42489/16;74213/17

FIFTH SECTION CASE OF VASHCHENKO AND TRETYAK v. UKRAINE (Applications nos. 42489/16 and 74213/17)             JUDGMENT   STRASBOURG 12 March 2026 This judgment is final but it may be subject to editorial revision. In the case of Vashchenko and Tretyak v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Andreas Zünd, President,  Mykola Gnatovskyy,  Vahe Grigoryan, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the applications (nos. 42489/16 and 74213/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Sergiy Yevgeniyovych Vashchenko and Mr Yuriy Ivanovych Tretyak (“the applicants”), on 5 May 2016 and 11 October 2017 respectively; the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 and to declare the remainder of the complaints inadmissible or to strike them out of the Court’s list of cases; the parties’ observations; the decision to reject the Government’s objection to the examination of the applications by a Committee. Having deliberated in private on 12 February 2026, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.  The present case concerns the reversal of final and binding court decisions as a result of a review by the Supreme Court of Ukraine on the basis of case-law post-dating the final decisions. The applicants submitted that this had led to a breach of the principle of legal certainty, in violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. THE FACTS 2.  The applicant in application no. 42489/16 was born in 1961 and lives in Khmelnytskyi. He was represented by Ms K. Banashko, a lawyer practising in the same city. 3.  The applicant in application no. 74213/17 was born in 1961 and lives in Dnipro. He was represented by Ms A. Zarubina, a lawyer practising in Strasbourg. 4.  The Government were represented by their Agent, Ms M. Sokorenko, from the Ministry of Justice. 5.  The facts of the case, as submitted by the parties, may be summarised as follows.         Application no. 42489/16 6.  In November 2008 the applicant lodged an administrative claim against the Khmelnytskyi Regional Court of Appeal, where he was serving as a judge, and against the Ministry of Finance, the State Treasury and the State Judicial Administration, seeking to collect a salary debt accumulated in 2005-06, as well as compensation for underpaid income. The applicant alleged that, pursuant to a special law concerning judges, the amount of a judge’s salary was to be calculated as a percentage of the salary of the President of the Supreme Court, which had been increased during the above-mentioned period. 7.  On 11 June 2015 the Higher Administrative Court upheld the decisions of the lower courts granting the applicant’s claim regarding the salary arrears (in the amount of 70,247.73 Ukrainian hryvnias (UAH), equivalent to approximately 6,540 euros (EUR) at the material time) and dismissing it in respect of compensation. Those decisions became final and were enforced on 2 September 2015. 8.  On 19 January 2016 the State Judicial Administration requested the Supreme Court to review the court decisions in the case taking into account the difference in application of the substantive law by the Higher Administrative Court in its decision dated 20 October 2015 in another case. 9.  On 30 March 2016 the Supreme Court allowed the above-mentioned application for review, set aside the lower courts’ decisions and dismissed the applicant’s claim in full. The Supreme Court pointed out that the amount of a judge’s salary and its payment were regulated by two different legislative acts (a special law on the status of judges and a general law on salary payment) and that, while the special law established the amount of a judge’s salary to be paid, the general law depended on the State budget, which did not provide for any additional payments at the material time. The Supreme Court also observed that it had already taken a similar legal position in its resolution of 4 November 2015. 10.  There is no indication that the applicant has paid back the amount he was awarded under the court decisions which were set aside or that he is still liable to reimburse it. The applicant submitted that the reversal of enforcement in his case had been precluded under domestic law.       Application no. 74213/17 11.  Since 31 May 2013 the applicant worked at a State-owned energy company (“the company”), located in Crimea. 12.  On 19 March 2014, after Russia had asserted its jurisdiction over Crimea (see Ukraine v. Russia (re Crimea) (dec.) [GC], nos. 20958/14 and 38334/18, 16 December 2020), the applicant was dismissed from his position by the new, pro-Russian management of the company. 13.  In April 2014 the applicant instituted civil proceedings against the headquarters of the company in Kyiv, seeking reinstatement, payment of unpaid wages, compensation for the period of forced absence and an award in respect of non-pecuniary damage. 14.  On 28 October 2015 the Higher Specialised Civil and Criminal Court upheld the lower courts’ decisions finding for the applicant. The courts reasoned that the new management of the company in Crimea had not been empowered by Ukrainian law to dismiss him, so that measure, together with the non-payment of the salary arrears (in the amount of UAH 10,897.83, equivalent to approximately EUR 432 at the material time) and the non-payment of the compensation (in the amount of UAH 394,128.91, equivalent to approximately EUR 14,500 at the material time), had been unlawful. Those decisions became final and enforceable. 15.  