Communicated on 6 April 2017
FOURTH SECTION
Application no. 42152/10
Mariya Stanislavivna ROGACH
against Ukraine
lodged on 12 July 2010
STATEMENT OF FACTS
The applicant, Ms Mariya Stanislavivna Rogach, is a Ukrainian national who was born in 1940 and lives in Uzhgorod.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owns a house on Shtefanyka Street in Velykyy Bereznyy, Zakarpattya Region.
Between 2004 and 2005 the Velykyy Bereznyy Council (“the local council”) implemented a programme to connect the town to mains gas and ordered the design organisation to develop the necessary project. The project failed to incorporate the applicant’s and neighbouring houses. The applicant lodged numerous requests with the local authorities in order to resolve the above issue but to no avail.
On 27 May 2008 she brought court proceedings against the local council seeking the connection of her house to mains gas. She also claimed compensation in respect of pecuniary and non-pecuniary damage.
On 10 March 2009 the Uzhgorod Local Court allowed the applicant’s claims in part and ordered the local council to examine her request to be connected to mains gas within one month of the court decision coming into force and to adopt the relevant decision. The applicant did not appeal, and the decision became enforceable on 20 March 2009.
On 26 May 2009 the applicant obtained a writ of execution. On 19 June 2009 the local council adopted the decision granting permission for the applicant’s house to be connected to mains gas of Shtefanyka Street or Pushkina Street.
On 29 June 2009 the applicant asked the Pushkina Street Committee (“the Street Committee”) to give its approval for connecting her house to mains gas.
On 14 July 2009 the head of the Street Committee informed the local council that the relevant approval would be given to the applicant upon payment of certain monetary contributions to the Street Committee and two residents of Pushkina Street.
Considering those requirements unlawful, on 5 August 2009 the applicant brought court proceedings against the Street Committee seeking to oblige it to give the relevant approval free of charge.
On 20 August 2009 the Uzhgorod Local Court returned the applicant’s claim unexamined. It stated that the Street Committee was not a legal entity, which was a prerequisite for the case to be examined in civil proceedings.
On 1 September 2009 the applicant appealed. She maintained that the Street Committee was a public legal entity, whose status and activities were regulated by Article 140 of the Constitution of Ukraine and the Law “On Local Self-Governance in Ukraine”, in particular Article 14 of that law.
On 17 November 2009 the Zakarpattya Regional Court of Appeal upheld the ruling of 20 August 2009. The relevant part of the decision reads as follows:
“In accordance with Article 80 of the Civil Code, a legal entity is an organisation established and registered in accordance with the law, having civil legal capacity, which can be a claimant and defendant before the courts.
In accordance with Article 14 of the Law “On Local Self-Governance in Ukraine”, local councils may permit, at the residents’ initiative, the establishment of house, street, block [committees] or other community organisations and vest them with certain authority, finance and property; the legal status, procedures for organisation and activities of community organisations shall be established by law.
Currently the issues of legal status, procedures for organisation and activities of community organisations are unregulated in view of the absence of a relevant law.
Due to the lack of any data that the Street Committee is a legal entity, it cannot be a defendant in the court proceedings in accordance with Article 30 of the Code of Civil Procedure.”
On 24 December 2009 the applicant appealed on points of law, relying on similar arguments to those in her appeal.
On 24 February 2010 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.
B. Relevant domestic law
1. Constitution of Ukraine
The relevant part of the Constitution of Ukraine reads as follows:
Article 140
“Local councils may permit, at the residents’ initiative, the establishment of house, street, block or other community organisations and vest them with certain authority, finance and property”.
2. Law “On Local Self-Governance in Ukraine”, no. 28/97-VR of 21 May 1997
The relevant provisions read as follows:
Article 14 – Community Organisations
“1. Local councils may permit, at the residents’ initiative, the establishment of house, street, block or other community organisations and vest them with certain authority, finance and property.
2. The legal status, procedures for organisation and activities of community organisations shall be established by law.”
3. Law “On Community Organisations”, no. 2625-III of 11 July 2001
The Law regulates in detail the legal status, procedure for creation and registration, competencies, activities and other issues concerning community organisations. Section II provides that a community organisation may be established at the initiative of the local community subject to the approval of the local council; it must adopt articles regulating its activities and be legalised by way of registration or notification of its establishment. Registration of a community organisation must be carried out by the executive committee of the relevant local council and on registration it will acquire the status of a legal entity. Article 28 explicitly provides that the decisions, acts or omissions of community organisations or their members may be challenged before the relevant local council or the court.
COMPLAINTS
Relying on Articles 6 § 1 and 13 of the Convention, the applicant complains that she was denied access to court in the civil proceedings against the Street Committee.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right of access to a court under Article 6 § 1 of the Convention in respect of the refusal of the domestic courts to consider her claim on the merits on the ground that the Street Committee lacked legal capacity and could not be a party to civil proceedings?
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