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FIFTH
SECTION
CASE OF VOLOVIK v. UKRAINE
(Application
no. 15123/03)
JUDGMENT
STRASBOURG
6
December 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Volovik v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 13 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15123/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Yuriy Timofeyevich
Volovik (“the applicant”), on 10 April 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mr Y. Zaytsev and Mrs I. Shevchuk.
- On
22 September 2005 the Court decided to give notice of the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Zaporizhzhya.
A. Background of the case
- On
25 April 1993 the applicant's son, who was a Russian
national and served in the Russian Army, died because of an accident
while on duty. The Russian State Military Insurance Company paid his
wife and child, who resided in Russia, the insurance settlement to
which they were entitled under the Russian law.
- In
2001 the applicant lodged several requests with the Zaporizhzhya
Regional Enlistment Office and the Ukrainian State Insurance Company
“Oranta” (the “Oranta Company”), seeking the
insurance settlement allegedly due to him under the Treaty on Payment
of Pensions to Military Servicemen and Their Families and on State
Insurance of Military Servicemen of the Member States of the
Commonwealth of Independent States of 15 May 1992 (the “CIS
Treaty of 15 May 1992”, see Relevant domestic law), which had
entered into force in respect of Ukraine on that day. By letters of
9 July and 1 August 2001 respectively, the Oranta
Company and the Enlistment Office rejected the applicant's requests
on the ground that his son had served in the Russian Armed Forces
and, thus, the applicant was not entitled to receive an insurance
settlement under Ukrainian law.
- In
2002 the applicant sought the insurance settlement by the Russian
State Military Insurance Company. By letter of 27 September 2002,
that company refused his request and informed the applicant that the
amounts due to him because of the death of his son were to be paid by
the Oranta Company pursuant to the CIS Treaty of 15 May 1992.
B. Proceedings for recovery of the insurance settlement
- In
December 2001 the applicant instituted proceedings in the
Komunarskyy District Court of Zaporizhzhya against the Oranta
Company, seeking the recovery of the insurance settlement which the
latter allegedly had to pay him because of his son's death. He also
sought compensation for non-pecuniary damage. The applicant argued
that he was entitled to receive the insurance settlement in respect
of his son on the ground that he, the applicant, resided on the
territory of Ukraine, which had undertaken, pursuant to the CIS
Treaty of 15 May 1992, to make such payments if a military serviceman
had died while on duty in the Armed Forces of one of the CIS Member
States.
- On
10 April 2002 the court ruled against the applicant. This
judgment was upheld by the Zaporizhzhya Court of Appeal on
18 July 2002 and the Supreme Court on 8 January 2003.
- The
courts found that under Ukrainian law the applicant was not entitled
to receive the insurance settlement payable in similar cases to the
relatives of Ukrainian military servicemen. The courts held that
according to the CIS Treaty of 15 May 1992, read in conjunction with
the decision of the Economic Court of the Commonwealth of Independent
States (the “CIS Economic Court”) of 20 March 1997,
such a payment should have been made by the Russian Federation, in
the Armed Forces of which his son had served.
C. Proceedings for recovery of a special pension
- In
2002 the applicant instituted proceedings in the Zhovtnevyy District
Court of Zaporizhzhya against the Zaporizhzhya Regional Enlistment
Office, seeking the recovery of a special pension, which he was
allegedly entitled to receive under the Law of Ukraine on Social and
Legal Protection of Military Servicemen and Their Families of
20 December 1991 (the “Law of 1991”), read in
conjunction with the provisions of the CIS Treaty of 15 May 1992,
because of his son's death. He relied on the same reasons as in
respect of his claim against the Oranta Company.
- On
17 October 2002 the court ruled against the applicant,
finding that he was not entitled to receive the pension under
Ukrainian law, since his son had been a Russian national and had
served in the Russian Armed Forces.
- On
6 November 2002 the applicant lodged an appeal with the
same court.
- On
7 November 2002 the court invited the applicant to rectify
certain shortcomings in his appeal by 25 November 2002. In
particular, the court noted that the appeal did not contain the
correct names of the parties, reasons for challenging the judgment of
17 October 2002, or an exact formulation of the applicant's
request.
- On
20 November 2002 the applicant lodged with the court the
corrected version of his appeal, in which the opposite party was
named as the Zaporizhzhya Regional Enlistment Office. As regards the
reasons for his disagreement with the judgment of 17 October 2002,
the applicant stated that the first-instance court had wrongly
interpreted and applied specific provisions of the Law of 1991 and
that it had disregarded the guarantees contained in the CIS Treaty of
15 May 1992. He requested that the Zaporizhzhya Court of Appeal quash
the impugned judgment and adopt a new decision on the merits of his
claim.
- On
28 November 2002 the Zhovtnevyy District Court declared the
applicant's appeal inadmissible. Referring to the applicant's appeal
of 6 November 2002, the court stated that the applicant had
failed to make the necessary corrections to it by the deadline set by
the court. The applicant was sent back both versions of his appeal
along with a copy of the decision of 28 November 2002 by
the court.
- On
6 December 2002 the applicant lodged with the same court an
appeal against the decision of 28 November 2002. The
applicant requested its annulment on the ground that the Zhovtnevyy
District Court, deciding on the admissibility of his appeal against
the judgment of 17 October 2002, had not taken into account the
corrected version of his appeal lodged with that court on
20 November 2002.
- In
his appeal of 6 December 2002 the applicant cited the parts
of his appeal of 20 November 2002 that contained the
reasoning for and the formulation of his request.
- In
a cover letter accompanying his appeal of 6 December 2002
the applicant stated that he annexed three copies of that appeal,
copies of his appeals of 6 and 20 November 2002, and copies of
the judgment of 17 October 2002 and the decisions of 7 and
28 November 2002.
- On
6 December 2002 the Zhovtnevyy District Court found that
the applicant's appeal of the same day did not comply with the
procedural formalities. In particular, it held that the appeal was
directed against the decision of 28 November 2002 and the
judgment of 17 October 2002 at the same time and that it
did not contain sufficient reasoning or a list of annexed documents.
The court invited the applicant to rectify the shortcomings of his
appeal by 20 December 2002.
- On
18 December 2002 the applicant lodged with the Zhovtnevyy
District Court an appeal against its decision of 6 December 2002.
On 10 January 2003 the Zaporizhzhya Regional Court of
Appeal held that the latter decision could not to be appealed against
and refused to consider the applicant's appeal.
- On
27 January 2003 the Zhovtnevyy District Court declared the
applicant's appeal against the decision of 28 November 2002
inadmissible on the ground that the applicant had failed to rectify
the shortcomings indicated in its decision of 6 December 2002.
- The
applicant did not appeal against the decision of 27 January 2003.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure of 1963 (“the Code of
1963”) (repealed as of 1 September 2005)
- Article 139
of the Code of 1963 provided that the judge to whom the case had been
allocated should not entertain a claim which had not been lodged in
compliance with the requirements set out in the Code or in respect of
which court fees had not been paid. The judge was to grant a
time-limit to rectify the shortcomings in the claim.
The
claim was to be declared inadmissible and sent back to the claimant
if the latter had not followed the instructions of the judge.
- According
to Article 290, the parties were entitled to appeal against the
judgment (decision on the merits of the case) of the first-instance
court in full or in part. A ruling (procedural decision) of the
first-instance court was to be appealed against separately from the
judgment in the cases envisaged by the Code.
- Under
Article 291, a first-instance court's ruling could be appealed
against if it impeded the further progress of the case. The parties
could submit their objections against the rulings which were not to
be appealed against along with their appeal against a judgment in the
case.
- Article
293 envisaged that an appeal should be typewritten. It was to set out
the name of the
court with which the appeal was lodged;
the name of the
appellant, and his contact details;
the full and exact
names of other persons participating in the case, their places of
residence and contact details;
reference to the
judgment or ruling against which the appeal was lodged and the scope
of that appeal;
the reasons for the
appeal: explanation as to the alleged wrongfulness of the judgment
(ruling), circumstances of the case or the law on which the appeal
was based; new facts or means of proof important for the case or
objections against the evidence, which the first-instance court had
allegedly groundlessly refused to admit or which, for good reasons,
could not have been submitted before; the list of evidence admitted
by the first-instance court which the appellant sought to have
reconsidered by the court of appeal;
the petition (object
of the appeal);
a list of the
written materials annexed to the appeal.
The
appeal should be signed by the appellant or his representative. It
should be accompanied by a power of attorney, if necessary, and
copies of the appeal and written materials. The number of copies
should correspond to the number of persons involved in the case.
