CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 juin 2006

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Lorenzen, President,   Mrs   S. Botoucharova,   Mr   K. Jungwiert,   Mr   V. Butkevych,   Mrs   M. Tsatsa-Nikolovska,   Mr   J. Borrego Borrego,   Mrs   R. Jaeger, judges, and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 31 May 2002, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Ms Lidiya Ivanivna Stepenska, is a Ukrainian national who was born in 1957 and lives in Kyiv. She was represented before the Court by Mr S. Zakharov, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs   V.   Lutkovska, of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 25 December 1992 the Darnitskiy District Court of Kyiv awarded the applicant monthly payments from her ex-husband Mr S. for maintenance of their minor daughter M. In 1999 Mr S. lodged an application with the Minskiy District Court of Kyiv seeking assessment of the total amount of the child support maintenance, which he wished to pay in full due to his plans to leave for permanent residence in Israel. On 5 July 1999 the court delivered a decision, in which it fixed the amount of UAH 7,337.40 [1] as a total amount of the child support maintenance to be paid to the applicant. The applicant several times requested to review this decision under the supervisory review procedure but to no avail. In September 2001 the applicant lodged a claim with the Minskiy District Court for reassessment of the previously collected child support maintenance by awarding her additional fixed monthly amount of UAH   65.12 [2] under Article 85 of the Marriage and Family Code. She complained that Mr S. had refused to pay further maintenance to support their daughter, despite the facts that he failed to leave Ukraine for permanent residence abroad and that the average salary and costs of living in the country had increased considerably. On 4 October 2001 the court found against the applicant. In its decision it stated in particular: “The Kyiv Minskiy District Court, by its decision of 5 July 1999, had approved the calculation of the sum to be paid to Mrs Stepenska for maintenance of her daughter M., born on 4 September 1989, in connection with the departure of Mr S. for permanent residence in Israel. According to the receipt No. 491 of 21 August 1999 Mr S. had transferred UAH   7,337.40 in favour of Mrs Stepenska, therefore, he had discharged in full his obligations to pay the child support maintenance in respect of his daughter M., born on 4 September 1989. Under Article 92 para. 6 of the Marriage and Family Code of Ukraine, in case of departure for abroad of a citizen, who is under maintenance payment obligation, for permanent residence in a State which has no legal assistance agreement with Ukraine, the payment of maintenance is conducted under the procedure established by the Cabinet of Ministers. Mr S. had decided to leave for permanent residence in Israel, the State which had no legal assistance agreement with Ukraine, and had fulfilled the conditions of the Decree of the Cabinet of Ministers No. 146 of 26 February 1993 on payment of maintenance in case of departure for abroad. On the basis of the above considerations, the court considers that the claim should be rejected.” The applicant appealed against this decision to the Kyiv City Court of Appeal. On 11 December 2001 the Court of Appeal upheld the decision of the first-instance court. In its decision the court, having repeated the arguments of the lower court, further added: “In refusing the claims for additional child support maintenance in the fixed amount of UAH 65.12 per month, the court based its decision on the fact that at the time of consideration of the case the applicant had no right to payment of the above sum, taking into account that on 21 August 1999 the defendant had paid the maintenance in the amount of UAH 7,337.40. These conclusions of the court correspond to the circumstances of the case, to the requirements of Articles 80, 82, 85, 92, 93 of the Marriage and Family Code of Ukraine and the mentioned Decree of the Cabinet of Ministers of Ukraine. Article 80 of the Marriage and Family Code of Ukraine provides for ordering maintenance payments by the courts in case of deviation from child support maintenance. Under Article 30 of the Code of Civil Procedure of Ukraine the claimant did not prove in the court the circumstances, on which she relied in her claim, namely that the defendant failed to comply with his duty to maintain his child. The arguments of the appeal do not merit consideration due to the reasons mentioned in this decision. The decision of the court was given in compliance with law requirements and there are no grounds for its quashing.” On 22 March 2002 the panel of three judges of the Supreme Court of Ukraine, sitting in camera, rejected the applicant’s request for leave to appeal in cassation, having found that there were no grounds for referring the case to the Civil Chamber of the Supreme Court. On 16 April 2002 the Constitutional Court of Ukraine rejected the applicant’s request for interpretation of the legislative provisions concerning child support maintenance. B.     