Last Updated on May 12, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 45965/08
Volodymyr Gennadiyovych OMELCHENKO and
Tetyana Semenivna OMELCHENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 13 November 2018 as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Milan Blasko, Deputy Section Registrar,
Having regard to the above application lodged on 15 September 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Volodymyr Gennadiyovych Omelchenko and Mrs Tetyana Semenivna Omelchenko are Ukrainian nationals, who were born in 1971 and 1970 respectively and live in Yasne. They were represented before the Court by Mr T.O. Kalmykov, a lawyer practising in Kharkiv.
2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2006 the applicants, together with a third claimant, Mr N., lodged a civil claim with the domestic courts seeking the transfer of a plot of land to them with the aim of engaging in farming activity. On 25 May 2006 the Melitopolskyy Local Court refused to examine the merits of the applicants’ claim on the grounds that it fell to be examined under the administrative justice procedure. On 31 May 2006 the applicants instituted administrative proceedings before the Melitopolskyy Local Court, which on 24 October 2006 dismissed the applicants’ claim. On 14 March 2007 the Zaporizhzhya Regional Court of Appeal upheld the above judgment, dismissing the claim. The applicants appealed on points of law. On 20 February 2008 the Higher Administrative Court quashed the above decisions and terminated the proceedings in the applicants’ case. The court held that the case fell to be considered under the civil justice procedure. The decision of the Higher Administrative Court was sent to the applicants on 3 March 2008 (the date indicated on the envelope). The applicants indicated that it was served on them on 15 March 2008.
5. On 15 September 2008 the applicants lodged their application with this Court.
6. On 30 November 2008 the third claimant, Mr N., requested an extension of the time-limit to appeal against the decision of 25 May 2006 from the Zaporizhzhya Regional Court of Appeal, in light of the decision of the Higher Administrative Court of 20 February 2008.
7. On 18 February 2009 the Zaporizhzhya Regional Court of Appeal awarded an extension of time for Mr N. to lodge an appeal against the decision of the Melitopolskyy Local Court of 25 May 2006. On 4 March 2009 the Zaporizhzhya Regional Court of Appeal allowed Mr N.’s appeal against the decision of 25 May 2006 and remitted the applicants’ case to the first instance court for reconsideration.
8. On 23 September 2009 the Melitopolskyy Local Court examined the merits of the applicants’ claim in civil proceedings and dismissed it. The applicants appealed against that judgment. On 25 November 2009 the Zaporizhzhya Regional Court of Appeal upheld the judgment of 23 September 2009. On 18 December 2009 the applicants lodged an appeal on points of law. On 15 January 2010 the Supreme Court of Ukraine rejected the applicants’ appeal on points of law as being frivolous.
COMPLAINT
9. The applicants complained under Article 6 § 1 of the Convention about the failure of the domestic courts to examine the merits of their claim, which deprived them of their right of access to court.
THE LAW
10. The Government submitted, among others, that the merits of the applicants’ case had been examined by the domestic courts. In particular, they informed the Court that after delivery of the decision by the Higher Administrative Court on 20 February 2008, which had refused to examine the applicants’ claim in administrative proceedings, the case had been returned to the Melitopolskyy Local Court for consideration in civil proceedings and had been finalised by that court rendering a judgment on the merits of the applicants’ claim. The Government maintained that in the circumstances of the present case the domestic courts had provided a procedural means for the effective resolution of the jurisdictional conflict in question. Therefore, in the Government’s opinion, the applicants had not been denied justice.
11. The applicants maintained that despite the fact that their claim had ultimately been examined on its merits, the domestic courts had failed to comply with the principle of good governance and to strike a balance between their interests and the interests of justice. The applicants concluded that the domestic court’s failure to render a final judgment in their case during the period between 25 May 2006 and 25 November 2009 had placed a disproportionate burden on them.
12. The Court reiterates that, according to its case-law, Article 6 § 1 embodies the “right to a court”, of which the right of access (that is to say, the right to institute proceedings before the domestic courts) constitutes only one aspect. For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that constitutes an interference with his or her rights (see, notably, Bellet v. France, 4 December 1995, § 36, Series A no. 333-B; and Tserkva Sela Sosulivka v. Ukraine, no. 37878/02, § 50, 28 February 2008, and the references noted therein).
13. The Court also maintains that its task is not to examine whether or not the domestic courts had jurisdiction to determine the merits of the case or to establish which of the courts had jurisdiction to hear the applicants’ complaints on their merits (see Tserkva Sela Sosulivka, cited above, § 51).
14. This being so, the Court notes that the applicants were able to institute proceedings before the domestic courts and that the courts ultimately made a ruling based on the merits of their claim, notwithstanding an initial delay caused by concerns as to the appropriate jurisdiction.
15. The Court has already clarified in its case-law in respect of Ukraine that the domestic courts’ contradictory instructions in determining jurisdiction over a case where this has resulted in an inability to examine the said case on its merits amounted to a denial of justice which had impaired the very essence of the right of access to a court (see Tserkva Sela Sosulivka, cited above, § 53).
16. The present case, however, is different, given that the domestic courts remedied their mistake, having followed the final ruling of the Higher Administrative Court and having examined the merits of the applicants’ claim in civil proceedings.
17. In other words, the applicants were able to obtain a “determination” of the civil rights at stake, as set out in Article 6 § 1 of the Convention.
18. The Court thus considers that the applicants were not deprived of their right of access to a court.
19. The Court concludes that the applicants’ complaint concerning lack of access to a court must be declared inadmissible as being manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 December 2018.
Milan Blaško Yonko Grozev
Deputy Registrar President
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