FIFTH SECTION
DECISION
Application no. 13465/06
Volodymyr Borysovych APUSHKIN
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 10 May 2016 as a Committee composed of:
André Potocki, President,
Ganna Yudkivska,
Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 26 March 2006,
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
The applicant, Mr Volodymyr Borysovych Apushkin, is a Ukrainian national who was born in 1946 and lives in Kyiv. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owned a flat in a multi-storey building which had a cafeteria on its first floor. In the 1990s the company K. privatised the cafeteria premises. Later on, K. privatised some other premises in the same building.
On 17 September 2001 the applicant instituted proceedings in the Pecherskiy District Court of Kyiv against the local authorities and K. complaining that he and other owners of the flats in the building had property right in respect of the premises privatised by K. He challenged various decisions related to the transfer of ownership of the premises to K.
After several refusals, which were quashed by higher courts, to accept his claim because of alleged non-compliance with procedural requirements, in July 2004 the first-instance court started the examination of the case.
On 9 November 2004 the court rejected the applicant’s request for interim measures to be applied, in particular, to forbid all transactions related to the premises in question.
On 14 December 2004 the court found against the applicant.
On 27 September 2005 the Kyiv Court of Appeal upheld the decisions of 9 November and 14 December 2004.
The applicant and his representative separately appealed in cassation against the decision of 27 September 2005.
On 1 December 2005 the Supreme Court rejected the applicant’s request for leave to appeal in cassation because “the decision of 9 November 2004 had not been appealed against under the ordinary appeal procedure”.
On 26 March 2006 the applicant lodged his application with the Court.
On 29 March 2006 the Supreme Court allowed the applicant’s representative’s request for leave to appeal in cassation and instituted cassation proceedings.
On 16 May 2006 the applicant re-lodged his appeal in cassation. The Supreme Court instituted cassation proceedings into it.
The Supreme Court transferred the applicant’s and his lawyer’s appeals in cassation to the Dnipropetrovsk Regional Court of Appeal.
On 7 May 2008 the Dnipropetrovsk Regional Court of Appeal, acting as a court of cassation, terminated the cassation proceedings in respect of the applicant’s appeal in cassation in so far as it concerned the decision of 9 November 2004 stating that under the law that decision was not subject to appeal. Still on 7 May 2008 the Dnipropetrovsk Regional Court of Appeal decided to examine on 20 May 2008 the applicant’s and his lawyer’s cassation appeals against the decisions of 14 December 2004 and 27 September 2005.
On 20 May 2008 the Dnipropetrovsk Regional Court of Appeal examined those appeals, quashed the decisions and remitted the case to the Pecherskyy District Court for a fresh examination on the merits.
On 22 October 2009 that court rejected the applicant’s claims, stating that some of them had been lodged out of time and some other had been examined within the framework of separate judicial proceedings. On 24 December 2009 the Kyiv Court of Appeal upheld that judgment.
On 18 August 2010 the Supreme Court quashed that decision and remitted the case to the Kyiv Court of Appeal for a fresh consideration. On 9 December 2010 that court quashed the judgment of 22 October 2009 and found in part for the applicant. On 8 June 2011 the Higher Specialised Court allowed the appeal lodged by the company K., quashed the judgment of 9 December 2010 and upheld the decision of 22 October 2009 which therefore became final.
COMPLAINTS
The applicant complained under Article 6 of the Convention that the proceedings had been unfair because the courts had ruled against him. Referring to the decision of 1 December 2005, he complained about lack of access to the Supreme Court. The applicant further invoked Article 13 of the Convention and Article 1 of Protocol No. 1.
THE LAW
1. The applicant complained that he had been denied access to the Supreme Court because on 1 December 2005 it had refused to consider his appeal in cassation. The Court considers that this part of the application falls to be examined under Article 6 § 1 of the Convention which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted that the applicant’s appeal in cassation had eventually been accepted and examined by the Dnipropetrosvk Regional Court of Appeal, acting as a court of cassation, thus the present part of the application lacked substantiation. The Government also stated that the applicant had abused his right of application because he had not informed the Court that his appeal in cassation had been eventually examined.
The applicant stated that in 2001 he had received head trauma and because of this he had not been able to realize that it had been necessary to inform the Court about the progress in his case. The applicant maintained his complaints stating that on 1 December 2005 his appeal in cassation had been rejected contrary to the domestic legislation.
The Court considers that it is not necessary to examine the Government’s argument concerning abuse of right of application as in any event the present part of the application must be rejected as manifestly ill-founded because the applicant’s appeal in cassation had eventually been examined by a court of cassation.
It follows that the present part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
2. As regards the complaint concerning unfairness of the proceedings, the Court considers that it should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention because the decisions reached by the domestic courts do not appear to be arbitrary or manifestly unreasonable.
3. In so far as the applicant invoked Article 1 of Protocol No. 1, the Court reiterates that the fact that the State, through its judicial system, provided a forum for the determination of the applicant’s rights and obligations does not automatically engage its responsibility under Article 1 of Protocol No. 1 (see, Breierova and others v. the Czech Republic (dec.), no. 57321/00, 8 October 2002). The Court finds no indication that the conclusions of the national authorities in the present case were arbitrary.
It follows that this part of the application must also be rejected as manifestly ill-founded pursuant to 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 2 June 2016.
Milan BlaškoAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy