FIFTH SECTION
DECISION
Application no. 15198/17
Sofiya Antonivna BESKRYLA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 5 November 2019 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Síofra O’Leary,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 1 February 2017,
Having deliberated, decides as follows:
THE FACTS AND PROCEDURE
The applicant, Ms Sofiya Antonivna Beskryla, was a Ukrainian national who was born in 1937 and allegedly lived in Bila Tserkva. The present application was submitted on behalf of the applicant by Ms N. Tselovalnichenko, a lawyer practising in Kyiv.
The present case concerns alleged non-enforcement of a judgment of the Bila Tserkva Court of 18 May 2011.
On 1 February 2017 an application form was submitted to the Court in this respect. Section C of the form bore Ms N. Tselovalnichenko’s signature and a signature in the box to be signed by the applicant, dated 1 February 2017. The last page of the application form (page 13) was signed by Ms N. Tselovalnichenko.
In support of the allegation of non-enforcement of the above-mentioned judgment, the application form was accompanied by a copy of letter No. 10828/Б-01 from the Bila Tserkva Local Department of the Pension Fund of Ukraine in Kyiv Region (Управління пенсійного фонду України у м. Білій Церкві Київської області) of 17 January 2017 (the date was handwritten) certifying that on 13 August 2011 the applicant’s pension had been recalculated according to the judgment of 18 May 2011. However, the payment of the pension due to her would only be possible upon receipt of the budgetary funds. The letter also referred to certain legislative acts in force as at 2013 at the latest. Finally, it was also noted that the applicant had been receiving a disability pension.
On 15 March 2017 the Court requested Ms N. Tselovalnichenko to provide an original of the above letter. This was due to the fact that, inter alia, pursuant to the provisions of the Resolution of the Cabinet of Ministers of Ukraine no. 988 of 21 December 2016, the Bila Tserkva Local Department of the Pension Fund of Ukraine in Kyiv Region had merged with other departments of the Pension Fund and been renamed “the Bila Tserkva Joint Department of the Pension Fund of Ukraine” at the date of the above letter. Moreover, it was noted that, while allegedly issued in January 2017, the letter referred to legislative acts dated 2013 at the latest.
In reply, Ms N. Tselovalnichenko informed the Court that the applicant had lost interest in pursuing the application, without providing any further details.
On 31 May 2017 the Court informed the applicant of Ms N. Tselovalnichenko’s reply and requested her to confirm by 12 July 2017 that she did not wish to pursue the application. No reply was received from the applicant.
On 4 December 2018 the Court decided, under Rule 36 § 4 (b) of the Rules of Court, that Ms N. Tselovalnichenko should be permanently barred from representing or otherwise assisting applicants in both pending and future applications, in view of her fraudulent and abusive behaviour in a number of cases lodged with the Court.
On 9 April 2019 the Court sent a letter to the applicant reiterating its request of 31 May 2017.
On 27 April 2019 the applicant’s son, Mr Beskrylyi, replied that the applicant had died on 24 July 2015. He also expressed his wish to pursue the application. In support of his submissions, he provided a copy of a death certificate which confirmed the applicant’s death on 24 July 2015. He also provided a copy of an inheritance certificate, according to which he had inherited the right to receive payments due to the applicant under the judgment of the Bila Tserkva Court of 18 May 2011.
COMPLAINTs
According to the application form the applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 of non-enforcement of the domestic court judgment.
THE LAW
The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention if it was knowingly based on untrue facts (see, among other authorities, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996 IV, Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006, Preobrazovatel‑Servis and Others v. Ukraine (dec.) [Committee], no. 510/07, §41, 7 June 2018) or if incomplete and therefore misleading information was submitted to the Court (see Hüttner v. Germany (dec.), no. 23130/04 19 June 2006 and Bekauri v. Georgia (preliminary objection), no. 14012/02 §§ 21 and 24, 10 April 2012).
The Court notes that the applicant had died more than one year and six months before the application was lodged with the Court on 1 February 2017. In the application the deceased individual was presented as an applicant with full legal capacity, living at that time in Bila Tserkva. On the application form a signature appears in the box to be signed by the applicant, and Ms N. Tselovalnichenko was named as representative and signed the designated box of the authority form. The Court is also mindful of the fact that Ms N. Tselovalnichenko, who at the material time was the applicant’s representative, informed the Court in a letter of 24 April 2017 that the applicant had lost interest in pursuing the application without specifying the reasons on what basis this conclusion had been reached.
In such circumstances, the Court considers that the application form was intentionally based on the false claim that the applicant was alive and willing to lodge an application with the Court. Moreover, the Court considers that the authority form bearing a signature of the deceased and issued after her death was necessarily forged: the applicant had died more than a year and a half before the present application was lodged before the Court.
As a separate point, the Court has doubts as to the authenticity of the letter allegedly issued by the Bila Tserkva Local Department of the Pension Fund of Ukraine in Kyiv Region on 17 January 2017 which was initially provided in support of this application. Namely, the Court notes that the applicant had died more than a year and a half before the letter was issued, while the letter stated that the applicant was still receiving her disability pension at the date of the letter.
The consequence of such misleading procedural manipulations is obviously incompatible with the purpose of the right of individual application (see Preobrazovatel-Servis and Others, § 43, cited above and compare, for instance, with Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007, and Gogitidze and Others v. Georgia, no. 36862/05, 12 May 2015).
That being so, the present application lodged in the name of a deceased person is abusive for the purposes of Article 35 § 3 (a) in fine of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 November 2019.
Milan BlaškoGabriele Kucsko-Stadlmayer
Deputy RegistrarPresident
Full & Egal Universal Law Academy