TSUGEL proti Ukrajině

FIFTH SECTION

DECISION

Application no. 14502/18
Igor Mykolayovych TSUGEL
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 26 January 2023 as a Committee composed of:

Mārtiņš Mits, President,
María Elósegui,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 14502/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 March 2018 by a Ukrainian national, Mr Igor Mykolayovych Tsugel, who was born in 1965 and lives in Khmelnytskyy (“the applicant”), and was represented by Mr S. Vashchenko, a lawyer practising in Khmelnytskyy;

the decision to give notice of the complaint under Article 6 concerning the observance of the principle of equality of arms, to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns a complaint under Article 6 of the Convention about an alleged failure to inform the applicant of amendments to an appeal lodged by the defendant in a case he had taken against the Khmelnytskyy department of the Pension Fund (“the defendant”) for recalculation of his early judicial retirement allowance.

2. On 26 April 2017 the first-instance court partly allowed the applicant’s claim against the defendant. It ordered that the recalculation be made on the basis of 90 per cent of the salary of a judge in the applicant’s position at the point of retirement, having regard to his 25 years of judicial service, and that his holiday allowance be taken into account for the recalculation. It also ruled that from January 2017 the payments should not have been capped by any maximum amount.

3. In its appeal of 5 May 2017, the defendant requested the Vinnytsya Administrative Court of Appeal (“the Court of Appeal”) to quash the judgment of the first-instance court and reject the applicant’s claim. In doing so, it mainly challenged the length of the applicant’s judicial service and, accordingly, the salary percentage rate to be used, as well as the dates from which the recalculation should have been applied. The applicant submitted his comments on the appeal on 30 October 2017.

4. On 14 November 2017 the defendant amended its appeal stating that the inclusion of the holiday allowance in the basis for calculation of the applicant’s retirement allowance was contrary to the law and to the recent practice of the domestic courts. According to the Government, which relied on an information note issued to them by the Court of Appeal in May 2019, the amendments of 14 November 2017 had not been accepted for examination but returned to the defendant as lodged out of time. No copy of the information note has been made available to the Court.

5. On 16 November 2017 the Court of Appeal modified the first-instance court’s judgment in a manner unfavourable to the applicant: it excluded the holiday allowance from the elements to be used as the basis for calculation of the applicant’s early retirement allowance, finding that the first-instance court had misapplied the substantive law on the matter. The remainder of the judgment of the first-instance court was upheld by the Court of Appeal. That decision was final as the case had been examined by way of an abridged procedure.

THE COURT’S ASSESSMENT

6. The applicant complained under Article 6 § 1 of the Convention that amendments to the appeal lodged by the defendant on 14 November 2017 had not been sent to him for comment while the Court of Appeal had quashed precisely those parts of the judgment of the first-instant court which had been challenged by the defendant in the amendments at issue.

7. The Government submitted that the applicant’s rights to adversarial proceedings had not been breached as the amendments of 14 November 2017 had not been accepted by the Court of Appeal for examination (see paragraph 4 above).

8. The Court notes that by virtue of Article 193 of the Code of Administrative Justice (“the CAJ”), as in force at the relevant time, amendments to an appeal should be lodged within the time-limit set for lodging the appeal itself. In the present case, the amendments were lodged by the defendant six months after the expiry of the time-limit and, therefore, could not have been accepted by the Court of Appeal. The Court further observes that no reference to the amendments of 14 November 2017 can be found in the judgment of the Court of Appeal, which referred to the defendant’s appeal only. In those circumstances, the Court is prepared to accept the Government’s argument that the amendments at issue had not formed a part of the appeal proceedings and that, therefore, the Court of Appeal was under no obligation to send them to the applicant. Accordingly, the applicant’s inability to comment on those submissions did not put him at a disadvantage in the appeal proceedings.

9. To the extent that the applicant may be understood as complaining that the Court of Appeal had unlawfully revised the part of the first-instance court’s judgment which concerned the holiday allowance, the Court notes that pursuant to Article 195 of the CAJ, the scope of review of a first‑instance court judgment by the Court of Appeal was to be defined in the statement of appeal. In its appeal, the defendant requested that the judgment of the first‑instance court be quashed and the applicant’s claim be rejected as a whole, while its grounds mainly concerned the issues of length of service, salary rate percentage and dates of re-calculation (see paragraph 3 above). In addition, Article 195 of the CAJ provided that the Court of Appeal could go beyond the grounds of appeal if it established during the proceedings before it that the court of first instance had committed errors which had led to a wrong decision being made in the case. Misapplication of the substantive law by the first-instance court – which was identified by the Court of Appeal in the applicant’s case – was among the grounds listed in Article 202 of the CAJ for the quashing of a first-instance court judgment and the delivery of a new one by the Court of Appeal.

10. That being so, the Court does not discern any arbitrariness or unfairness in the way the Court of Appeal examined the case and assessed the evidence.

11. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2023.

Martina Keller Mārtiņš Mits
Deputy Registrar President