FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22138/07
by Sergiy Volodymyrovych MASYUCHENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 27 January 2009 as a Chamber composed of:
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 4 May 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergiy Volodymyrovych Masyuchenko, is a Ukrainian national who was born in 1953 in Sumy Region and currently resides in Oleksandriya, Kirovograd Region.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a retired military officer. In March 2006 he instituted proceedings in the Novomoskovsky District Court of Dnipropetrovsk Region against the Dnipropetrovsk Regional Military Commissariat seeking to have his pension recalculated in accordance with the changes allegedly introduced by the relevant legal acts.
On 20 July 2006 the Novomoskovsky District Court allowed his claims and ordered the Military Commissariat to recalculate his pension.
On 18 January 2007 the Dnipropetrovsk Regional Court of Appeal reversed this resolution and rejected the applicant’s claims in full. The court informed the applicant, in the operative part of its resolution, that it became enforceable immediately, but could be appealed to the Higher Administrative Court within one month.
The applicant did not appeal in cassation. The applicant allegedly unsuccessfully requested the Constitutional Court to rule in his case, but provided no answer from it.
B.  Relevant domestic law and practice
1.  Constitution of Ukraine, 28 June 1996
Article 125
“(...) The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction.
The respective high courts are the highest judicial bodies of specialised courts. (...)”
2.  Judicial System Act, 7 February 2002
Section 55
Plenary Supreme Court of Ukraine
“... 1.  Plenary Supreme Court ... shall be composed of all the judges of the Supreme Court, Presidents of the higher specialised courts, their first deputies, presidents of the Court of Cassation and the Court of Appeal.
2.  The Plenary Supreme Court:
... 6)  provides the courts of general jurisdiction with recommendations on application of legislation, and if necessary declares recommendations of the higher specialised courts unlawful;
7)  decides to institute proceedings before the Constitutional Court with regard to constitutionality of the laws and other normative acts, and also with regard to official interpretation of the Constitution and the legislative acts;
... 5.  Draft resolutions of the Plenary Supreme Court with recommendations on how to apply specific legislation in particular types of cases shall be sent to the Prosecutor General and the Minister of Justice at least ten days before the Plenary Supreme Court meets; ...”
3.  Code of Administrative Justice of 6 July 2005 (entered into force on 1 September 2005)
In accordance with Article 210 of the Code a court of cassation in administrative cases is the Higher Administrative Court of Ukraine. Under Article 211 of the Code the parties to administrative proceedings may lodge cassation appeals with the Higher Administrative Court against the judgments or rulings of the first-instance court and the court of appeal. The grounds for appeal in cassation are an erroneous application of the procedural or substantive law. In accordance with Article 223 of the Code, the Higher Administrative Court can quash or amend judgments and rulings of the first-instance courts and the courts of appeal or adopt a new judgment upon appeal in cassation.
In accordance with paragraph 10 of Chapter VII of the Transitional Provisions of the Code, appeals in cassation which concern decisions of the courts of general jurisdiction (civil and commercial proceedings) given in administrative cases and which have not been examined by the Supreme Court by 1 September 2005 shall be transferred for examination to the Higher Administrative Court.
4.  Resolution of the Plenary Supreme Court no. 4 of 15 April 2005
The content, so far as relevant, of the Resolution of the Plenary Supreme Court of 15 April 2005 is set out in the Court’s decision in the case of Karuna v. Ukraine ((dec.), no. 43788/05, 3 April 2007). The Resolution of the Plenary Supreme Court explained inter alia, with references to several legislative acts and normative acts of the Cabinet of Ministers, how the courts should approach examination of complaints lodged by former military servicemen with regard to recalculation of previously determined amounts of pensions previously assigned to them. The Plenary Supreme Court drew attention to the relevant legal and factual circumstances which should be taken into account in examining these cases by the courts.
COMPLAINT
The applicant complained, relying on Article 6 §1 of the Convention, about the outcome of the proceedings in his case. In particular, he stated that the decisions of the domestic courts had contravened domestic legislation as the courts had erred in their assessment of the evidence and the establishment of the facts, as they considered themselves bound by the resolution of the Plenary Supreme Court.
He also submitted that, for the same reason, he could not appeal in cassation, as the introduction of the appeal in cassation would have been ineffective and therefore had no reasonable prospect of success.
THE LAW
The applicant alleged a violation of Article 6 § 1 of the Convention on account of the unfavourable outcome of the pension recalculation proceedings instituted by him. He further alleged that he had no effective and accessible cassation remedy in view of the unfavourable practice recommendation (resolution) of the Plenary Supreme Court. Thus, he contended that his right of access to a court of cassation had been impaired. This provision reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”
Given the close link between the issues of exhaustion of domestic remedies and those of access to a court, the Court considers it appropriate to examine the complaints in relation to the aforementioned sets of proceedings from the point of view of the State’s compliance with the applicant company’s right of access to a court, guaranteed by Article 6 § 1 of the Convention (see (dec.), no. 6778/05, ECHR 2005-...).
In this connection, the Court reiterates that the “right to a court” is not absolute, but is subject to limitations permitted by implication, in particular where the conditions of admissibility of appeals are concerned (see , judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36). Thus, the Court must establish whether there has been any interference with right to have access to the cassation procedure.
Turning to the facts of the present case, the Court notes that after 1 September 2005, the date of entry into force of the Code of Administrative Justice, the Higher Administrative Court became the final judicial instance in the administrative proceedings (see Karuna v. Ukraine (dec.), no. 43788/05, 3 April 2007). The applicant was aware of the possibility to lodge an appeal in cassation and had even been informed of this right in the operative part of the judgment of the court of appeal, but chose not to appeal due to the unfavourable resolution of the Plenary Supreme Court, which he considered to be binding upon lower courts, including the Higher Administrative Court.
However, according to the Judicial System Act of 7 February 2002, the practice recommendations issued by the Supreme Court only serve as indicators of judicial practice and have a recommendatory nature for the courts and legal professionals. These recommendations (resolutions) are not stare decisis or classical precedents by their nature, as reliance on the Supreme Court’s resolutions is not legally required of lower courts and they can ignore the resolution’s reasoning and adopt legal reasoning of their own in any case examined by them. Thus, these recommendations do not establish any absolute legal rule and are not directly binding authority for future similar cases.
In the light of the foregoing, the Court considers that the existence of the Resolution of the Plenary Supreme Court did not unduly restrict the applicant’s access to the court of cassation. This aspect of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
Consequently, to the extent that the remainder of his complaints about the pension proceedings were concerned, the applicant was required by Article 35 § 1 of the Convention to lodge an appeal in cassation with the Higher Administrative Court, as this remedy was not obviously futile, effective and accessible remedy (see Karuna, cited above). Furthermore, it finds no exceptional circumstances capable of exempting the applicant from his obligation to exhaust domestic remedies. Accordingly, the remainder of the application must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President