FIFTH SECTION
DECISION
Application no. 2714/11
Olga Petrivna SEVRUK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 June 2020 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Lado Chanturia,
Anja Seibert-Fohr, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 30 December 2010,
Having regard to the observations submitted by the respondent Government and the comments in reply submitted by the applicant’s representative,
Having deliberated, decides as follows:
THE FACTS AND PROCEDURE
The applicant, Ms Olga Petrivna Sevruk, was a Ukrainian national who was born in 1952 and lived in Rivne.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
On 15 September 2010 the Supreme Court of Ukraine upheld the judgments of the lower courts ordering the applicant’s eviction from a State-owned flat, having found that she lacked a legal basis for occupying it.
On 30 December 2011 Ms Sevruk lodged the present application and appointed Ms L.P. Yaremchuk, her relative, to act as her representative before the Court.
On 12 June 2019 the present application was communicated to the Government and a letter was sent to Ms Yaremchuk’s address inviting the applicant to appoint a lawyer, pursuant to Rule 36 §§ 2 and 4 of the Rules of Court.
On 27 August 2019 the Court received a letter from Ms Yaremchuk enclosing a new power of attorney signed in the applicant’s name on 19 August 2019, whereby Ms Yaremchuk was again appointed to represent her in connection with the present case.
On 1 October 2019 the Government submitted observations in respect of the case, wherein it informed the Court that the applicant had died on 14 November 2013.
On 7 November 2019 the Court’s Registry requested Ms Yaremchuk to comment on the information furnished by the Government concerning the applicant’s death and to indicate who had signed the power of attorney in her name on 19 August 2019.
In response, Ms Yaremchuk confirmed that the applicant had died on 14 November 2013, and enclosed a copy of her death certificate. She did not indicate who had signed the power of attorney dated 19 August 2019 on the deceased applicant’s behalf. She furthermore noted that she had been the applicant’s representative when she had been alive and that the applicant’s heir, Mrs K.G. Radko, had also authorised her to represent her (that is to say Mrs Radko’s) interests before the Court. She therefore requested the Court to proceed with the examination of the application. Ms Yaremchuk included a copy of a notarised power of attorney from Mrs Radko authorising her, inter alia, to act as her representative in all and any court proceedings concerning any matters, including before the Court.
COMPLAINTS
The applicant complained that the domestic courts had acted unlawfully and unfairly in ordering her eviction. She cited Article 6 of the Convention.
The applicant also complained under Article 13 of the Convention that she had had no effective remedies for her complaints concerning her eviction.
THE LAW
The Government argued that the deceased applicant’s right to respect for home was non-transferrable. They invited the Court to strike the application out of the list in view of the applicant’s death. In an alternative, they argued that there had been no breach of the Convention in the present case.
The Court considers that it is not necessary to address the above arguments because the application is in any way inadmissible for the reasons stated below.
The Court reiterates that an application may be rejected as abusive under Article 35 § 3 (a) of the Convention if it was knowingly based on untrue facts (see, among other authorities, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014) or if it is incomplete and misleading information was thus submitted to the Court (see Beskryla v. Ukraine (dec.) [Committee], no. 15198/17, 5 November 2019, with references cited therein). The Court also notes that where important developments occur during proceedings pending before it and, despite the obligation prescribed in the Rules of Court, an applicant fails to inform the Court thereof, thus preventing it from determining the case in full knowledge of the facts, the application may be dismissed for abuse of the right of individual application (see for a recent example Székely v. Hungary (dec.), [Committee], no. 59441/13, § 12, 12 June 2018 and the authorities cited therein). Furthermore, any omissions on the part of an applicant’s representative are in principle attributable to the applicant himself or herself and may lead to the application being rejected for abuse of the right of application (see mutatis mutandis Migliore and Others v. Italy (dec.), nos. 58511/13 and others, §§ 32-40, 12 November 2013, and Martins Alves v. Portugal (dec.), no. 56297/11, § 17).
The Court furthermore notes that it is apparent from the documents before it that the applicant died in 2013, while the present proceedings were pending, and that her designated representative, Ms Yaremchuk, omitted to inform the Court of the applicant’s death. Instead, she provided a power of attorney dated 19 August 2019, which she led the Court to believe had been signed by the deceased applicant herself.
In such circumstances, the Court considers that the power of attorney – which bore a signature that was purportedly that of the deceased but which had been issued only after her death – must have been forged.
The consequence of such procedural deception on the part of Mrs Yaremchuk is obviously incompatible with the purpose of the right of individual application (see Beskryla, cited above).
That being so, the present application is abusive for the purposes of Article 35 § 3 (a) in fine of the Convention and must be rejected, in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 July 2020.
Anne-Marie DouginGabriele Kucsko-Stadlmayer
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy