CASE OF MUSHTA v. UKRAINE
Violation of Art. 6-1;Non-pecuniary damage - award
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant was born in 1952 and lives in Letychivka, Cherkasy region. 5. In March 2005 the applicant instituted proceedings in the Monastyryshche Court against her former employer, the Monastyryshche Department of Land Resources, seeking reinstatement as an employee and recovery of salary arrears. In the proceedings, the applicant was represented by a lawyer. 6. On 23 May 2005 the court allowed the applicant's claims in full. 7. The defendant party appealed against that judgment. The applicant submitted comments on the appeal. 8. At a preliminary hearing on 1 July 2005 the Cherkasy Regional Court of Appeal issued a ruling scheduling a hearing on the merits of the appeal for 17 August 2005. 9. According to the Government, a copy of the ruling of 1 July 2005 was delivered to the applicant in person on 15 July 2005. The Government submitted a copy of the acknowledgment of receipt completed and signed by a postman and a copy of a report from the Cherkasy Post Office, indicating that the applicant had received a copy of the ruling in person. In that report the post office mentioned that the register of delivered mail containing the applicant's signature in that connection had been destroyed and that a copy of it was not available. 10. The applicant stated that neither she nor her lawyer had been informed of the hearing on appeal in advance. According to her, the documents submitted by the Government could not prove that she had received a copy of the ruling of 1 July 2005, as the acknowledgment of receipt did not bear the post mark of Post Office No. 16 of Cherkasy, which normally delivered mail to her place of residence. 11. From 10 to 29 August 2005 the applicant underwent treatment at the Monastyryshche Central Hospital. 12. On 17 August 2005 the Cherkasy Regional Court of Appeal heard the case in the absence of the applicant and her lawyer. It found that the applicant's dismissal had been lawful, quashed the judgment of the first-instance court and rejected the applicant's claims in full. According to the judgment of the Court of Appeal, it could be appealed against in cassation to the Supreme Court within one month. 13. According to the applicant, on 7 September 2005 her lawyer learned that the Court of Appeal had decided on the case on 17 August 2005. On the same day he lodged with the Monastyryshche Court a request for a copy of the decision on appeal. 14. On 5 October 2005 the lawyer received a copy of the decision of 17 August 2005. 15. At the applicant's request, a copy of that decision was also provided to her by the Monastyryshche Court on 6 October 2005. 16. On 3 November 2005 the applicant lodged an appeal in cassation with the Supreme Court, challenging the factual findings and application of law by the Court of Appeal. The applicant also requested the Supreme Court to renew the time-limit for lodging her appeal in cassation, stating that she had not been informed of the decision of 17 August 2005 in due time. 17. On 15 November 2005 a judge of the Supreme Court dismissed the applicant's appeal in cassation as lodged out of time, stating, without any further explanation, that the ground on which the applicant had relied in requesting the renewal of the impugned time-limit was not sufficient to justify the requested course of action. 18. The relevant extracts from Chapter 7 (Procedural terms) of the Code of Civil Procedure of 1963, as worded at the material time, read as follows: “The terms during which procedural acts are to be performed shall be set by the law or by the court.” “...Complaints and documents submitted after the expiry of procedural terms shall be left without consideration if the court does not find reasons for extension or renewal of the term.” “... A term [expressed] in months shall expire on the corresponding date of the last month of the term ... The last day of the term shall run until [midnight]... The term shall not be considered to be missed if the complaint or other documents or money required by the court have been submitted to the post office before its expiry.” “At the request of a party ... the court may renew or extend the terms set by the court. The court may renew the term set by the law if it has been missed for reasons found by the court to be justifiable. The question concerning renewal of the expired term shall be decided by the court ... to which a document was due to be submitted. [T]he parties ... shall be summoned to a hearing [on that question] though their failure to appear shall not prevent the court from considering [it]... A document concerning which the request for renewal of the term has been lodged must be submitted together with the request. A court's ... ruling refusing to renew the missed term may be appealed against ...” 19. The relevant extracts from Chapter 22 (Court judgments) of the Code of Civil Procedure of 1963, as worded at the material time, read as follows: “The court shall send to the parties ... who were not actually present at the court hearing ... copies of the judgment or of the rulings by which the proceedings were suspended or discontinued or the claim was left without consideration, within five days of their pronouncement.” 20. The relevant extracts from Chapter 40 (Appeal procedure) of the Code, as worded at the material time, read as follows: “Cases shall be considered by a court of appeal under the rules set for consideration of cases by a court of first instance, with the exceptions envisaged in this Chapter. ...” 21. The relevant extracts from Chapter 41 (Cassation procedure) of the Code, as worded at the material time, read as follows: “The court of cassation instance is the Supreme Court of Ukraine.” “The parties and other persons taking part in the case ... have the right to challenge in cassation judgments and rulings adopted by the first-instance court which have been considered by the court of appeal, as well as rulings and judgments of the court of appeal. The grounds for [an appeal] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law.” “An appeal in cassation ... shall be lodged within one month of the day of the pronouncement of the ruling or judgment of the appeal court. If the time-limit ... has been missed for reasons which the court recognises as justified, the court may, at the request of the person who lodged the appeal ... renew that time-limit for a period not exceeding one year from the day on which the right to an appeal in cassation arose ...” 