European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 61484/10
Borys Vasylyovych BASHCHENKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 3 April 2012 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 14 October 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Borys Vasylyovych Bashchenko, is a Ukrainian national who was born in 1938 and lives in Bendyugivka.

A.  The circumstances of the case

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

On 21 January 2009 the applicant lodged a civil claim with the Kagarlyk Local Court against the Kagarlyk Local Administration, seeking to be issued title to a plot of land to which he was entitled as a member of the D. collective farm.

On 18 December 2009 the court found against the applicant, determining that there was no evidence that the applicant was on the list of those entitled to a plot of land on the D. farm. It noted in particular that the decision of the D. farm management of 30 March 1996 did not prove the applicant’s entitlement to a plot of land.

On 15 April 2010 the Kyiv Regional Court of Appeal upheld the decision of the first-instance court.

On 30 June 2010 the applicant lodged an appeal on points of law with the Supreme Court. In his appeal the applicant requested an extension of the time-limit for lodging the appeal, without indicating any reasons for the request.

On 12 July 2010 the applicant lodged a supplement to his appeal of 30 June 2010, in which he also requested an extension of the time-limit without indicating any reasons for the delay.

On 16 July 2010 the Supreme Court rejected the applicant’s appeal as out of time, noting that the applicant had not requested an extension of the time limit for lodging the appeal.

On 9 August 2010 the applicant sent a letter to the Supreme Court pointing out that he had included a request for an extension in his appeal. In reply, the court repeatedly informed the applicant that his appeal had been rejected as out of time, as it contained no request for an extension.

B.  Relevant domestic law

Code of Civil Procedure 2004 (in the wording prior to 30 July 2010)

Article 325
Time-limit for appeal on points of law

“1.  An appeal on points of law may be lodged within two months of the date of entry into force of the decision (ruling) of the court of appeal.

2.  If the time-limit set forth in paragraph one of this Article is not respected for reasons which have been found valid, a cassation court judge may renew the time limit at the request of the person who lodged the appeal.

3.  An appeal on points of law which has been lodged outside the time-limit for such an appeal shall be returned to the person who has lodged it, if that person has not raised the issue of renewal of the time-limit, or if renewal of the time-limit has been refused.

4.  Renewal of the time-limit for an appeal on points of law and return of an appeal on points of law shall be decided by a judge rapporteur, who will issue a ruling in this respect.”

Article 328
Opening of proceedings on points of law

2.  A judge rapporteur shall return an appeal on points of law lodged outside the time-limit for such an appeal to the person who lodged it, unless he or she requests the renewal of the time-limit...”

COMPLAINTS

The applicant complained under Article 6 § 1of the Convention that the trial was unfair, because the first-instance and appellate courts assessed the evidence before them incorrectly and ignored some of his arguments. He further complained under the same Article that the Supreme Court refused to extend the time-limit for lodging an appeal on points of law, because the applicant had allegedly failed to request such an extension, however, his appeal on points of law did contain a request for an extension, but this was ignored by the court.

THE LAW

The applicant complained that the hearing as a whole, and the refusal of leave to appeal as submitted too late, were unfair. He referred to Article 6 § 1 of the Convention, which read, in so far as relevant, as follows:

Article 6 § 1

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

The Court notes that the applicant’s complaints under Article 6 § 1 of the Convention are twofold. The Court will first look into the complaint concerning access to an appeal court, and then into the allegations of unfairness of the proceedings.

(a)  As regards the applicant’s complaint of lack of access to an appeal court, the Court reiterates that the right to court, of which the right of access is one aspect (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36), is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict the exercise of the right in such a way or to such an extent that its very essence is impaired. They must pursue a legitimate aim and there must be a reasonable degree of proportionality between the means employed and the aim sought to be achieved (see the Guérin v. France judgment of 29 July 1998, Reports of Judgments and Decisions 1998-V, p. 1867, § 37).

The rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and legal certainty. Those concerned must expect those rules to be applied. Indeed, unjustified extension of time limits might in itself entail a breach of “right to court” under Article 6 § 1 (see, mutatis mutandis, Ponomaryov v. Ukraine, no. 3236/03, § 42, 3 April 2008). However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Pérez de Rada Cavanilles v. Spain, 28 October 1998, Reports 1998 VIII, p. 3255, § 45). The Court underlines that, since the issue concerns the principle of legal certainty, it raises the question not only of the interpretation of a legal provision in the usual way, but of the unreasonable establishment of a procedural requirement which may prevent a claim from being examined on the merits, thereby entailing a breach of the right to the effective protection of the courts (see, mutatis mutandis, Miragall Escolano and others v. Spain, no. 38366/97, § 37, ECHR 2001-I, and Zvolský and Zvolská v. the Czech Republic judgment, no. 46129/99, § 51, ECHR 2002 IX).

In the instant case the applicant was heard at first instance by the Kagarlyk Local Court and, on appeal, by the Kyiv Regional Court and he failed on both occasions to establish his entitlement to a plot of land. He then lodged his appeal on points of law outside the time-limit under Article 325 of the Code of Civil Procedure and requested an extension without giving any reasons for the delay. The Supreme Court declared the applicant’s appeal inadmissible on the ground that it had not been lodged within the established time-limit and that the applicant had not requested an extension. Admittedly, the Supreme Court statement on the latter point had not been correct, however, it could not be disregarded that the domestic law clearly provides that a person concerned may expect an extension of the time-limit only if the original time-limit was not respected for reasons which have been found valid. The applicant did not indicate any such reasons whatsoever in his appeal or in his further submissions to the court. Neither did he explain the reasons for his delay in the submissions to this Court. Thus, the applicant failed to substantiate that he had been entitled to seek access to the court of appeal after he missed the ordinary deadline for lodging his appeal. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b)  In so far as the applicant raises a complaint in connection with the fairness of the original proceedings and their outcome, the Court reiterates that, as it has previously held, an appeal on points of law in Ukrainian civil procedure may be considered an effective remedy within the meaning of Article 35 § 1 of the Convention and therefore has to be used (see Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002). The applicant failed to appeal on points of law in accordance with applicable procedural rules. This complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President