FIFTH SECTION
DECISION
Application no. 25493/03
by Sergey Yuryevich PEREKUPKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 20 November 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 17 July 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergey Yuryevich Perekupko, is a Ukrainian national who was born in 1964 and lives in the city of Simferopol, the Autonomous Republic of Crimea. He was represented before the Court by Mr A. V. Lesovoy, a lawyer practising in Simferopol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1990 the applicant, together with his wife and daughter, acquired the specially protected tenancy on a flat in Simferopol. In 1993 the applicant and his wife divorced.
Since late 2001 applicant had been living with his parents allegedly because of his mother’s grave illness. On 30 December 2001 the applicant’s ex-wife brought an action against him for termination of his tenancy on their shared apartment. In her written submission she specified the address of the said apartment as the applicant’s residence.
The Kiyevskyy District Court of Simferopol (hereinafter “the District Court”) held two hearings on the above action. On both occasions the court issued summons for the applicant’s appearance, which, however, were returned by the local housing authority unserved because of applicant’s absence at the indicated address.
On 18 December 2001 the District Court allowed the claim of the applicant’s divorced wife and ordered termination of his tenancy. The court, on the ground of the testimonies of the plaintiff and two witnesses and a certificate issued by the local housing authority found that the applicant had not been living in the said apartment for a period of over six months without any valid reason.
The applicant, having learned about this judgment in May 2002, appealed against it. The applicant alleged that his use of the apartment in issue was impeded by his ex-wife’s affiliation with a certain religious sect and the need to care for his ill mother, who lived outside Simferopol. He also challenged the validity of the certificate from the housing authority, stating that on no occasion did any official from this body visit the apartment to be able to draw any conclusion as to whether or not his absence from the apartment had reached the six-month threshold. The applicant thus concluded that the factual basis of the December 2001 judgment was flawed and asked the appellate instance to quash it and remit the case for reconsideration on the merits.
On 14 August 2002 Court of Appeal of the Autonomous Republic of Crimea rejected the applicant’s appeal and upheld the judgment of 18 December 2001. The Court of Appeal found, inter alia, that:
“the submissions that the defendant’s use of the impugned dwelling was being impeded is totally unsubstantiated, the submission that the defendant was absent [from the apartment] due to his caring for his ill mother is also unproved as he has failed to provide any evidence that such care was needed, on the contrary, according to the defendant’s own submissions she suffers III grade disability and lives with her husband.
It cannot be accepted also that the defendant has not been duly summoned since the case file contains evidence that the summonses were dispatched to his last known address ..., which does not contradict Article 96 of the Code of Civil Procedure.”
The applicant filed an appeal in cassation, pleading that the lack of substantiation of his submissions, referred to by the appellate instance, was due to his inability to present his case in person and to adduce witness evidence in his favour.
On 20 January 2003 the Supreme Court refused leave to appeal in cassation, having found no violations of either material or procedural law by the lower instances.
COMPLAINT
The applicant complained that he had been denied the right to a fair and oral hearing, in breach of Article 6 § 1 of the Convention.
THE LAW
Notice of the application was given to the Government on 11 May 2006. The Government submitted their observations on the admissibility and merits of the applicant’s complaint on 31 July 2006. The applicant has failed to submit observations in reply. Moreover, he has failed to respond to a registered letter dated 13 August 2007, which he received on 20 August 2006, warning the applicant of the possibility that his case might be struck out of the Court’s list.
Having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the applicant does not intend to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of this application to be continued. Accordingly, the application of Article 29 § 3 of the Convention should be discontinued
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy