SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30605/02
by Anna Ivanovna SUSLO
against Ukraine
The European Court of Human Rights (Second Section), sitting on 5 November 2002 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrGaukur Jörundsson,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mr T.L. Early, Deputy Section Registrar,
Having regard to the above application lodged on 16 April 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Anna Ivanovna Suslo, is a Ukrainian national, who was born in 1929 and resides in the city of Chernigov. She is represented before the Court by Ms. Rozmovenko, a lawyer practising in Chernigov, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2000 the applicant instituted civil proceedings in the Desnyansky District Court of Chernigov against her son, ex-daughter-in-law and the Executive Committee of the Chernigov City Council in relation to a dispute concerning the ownership of an apartment.
On 24 July 2000, the court rejected the applicant’s claim (Рішення Деснянського районного суду м. Чернігова). On 3 October 2000 the Chernigiv Regional Court upheld (Ухвала Чернігівського обласного суду) the decision of the court of first instance.
In 2001 the applicant appealed to the Supreme Court of Ukraine under the new cassation appeal procedure introduced in June 2001. On 5 February, 2002, the panel of three judges of the Civil Chamber of the Supreme Court of Ukraine (Ухвала Верховного Суду України) rejected the applicant’s request for leave to appeal.
B. Relevant domestic law
A third level of jurisdiction, to be part of the ordinary judicial procedure, was introduced into the Ukrainian legal system by the law of Ukraine “on the Introduction of Changes to the Civil Procedure Code of Ukraine” of 21 June 2001. It came into force on 29 June 2001. Under the new provisions, the parties are entitled to appeal against the decision of the first instance court and/or the appellate court to the Supreme Court of Ukraine, acting as a court of cassation.
The law (Article 329) provides for the filter of cassation appeals by a panel of three judges of the Civil Chamber of the Supreme Court who decide whether or not leave to appeal should be granted. No participation of the parties is foreseen at this stage of proceedings. Leave to appeal is granted unless the panel unanimously decides otherwise.
The system became effective as of 29 June 2001 and concerned cases pending before first and second instance courts.
Under transitional provisions of the same law, any final decision in a civil case could be appealed under the new cassation procedure within three months of the new law coming into force, that was from 29 June to 29 September 2001.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that proceedings before the Supreme Court of Ukraine were not public, contrary to the provisions of the Convention. She further complains that the decision had no reasoning. Furthermore, the applicant alleges that the panel of three judges exceeded its competence by stating in its decision that the lower court decisions had been lawful and well-founded, which means, in the applicant’s opinion, that the panel decided on the merits of the case.
THE LAW
The applicant complains that the court proceedings before the Supreme Court of Ukraine were not public and the decision contained no reasoning, invoking Article 6 § 1 of the Convention which provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”
The Court notes that the applicant’s complaint concerns her request for leave to appeal to the Supreme Court of Ukraine, acting as a cassation instance.
The Court reiterates its case-law that the right to appeal in civil cases does not feature among the rights and freedoms guaranteed by the Convention. No provision of the Convention, therefore, requires a State to grant persons under its jurisdiction an appeal to a Supreme Court acting as a third instance court. If a State makes provision for such an appeal, as in the instant case, it is entitled to lay down the conditions for such an appeal (cf. application no. 6916/75, decision of 12 March 1976, DR 6, p. 101; application no. 10515/83, decision of 2 October 1984, DR 40, p. 258; application no. 11826/85, decision of 9 May 1989, DR 61, p. 146; Blom v. Sweden, no. 28338/95, 14.3.2000).
In this respect, the Court recalls that when, as in the instant case, a Supreme Court determines, in a preliminary examination of a case, whether or not the conditions required for granting leave to appeal have been fulfilled, it is not making a decision relating to “civil rights and obligations”
(cf. application no. 11855/85, decision of 15 July 1987, DR 53, p. 190; application no. 11826/85, decision of 9 May 1989, DR 61, p. 146; Blom v. Sweden, no. 28338/95, 14.3.2000). It follows that Article 6 § 1 of the Convention does not apply to the proceedings in which the Supreme Court of Ukraine, acting in cassation, refused the applicant leave to appeal against the judgments of the lower courts.
It follows that the application is to be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident
Full & Egal Universal Law Academy