Last Updated on April 30, 2020 by LawEuro
FIFTH SECTION
DECISION
Application no. 15117/17
Vitaliy Mykhaylovych CHEPELENKO against Ukraine
and 4 other applications
(see list appended)
The European Court of Human Rights (Fifth Section), sitting on 28 January 2020 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Mārtiņš Mits,
Anja Seibert-Fohr, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appended table. The present applications were submitted on behalf of the applicants by Ms N. Tselovalnichenko, a lawyer practicing in Kyiv.
A. The circumstances of the case
2. The applications concern alleged prolonged non-enforcement of the judgments of domestic courts in the applicants’ favour delivered against State debtors (see appended table).
1. Documents provided in support of the applications
3. In support of theapplicants’ statements that court judgments in their favour remained unenforced on the date their applications were lodged, the applicants provided the documents described below.
4. In application no. 15117/17 the case file contains a copy of a letter of the Zhovtnevyy District Department of the Pension Fund in the city of Lugansk of 4 January 2017, no. 11/Ч-1, certifying that the debt could not be paid due to the lack of funds in the budget of Ukraine.
5. In applications nos. 18635/17 and 18655/17 the case file contains copies of letters of theFastiv City and District Department of the Pension Fund in the Kyiv Region of 25 December 2016, no. 12906/06, and the Bila Tserkva Department of the Pension Fund in the Kyiv Region of 4 January 2017, no. 7110/O-01. The dates of those letters were handwritten. According to the above letters, they were issued in reply to the applicants’ requests dated March and December 2013. The letters stated that the payment of the pension due to the applicants would only be possible upon receipt of the budgetary funds.
6. In application no. 251/18 the case file contains a copy of a letter of the Zhovtnevyy District Department of the State Bailiffs’ Service of the Lugansk City Department of Justice of 10 July 2017 (the date was handwritten), no. 9016, certifying that as of 19 June 2012 the relevant judgment had not been enforced.
7. In application no. 3633/18 the case file contains a letter of the Labour and Social Security Department of the Leninskyy District in the city of Lugansk of 8 November 2017 containing an original signature in the field designated to be signed by an official. The above document certified that the debt could not be paid due to the lack of funds in the budget of Ukraine.
2. Correspondence with the applicants’ representative regarding the above documents
(a) The Court’s requests
8. The Court requested the applicants’ representative, Ms. N. Tselovalnichenko, to provide originals of the above documents (except for application no. 3633/18, where an allegedly original document was initially provided) in view of the following.
9. As concerns applications nos. 18635/17 and 18655/17 it appears that more than three years passed between the date of the applicants’ requests for information about enforcement of the judgments and the authorities’ replies. However, by December 2016 to January 2017 when the letters in question were allegedly issued (see paragraph 5 above), it appeared that the relevant State bodies had been reorganised and their names appeared to have changed also (see paragraphs 25 and 26 below).
10. As concerns application no. 15117/17, it was noted that the Zhovtnevyy District Department of the Pension Fund of Ukraine in the city of Lugansk appeared to be no longer operative on the date of issue of the above letter. As of 16 June 2015 its functions must had been performed by the Starobilsk District Department of the Pension Fund (see paragraph 24 below).
11. As concerns applications nos. 251/18 and 3633/18, it was noted that according to the Unified State Register of Legal Entities of Ukraine administered by the State, the Zhovtnevyy District Department of the State Bailiffs’ Service of the Lugansk City Department of Justice (registration no. 33270204) was wound up on 4 May 2006. Furthermore, according to the above register the Labour and Social Security Department of the Leninskyy District in the city of Lugansk (registration no. 03196742) was wound up on 20 January 2014. Finally, even assuming that the above bodies were re‑registered as new legal entities, by the date the above letters were issued they must have been relocated to the territory controlled by the Government of Ukraine (see paragraph 23 below).
(b) Ms. N. Tselovalnichenko’s replies
12. In reaction to the Court’s request concerning application no. 18635/17, on 24 April 2017 Ms. N. Tselovalnichenko asked to extend the time-limit for reply. Having received the extension, Ms. N. Tselovalnichenko never replied.
13. On 24 April 2017 Ms N. Tselovalnichenko also informed the Court that the applicant had lost interest in pursuing the application no. 18655/17, without providing any further details.
14. On 22 May 2017 and 1 March 2018 she informed the Court that in applications nos. 15117/17 and 251/18 the applicants had initially submitted to the Court originals of the letters.
15. On 20 February 2018 the Court sent a letter to Ms N. Tselovalnichenko reiterating its request for originals of documents and inviting her to provide her comments as to the authenticity of the above‑mentioned documents (see paragraphs 4, 5 and 7 above) which had been initially submitted to the Court. The Court also warned her about the possibility of barring a lawyer from representing applicants before the Court under Rule 36 § 4 (b) of the Rules of Court.
