FIFTH SECTION
DECISION
Application no. 16142/08
Sergey Fedorovich BURLAKOV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 24 May 2018 as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above application lodged on 24 March 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Sergey Fedorovich Burlakov, was born in 1933 and lives in Simferopol. At the time of lodging of the present application, the applicant was a Ukrainian national. In May 2017 he informed the Court that he had obtained Russian nationality in March 2014.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Domestic proceedings
4. On 16 October 2001 the applicant filed a claim with the Tsentralnyy District Court of Simferopol of the Autonomous Republic of Crimea (“the District Court”) against his former employer, a joint-stock company, seeking salary arrears.
5. After several remittals of the case, on 19 December 2006 the District Court partially allowed the applicant’s claim and awarded him compensation of 4.749,51 Ukrainian hryvnas (UAH) (equivalent of approximately 720 euros (EUR) at the material time).
6. On 25 February 2008 the Court of Appeal of the Autonomous Republic of Crimea upheld the decision of the District Court.
7. On 6 June 2008 the Supreme Court of Ukraine upheld the findings of the lower courts.
2. Proceedings before the Court
8. On 24 March 2008 the applicant lodged his application with the Court, complaining about the length of the civil proceedings, the lack of an effective remedy in this respect and the unfairness of the District Court’s decision of 19 December 2006 (see paragraph 5 above).
9. On 4 February 2016 the Court gave notice to the Government of Ukraine of the complaints concerning the length of the civil proceedings and the lack of an effective remedy and declared the remainder of the application inadmissible.
10. The Court also provided the parties with a proposal aimed at securing a friendly settlement of the case. Together with this proposal, the applicant also received an information note in Ukrainian indicating that, according to Rule 62 § 2 of the Rules of Court, the friendly settlement negotiations were strictly confidential and that written or oral communications and offers made within the friendly settlement framework should not be referred to or relied on in contentious proceedings.
11. On 15 February 2016 the applicant informed the Court that he could not accept the friendly settlement proposal. He argued that the sum proposed should be not in Ukrainian hryvnas but in euros or Russian roubles, since his bank in Crimea did not make any transactions with Ukrainian currency.
12. By a letter of 5 May 2016 the Government of the Russian Federation informed the Court that on 8 April 2016 they had been contacted by the applicant. The latter had informed the Government of the Russian Federation about his case pending before the Court and about the friendly settlement negotiations, indicating the proposed amount. The applicant had asked the Government of the Russian Federation to request the Court to take into consideration the situation in Crimea, where banks do not make any transactions in Ukrainian currency, and to award him the sum in euros or Russian roubles.
13. On 26 May 2016 the Government of Ukraine informed the Court about the impossibility of submitting their observations in the case due to their inability to obtain the copies of the case-file, which were kept in the courts located in the territory of the Autonomous Republic of Crimea, currently not controlled by the Ukrainian Government. The latter did not indicate their position concerning the friendly settlement.
14. On 10 March 2017 the Court informed the applicant about the letter of 5 May 2016 from the Government of the Russian Federation (see paragraph 12 above) and reminded him that there was a requirement of strict confidentiality in respect of friendly settlement negotiations between the parties under Rule 62 § 2 of the Rules of Court, and that any proposals or submissions in this respect should not have been referred to in any submissions made in the context of the main proceedings or divulged publicly. The applicant was requested to submit his comments on the matter.
15. On 11 April 2017 the Government of Ukraine submitted their observations and informed the Court that they were based only on the documents submitted by the applicant to the Court. The Government asked the Court to declare the application inadmissible, stating that all delays that occurred during the domestic proceedings were attributable to the applicant.
16. On 12 May 2017 the applicant informed the Court that he had been a citizen of the Russian Federation since 21 March 2014. He submitted that he had asked for the Russian Government’s assistance because of the lengthy processing of his case by the Court.
COMPLAINT
17. The applicant complained under Articles 6 § 1 and 13 of the Convention about the excessive length of the domestic civil proceedings and the lack of an effective remedy in this respect.
THE LAW
18. The Court reiterates that, according to Article 39 § 2 of the Convention, friendly settlement negotiations are confidential. Moreover, Rule 62 § 2 of the Rules of Court stipulates that no written or oral communication and no offer or concession made within the friendly settlement framework may be referred to, or relied on in contentious proceedings (see Lesnina Veletrgovina d.o.o. v. the former Yugoslav Republic of Macedonia (dec.), no. 37619/04, 2 March 2010). This rule is absolute and does not allow for an individual assessment of how much detail may be disclosed (Mirjana Baucal-Đorđević and Petar Đorđević against Serbia (dec.), no. 38540/07, § 27, 2 July 2013). Moreover, it cannot be excluded that a breach of the confidentiality principle could, in certain circumstances, justify the conclusion that an application is inadmissible on the ground of an abuse of the right of petition (see, inter alia, Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005; and Benjocki and Others v. Serbia (dec.), nos. 5958/07 and 3 others, 15 December 2009).
19. Turning to the present case, the Court notes that the applicant revealed details of the friendly settlement negotiations by disclosing to the Government of the Russian Federation, not party to the proceedings, the amount involved and the initiatives undertaken (see paragraph 12 above). This was done despite the applicant having received the information note in Ukrainian clearly stating that the nature of all friendly settlement negotiations was strictly confidential (see paragraph 10 above). The applicant should therefore have complied with this requirement and he failed to advance any convincing justification for not doing so.
20. In view of the above, the Court is of the opinion that the applicant’s conduct amounts to a breach of the rule of confidentiality and must be considered as an abuse of the right of petition as provided for in Article 34 of the Convention.
21. Thus, the application should be rejected as a whole as an abuse of the right of application 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 14 June 2018.
Liv TigerstedtYonko Grozev
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy