FIFTH SECTION
\nDECISION<\/p>\n
Application no. 45965\/08
\nVolodymyr Gennadiyovych OMELCHENKO and
\nTetyana Semenivna OMELCHENKO
\nagainst Ukraine<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 13\u00a0November\u00a02018 as a Committee composed of:<\/p>\n
Yonko Grozev, President,
\nGabriele Kucsko-Stadlmayer,
\nL\u04d9tif H\u00fcseynov, judges,
\nand Milan Blasko, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 15 September 2008,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicants, Mr Volodymyr Gennadiyovych Omelchenko and Mrs\u00a0Tetyana 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.<\/p>\n 2.\u00a0\u00a0The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.<\/p>\n The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0In 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\u2019 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\u2019 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\u2019 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.<\/p>\n 5.\u00a0\u00a0On 15 September 2008 the applicants lodged their application with this Court.<\/p>\n 6.\u00a0\u00a0On 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.<\/p>\n 7.\u00a0\u00a0On 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.\u2019s appeal against the decision of 25 May 2006 and remitted the applicants\u2019 case to the first instance court for reconsideration.<\/p>\n 8.\u00a0\u00a0On 23 September 2009 the Melitopolskyy Local Court examined the merits of the applicants\u2019 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\u00a0September 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\u2019 appeal on points of law as being frivolous.<\/p>\n COMPLAINT<\/strong><\/p>\n 9.\u00a0\u00a0The applicants complained under Article 6 \u00a7 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.<\/p>\n THE LAW<\/strong><\/p>\n 10.\u00a0\u00a0The Government submitted, among others, that the merits of the applicants\u2019 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\u2019 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\u2019 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\u2019s opinion, the applicants had not been denied justice.<\/p>\n 11.\u00a0\u00a0The 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\u2019s 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.<\/p>\n 12.\u00a0\u00a0The Court reiterates that, according to its case-law, Article 6 \u00a7 1 embodies the \u201cright to a court\u201d, 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\u00a0December 1995, \u00a7 36, Series A no. 333-B; and Tserkva Sela Sosulivka v.\u00a0Ukraine, no. 37878\/02, \u00a7 50, 28 February 2008, and the references noted therein).<\/p>\n 13.\u00a0\u00a0The 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\u2019 complaints on their merits (see Tserkva Sela Sosulivka, cited above, \u00a7 51).<\/p>\n 14.\u00a0\u00a0This 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.<\/p>\n 15.\u00a0\u00a0The Court has already clarified in its case-law in respect of Ukraine that the domestic courts\u2019 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, \u00a7 53).<\/p>\n 16.\u00a0\u00a0The 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\u2019 claim in civil proceedings.<\/p>\n 17.\u00a0\u00a0In other words, the applicants were able to obtain a \u201cdetermination\u201d of the civil rights at stake, as set out in Article 6 \u00a7 1 of the Convention.<\/p>\n 18.\u00a0\u00a0The Court thus considers that the applicants were not deprived of their right of access to a court.<\/p>\n 19.\u00a0\u00a0The Court concludes that the applicants\u2019 complaint concerning lack of access to a court must be declared inadmissible as being manifestly ill\u2011founded in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 6 December 2018.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yonko Grozev
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n