16. On 21 March 2018 the Court received Ms N. Tselovalnichenko’s reply. She submitted essentially that as a matter of practice she had not met her clients in person. Instead, she had received all the documents concerning her future applications with the Court by post and had forwarded them to the Court. She also stated that she could not verify the credibility of the circumstances to which her clients referred. Moreover, in her view it was for the Court and for the respondent State to verify whether the domestic courts’ decisions had been enforced.
3. Decision to bar Ms. Tselovalnichenko
17. On 4 December 2018 the Court decided, under Rule 36 § 4 (b) of the Rules of Court, that Ms N. Tselovalnichenko should be permanently barred from representing or otherwise assisting applicants in both pending and future applications, in view of her fraudulent and abusive behaviour in a number of cases lodged with the Court (including, but not exclusively, those mentioned above).
18. In order to inform all applicants with cases pending, notably, those residing in areas that could not be reached by post, of the above decision the Court issued a press release on 12 December 2018 having, inter alia, invited the media to inform the public about Ms. N. Tselovalnichenko’s barring.
4. Further correspondence with the applicants
19. In registered letters of 31 May 2017 and 9 April 2019 the Court informed the applicant in application no. 18655/17 of Ms N. Tselovalnichenko’s statement that the applicant had lost interest in pursuing the application. The applicant was requested to provide confirmation. On 27 April 2019 the applicant received the Court’s letter of 9 April 2019, however she did not reply.
20. In a registered letter of 12 April 2019 the Court directly contacted the applicant in application no. 18635/17 requesting him to provide documents in support of the allegation that the domestic court judgment at issue had not been enforced at the time of submission of the application. On 20 May 2019 the applicant received the court’s letter, however he did not reply.
21. The applicants in applications nos. 15117/17, 251/18 and 3633/18 could not be contacted because they declared their place of residence in the city of Lugansk, where no Ukrainian postal service was available from 24 July 2014 (see Tsezar and Others v. Ukraine, nos. 73590/14 and 6 others, § 9, 13 February 2018).They did not indicate any other contact details except for their postal addresses.The Court has not received any correspondence directly from the applicants since the date these applications were lodged.
B. Relevant domestic law
22. Resolution no. 1085-p of the Cabinet of Ministers of Ukraine of 7 November 2014 “on approving the list of settlements on the territory temporarily outside the control of the State authorities or where the State authorities do not exercise their powers in full”, lists, inter alia, that the city of Lugansk is temporarily outside the control of the Government of Ukraine. The above Resolution came into force on 7 November 2014.
23. Section 3 of Resolution no. 595 of the Cabinet of Ministers of Ukraine of 7 November 2014 “on issues of financing publicly funded institutions, paying social benefits and providing financial support to certain enterprises and organisations in the Donetsk and Lugansk regions” reads as follows:
“The Ministries and other State authorities shall, by 1 December 2014, ensure that publicly funded institutions, enterprises and organisations under their control are relocated from territory outside the control of the State authorities to settlements where the State authorities exercise their powers in full.”
24. Pursuant to “The list of departments of the Pension Fund of Ukraine in settlements of the Donetsk and Lugansk Regions which are empowered to provide services during the Anti-terrorist operation” approved by the Resolution of the Board of the Pension Fund of Ukraine no. 9-1 of 12 May 2015 (as amended on 16 August 2016), the functions that had been performed by the Zhovtnevyy District Department of the Pension Fund of Ukraine in the city of Lugansk (Управління Пенсійного фонду України в Жовтневому районі м. Луганська) have been transferred to the Starobilsk District Department of the Pension Fund of Ukraine (Управління Пенсійного фонду України в Старобільському районі). The above Resolution came into force on 16 June 2015.
25. Pursuant to the Resolution of the Cabinet of Ministers of Ukraine no. 1055 of 16 December 2015, the Fastiv City and District Pension Fund of Ukraine in the Kyiv Region (Управління Пенсійного фонду України у м. Фастові та Фастівському районі Київської області) was renamed as Fastiv Joint Department of the Pension Fund of Ukraine (Фастівське об’єднане управління Пенсійного фонду України). The above Resolution came into force on 31 December 2015.
26. Pursuant to the Resolution of the Cabinet of Ministers of Ukraine no. 988 of 21 December 2016, the Bila Tserkva Department of the Pension Fund of Ukraine in the Kyiv Region (Управління Пенсійного фонду України у м. Білій Церкві Київської області) was merged with other local departments of the Pension Fund of Ukraine and renamed as Bila Tserkva Joint Department of the Pension Fund of Ukraine (Білоцерківське об’єднане управління Пенсійного фонду України). The above resolution came into force on 28 December 2016.
COMPLAINTs
27. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention of prolonged non-enforcement of the domestic court judgments.