On 13 May 2016 the headquarters of the company in Kyiv requested the Supreme Court to review the above-mentioned decisions on the basis of a different application of the substantive law as taken in other cases, most notably the Higher Specialised Civil and Criminal Court’s decision of 16 March 2016 and the Supreme Court’s resolution of 23 March 2016. 16.  On 12 April 2017 the Supreme Court granted the above-mentioned application for review, set aside the lower courts’ decisions concerning reinstatement and compensation and left the decisions in respect of salary arrears unchanged. With reference to special legislation concerning the temporarily occupied territories of Ukraine, the Supreme Court noted that the dismissal had had no legal consequences for the applicant, so he should still be considered an employee of the company. As regards the applicant’s claim for compensation, the Supreme Court referred to a certificate, issued on 3 December 2014 by the Ukrainian Chamber of Commerce and Industry, which confirmed the existence of force majeure circumstances related to the performance of commercial activities by the company in Crimea. On that basis and relying on Article 617 of the Civil Code (exemption from liability in the event of force majeure), the Supreme Court ruled that there were no grounds to hold the applicant’s employer liable. RELEVANT LEGAL FRAMEWORK 17.  The relevant provisions of the Code of Administrative Justice (no. 2747-IV of 6 July 2005, as amended by the Ensuring the Right to a Fair Trial Act no. 192-VIII of 12 February 2015) can be found in Vestra, PP and Others v. Ukraine ((dec.), no. 60680/16 and 6 others, § 20, 2 September 2025). 18.  The relevant provisions of the Code of Civil Procedure (no. 1618-IV of 18 March 2004), as amended by the Ensuring the Right to a Fair Trial Act (no. 192-VIII of 12 February 2015), were worded in similar terms and, at the material time, read as follows: Article 353. Review of court decisions by the Supreme Court of Ukraine “1.  The Supreme Court of Ukraine reviews court decisions in civil cases exclusively on the grounds of and according to the procedure established by this Code.” Article 354. Right to review of court decisions “1.  Parties and other persons who participate in proceedings have a right to lodge an application for review of court decisions in civil cases after their review in cassation. ... Article 355. Grounds for lodging an application for review of court decisions “1.  An application for review of the court decisions in civil cases may be lodged only on the following grounds: (1) the divergent application, by a court (or courts) of cassation, of the same norms of substantive law, which led to the delivering of different (in their content) court decisions in similar legal matters; ... (4) non-compliance of the decision of the court of cassation 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 court decisions “1.  An application for review of court decisions shall be lodged within three months from the date of the passing the judgment in relation to which the motion for revision was made, or from the date of the passing the judgment to which reference was made in support of the grounds prescribed by subparagraphs 1 and 2 of the first paragraph of Article 355 of the present Code, if the judgment was passed no later than one year after the contested judgment was delivered. ... 3.  An application for review of 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 the passing of the judgment in relation to which the motion for revision was made, or from the date of the 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 was delivered. 4.  In the event of failure to comply with the time-limits set out in paragraphs 1-3 of this Article for valid reasons, the court may renew the time-limit within one year of the court decision, subject to review on the party’s motion. The panel of judges shall decide on the renewal of the time-limit upon deciding to open the proceedings in the case.” Article 358. Procedure for lodging an application for review “1.  The application for review shall be lodged directly with the Supreme Court of Ukraine. ... Article 360-3. Power 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 to allow an application “1.  The court shall allow an application if one of the grounds provided in the first paragraph of Article 355 of this Code is established. 2.  If the grounds provided in subparagraphs 1, 2 and 4 of the first paragraph of Article 355 of this Code have been established, the court shall have the right to: ... (2) in the event of an incorrect application of the substantive law resulting in an incorrect resolution of the dispute: (a) set aside the court decision(s) and take a new court decision or change the court decision; (b) set aside the contested court decision(s) and uphold the court decision(s) that was mistakenly set aside by the courts of appeal and/or cassation. ... THE LAW         JOINDER OF THE APPLICATIONS 19.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.        ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 20.  The applicants complained under Article 6 § 1 of the Convention that the setting aside of the binding court decisions in their favour as a result of the review by the Supreme Court on the ground of the subsequent different application of the substantive law in similar cases by the courts of cassation and the Supreme Court itself had breached the principle of legal certainty.    Admissibility 21.  The Court considers that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.    Merits     The parties’ submissions 22.  The applicants maintained their complaints under Article 6 § 1 of the Convention as regards the alleged breach of the principle of legal certainty. 23.  