FIFTH SECTION
DECISION
Application no. 10842/08
Volodymyr Yakymovych LARYCHEV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 17 April 2018 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 13 February 2008,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
1. The applicant, Mr Volodymyr Yakymovych Larychev, is a Ukrainian national, who lives in Donetsk. He is represented by his mother, Ms N. Larycheva.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was born on 22 March 1986, allegedly while his mother was married to Y. Another person was named as his father in the applicant’s birth certificate of 14 April 1986, for which the applicant provided no explanation.
4. On a date, not specified by the applicant, his mother and Y. divorced.
5. On 26 August 1998 Y. died. Pursuant to his officially certified will, Y.’s property was inherited by M. The applicant provided no information concerning that person.
6. In September 1999 the applicant’s mother, acting on the applicant’s behalf, instituted in the Kirovskyy District Court in Donetsk special (non‑contentious) civil proceedings to establish a fact of legal significance (see paragraph 16 below).
7. Namely, the applicant’s mother asked the court to rule that Y. was the applicant’s father. The applicant’s mother stated that it was necessary to establish the fact of paternity as the applicant intended to claim a special pension on account of Y.’s death. The applicant’s mother argued that Y. had died while still married to her and thus the applicant was his dependant. She also stated that, when the applicant was born, she had intentionally submitted incorrect information about his father to the authorities, on the basis of which his birth certificate had been issued on 14 April 1986, because at the time she had been in conflict with Y. Until his death in 1998, the latter had not been aware that he had not been named as the applicant’s father. Nor had the applicant been aware of the incorrect information in his birth certificate before Y.’s death.
8. On 10 September 1999 the Kirovskyy District Court found that Y. was the applicant’s father. In that regard, the court relied on the statements of the applicant’s mother and also on the statements of two witnesses on her behalf, one of whom was the applicant’s cousin. In particular, the witnesses confirmed that the applicant’s mother had been married to Y. from May 1976 until Y.’s death in August 1998 and that they had lived with the applicant as a family.
9. In November 2001 the applicant’s mother, acting on the applicant’s behalf, instituted civil proceedings before the Kyivskyy District Court in Donetsk against M., challenging the validity of Y.’s will (see paragraph 5 above) and claiming that the applicant should have inherited Y.’s property. In her submissions before that court, the applicant’s mother stated that she and Y. had divorced before his death in August 1998, though she did not specify the date.
10. While the civil proceedings concerning the validity of Y.’s will were pending, M. appealed against the ruling of the Kirovskyy District Court of 10 September 1999 (see paragraph 8 above). He stated that he had not been informed of the proceedings before that court, whereas they had concerned his rights as Y.’s heir. M. also stated that the applicant’s mother and Y. had divorced in 1978 and that Y. had never acknowledged having a child with her.
11. On 17 July 2006 Donetsk Court of Appeal, having dismissed as unsubstantiated the applicant’s mother’s argument that M.’s appeal was inadmissible, quashed the ruling of 10 September 1999 and terminated the proceedings concerning the applicant’s application for the recognition of paternity, having found that it concerned a dispute over rights and therefore had to be lodged in the framework of standard (contentious) proceedings (see paragraph 15 below). The applicant’s cassation appeal against that decision was eventually dismissed as unsubstantiated.
12. On 1 November 2006 the Kyivskyy District Court, having noted that the ruling of 10 September 1999 had been quashed, held that the applicant had no legal ground to challenge Y.’s will and therefore dismissed the claim which had been lodged by the applicant’s mother in November 2001 (see paragraph 9 above).
13. The applicant did not appeal against the decision of the Kyivskyy District Court of 1 November 2006. Nor did he lodge a separate application for the recognition of paternity with Y. pursuant to the decision of Donetsk Court of Appeal of 17 July 2006.
14. In the meantime, in 2005 the applicant’s mother lodged with a local prosecution office a criminal complaint against M., alleging that he had either ill-treated Y. in order to make him sign the will in his favour or forged it. According to the documents submitted by the applicant, the prosecutors launched an official investigation into that complaint, issued several decisions finding no fault on the part of M., but eventually resumed the investigation, which was still pending in March 2008. The applicant did not inform the Court of any further developments in that regard.
B. Relevant domestic law
15. The Code of Civil Procedure of 1963, which was in force at the material time, set out rules governing mainly judicial proceedings concerning the determination of civil, family and labour disputes with the participation of opposing parties.
16. It also prescribed rules governing special proceedings for the establishment of facts of legal significance (встановлення фактів, що мають юридичне значення). In particular, pursuant to Articles 254, 255 and 271-75 of the Code, the courts had jurisdiction to establish certain facts, including family relationship between individuals, where the law did not provide for another procedure in that regard or if the persons concerned were not able to obtain or renew official documents attesting to such facts. Applications for the establishment of facts of legal significance had to be examined with the participation of applicants and any other interested person. If in the course of such an examination the court discerned a dispute over rights, it had to terminate the proceedings and to explain to the persons concerned that they were entitled to initiate standard (contentious) proceedings in this regard (see paragraph 15 above).
COMPLAINTS
17. The applicant complained under Article 6 § 1 of the Convention of the allegedly unlawful annulment of the ruling of the Kirovskyy District Court of 10 September 1999 (see paragraph 11 above). He further complained that the impugned annulment had violated his right to respect for his family life under Article 8 of the Convention.