THE LAW
A. Joinder of the applications
28. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
B. The Court’s assessment
1. Applications nos. 15117/17, 251/18 and 3633/18
29. The Court notes that there is a serious doubt as to the authenticity of the documents (see paragraphs 9–11 above) submitted in support of the applicants’ allegations that the domestic court judgments remained unenforced on the date when the applications were lodged. Other documents submitted by the applicants do not allow the Court to proceed with the consideration of the applications as those documents neither confirm, nor rebut the applicants’ allegations of violation of their rights under the Convention.
30. The applicants’ representative was requested to provide originals of the documents at issue as well as her explanations as to their authenticity, but to no avail. In particular, in reply to the Court’s requests she either failed to provide the requested documents (see paragraph 12 above), or stated that those provided initially were originals (see paragraph 14 above). As to the latter point, the Court notes that the documents at issue were obviously copies. Moreover, the representative provided no explanation which would enable the Court to conclude otherwise. The concerns as to the documents’ authenticity were brought to the attention of the representative in the Court’s letter of 20 February 2018. However, no plausible explanation which would dispel the Court’s doubts was provided in reply (see paragraphs 15 and 16 above).
31. The Court notes that given the absence of Ukrainian postal services operating on the territories where the applicants in applications nos. 15117/17, 251/18 and 3633/18 declared their place of residence (see Tsezar and Others, cited above), it has no possibility to contact them by post. Moreover, the applicants did not provide the Court with any other contact details such as e-mail addresses, phone numbers etc. Therefore the Court cannot contact the applicants by these means either. Finally, the applicants themselves have not contacted the Court since their applications were lodged.
32. The Court is also mindful of the fact that after the decision to bar Ms. N. Tselovalnichenko, in its press release of 12 December 2018 (see paragraph 18 above), it invited the media to inform the public about the above decision so that it may reach the applicants residing in areas that could not be contacted by post.
33. Moreover, it follows from the independence of the legal profession from the State that the conduct of the legal representation is essentially a matter between the applicants and their lawyer (see, mutatis mutandis, Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002‑VIII). Therefore, following the Court’s unsuccessful requests for documents and the subsequent decision to bar the applicants’ representative, it was for the latter to inform them of such pertinent developments in their cases.
34. Since the applicants’representative failed to dispel the doubts about the authenticity of the relevant documents and since the applicants have not remedied to this, and in the absence of a possibility of contacting the applicants directly, the Court is not in a position to effectively proceed with the cases. In the above circumstances, the Court therefore considers that it is no longer justified to continue the examination of the applications within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of the applications by virtue of that Article.
35. The Court finally reiterates that under Article 37§ 2 of the Convention it may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.
36. Accordingly, it is appropriate to strike the cases out of the list.
2. Applications nos. 18635/17 and 18655/17
37. The Court notes, that following its decision to bar Ms. N. Tselovalnichenko, itrequested the necessary documents directly from the applicantin application no. 18635/17, however, he did not reply (see paragraph 20 above).
38. As concerns application no. 18655/17, the Court notes that Ms N. Tselovalnichenko informed the Court that the applicant had lost interest in pursuing the application. Following two requests to the applicant for confirmation the Court received no reply.
39. The Court considers that, in these circumstances, the applicants in applications nos. 18635/17 and 18655/17 may be regarded as no longer wishing to pursue their applications within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the cases.
40. In these circumstances, it is appropriate to strike the cases out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike applications nos. 15117/17, 251/18 and 3633/18 out of its list of cases under Article 37 § 1 (c) of the Convention;
Decides to strike applications nos. 18635/17 and 18655/17 out of its list of cases under Article 37 § 1 (a) of the Convention.
Done in English and notified in writing on 20 February 2020.
Milan Blaško Gabriele Kucsko-Stadlmayer
Deputy Registrar President
Appendix
List of cases
| No. | Application
no. and date of introduction |
Applicant’s name
year of birth place of residence nationality |
Relevant domestic decisions |
| 1. | 15117/17
10/02/2017 |
Vitaliy Mykhaylovych CHEPELENKO
1942 Lugansk Ukrainian |
Zhovtnevyy District Court of Lugansk, 24/02/2010 |
| 2. | 18635/17
05/01/2017 |
Borys Tymofiyovych OPANASENKO
1941 Bila Tserkva Ukrainian |
Bila Tserkva Local Court, 11/05/2011 |
| 3. | 18655/17
02/01/2017 |
Nataliya Mykolayivna YUSHCHENKO
1943 Fastiv Ukrainian |
Fastiv Local Court, 8/02/2011 |
| 4. | 251/18
21/10/2017 |
Sergiy Vasylyovych VOLKOV
1959 Lugansk Ukrainian |
Zhovtnevyy District Court of Lugansk, 27/05/2009 |
| 5. | 3633/18
27/12/2017 |
Lidiya Mykolayivna SULIMENKO
1957 Lugansk Ukrainian |
Donetsk Administrative Court of Appeal, 16/07/2009 |
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