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FIFTH
SECTION
CASE OF PONOMARENKO v. UKRAINE
(Application
no. 13156/02)
JUDGMENT
STRASBOURG
14
June 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 Ponomarenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 22 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13156/02) 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 Albert Ivanovich
Ponomarenko (“the applicant”), on 29 June 2001.
- The
applicant, who had been granted legal aid, was represented by
Ms L. V. Opryshko, a lawyer practising in Kyiv. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
10 July 2003 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 1930 and lives in the town of Gola Prystan.
A. Background of the case
- The
applicant's relatives owned a house in the same town which stood on a
plot of land belonging to the municipality. The applicant's relatives
had a right to use this plot of land. The entrance to the plot was
situated on the Kirova Street and the house was registered at the
address of 14 Kirova Street. By the decision of the Gola
Prystan Town Council (“the Council”) of 10 December 1975,
a part of this plot was allocated to a third party for construction
of a house, which was completed in 1976. As a result, the original
entrance was destroyed and the applicant's relatives ceased to have a
direct access to their house from any neighbouring street.
- In
1989 the applicant inherited his relatives' house. He also obtained
the right to use the land on which it stood.
- On
an unspecified date, he requested the Council to designate a new
passage and entrance to that land. On 12 December 1989 the
Council decided that the new passage and entrance should be from the
Gorkogo Street through the yard of the neighbouring multi-storey
apartment house. The address of the applicant's house (14 Kirova
Street) remained unchanged.
- The
applicant disagreed and lodged several complaints with the local
authorities, alleging that he experienced difficulties in accessing
his house. In particular, he argued that he could not bring large
items to the land and that visitors encountered difficulties in
locating his house at its actual address. By letter of
16 September 1994, the Council informed the applicant that
he could freely pass through the neighbouring building's yard in
order to enter his house and that he could request amendments to the
address of the house, if he so wished.
B. First set of court proceedings
- In
March 1991 the applicant lodged with the Gola Prystan Town Court a
claim against the Council. He alleged that the latter had unlawfully
reduced the size of the land on which his house stood and that he had
difficulties in accessing his house. The applicant sought recovery of
the part of land which had been taken away from his relatives in
1975.
- On
18 April 1991 the court refused to consider the applicant's
claim on the merits. It found that the applicant in fact contested
the lawfulness of the Council's decision of 10 December 1975
and, thus, his claim was not to be considered by the courts since he
had not exhausted non-judicial remedies available in 1975.
Furthermore the applicant was not the owner of the land on which his
house stood.
- On
29 May 1991 the Kherson Regional Court upheld in cassation
the ruling of the first instance court.
C. Second set of court proceedings
- In
2001 the applicant lodged with the Gola Prystan Town Court a new
claim against the Council. He again alleged that the latter had
unlawfully taken away a part of the land on which his house stood in
1975 and that it had not paid compensation for the damage which the
applicant's family had allegedly sustained as a result of this. The
applicant also alleged that he experienced difficulties in accessing
and using his house and that the Council unlawfully refused to
resolve his problem. The applicant requested the court to order the
Council to grant him an official right of passage over his
neighbours' land and to set up a five-meter wide passage and entrance
to his plot from the Kirova Street. The applicant also sought
compensation.
- On
20 February 2001 the court refused to consider the applicant's
claim on the merits. It put forward the same reasons as in its ruling
of 18 April 1991.
- The
applicant appealed in cassation, alleging that the first instance
court had erred in establishing the subject-matter of his claim. On
11 April 2001 the Kherson Regional Court reiterated the
findings of the first instance court and rejected the applicant's
appeal in cassation.
II. Relevant domestic
law and practice
A. Constitution of Ukraine, adopted on 28 June 1996
- The
relevant provisions of the Constitution read as follows:
Article 8
“... The norms of the Constitution of Ukraine are
norms of direct effect. Appeals to the court for protection of the
constitutional rights and freedoms of the individual and citizen
directly on the basis of the Constitution of Ukraine are guaranteed.”
Article 55
“Human and citizens' rights and freedoms are
protected by the courts.
Everyone is guaranteed the right to challenge in court
the decisions, actions or omissions of bodies of State power, bodies
of local self-government, public servants...”
Article 124
“Justice in Ukraine is administered exclusively by
the courts...
The jurisdiction of the courts extends to all legal
relations that arise in the State.
Judicial proceedings are performed by the Constitutional
Court of Ukraine and courts of general jurisdiction...”
B. Code of Civil Procedure of 1963 (“the Code”)
(repealed as of 1 September 2005)
- The
relevant provisions of Article 136 of the Code read as follows:
“... The judge shall refuse to accept a claim:
...
1) if it is not to be considered by the courts;
2) if the interested person who applied to the
court did not have recourse to non-judicial means of settlement of
the case established by the law...
3) if there is a final judgment of the court or its
final decision allowing withdrawal of the claim or the friendly
settlement in a case concerning the same subject-matter and between
the same parties...”
C. Judgment of the Constitutional Court of
25 November 1997 in the case of G. P. Dziuba concerning the
right to challenge unlawful acts of public servants before the courts
- The
relevant extracts from the operative part of the Constitutional
Court's judgment read as follows:
“Article 55 § 2 of the
Constitution shall be construed to guarantee everyone ... the right
to challenge decisions, acts or inactivity of every public and
municipal authority, public servant before the court...
Such complaints shall be considered directly by the
courts, irrespective of whether the law enacted before [the
Constitution] provided for a different procedure of their
consideration...”
D. Resolution no. 7 of
the Plenary Supreme Court of 4 October 1991 concerning
application of legislation on citizens' ownership titles to houses by
the courts
- The
relevant extracts from paragraph 2 of the Resolution read as follows:
“...The courts shall have jurisdiction over
disputes which have relation to ownership titles to houses, in
particular:
- concerning ... remedies for any interference with the
ownership title [to a house or its part], even if such interferences
were not connected with dispossession...
- concerning compensation for diminished value of a
house caused by the activities of enterprises, organisations ...”
E. Resolution no. 9 of
the Plenary Supreme Court of 1 November 1996 concerning application
of the Constitution of Ukraine by the courts
- The
relevant extracts from paragraph 8 of the Resolution read as follows:
“... Further to the provisions ... [of Article 124
of the Constitution], the courts shall have jurisdiction over all
disputes concerning the citizens' rights and freedoms. The court
shall not refuse to entertain a claim or a complaint on the sole
ground that it can be examined in the course of a non-judicial
procedure established by law.
Article 55 of the Constitution of Ukraine envisages that
every person is guaranteed the right to challenge the actions or
inactivity of the public authorities, local self-government or civil
servants; ... the court cannot refuse to entertain a claim on the
basis of a law that limits this right ...”
F. Resolution no. 13
of the Plenary Supreme Court of 25 December 1996 concerning
application of land legislation by the courts (repealed as of 16
April 2004)
- The
relevant extracts from paragraph 2 of the Resolution read as follows:
“... [The] courts shall have jurisdiction over
applications for, in particular:
...
- protection and restoration of the rights of land
owners and tenants, removal of obstacles to use of lands...”
THE LAW
I. ADMISSIBILITY
- The
applicant complained that he had been unlawfully deprived of the
right of access to a court concerning his claim lodged with the
domestic courts in 2001. He invoked Article 6 § 1 of the
Convention which provides, in so far as relevant, as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
applicant further complained under Article 1 of Protocol No. 1
about a violation of his right to peaceful enjoyment of his
possessions, alleging the State authorities' continuous failure to
remove the obstacles to his access to the land on which his house
stood. He also alleged that the municipal authorities had not
followed the relevant domestic procedure when they had allocated to a
third party a part of the land which had been in his relatives'
possession. Thus, the applicant contended that he had a right to that
part of the land, protected by Article 1 of Protocol No. 1
which reads 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.”
A. The Government's preliminary objections
- The
Government submitted that the application had been introduced outside
the period of six months prescribed by Article 35 § 1 of the
Convention and, moreover, concerned events which had taken place
before the Convention entered into force in respect of Ukraine. In
particular, they argued that the applicant, by lodging his new claim
with the domestic courts in 2001, in fact sought a disguised
reopening of the first set of proceedings, since it concerned the
same facts which had been already considered by the Gola Prystan Town
Court on 18 April 1991 and by the Kherson Regional Court on
29 May 1991. The latter decisions were adopted before
11 September 1997, the date on which the Convention entered
into force in respect of Ukraine and more than six months before the
application was lodged with the Court.
- The
applicant disagreed, stating that the courts' decisions adopted in
1991 did not represent a final resolution of his case, since the
courts had not considered its merits. Furthermore, the domestic
courts, having rejected his claim in 2001, did not find it to be the
same as his claim of 1991. The applicant also maintained that his
complaint under Article 1 of Protocol No. 1 concerned
a continuing violation of his property rights.
- At
the outset, the Court notes that the decision of the Kherson Regional
Court of 29 May 1991, which was the object of the
applicant's previous application (no. 44543/98) declared inadmissible
on 14 September 1999, is outside the scope of the present
application and. It remains to be ascertained whether the applicant's
case was finally determined in 1991.
- The
Court observes that the applicant brought proceedings concerning his
property related complaints before the domestic courts in 1991 and
2001. However, none of his claims were considered on the merits.
Furthermore, although these claims largely had the same background,
the remedies sought by the applicant were different. In 1991 the
applicant requested the courts to order the Council to provide him
with a plot of land, while in 2001 he sought an official right of
passage over his neighbours' land and the construction of a new
entrance to the land on which his house stood. The Court also notes
that the domestic courts did not find that the applicant's claim of
2001 had already been determined by a final judgment and did not
reject it on such grounds (see paragraphs 13, 14, and 17 above). In
these circumstances, the Court finds no basis to agree with the
Government in that the applicant's case was finally determined in
1991 and that his claim of 2001 represented an attempt of disguised
reopening of the earlier set of proceedings.
B. Admissibility of the applicant's complaints under
Article 1 of Protocol No. 1
- The
Court recalls that it generally has no temporal jurisdiction over a
complaint about an interference which pre-dates ratification of the
Convention by the respondent State, even if the refusal to remedy it
post-dates ratification (see Blečić v. Croatia
[GC], no. 59532/00, § 79). This rule does not
apply to cases which concern a continuing situation against which no
domestic remedy is available (see, for instance, Loizidou v.
Turkey, judgment of 18 December 1996, Reports of Judgments and
Decisions 1996 VI, §§ 46-47).
- In
the present case the applicant complained about the alleged violation
of his property rights and his alleged inability to protect these
rights in the domestic courts. His submissions under Article 1
of Protocol No. 1 consist of two arguments. The first one
concerns the applicant's inability to use the plot which was taken
from his relatives in 1975. The second relates to the alleged refusal
of the municipal authorities to grant him an official servitude over
his neighbours' land and to provide him with a specific passage and
entrance to his house and the land on which it stands. According to
the applicant, such state of affairs has the effect of a continuing
violation of his right to freely access and use his house.
- As regards the first assertion, the Court notes that
it concerns the taking of land which occurred in 1975. It was clearly
an instantaneous act which did not create any continuous situation
(see Papuk Trgovina d.d. v. Croatia, no. 2708/03,
§ 44, 6 October 2005).
- Concerning
the second argument, the Court notes that the alleged difficulties in
the applicant's access to his property were a result of the
allocation of a part of the land, which his family had been entitled
to use, to a third party in 1975 and by the construction of a
neighbouring building in 1976.
- However,
the consequences over time of the past events – such as the
alleged difficulties for the applicant to access his property –
did not create a continuing situation extending the Court's temporal
jurisdiction. The reluctance of the municipal authorities to grant
the applicant's request for an improved passage and entrance to his
house which existed before 1975 (see paragraphs 8 and 12) was closely
related to the Council's decision of 10 December 1975 to
allocate land to a third party. Divorcing the latter event from its
consequences would amount to giving retroactive effect to the
Convention which would be contrary to general principles of
international law (see, mutatis mutandis, Papuk Trgovina
d.d. v. Croatia, no. 2708/03, § 45, 6 October
2005). Accordingly, the subsequent failure of remedies, to which the
applicant had recourse in 2001 and which were aimed at redressing
that interference, cannot bring it within the Court's temporal
jurisdiction.
- The
Court therefore finds that the applicant's complaints under Article 1
of Protocol No. 1 do not relate to a continuing situation,
but concern the events which took place in 1975-1976, before the
Convention and Protocol No. 1 entered into force in respect
of Ukraine (11 September 1997). For that reason, the Court
rejects this part of the application for being incompatible ratione
temporis with the provisions of the Convention, pursuant to
Article 35 §§ 3 and 4 of the Convention.
C. Admissibility of the applicant's complaint under
Article 6 § 1 of the Convention
- The
Court notes that the applicant made a separate complaint under
Article 6 § 1 of the Convention about the alleged
lack of access to domestic courts in 2001. The impugned proceedings
took place after the entry into force of the Convention in respect of
Ukraine. In such circumstances, the Court cannot reject this
complaint for lack of temporal jurisdiction (see Malhous v. the
Czech Republic (dec.), no. 33071/96, ECHR 2000 XII, and
Kerimov v. Azerbaijan (dec.), no. 151/03,
28 September 2006).
- The
Court considers that the applicant's complaint about the lack of
access to courts raises issues of fact and law under the Convention,
the determination of which requires an examination of the merits. It
finds no ground for declaring it inadmissible.
II. MERITS
- As
regards the merits of the applicant's complaint under Article 6 § 1
of the Convention, the Government submitted that by lodging his claim
in 2001 the applicant had challenged the lawfulness of the decision
of the Gola Prystan Town Council of 10 December 1975 and
had sought recovery of the part of land which had been taken from his
relatives in 1975. The Government argued that under Ukrainian law the
courts did not enjoy jurisdiction over the applicant's claim, since
he was not the owner of the plot of land on which his house stood.
36. The
Court reiterates that, under its case-law, Article 6 § 1
embodies the “right to a court”, which includes not only
the right to institute proceedings but also the right to obtain a
“determination” of the dispute by a court (see, mutatis
mutandis, Multiplex v. Croatia, no. 58112/00,
§ 45, 10 July 2003). For this right to
be effective, an individual must have a clear, practical opportunity
to challenge an act that is an interference with his or her rights
(see Bellet v. France, judgment of 4 December 1995,
Series A no. 333-B, p. 42, § 36).
- The
Court observes that in his submissions before the domestic courts the
applicant complained about the interference with his right of access
to his house and the land which he possessed. He argued that the
interference was of a continuous nature and that the municipal
authorities unlawfully refused to resolve the problem. Although the
applicant alleged that the decision of the Gola Prystan Council of
10 December 1975 was unlawful, he did not seek its
annulment. The applicant requested the courts to order the Council to
adopt certain practical measures in order to resolve his problems of
access to his property. The courts found that they did not enjoy
jurisdiction over the applicant's claim.
38. The
Court's task is not to examine whether or not, in particular in the
light of Ukrainian law, the domestic courts had jurisdiction to
determine the merits of the applicant's claim. Nonetheless, it
observes that neither the courts' decisions in the case nor the
Government's submissions contain references to the domestic laws in
force at the material time which excluded such claims from the
courts' jurisdiction. Moreover, the Court notes that, according to
the interpretation given by the Constitutional Court and the Supreme
Court, the relevant domestic law and procedural rules must not been
construed as to limit a citizen's right of direct access to the
courts in respect of his complaints about the alleged omissions or
inactivity of public or municipal authorities (see paragraphs 17-20
above). In any event, the Court finds that no acceptable
justification for the refusal to entertain the applicant's claim at
the domestic level was submitted before it.
39. In
the Court's view, that situation amounts to a denial of justice which
impaired the very essence of the applicant's right of access to a
court as secured by Article 6 § 1 of the Convention.
There has accordingly been a violation of that
provision.
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 USD 30,000 in compensation for pecuniary
damage. The applicant further claimed USD 100,000 in respect of
non-pecuniary damage.
- The
Government maintained that the applicant's claims were exorbitant and
unsubstantiated.
- The
Court does not discern a causal link between the breach of Article 6
§ 1 of the Convention 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
- Declares the complaint under Article 6 § 1
of the Convention 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 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