- According
to Article 294, an appeal should be submitted to the court of first
instance that had dealt with the case. The court should apply the
rules contained in Article 139 of the Code in respect of an appeal
which did not comply with the requirements set out in Article 293
or in respect of which court fees had not been paid.
- Pursuant
to Article 295, if an appeal was lodged in compliance with the
requirements of the Code the court of first instance should send
copies of it to the persons participating in the case in order that
they could submit any comments they might wish to make.
Upon
the expiry of the time-limit for lodging an appeal the same court
should send the appeal together with the case file to the court of
appeal.
- Under
Articles 301 and 305, the court of appeal verified whether a
judgment or ruling of the first-instance court was lawful and duly
reasoned. The court of appeal had the power to examine new evidence,
and evidence which allegedly had not been examined in compliance with
the Code. When considering an appeal against a judgment, the court of
appeal was entitled
to reject the appeal;
to quash the judgment and to remit the case for a fresh
consideration, if a procedural violation prevented the court of
appeal from examining new evidence or the evidence which the
first-instance court had not examined;
to quash the judgment and to discontinue the proceedings;
to change the judgment or to adopt a new judgment.
- According to Article 310, when considering an
appeal against a ruling of the first-instance court, the court of
appeal was entitled
to reject the appeal, if the ruling had been delivered in compliance
with the law;
to change the ruling, if it was a correct decision, though the
provisions of the Code had been wrongfully applied;
to quash the ruling and to remit the matter to the first-instance
court for a fresh consideration, if it had not been delivered in
accordance with the procedure for its consideration;
to quash the ruling
and to deliver a new ruling on the matter, which had been resolved
by the first-instance court in violation of the provisions of the
Code.
B. Code of Civil Procedure of 2004 (“the Code of
2004”) (in force as of 1 September 2005)
-
Article 296 of the Code of 2004 provides that an appeal shall be
submitted through the court of first instance that adopted the
contested decision. The court shall refer an appeal or appeals
together with the case file to the court of appeal within three days
of the expiry of the time-limit for lodging the appeal or if all
persons who wish to contest the decision have lodged their appeals.
Appeals arriving after the referral of the case file to the court of
appeal shall be referred to the same court not later than the next
working day.
- Pursuant
to Article 295 § 1, a judge of the court of appeal
appointed as rapporteur shall decide on the admissibility of an
appeal.
C. The Treaty on Payment of Pensions to Military
Servicemen and Their Families and on State Insurance of Military
Servicemen of the Member States of the Commonwealth of Independent
States of 15 May 1992 (the “CIS Treaty of 15 May
1992”)
- The
relevant provisions of the CIS Treaty of 15 May 1992 read as follows:
Article 1
“Payment of pensions to and compulsory State
insurance of military servicemen of the Armed Forces of the Member
States of the Commonwealth [of Independent States] ..., as well as
payment of pensions to the families of those military servicemen
shall be arranged on the basis of the conditions, norms and in the
manner established or which will be established by the legislation of
the Member States, on the territory on which the aforementioned
military servicemen and their families reside, while before the
[relevant] laws are adopted by these States [payment of pensions and
compulsory State insurance shall be arranged] on the basis of the
conditions, norms and in the manner envisaged in the legislation of
the former Union [of Soviet Socialist Republics] ... [T]he level of
pension payments ... shall not be lower than that established by the
legislation ... of the former Union [of Soviet Socialist Republics].”
Article 2
“...
The amount of allowance (salary) [necessary] for
calculation of pension payments to be made to military servicemen and
their families shall be determined in accordance with the legislation
of the Member States on whose territory the military servicemen and
their families reside.”
Article 3
“The Member States shall bear the expenses [in
respect of] payment of pensions to military servicemen and their
families and compulsory State insurance of military servicemen ...
without reciprocal payments between the States.”
Article 5
“The questions concerning the application of the
present Treaty shall be considered, if necessary, by the Council of
Ministers of Defence of the Member States, as well as by the
Ministries of Defence ... of the Member States of the Commonwealth on
a bilateral or multilateral basis.”
Article 6
“The Treaty enters into force when signed [by the
Parties].”
D. The Law of Ukraine on Social and Legal Protection of
Military Servicemen and Their Families of 20 December 1991
(the “Law of 1991”)
- Section
3 of the Law of 1991 read, as worded at the material time, as
follows:
“This Law applies to:
[i] military servicemen serving on the
territory of Ukraine, and military servicemen, who are nationals of
Ukraine, serving outside Ukraine;
[ii] family members of servicemen who
perished, died, disappeared, or became disabled in the course of
their service;
[iii] reservists called for training, and
their family members.”
III. Practice of the
Economic Court of the Commonwealth of Independent States
- According
to Article 32 of the Statute of the Commonwealth of Independent
States of 22 January 1993 and Article 5 of the Statute
of the Economic Court of the Commonwealth of Independent States of
6 July 1992, the CIS Economic Court is entitled to give
interpretation to treaties and other acts of the Commonwealth.
Ukraine, not having ratified either the Statute of the Commonwealth
or the Statute of the CIS Economic Court, does not recognise the
latter's jurisdiction.
- Pursuant
to the judgment and the ruling, delivered by the CIS Economic Court
on 4 September 1996 and 20 March 1997
respectively, on the interpretation of several treaties of the
Commonwealth, including the CIS Treaty of 15 May 1992, the
payment of an insurance settlement or of a lump sum payment to a
member of the family of a deceased military serviceman shall be made
by the State in which the serviceman was insured, irrespective of his
family member's country of residence. The insurance company or other
competent authority of the State, in the Armed Forces of which the
military serviceman served, shall be responsible for the fulfilment
of the obligations under the insurance contract of that serviceman.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained of the outcome and unfairness of the proceedings
concerning his claim for the recovery of the insurance settlement,
alleging that the domestic courts had disregarded his arguments, that
they had misapplied the relevant law, and that they had not been
impartial. He submitted that the courts should not have based their
decisions on the case-law of the CIS Economic Court, the jurisdiction
of which had not been recognised by Ukraine. The applicant also
maintained that the interpretation given by the CIS Economic Court
approximately five years after the CIS Treaty of 15 May 1992
entered into force and four years after the death of his son
(25 April 1993) was inapplicable in his case.
The
applicant further complained that he had been unlawfully deprived of
the right of access to a court in order to challenge on appeal the
judgment of the Komunarskyy District Court of Zaporizhzhya of
10 April 2002 in the proceedings on the recovery of special
pension.
He
invoked Articles 6 § 1 and 17 of the Convention the
relevant parts of which provide as follows:
Article 6
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
Article 17
“Nothing in [the] Convention may be interpreted
as implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention.”
- The
Court observes that the applicant's arguments under Article 17 of the
Convention do not go beyond the allegation of an unfair hearing and,
therefore, must be examined under Article 6 § 1
of the Convention.
- The
Court further observes that the applicant's complaints concern two
separate sets of proceedings, one of which involved only a court of
first instance deciding on his claim. Furthermore, the issues raised
by the applicant with regard to each set of proceedings differ
substantially. Thus, the Court considers that the complaints should
be examined separately in respect of each set.
A. Admissibility
1. Proceedings for recovery of the insurance settlement
- The
Government submitted that the applicant had had a fair hearing in his
case against the Oranta Company. The domestic courts, relying on the
CIS Economic Court's interpretation of the international agreement
applicable in the applicant's case – the Treaty of 15 May 1992,
had acted in compliance with the principle of lawfulness of the
proceedings.
- The
applicant disagreed.
- The
Court recalls that it is not its function to deal with errors of fact
or law allegedly committed by a national court, unless and in so far
as they may have infringed rights and freedoms protected by the
Convention (see Garcia Ruiz v. Spain, [GC], no. 30544/96, §
28, ECHR 1999-I).
- The
Court observes in the present case that the applicant was able to put
forward his arguments fully, that adequate reasons for refusing his
claim were provided, and that there is nothing in the case file which
might disclose any arbitrariness or prejudice in the handling of the
applicant's claim by the domestic courts.
- As
regards the fact that the courts used the case-law of the CIS
Economic Court for their interpretation of the CIS Treaty of
15 May 1992, the Court notes that it
is primarily for the national authorities, notably the courts of
appeal and of first instance, to resolve problems of interpretation
of domestic legislation, the international treaties ratified
by a given State forming its part. Equally, it is for the domestic
courts to choose the means of such interpretation, which can normally
include acts of legislation, relevant case-law, academic resources
etc. Thus, the Court does not discern any issue under Article 6 § 1
of the Convention in the way the courts interpreted the law
applicable in the applicant's case.
- It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, and must
be rejected pursuant to Article 35 § 4 of the Convention.
2. Proceedings for recovery of special pension
- The
Government contended that the applicant had not exhausted domestic
remedies as he had failed to appeal against the ruling of
27 January 2003, by which the Zhovtnevyy District Court had
declared the applicant's appeal against its ruling of
28 November 2002 inadmissible.
- In
reply, the applicant stated that in his case it would have been
futile to lodge with the court a new appeal against the decision of
the same court that had twice refused to transfer his similar appeals
to the higher courts.
- The Court finds that the question of exhaustion of
domestic remedies is closely linked to the merits of the applicant's
complaint of lack of access to a court. Therefore, to avoid
prejudging the latter, both questions should be examined together.
Accordingly, the Court holds that the question of exhaustion of
domestic remedies should be joined to the merits of that complaint.
- The
Court further notes that the complaint is not manifestly
ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- In
their observation on the merits of the applicant's complaint of lack
of access to a court the Government maintained that the ruling of the
Zhovtnevyy District Court of 27 January 2003 was in
compliance with Articles 139 and 294 of the Code of Civil Procedure
of 1963. The Government also argued that, instead of challenging the
ruling of that court of 6 December 2002, the applicant
should have corrected his appeal of the same day.
- The
applicant disagreed, alleging that the Zhovtnevyy District Court had
had no lawful grounds to declare his appeals inadmissible. The
applicant stated that his appeal against the ruling of
6 December 2002 had been an attempt to draw the higher
court's attention to the injustice which he had allegedly suffered on
account of the first-instance court.
- The
Court recalls that under Article 6 § 1 of the
Convention, should an appeal system exist in the domestic legal
order, the State is required to ensure that persons within its
jurisdiction enjoy before courts of appeal the fundamental guarantees
enshrined in Article 6, regard being had to the special features of
the proceedings in question, and that account must be taken of the
entirety of the proceedings in the domestic legal order and of the
role of the appellate court therein (see, for instance, Podbielski
and PPU Polpure v. Poland, no. 39199/98, § 62,
26 July 2005).
- The
Court notes that the applicant alleged that he had been unlawfully
denied access to the Zaporizhzhya Regional Court of Appeal, which had
the power to review the case both as to facts and as to law and was
also competent to consider new facts which had not been examined in
the first-instance proceedings (see paragraph 30 above). In his
appeal against the first-instance judgment the applicant contested
the latter's findings as to law. Thus, the Court considers that,
given the nature of the review on appeal under Ukrainian law, the
applicant's right of access to a court of appeal was protected by the
fundamental guarantees contained in Article 6 of the Convention.
- In
this context, the Court recalls that the right to a court, of which
the right of access is one aspect, is not absolute; it may be subject
to limitations permitted by implication, particularly regarding the
conditions of admissibility of an appeal. However, such limitations
must pursue a legitimate aim and there must be a reasonable
relationship of proportionality between the means employed and the
legitimate aim sought to be achieved (see Podbielski and PPU
Polpure, cited above, § 63).
- Turning
to the circumstances of the present case, the Court notes that at the
material time Articles 294 and 295 of the Code of Civil Procedure of
1963 provided for the filter of appeals against the first-instance
courts' judgments and rulings by the same courts which were entitled
to decide on their admissibility. The grounds for declaring appeals
inadmissible were non-compliance with requirements as to their form
and content, non-observance of time-limits, and non-payment of court
fees (see paragraphs 24, 27-29 above).
- The
Court does not doubt that this procedure was designed to assure the
proper administration of justice. Nevertheless, having regard to the
procedural rules in force at the material time and the way they were
applied in the applicant's case, it considers that the means employed
to achieve that aim were not proportionate.
- In
particular, by two rulings of 28 November 2002 and
27 January 2003, the Zhovtnevyy District Court stopped the
applicant's appeals against the decisions of that court at the
first-instance level on the ground of non-compliance with the
legislative requirements as to the form and content of appeals.
Although, formally, the applicant could lodge an appeal against the
ruling of 27 January 2003, it would still have to go
through the same court. The Zaporizhzhya Regional Court of Appeal had
no power to consider the applicant's appeal unless the Zhovtnevyy
District Court allowed it to pass.