The Government contended that at the material time the Supreme Court had played a significant role in ensuring the uniformity of judicial practice. They further submitted that the Supreme Court had given clear and precise explanations in support of the existence of divergence in the domestic case-law and had provided the correct application of the substantive law in question, which had resulted in the decisions of the lower courts, including decisions by the courts of cassation, in favour of the applicants being overruled. The Government argued that there had been no violation of the applicants’ rights guaranteed by Article 6 § 1 of the Convention.      The Court’s analysis   General principles 24.  The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of the rule of law and legal certainty, encompasses the requirement that where the courts have determined with final effect a dispute between given parties, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII, and Gražulevičiūtė v. Lithuania, no. 53176/17, § 72, 14 December 2021). 25.  The Court further reiterates that legal certainty presupposes respect for the principle of res judicata, that is to say, the principle of the finality of judgments, according to which no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X). The judgment in question may be quashed exclusively in order to rectify an error of truly fundamental importance to the judicial system (see Shchurov v  Russia, no. 40713/04, § 21, 29 March 2011).    Application of those principles in the present case 26.  The Court notes that the Supreme Court’s role at the relevant time mainly consisted of resolving inconsistencies in the domestic case-law by guiding the lower courts, especially the courts of cassation, in the application of law and by correcting their errors of law in the event of any contradictions (see paragraphs 17 and 18 above). The procedural legislation, as in force at the material time, guaranteed the parties to proceedings which had already been terminated in a final cassation decision the right to seek a review of lower courts’ decisions in administrative and civil cases before the Supreme Court on the grounds, in particular, that after the final decision, in subsequent judgments, a different application of the substantive law had occurred (ibid.). The time-limit for lodging applications for review on the ground mentioned above was three months from the date of the adoption of the subsequent decision of a court of cassation or the Supreme Court to which reference was made to demonstrate a different application of the substantive law, but not later than one year from the delivery of the challenged decision of a court of cassation (ibid.). 27.  The Court has already assessed the above-mentioned review procedure before the Supreme Court, holding that it did not constitute an effective domestic remedy to be used by the parties because the very nature of the grounds on which it could be sought generated uncertainty: they depended entirely on a factor outside the parties’ control, namely on future hypothetical developments in case-law which could materialise at any moment within the one-year window from the date of the contested cassation decision (see Vestra, PP and Others v. Ukraine ((dec.), no. 60680/16 and 6 others, §§ 51-56, 2 September 2025). Considering the foregoing, the Court concluded that the final domestic decisions in the applicant companies’ cases were those that had become final before the application for review was lodged (ibid., §§ 57-58). 28.  Turning to the circumstances of the applicants’ cases, having regard to its findings in Vestra, PP and Others (cited above, §§ 51-58), the Court notes that the final domestic decisions in the applicants’ cases were reversed in an extraordinary procedure before the Supreme Court. In particular, after the final decisions had been delivered by the courts of cassation (see paragraphs 7 and 14 above), the respondents requested the Supreme Court to review those decisions on the basis of different case-law of the higher courts that post-dated them by four and five months (see paragraphs 8 and 15 above). Therefore, the subsequent case-law was applied retroactively to the applicants’ cases, which was unforeseeable for them and generated legal uncertainty. 29.  The Court lastly notes that there is no indication that the reversal of the final court decisions in the applicants’ cases was conditioned by the need to rectify an error of truly fundamental importance to the judicial system or by circumstances of a substantial and compelling character. It was the result of routine application of legal provisions allowing, at the relevant time, to call into question final and enforceable judgments for the sole reason that subsequent case-law pointed to a different solution. 30.  The foregoing considerations are sufficient to enable the Court to conclude that the reversal of the final and binding court decisions in the applicants’ favour as a result of the review by the Supreme Court on the ground of the different case-law adopted after those decisions had been delivered was not consistent with the principle of res judicata, one of the elements of the principle of legal certainty. 31.  There has accordingly been a violation of Article 6 § 1 of the Convention.     ALLEGED VIOLATION OF ARTICLE 1 OF Protocol nO. 1 to THE CONVENTION 32.  The applicants complained under Article 1 of Protocol No. 1 to the Convention that the setting aside of the final and binding court decisions in their favour by the Supreme Court had deprived them of their possessions. 33.  