CASE OF MELNYK v. UKRAINE
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
4. The applicant was born in 1954 and lives in the village of Bilashky, the Vinnitsa region of Ukraine. 5. In 2001 the applicant instituted proceedings in the Staromiskiy Local Court of Vinnitsa against her former employer – the “Vinnitska Kondyterska Fabryka” Open Joint Stock Company – to be reinstated in her position and to receive compensation. 6. On 12 November 2001 the court discontinued proceedings in the applicant’s case on the ground that she had failed to appear before the court. 7. On 27 February 2002 the Vinnitsa Court of Appeal upheld the ruling of 12 November 2001. On 26 April 2002 the applicant appealed in cassation. 8. On 29 April 2002 the Staromiskiy Local Court rejected the applicant’s request for a cassation appeal as having been submitted too late. The court stated that, under the new wording of Article 321 of the Code of Civil Procedure (hereinafter - “the CCP”), which had entered into force on 4 April 2002, the time-limit for lodging an appeal in cassation was one month, and that the applicant had exceeded that time-limit by only lodging her appeal on 26 April 2002. No reference was made in the decision to the actual deadline which had not been complied with. 9. On 9 September 2002 the Vinnitsa Court of Appeal upheld the ruling of 29 April 2002. 10. On 5 February 2003 the panel of three judges of the Supreme Court rejected the applicant’s request for leave to appeal in cassation against the rulings of 29 April and 9 September 2002. 11. The first paragraph of Article 58 of the Constitution provides that laws and other normative legal acts have no retroactive force, except in cases where they mitigate or annul the responsibility of a person. 12. At the time of the second instance appellate decision, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the appellate decision or within a year of the decision of the first instance court, if the latter decision was not appealed under the normal appellate procedure. 13. On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (hereinafter – “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 appellate court.