22. The relevant extracts from Chapter 6 (Procedural terms) of Section I (General provisions) of the Code of Civil Procedure of 2004, as worded at the material time, read as follows: “1. The terms during which procedural acts are to be performed shall be set by the law, and if they have not been set by the law [the terms shall be] set by the court.” “1. A procedural term shall start running on the day after the calendar date of the event [to which the term is linked]...” “... 2. A term [expressed] in months shall expire on the same date of the last month of the term ... 5. The last day of the term shall run until [midnight] ... 6. The term shall not be considered to be missed if the claim, complaint, other documents or materials, or money have been submitted to the post office or transferred by other means of communication before its expiry.” “1. The court shall renew or extend the term ... at the request of a party ... if it has been missed for justifiable reasons. 2. The question concerning renewal or extension of the expired term shall be decided by the court ... to which a document or evidence was due to be submitted. The persons taking part in the proceedings shall be informed of the place and time of consideration of that question. The presence of those persons is not compulsory. 3. A document or evidence concerning which the request [for renewal or extension of the term] has been lodged may be submitted together with the request...” 23. The relevant extracts from Chapter 7 (Judicial decisions) of Section III (Procedure for consideration of claims) of the Code, as worded at the material time, read as follows: “... 2. At a request of a person who took part in the case copies of a court decision shall be given to him within five days of its pronouncement. 3. Copies of a court decision shall be sent, within five days of its pronouncement, by registered post with acknowledgment of receipt to persons who took part in the case, but who were not present at the court hearing. ...” 24. The relevant extracts from Chapter 1 (Appeal procedure) of Section V (Procedure for review of judicial decisions) of the Code, as worded at the material time, read as follows: “1. Decisions of the court of appeal shall be issued ... in accordance with the procedure envisaged by Article 222 of this Code. 2. Copies of decisions of the court of appeal shall be re-issued by the court of first instance keeping the case-file.” 25. The relevant extracts from Chapter 2 (Cassation procedure) of Section V (Procedure for review of judicial decisions) of the Code, as worded at the material time, read as follows: “1. The court of cassation instance in civil cases is the court which is envisaged by the Judiciary Act as the court of cassation in such cases.” “1. The parties and other persons taking part in the case ... have the right to challenge in cassation: 1) judgments of the court of first instance, after they have been reviewed on appeal, judgments and rulings of the appeal court adopted [in the course of] the consideration [of the case] on appeal ... 2) rulings of the court of first instance ... after they have been reviewed on appeal and rulings of the appeal court if they obstruct further proceedings in the case. 2. The grounds for [an appeal] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law.” “1. An appeal in cassation ... may be lodged within two months of the day on which the judgment (ruling) of the appeal court becomes final. 2. If the term ... has been missed for reasons which the court recognised to be justifiable, the court of cassation instance may, at the request of the person who lodged the appeal, renew that term, though for a period not exceeding one year from the day on which the right to an appeal in cassation arose. 3. An appeal in cassation lodged out of time ... shall be returned by the court of cassation to the person who lodged it, if that person does not raise the question of renewal of that term and also if the [request for] renewal is refused. 4. The question of renewal of the term ... shall be determined by a ruling of the court of cassation instance.” “1. In the course of consideration of the case in cassation, the court shall verify, within the limits of the cassation appeal, the accuracy of the application of norms of substantive or procedural law by the courts of first or appeal instances, [but it] shall have no power to establish or to hold proven facts which were not established in the judgment or dismissed by it, [or] to decide on the question of reliability ... of [particular] evidence or of the weight to be given to certain evidence ... 2. The court of cassation instance shall [examine the question of] the lawfulness of judicial decisions only within the limits of the claims raised before the court of first instance. 3. The court shall not be limited by the arguments of the cassation appeal if, in the course of the consideration of the case, [it] discerns the wrongful application of norms of substantive law or a violation of the norms of procedural law, constituting grounds for the compulsory quashing of the decision.” “1. ...[T]he court of cassation instance has the power to: (1) adopt a ruling dismissing the cassation appeal and leaving the [contested] decision in force; (2) adopt a ruling fully or partly quashing the decision and referring the case back to the court of first instance or appeal for fresh consideration; (3) adopt a ruling quashing the decision of the court of appeal and leaving in force the judicial decision which was erroneously quashed by the court of appeal; (4) adopt a ruling quashing the judicial decisions and terminating the proceedings in the case or leaving the claim without consideration; (5) quash the judicial decisions and adopt a new judgment or vary the judgment [on the merits of the case], without referring it back for fresh consideration ...” 26. The relevant extracts from Section XI (Final and transitional provisions) of the Code, as worded at the material time, read as follows: “1. This Code shall enter into force as from 1 September 2005... 3. [The following normative acts] shall be repealed with the entry into force of this Code: The Code of Civil Procedure of ... 1963... 11. Decisions adopted by courts of appeal before the entry into force of this Code may be appealed against in cassation if the term for [lodging] an appeal in cassation has not expired under the Code of Civil Procedure of 1963.”