- The
Government did not suggest that there were any safeguards available
in the domestic legal system against potentially arbitrary refusals
to refer an appeal to a court of appeal. Thus, the Court considers
that the first-instance courts were granted the uncontrolled power to
decide whether appeals against their decisions could reach the higher
courts. This situation could arguably lead, as it did in the
applicant's case, to an appeal never reaching the higher instance.
- Furthermore,
the Court observes that the applicant made amendments to improve his
appeals in line with the court's instructions and legislative
requirements. The court's decision yet not to grant him leave to
appeal appears over-formalistic and not corresponding to the
filtering purpose.
- The foregoing considerations are sufficient to enable
the Court to conclude that the applicant was denied the right of
access to a court.
In conclusion, the Court rejects the
Government's objection as to the exhaustion of domestic remedies and
finds that in the present case there has been a violation of Article
6 § 1 of the Convention.
- The
Court duly notes that with the entry into force of the new Code of
Civil Procedure in September 2005, the first-instance courts lost the
power to filter appeals against them, the courts of appeal having
become the sole jurisdiction competent to decide on the admissibility
and merits of such appeals (see paragraphs 32 and 33 above).
II. Alleged violation of Article
1 of Protocol No.
1
- The
applicant complained of a violation of his right to property on
account of the refusal of the Ukrainian authorities to pay him an
insurance settlement and special pension because of the death of his
son. He relied on Article 1 of Protocol No. 1 to the Convention,
which provides as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government argued that Ukraine had no obligation to pay the applicant
an insurance settlement, as under the CIS Treaty of 15 May 1992
it was for the State in the Armed Forces of which the applicant's son
had served to make such payments. Thus, they suggested that this
aspect of the applicant's complaint under Article 1 of
Protocol No. 1 was incompatible ratione personae.
- The
Government also argued that the applicant's complaint in respect of
special pension should be declared inadmissible for non-exhaustion of
domestic remedies, since the applicant had failed to appeal against
the judgment of the Zhovtnevyy District Court of 17 October 2002
in compliance with the relevant procedural requirements.
- The
Court considers that it is not necessary to deal with the
Government's specific arguments concerning the admissibility of the
applicant's complaints under Article 1 of Protocol No. 1,
as it considers that they are in any case inadmissible for the
following reasons.
- The
Court reiterates that the concept of “possessions” in the
first part of Article 1 of Protocol No. 1 has an autonomous meaning,
which is not limited to ownership of physical goods and is
independent of the formal classification in domestic law: certain
other rights and interests, for instance debts, constituting assets,
may also be regarded as “property rights”, and thus
“possessions” for the purposes of this provision. Where
the proprietary interest is in the nature of a claim it may be
regarded as an “asset” only where it has a sufficient
basis in national law or if it is sufficiently established by a final
and enforceable judicial decision (see Kopecký v. Slovakia
[GC], no. 44912/98, §§ 52, ECHR 2004-IX, and Stran Greek
Refineries and Stratis Andreadis v. Greece, judgment of
9 December 1994, Series A no. 301-B, p. 84, § 59).
- The
Court is of the opinion that the applicant's claims for an insurance
settlement and a special pension under Ukrainian law cannot be
regarded as “possessions” within the meaning of Article 1
of Protocol No. 1, since they have not been recognised and
determined by a judicial decision having final effect. Nor did the
Ukrainian legislation (see the Domestic law Part) contain any
provision which could lead to the conclusion that the applicant had
at least a legitimate expectation to receive the amounts he claimed.
- It
follows that this part of the application is incompatible ratione
materiae with the provisions of the Convention within the
meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed UAH 52,850
in respect of pecuniary damage and the same amount in respect of
non-pecuniary damage.
- The
Government maintained that the applicant's claims were
unsubstantiated.
- The
Court does not discern a causal link between the breach of Article 6
§ 1 of the Convention in the applicant's case and the alleged
pecuniary damage. There is, therefore, no ground for an award under
this head.
- As
to compensation in respect of non-pecuniary damage, the Court
considers that the finding of a violation of Article 6 § 1 of
the Convention constitutes in itself sufficient just satisfaction in
the circumstances (see, mutatis mutandis, MeZnarić v.
Croatia, no. 71615/01, § 44, 15 July 2005).
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's
preliminary objection concerning the exhaustion of domestic remedies
in respect of the applicant's complaint under Article 6 § 1
of the Convention of lack of access to a court, and dismisses it;
- Declares the complaint under Article 6 § 1
of the Convention of lack of access to a court admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