18. The applicant also raised different complaints under Articles 6, 8, 13, 14 and 17 of the Convention on account of the outcome of the proceedings concerning the claim which had been lodged by his mother in November 2001 (see paragraphs 9 and 12 above).
19. Finally, relying on Articles 2 and 3 of the Convention, he complained that M. had physically and psychologically pressured Y. in order to force him issue his will in M.’s favour.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention
20. In so far as the applicant complained under Article 6 § 1 of the Convention of the allegedly unlawful annulment of the ruling of the Kirovskyy District Court of 10 September 1999, the Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among other authorities, Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).
21. The Court has already held that Article 6 did not apply to a non‑contentious and unilateral procedure which did not involve opposing parties and which was available only where there was no dispute over rights (see Alaverdyan v. Armenia (dec.), no. 4523/04, §§ 34-37, 24 August 2010).
22. As in Alaverdyan, cited above, which concerned similar circumstances, in the present case this part of the applicant’s complaint under Article 6 § 1 of the Convention concerns non‑contentious proceedings which did not involve opposing parties and was applicable only to cases where there was no dispute over rights (see paragraphs 6, 7, 8 and 16 above). Even though Donetsk Court of Appeal allowed the appeal of M. essentially on the ground that there was such a dispute, its decision of 17 July 2006, overturning the ruling of the Kirovskyy District Court of 10 September 1999, neither involved nor led to a re‑examination of the paternity issue at stake. The only question decided by Donetsk Court of Appeal was whether the applicant’s application for the recognition of paternity could be examined in the framework of the impugned special proceedings, to which it gave a negative reply and instructed the applicant to lodge his application under the standard (contentious) procedure, which he never did.
23. In the light of the foregoing, the Court concludes that the proceedings concerning the applicant’s application for the recognition of paternity did not involve a dispute within the meaning of Article 6.
24. It follows that this part of the application is incompatible ratione materiae with that provision of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4.
B. Alleged violation of Article 8 of the Convention
25. In so far as the applicant complained of a violation of his right to respect for his family life under Article 8 of the Convention on account of the allegedly unlawful annulment of the ruling of the Kirovskyy District Court of 10 September 1999 and the ensuing dismissal of the inheritance claim which had been lodged by his mother in November 2001 (see paragraphs 17 and 18 above), the Court notes that it is based on his unsubstantiated and conflicting submissions and weak arguments.
26. In particular, the applicant provided no detailed and clear information concerning important aspects of his alleged family relationship with Y. Notably, it remains unclear why another person was named as his father in the applicant’s birth certificate of 14 April 1986, why that entry remained unchanged for over thirteen years before Y.’s death and when exactly Y. and the applicant’s mother divorced (see paragraphs 3-5 above). His mother’s submissions in the domestic proceedings in that regard varied considerably. In particular, in her submissions before the Kirovskyy District Court she stated that she had been married to Y. until his death in August 1998, whereas in her submissions before the Kyivskyy District Court she stated that they had divorced before his death (see paragraphs 7 and 9 above). It transpires that the applicant’s alleged family relationship with Y. is essentially, if not exclusively, based on the ruling of the Kirovskyy District Court of 10 September 1999. However, having regard to the relevant domestic regulations and the decision of Donetsk Court of Appeal of 17 July 2006, the ruling at issue was not taken in accordance with the relevant procedure, as M., whose rights were implicated, was given no opportunity to make his submissions on the matter (see paragraphs 8, 10, 11, 15 and 16 above). In these circumstances, the Court is not convinced that the applicant had family or personal relationship or ties with Y. falling within the ambit of Article 8 of the Convention.
27. In any event, the Court considers that the applicant failed to pursue his argument of family relationship with Y. in accordance with the relevant domestic rules. In particular, having regard to the submissions of the applicant’s mother on his behalf before the domestic courts, the applicant’s application for the recognition of paternity was lodged for the purpose of obtaining certain pecuniary benefits arising of his alleged family relationship with Y. and attracted conflicting rights, having a direct bearing on the question of Y.’s inheritance (see paragraphs 5, 7 and 9 above). Thus, that matter concerned the rights of M. and could not be resolved in the framework of the special unilateral proceedings initiated by the applicant’s mother in September 1999 (see paragraphs 6, 11, 15 and 16 above). As the Court has noted above, it was open to the applicant to seek the recognition of paternity by initiating contentious proceedings, which he never did (see paragraph 22 above). The Court also notes that the applicant did not challenge on appeal the decision of the Kyivskyy District Court of 1 November 2006 dismissing his claim which was essentially based on the applicant’s alleged family relationship with Y. (see paragraphs 12 and 13 above). Nor did he demonstrate that in the circumstances he could not have availed himself of those procedural avenues.
28. Therefore, even assuming this part of the application is not incompatible ratione materiae with Article 8 of the Convention, it must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 § 1 and 4 of the Convention.
C. Remainder of the application
29. As to the applicant’s complaints under Articles 6, 13, 14 and 17 of the Convention relating to the proceedings culminating in the decision of the Kyivskyy District Court of 1 November 2006, the Court has already noted that the applicant did not challenge that decision on appeal (see paragraph 27 above). Nor did the applicant submit a persuasive argument that there were reasons for him not to pursue that remedy. Therefore, even assuming those complaints cannot be rejected on other grounds, the Court dismisses them for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
30. Finally, the Court finds that the applicant’s complaints under Articles 2 and 3 of the Convention are wholly unsubstantiated and thus rejects them 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 17 May 2018.
Milan BlaškoAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy