YUNAK v. UKRAINE (European Court of Human Rights)

FOURTH SECTION

DECISION

Application no.1114/08
VolodymyrGrygorovych YUNAK
against Ukraine

The European Court of Human Rights (Fourth Section), sitting on 8 January 2019 as a Committee composed of:

FarisVehabović, President,
Carlo Ranzoni,
PéterPaczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 24 December 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr VolodymyrGrygorovychYunak, is a Ukrainian national who was born in 1952 and lives in Kyiv. He was represented before the Court by Mr R. Kotyk, residing in Kotykivka, who was authorised to represent the applicant by the Vice-President of the Section in accordance with Rule 36 § 4 (a) of the Rules of Court.

2.   The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

3.  On 14 February 2018 notice of the applicant’s complaint under Article 6 § 1 of the Convention of unfairness of the proceedings in his case was given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.

The circumstances of the case

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  In August 2005 the applicant lodged a claim with the Solomyanskyy District Court of Kyiv (“the District Court”) against the land authorities, seeking damages in compensation for their refusal to provide him with certain documents.

6.  By a judgment of 24 February 2006, the above-mentioned court rejected the claim as unsubstantiated. The judgment provided that a statement of intent to lodge an appeal against it (“the statement of intent”) could be filed within ten days of the date of delivery of the judgment, and an actual appeal could be lodged within twenty days of the date on which the statement of intent was filed.

7.  The documents in the case file indicate that on 6 March 2006 the applicant filed a statement of intent, but the parties have not provided a copy of that document.

8.  According to the applicant, on 26 March 2006 he lodged an appeal against the above-mentioned judgment with the District Court, as required by the procedural law then in force. A copy of his notice of appeal available in the case file bears two stamps which, he submitted, were imprinted by the District Court because it had registered his appeal twice: one stamp indicates reference number 15011 and a date of 26 March 20… (the entry for the year not being complete) and the second one indicates number 8020 and a date of 31 March 2006. The date written by the applicant himself on the document is “… March 2006” (the specific day preceding the month was apparently cut off when the document was photocopied).

9.  The case file also contains another copy of a notice of appeal lodged by the applicant with similar content to the aforementioned notice of appeal. It bears the date of 24 March 2006 apparently inscribed by the applicant, as well as the District Court’s stamp followed by the same date and a signature of an unspecified person.

10.  By a ruling of 10 April 2006 the Kyiv City Court of Appeal (“the Court of Appeal”) declined to examine the applicant’s appeal. It stated that the applicant had lodged his statement of intent on 6 March 2006 and the appeal itself on 31 March 2006 – that is to say outside the twenty-day time-limit for lodging the appeal (see paragraph 6 above) − without requesting an extension of time.

11.  The applicant appealed in cassation. He stated that he had lodged his appeal on 24 March 2006, and not on 31 March 2006, as stated by the Court of Appeal. He had therefore not needed to request an extension of the time‑limit.

12.  On 23 November 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation (“the Court of Cassation”), rejected the applicant’s appeal in cassation, holding that the applicant had lodged his appeal on 31 March 2006 and had not requested an extension of the time‑limit. It also stated that the applicant had not been deprived of the right to lodge such a request.

COMPLAINT

13.  The applicant complained under Article 6 § 1 of the Convention that the proceedings in his case had been unfair, because the Court of Appeal had rejected his appeal erroneously.

THE LAW

A.  Scope of the case

14.  In response to observations submitted by the Government, the applicant reiterated a complaint under Article 1 of Protocol No. 1 alleging a breach of his property rights in the case, which he had already raised in his application form. He also raised new complaints, under Article 13 and (in substance) Article 14 of the Convention, in connection with his case.

15.  As to the complaint under Article 1 of Protocol No. 1, the Court notes that it has already been declared inadmissible (see paragraph 3 above). As to the other complaints, under Articles 13 and 14, in the Court’s view they are not an elaboration of the applicant’s original complaints on which the parties have had an opportunity to comment. It considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see, in particular and mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

B.  Alleged violation of Article 6 § 1 of the Convention

16.  The applicant complained under Article 6 § 1 of the Convention that the proceedings in his case had been unfair. The provision reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”

1.  The parties’ submissions

17.  The Government argued that the applicant had lodged his appeal on 31 March 2006, that is after the expiry of the relevant time-limit. Nevertheless, he could have requested an extension of that time-limit. Having not done so, he had not exhausted the domestic remedies. In any event, the higher courts had duly applied the rules concerning time-limits and their decisions had not been arbitrary or unfair.

18.  The applicant submitted that he had lodged his appeal on 26 March 2006, and not on 31 March 2006, as had been wrongfully found by the higher courts. Requesting an extension of the allegedly missed time-limit would not have been an effective remedy, because such an application would have fully depended on the court’s discretion.

2.  The Court’s assessment

19.  The Court does not find it necessary to examine the Government’s objection of non-exhaustion of domestic remedies (see paragraph 17 above), given that the application is in any event inadmissible for the following reasons.

20.  The Court reiterates that although Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, where such courts do exist, the proceedings before them must comply with the guarantees of Article 6, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations(see Andrejeva v. Latvia [GC], no. 55707/00, § 97, ECHR 2009, with further references). It further reiterates that it is not for the Court to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. The Court will not question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for instance, Bochan v. Ukraine(no. 2) [GC], no. 22251/08, § 61, ECHR 2015).

21.  In the present case the applicant, who received the District Court’s unfavourable judgment (see paragraph 6 above), lodged an appeal against it (see paragraph 8 above). The Court first notes that the case file contains two notices of appeal with similar contents: one is dated 24 March 2006 (see paragraph 9 above) and the second one bears two court stamps: 26 March 20… and 31 March 2006 (see paragraph 8 above). The Court further notes a discrepancy between the applicant’s notice of appeal in cassation, which referred to 24 March 2006 as the date on which he had lodged the appeal (see paragraph 11 above), and his submissions before the Court, in which he stated that he had lodged the appeal on 26 March 2006 (see paragraph 18 above). The Court also notes that the applicant’s notice of appeal which, he submits, he lodged on 26 March 2006, does not bear a full date (see paragraph 8 above), which makes it impossible for the Court to verify even the date written by him on that document. The Court further observes that the applicant did not submit an excerpt from the District Court’s logbook showing that the court had indeed registered his appeal on 26 March 2006; nor did he state that he had requested such an excerpt in vain. Lastly, the Court observes that 26 March 2006 fell on a Sunday, a non-working day. The applicant did not explain how he would have been able to bring and submit his notice of appeal to the District Court on such a day.

22.  In view of the above elements, the Court is unable to conclude that the domestic courts’ reference to 31 March 2006 as the date on which the applicant lodged his appeal and the ensuing declaration of inadmissibility of the appeal were arbitrary or manifestly unreasonable. It therefore considers that the applicant’s complaint is manifestly ill-founded and rejects it 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 31 January 2019.

Andrea Tamietti                                                  FarisVehabović
Deputy Registrar                                                      President

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