The Government submitted that the applicants could not claim to have had a legitimate expectation to receive in full the money awarded to them by the courts at three levels of jurisdiction, since their relevant decisions had subsequently been set aside by the Supreme Court as erroneous because of the incorrect application of substantive law. 34.  The Court considers that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 35.  The Court reiterates that a debt arising under a judgment which is sufficiently established to be enforceable constitutes a “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention (see, among other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301‑B). Setting aside such judgment after it has become final will constitute an interference with the beneficiary’s right to the peaceful enjoyment of that possession (see, among other authorities, Brumărescu, cited above, § 74, and Ryabykh, cited above, § 61). 36.  Turning to the present case, the Court notes that, as a result of the reversal by the Supreme Court of the final and binding court decisions in the applicants’ favour, they lost or risked losing their initial monetary awards in full or in part (see paragraphs 7, 9, 14 and 16 above). Having regard to its findings relating to the applicants’ complaints under Article 6 § 1 of the Convention, the Court considers that the setting aside of the final and binding court decisions was incompatible with the principle of legal certainty (see Ponomaryov v. Ukraine, no. 3236/03, §§ 46‑47, 3 April 2008). That measure was therefore not “lawful” under the Convention. 37.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.    OTHER complaints 38.  The applicants also complained under Article 13 of the Convention of an alleged lack of effective domestic remedies. 39.  Having regard to its findings under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Court considers that it has already addressed the main legal issues raised by the case and that there is no need to give a separate ruling on the admissibility and merits of the remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).      APPLICATION OF ARTICLE 41 OF THE CONVENTION 40.  Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”    Damage 41.  The applicant in application no. 42489/16 claimed 10,644.47 euros (EUR) in respect of pecuniary damage (which he submitted comprised the equivalent of the amount awarded to him under the final and binding court judgment that was set aside plus “losses due to inflation”) and compensation in respect of non-pecuniary damage, relying on the Court’s discretion in determining the amount. The applicant in application no. 74213/17 claimed EUR 14,500 in respect of pecuniary damage (which he submitted comprised the equivalent of the amount awarded to him under the final and binding court judgment that was set aside) and EUR 10,000 in respect of non-pecuniary damage. 42.  The Government submitted that the applicants’ claims in respect of pecuniary and non-pecuniary damage were unfounded and exorbitant. 43.  As to the pecuniary damage claimed, having regard to its approach taken in Ponomaryov (cited above, § 60), the Court considers it appropriate to award EUR 14,500 to the applicant in application no. 74213/17, equivalent in euros to the amount awarded to him by the domestic courts under the judgments which were set aside. At the same time, the Court sees no need to award any amount to the applicant in application no. 42489/16, since he did not sustain any pecuniary damage in the circumstances (see paragraph 10 above). 44.  The Court further considers that the applicants must have suffered non-pecuniary damage which cannot be sufficiently compensated for by the mere finding of a violation of the Convention. Regard being had to the circumstances of the present case and ruling on an equitable basis, the Court finds it reasonable to award the applicants EUR 4,700 each in respect of non-pecuniary damage.    Costs and expenses 45.  The applicant in application no. 42489/16 claimed 10,000 Ukrainian hryvnias (equivalent to approximately EUR 226) for legal fees related to his representation before the Court (he provided a legal assistance agreement, a payment receipt and a record of the legal services provided). The applicant in application no. 74213/17 claimed EUR 2,500 in legal fees for his representation before the Court (he provided a legal assistance agreement). 46.  The Government contended that the amounts claimed were unsubstantiated and excessive. 47.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds it reasonable to award the applicants EUR 200 each in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY,      Decides to join the applications;      Declares the applicants’ complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 admissible;      Holds that there has been a violation of Article 6 § 1 of the Convention;      Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;      Holds that there is no need to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention;      Holds  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:  EUR 14,500 (fourteen thousand five hundred euros) to the applicant in application no. 74213/17, plus any tax that may be chargeable, in respect of pecuniary damage;   EUR 4,700 (four thousand seven hundred euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;   EUR 200 (two hundred euros) to each of the applicants, plus any tax that may be chargeable to them, in respect of costs and expenses;   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;      Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 12 March 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Martina Keller Andreas Zünd  Deputy Registrar President