FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 326/03
by Galina Ivanovna GURZHYY
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 13 March 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 19 November 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Galina Ivanovna Gurzhyy, is a Ukrainian national who was born in 1940 and lives in Energodar, the Zaporizhzha region.
The facts of the case, as submitted by the applicant, may be summarized as follows.
In April 1999 Mr D. fatally injured the applicant’s son in a car accident.
A. Criminal proceedings against Mr D.
On 6 January 2000 the police discontinued criminal proceedings against Mr D., having found that the accident had been caused by the conduct of the applicant’s son.
On 25 July 2001 the applicant challenged the decision of 6 January 2000 to discontinue the criminal proceedings. On 5 November 2001 the Leninsky District Court of Zaporizhzha (“the Leninsky Court,” Ленінський районний суд м. Запоріжжя) dismissed her claim.
On 25 March 2002 in the applicant’s presence, the Zaporizhzha Regional Court of Appeal (“the Court of Appeal,” Апеляційний суд Запорізької області) upheld this decision on appeal and it became final.
Subsequently, the applicant unsuccessfully attempted to obtain a cassation review of the above decisions.
B. Civil proceedings against Mr D.
On 7 August 2001 the applicant lodged a civil complaint against Mr D. seeking compensation for her funeral expenses and moral damage sustained on account of her son’s death.
On 4 December 2001 the Leninsky Court dismissed her claim for moral damage inasmuch as the criminal proceedings against Mr D. had been discontinued. However, the court awarded the applicant UAH 3,105[1] in respect of the funeral expenses. The applicant appealed.
On 13 May 2003 the Court of Appeal upheld the judgment of 4 December 2001. On 13 June 2003 the applicant appealed in cassation. According to the law applicable at the time, this appeal had to be filed with the Leninsky Court.
On 18 August 2003 the Leninsky Court found numerous procedural shortcomings in the applicant’s cassation appeal and gave her a time-limit to rectify them. On 10 October 2003 the Leninsky Court returned the applicant’s appeal as “not lodged,” having found that she had failed to rectify its shortcomings.
On 25 October 2003 the applicant appealed against the decision of 10 October 2003 to the Court of Appeal. On 9 December 2003 the latter dismissed the applicant’s appeal.
On 19 December 2003 and 15 January 2004 the applicant requested the Court of Appeal to send her a copy of the decision of 9 December 2003. On 17 May and 31 July 2004 the applicant addressed the same request to the Leninsky Court. She sent her requests by registered mail, having enclosed an empty stamped envelope for a response with each of her letters. Having received no response, the applicant complained to the Ombudsman (Уповноважений Верховної Ради України з прав людини). On 19 August 2004 the Office of the Ombudsman informed the applicant that her complaint had been transferred to the Zaprorizhzha Regional Council of Judges (“the Council of Judges,” Рада Суддів Запорізької області) for processing. On 13 September 2004 the Council of Judges informed the applicant that on 3 September 2004 the Leninsky Court had mailed her a copy of the requested decision.
On 30 September 2004 the applicant received the decision of 9 December 2003 and on 26 October 2004 lodged a cassation appeal against it. On 10 November 2004 the Supreme Court informed the applicant that it had mailed her cassation appeal to the Leninsky Court for processing and deciding on its compliance with procedural formalities.
On 28 April 2006 the applicant requested the Leninsky Court to inform her whether it had taken any decision concerning her appeal in cassation, having sent her request by registered mail. She has not received any response.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that by their prolonged failures to inform her about the status of her cassation appeals the judicial authorities had hindered her right of access to the court of cassation.
Further, the applicant complained under Article 6 § 1 that her cassation appeal of 13 June 2003 had been unfairly returned as “not lodged”; that the hearings in both criminal and civil proceedings against Mr D. had been unfair; and that she had been unable to obtain adequate moral damage compensation and to secure Mr D.’s conviction.
The applicant further invoked Article 7 § 2 of the Convention without any specification.
THE LAW
A. Complaints about access to the court of cassation
The applicant complained that her right of access to the cassation instance had been compromised by the failures of the judicial authorities to inform her promptly about the decisions taken in respect of her cassation appeals. She invoked Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. Remainder of the complaints
The applicant further complained under Article 6 § 1 of the Convention about the unfair decision to return her complaint of 13 June 2003 as “not lodged,” unfair hearings in criminal and civil proceedings, the failure of the domestic authorities to impose criminal sanctions on Mr D. and award her adequate compensation for moral damage. She also invoked Article 7 § 2 to the facts of the present case.
In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court
Decides to adjourn the examination of the applicant’s complaint under Article 6 § 1 of the Convention concerning access to the cassation instance in civil proceedings;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. 650.37 euros.
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