and other persons, who participated in the proceedings, have a right to lodge an application for review of the court decisions: (1) in administrative cases after their review in cassation; ... Article 237. Grounds for submission of an application for review of the courts’ decisions “1. An application for review of the court decisions in administrative cases may be lodged exclusively due to the following reasons: (1) divergent application by a cassation court (courts) of the same norms of substantive law, which has led to the rendering of different (in their content) court decisions in similar legal matters; (2) divergent application by a cassation court of the same norms of procedural law in the framework of challenging the court decision impeding further proceedings in the case or having been taken in breach of the rules of judicial or statutory jurisdiction of administrative courts; (3) establishment by an international judicial institution, the jurisdiction of which is recognised by Ukraine, of a violation by Ukraine of international obligations while considering the case in a court; (4) breach of substantive or procedural law, which has led to the adoption by the Higher Administrative Court of unlawful court decision on matters provided for in Article 171-1 of this Code (“Peculiarities of the proceedings in cases regarding appeals against acts, actions or inactivity of the Verkhovna Rada of Ukraine, President of Ukraine, High Council of Justice, Higher Qualification Commission of Judges of Ukraine, Qualification and Disciplinary Commission of Prosecutors”); (5) non-compliance of the decision of the cassation court with the conclusion set out in a resolution of the Supreme Court of Ukraine regarding the application of substantive law in similar legal matters.” Article 238. Time-limits for submission of an application for review of the court decisions “1. An application for review of the court decisions shall be lodged within three months from the date of passing the judgment in relation to which the motion for revision was made, or from the date of passing the judgment to which reference is made in support of the grounds prescribed by subparagraphs 1 and 2 of the first paragraph of Article 237 of the present Code, if this judgment was passed later, but no later than one year after the contested judgment had been delivered. ... 5. In case of failure to comply with time-limits according to paragraphs 1-4 of this Article for valid reasons, the court may renew this term within one year of the court decision subject to review upon the person’s motion. The panel of judges should decide on the renewal of the term upon deciding on opening the proceedings in the case.” Article 239-1. Procedure for submission of an application for review of the court decisions “1. An application for review of the court decisions should be lodged directly with the Supreme Court of Ukraine. ... Article 242. Powers of the Supreme Court of Ukraine “1. A panel of judges shall adopt, by a majority vote, one of the following decisions: (1) allowing the application in full or in part; or (2) dismissing the application. ... Article 243. Resolution of the Supreme Court of Ukraine allowing the application “1. The court shall allow the application if one of the grounds envisaged in the first paragraph of Article 237 of this Code is established. 2. If the grounds envisaged in subparagraphs 1, 2 and 4 of the first paragraph of Article 237 of this Code are established, the court shall have the right to: ... (2) in case of incorrect application of the substantive law resulting in wrong resolution of the dispute: a) quash the court decision(s) and take a new court decision or change the court decision; b) quash the contested court decision(s) and uphold the court decision(s) that was mistakenly quashed by the courts of appeal and/or cassation. ... COMPLAINTS The applicants complain under Article 6 § 1 of the Convention and Article   1 of Protocol No. 1 to the Convention that the Supreme Court of Ukraine by its resolutions quashed the judgments in their favour in breach of the principle of legal certainty, which also resulted in that they were unlawfully and disproportionately deprived of their possessions. The applicant in application no. 66917/16 also complains under Article   6 § 1 of the Convention that she was not notified of the review proceedings before the Supreme Court of Ukraine, which deprived her of an opportunity to be heard. QUESTIONS TO THE PARTIES REGARDING ALL APPLICATIONS 1.     Was the principle of legal certainty, as provided for by Article 6 § 1 of the Convention, respected considering that the judgments in the applicants’ favour had been set aside by the Supreme Court of Ukraine on the ground of a subsequent different application of substantive law in similar cases? In particular, was the different case ‑ law new or already existing at the time of the adoption of the judgments favourable to the applicants? 2.     Did the reversal of the judgments in the applicants’ favour constitute an interference with their right to the peaceful enjoyment of possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention? If so, was that interference in accordance with the conditions provided for by law and did that interference impose an excessive individual burden on the applicants? ADDITIONAL QUESTION TO THE PARTIES REGARDING APPLICATION NO. 66917/16 Was the review of the applicant’s case by the Supreme Court of Ukraine compatible with the principle of equality of arms within the meaning of Article 6 § 1 of the Convention regard being had to her allegations that she had not been notified of the proceedings (see, mutatis mutandis , Strizhak v.   Ukraine , no. 72269/01, §§ 38-41, 8 November 2005 and Lazarenko and Others v. Ukraine , nos. 70329/12 and 5 others, §§ 36-44, 27 June 2017)?       APPENDIX No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality 1. 27358/16 Cherednichenko v.   Ukraine 29/04/2016 Larysa Oleksiyivna CHEREDNICHENKO 1973 Yenakiyeve, Donetsk Region Ukrainian 2. 42489/16 Vashchenko v.   Ukraine 05/05/2016 Sergiy Yevgeniyovych VASHCHENKO 1961 Khmelnytskyy Ukrainian 3. 66917/16 Beshtynarska v.   Ukraine 10/11/2016 Tetyana Oleksiyivna BESHTYNARSKA 1968 Antopil, Rivne Region Ukrainian 4. 74213/17 Tretyak v.   Ukraine 11/10/2017 Yuriy Ivanovich TRETYAK 1961 Dnipro Ukrainian