European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23688/04
by Sergey Vladimirovich IVANCHENKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 20 October 2009 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge

and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 29 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Vladimirovich Ivanchenko, is a Ukrainian national who was born in 1956 and lives in Kryvyy Rig.

The facts of the case, as submitted by the applicant, may be summarised as follows.

Between October 1995 and January 1996 the applicant purchased 250 vendor stalls and subsequently concluded lease agreements renting them out to A. and F., private companies. The stalls were put up on the Dzerzhynskyy Market municipal grounds, which were subleased to Ch., a private company, which had been owned by the applicant until June 1996. Subsequently the ownership of Ch. had been transferred to T., another private individual.

In October 1996 the Dzerzhynskyy District Council ordered stocktaking of the vendor stalls which were situated on Ch.’s grounds.

On 19 December 1996 the Stocktaking Commission reported to the Council that Ch. had provided no documents concerning the ownership of 200 stalls and that neither T. (its current owner) nor the applicant (its former owner), who had been questioned about the ownership of the stalls, had been able to clarify the situation, or even name Ch.’s director or any other responsible official.

On 30 December 1996 the Dzerzhynskyy District Council’s Executive Committee declared the 200 stalls reported to it by the Stocktaking Commission ownerless and recommended that the Dzerzhynskyy District Market appropriate them.

In the meantime, on 26 December 1996 the Head of the City Markets Association (of which the Dzerzhynskyy Market was a member) proposed to A. (a company, which rented some of the stalls) to remove them from the market grounds or to sell them to the Dzerzhynskyy Market by 1 January 1997, as after that date the grounds would no longer be sublet. The applicant has not provided any information as to A.’s or his reaction to this proposal.

Between 1 and 8 January 1997 the stalls were removed from the market grounds. According to the applicant, the removal was ordered by the Dzerzhynskyy Market administration with the help of the police force and their further location and destiny remain unknown.

On an unspecified date F. (the second company, which rented the stalls) instituted proceedings to annul the Executive Committee’s decision to declare the stalls ownerless. On 15 September 1997 the Dnipropetrovsk Regional Arbitration Court allowed this action. In its reasoning it noted that F. had produced lease agreements according to which it had been renting 170 stalls from the applicant. Since, at the material time, these agreements had not been declared void or forged, there was no basis on which to consider the stalls ownerless.

In February 2002 the applicant instituted civil proceedings in the Dzerzhynskyy District Court of Kryvyy Rig (Дзержинський районний суд м. Кривий Ріг) against the Executive Committee, the Dzerzhynskyy Market and the City Markets Association seeking damages for the disappearance of his stalls.

On 29 May 2002 the court dismissed his claim as unsubstantiated, referring to the applicant’s failure to prove the amount of damages claimed and to substantiate a direct causal link between any damage and the defendants’ wrongful actions. The court found, in particular, that the applicant had no contracts with either of the defendants and that neither of them had ever appropriated his stalls or claimed any rights to them. Moreover, the District Market was only a structural part of the City Markets Association and could not bear any separate liability under law. On the other hand, A. and F. had been responsible, under lease agreements, for the safeguarding and return of the applicant’s property to him. As they had failed to produce ownership documents to the Stocktaking Commission and had not availed themselves of the opportunities under the law to reclaim the stalls or demand compensation for damage, the applicant (who had also been negligent in defending his property interests, as he had failed to produce title documents to the Stocktaking Commission) should settle with them any damage claims he may have. Moreover, the particular amount claimed by the applicant in damages was not supported by the necessary evidence.

On 16 December 2002 the Dnipropetrovsk Regional Court of Appeal (Апеляційний суд Дніпропетровської області) upheld this judgment. On 20 November 2003 the Supreme Court of Ukraine (Верховний Суд України) rejected the applicant’s request for leave to appeal in cassation.

COMPLAINTS

The applicant complained under Article 6 § 1 that the courts had been biased against him, as in neither set of proceedings had they awarded him compensation for the stalls against the entities, who, in his opinion were at fault for their disappearance.

He further complained, under Article 1 of Protocol no. 1, about the District Council’s decision to declare his property ownerless and of having been unlawfully deprived of it.

Finally the applicant complained, under Article 13, of a lack of effective remedies for his Convention complaints.

THE LAW

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

As regards the first set of proceedings at issue, which concerned the annulment of the District Council’s decision to declare the stalls ownerless, the Court reiterates that, according to Article 34 of the Convention, it may only receive applications from a person claiming to be the victim of a violation of the rights set forth in the Convention or the protocols thereto. The term “victim” in Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see, for example, Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, § 34). The proceedings for annulment of the Council’s decision were instituted by F., the applicant’s lessee, against the District Council. The applicant himself was never a party to those proceedings. He can therefore not claim to be a victim of any violations of his Convention rights within the framework of those proceedings. This part of the application must therefore be rejected as incompatible ratione personae in accordance with Article 35 §§ 3 and 4 of the Convention.

As regards the second set of proceedings, in which the applicant’s claim for damages was refused, the Court reiterates that the domestic courts are best placed to assess the relevance of evidence to the issues in the case and to interpret and apply rules of substantive and procedural law (see, amongst many authorities, Rizhamadze v. Georgia, no. 2745/03, § 21, 31 July 2007). In so far as the relevant domestic decisions do not disclose any manifestly arbitrary reasoning (see, by contrast, Donadze v. Georgia, no. 74644/01, § 32, 7 March 2006), the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

“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 Court first observes that the applicant has not provided any proof that he had in fact owned the stalls at issue or that a State authority was responsible for their disappearance. In any event, the decision to declare the stalls ownerless and their removal from the market grounds took place prior to 11 September 1997, which is the date on which the Convention entered into force in respect of Ukraine and on which the declaration whereby Ukraine accepted the right of individual petition took effect. The relevant complaint is therefore incompatible ratione temporis with the provisions of the Convention (see, for example, Kozak v. Ukraine (dec.), no. 21291/02, 17 December 2002).

In so far as the applicant may be understood as complaining about having been unable to obtain compensation for the disappearance of the stalls after invalidation of the District Council’s decision, the Court, referring to its above findings under Article 6 § 1, considers that the applicant had no legitimate expectation to obtain such compensation from the public authorities concerned. This part of the application is therefore also manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its considerations above under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Court does not find that the applicant had an arguable claim for the purposes of Article 13, which therefore does not apply (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). This part of the application is therefore incompatible ratione materiae with the provisions of the Convention and should likewise be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Peer Lorenzen
Deputy Registrar President