FIFTH SECTION
DECISION
Applications nos. 19297/08 and 11436/09
Petr Yuryevich BAZHAN and others
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 6 March 2018 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above applications lodged by sixteen applicants, listed in the appendix below, on 24 March and 28 December 2008 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The facts of the case, as submitted by the applicants, may be summarised as follows.
2. At the material time, the applicants were members of a building cooperative and wished to install fixed telephone lines in their homes. In 1998 some of them created a formal group to take care of the necessary works. That group, headed by one of the applicants who was also the head of the cooperative, Mr P. Bazhan, hired a company which constructed the necessary telecommunications facilities and installed the cables. On 24 May 2000 Mr P. Bazhan, acting on behalf of the group, concluded a contract with the national telecommunications provider pursuant to which the facilities were transferred to the latter. The provider undertook to ensure the maintenance of the facilities and to use them, during three consequent years, “in accordance with the relevant regulations only with the agreement of the group”.
3. Allegedly, in 2001 the provider installed an additional cable in the impugned facilities thereby increasing the number of telephone lines which it eventually provided to third parties with no consent of the group. In his letter of 17 August 2001 to the provider, Mr P. Bazhan, acting on behalf of the group, raised that issue. By letter dated 5 October 2001, the provider replied to Mr P. Bazhan that the installation of additional cables was not contrary to the relevant regulations, referred to in the contract of 24 May 2000, and that the allocation of any additional telephone line would be made against the clients’ proportionate contribution to the cost of the construction of the telecommunications facilities, which would be determined in agreement with Mr P. Bazhan.
4. In May 2003 Mr P. Bazhan, acting on his own behalf, lodged a claim with the Yalta Court. He stated that the provider had installed an additional cable in violation of the contract of 24 May 2000 and had thereby caused pecuniary and non-pecuniary damage to him. The provider denied those allegations. On 15 December 2003 the Yalta Court rejected the claim as unsubstantiated. By decisions of 28 July 2004 and 25 September 2007, respectively the Crimea Court of Appeal and the Zaporizhzhya Court of Appeal, the latter having acted as a cassation court and having examined the case in chambers, rejected Mr P. Bazhan’s appeals. The courts found that Mr P. Bazhan, as an individual, had not been a party to the impugned contract and that, in any event, there had been no evidence that the provider had installed an additional cable. Nor had there been any evidence that the provider had otherwise breached the impugned contract.
5. In the meantime, in May 2003 Mr P. Bazhan, acting on behalf of the applicants, lodged a similar claim with the Yalta Court. In that claim the return of the telecommunications facilities to its owners was also sought. Following several reconsiderations, on 6 December 2005 the Yalta Court rejected the claim as unsubstantiated. That judgment was upheld by the Crimea Court of Appeal and the Zaporizhzhya Court of Appeal, the latter having acted as a cassation court and having examined the case in chambers, on 27 April 2006 and 17 April 2008 respectively. The courts, relying on the findings in the proceedings concerning Mr P. Bazhan’s claim (see above), noted that similar allegations that the provider had installed an additional cable and that it had breached the impugned contract had been rejected as unsubstantiated and that the judgment of the Yalta Court of 15 December 2003 and the decision of the Crimea Court of Appeal of 28 July 2004 had entered into force. It was also noted that the applicants had submitted no evidence for the courts to depart from those findings. The courts therefore refused to order expert examinations requested in that regard by the applicants. The courts further found that the parties had fulfilled their contractual obligations in full - the telecommunications facilities had been transferred to the provider, whereas the latter had allocated telephone lines to the applicants. Finally, the courts found that the applicants had provided no documents demonstrating that they had title to the impugned facilities.
COMPLAINTS
6. The applicants complained under Article 6 § 1 of the Convention that the courts had failed to examine their claims and all the relevant facts thoroughly and in accordance with the relevant procedural rules. The applicants also complained that they had not been invited to take part in the hearings before the Zaporizhzhya Court of Appeal concerning their cassation appeals. They further argued that the proceedings had lasted too long.
7. Relying on Article 1 of Protocol No. 1, the applicants complained that the telecommunications provider had been unlawfully using the telecommunications facilities belonging to them.
THE LAW
8. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
9. In so far as the applicants complained under Article 6 § 1 of the Convention about the outcome and unfairness of the domestic proceedings, the Court reiterates that it is not a court of fourth instance and it is not its function to deal with alleged errors of fact or law committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review (see, among many other authorities, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).
10. The Court notes that the principal issue in both sets of domestic proceedings in the present case was whether the telecommunications provider had complied with the contract of 24 May 2000. Essentially, the domestic courts found that the applicants’ allegation of breach of that contract had been unsubstantiated. Having regard to the material submitted to the Court by the applicants, it finds no reason to disagree with that finding. Nor did the applicants demonstrate that in the circumstances the domestic courts were required to order an expert examination or take other measures to obtain any possible further information as regards the applicants’ claims. On the whole, the applicants’ complaints before the Court do not disclose any appearance of unfairness or arbitrariness, within the meaning of Article 6 § 1 of the Convention, in the way the domestic courts dealt with their cases. The fact that the Zaporizhzhya Court of Appeal, acting as a court of third level of jurisdiction, examined the applicants’ cassation appeals without the parties’ participation raises no issue under that provision either (see, mutatis mutandis, Stepenska v. Ukraine (dec.), no. 24079/02, 12 June 2006).
11. It follows that this part of the applicants’ complaints under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
12. As to the applicants’ complaint of unreasonable length of the proceedings, the Court notes that in both sets of proceedings their claims were examined by the courts of three levels of jurisdiction within less than five years. There were no serious delays which could be attributed to the courts, whereas the applicants used the available avenues of appeal and also made applications for expert examinations.
13. Accordingly, the Court rejects this part of the applicants’ complaints under Article 6 § 1 of the Convention as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
14. Finally, the Court finds that the applicants’ complaint under Article 1 of Protocol No. 1 that the telecommunications provider was unlawfully using the impugned telecommunications facilities is wholly unsubstantiated and thus also rejects it pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 29 March 2018.
Anne-Marie DouginAndré Potocki
Acting Deputy RegistrarPresident
Appendix
1. Petr Yuryevich BAZHAN
2. Marina Ivanovna BABOSHINA
3. Petr Vasilyevich CHEVIDAEV
4. Irina Anatolyevna DMITRENKO
5. Nina Vladimirovna GEZENKO
6. Irina Nikolaevna GRISHINA
7. Andrey Aleksandrovich KOVIN
8. Nikolay Makarovich LEVUNETS
9. Yevgeniy Nikolayevich LEVUNETS
10. Vladimir Vasilyevich PERMYAKOV
11. Miroslava Andreyevna POKORNITSKAYA
12. Petr Stanislavovich POKORNITSKIY
13. Aleksey Ivanovich SHAPOVALOV
14. Boris Leonidovich SHLEYGER
15. Vitaliy Aleksandrovich SYVOROTKA
16. Natalia Aleksandrovna TARASOVA
Full & Egal Universal Law Academy