Relevant domestic law 1.     Constitution of Ukraine of 1996 Article 51 “...Parents shall be obliged to support their children until they attain the age of majority...” 2.     Marriage and Family Code of Ukraine (repealed in major part [3] as of 1 January 2004) Article 80. The duty of parents to support their children “Parents shall support their minor children ... In case of failure of parents to comply with this duty, the child support maintenance payments are collected by the court order.” Articles 82 and 83 of the Code provided for the maintenance assessment (for one child it constituted one quarter of the salary or other income of the absent parent) and the situations when the ordinary amount of the child support maintenance could be reduced. Article 84 empowered the Cabinet of Ministers to determine the types of income to be taken into account in the maintenance assessment. Article 85. Collection of child support maintenance payment in the fixed amount “In the situations, when the parent who is under maintenance payment obligation has unstable, changing salary (income) or if he receives a part of his income in kind, as well as in the situations when the collection of the maintenance payment in the proportion to the salary (income) is impossible or difficult, the child support maintenance, upon request of the claimant, could be determined in the fixed amount to be paid monthly. In all cases of child support maintenance collection in the fixed amount, the latter’s assessment shall be based on an assumed salary (income) of the parent in accordance with provisions of Article 82” Article 86 envisaged the duty of the absent parent to provide additional maintenance for the minor child in exceptional circumstances (serious disease or disability of the child, etc). Article 92. Procedure of payment or collection of the maintenance payments “The maintenance shall be paid voluntarily .... Voluntary payment of the maintenance does not prevent the recipient of the maintenance at any time to lodge a claim for collection of the maintenance with the court... In case of departure for abroad of a citizen who is under maintenance payment obligation for permanent residence in a State which has no legal assistance agreement with Ukraine, the payment of maintenance is conducted under the procedure established by the Cabinet of Ministers.” 3.     Family Code (in force since 1 January 2004) This Code replaced the Marriage and Family Code and contained similar provisions concerning child support maintenance. On 15 March 2006 Article 181 of the Code, which provides for child support maintenance, was complemented by paragraphs 5, 6 and 7, which envisaged, inter alia , the possibility to have the child support maintenance reassessed when the absent parent failed to leave for permanent residence abroad or has returned to Ukraine, after having resided abroad permanently. 4.     Decree of the Cabinet of Ministers No. 146 of 26 February 1993 (with amendments) “on list of the types of income to be taken into account in the assessment of maintenance of spouses, children, parents and other persons” The Decree approves a list of types of income that should or should not be taken into account in the maintenance assessment. It further provides that an absent parent who is leaving for abroad to reside permanently in a State which has no legal assistance agreement with Ukraine shall pay before his or her departure the child support maintenance for the whole period of obligation (until the child attains the age of majority). The maintenance assessment is based on the absent parent’s last month salary before the departure or the five times untaxable minimal income fixed at the time of assessment for each month of the remaining period of obligation. 5.     Code of Civil Procedure of 1963 (repealed as of 1 September 2005) A third level of jurisdiction, to be part of the ordinary judicial procedure, had been introduced into the Ukrainian legal system by the law of Ukraine “on the Introduction of Changes to the Code of Civil Procedure of Ukraine” of 21 June 2001. It had come into force on 29 June 2001. Under the new provisions, the parties were entitled to appeal against the decisions of the first instance court and the appellate court to the Supreme Court of Ukraine, acting as a court of cassation. Under Article 320 the grounds for cassation appeal were incorrect application of material law by the lower courts or violation of procedural rules. Article 328 provided that the case should be referred to the Chamber: if the appeal contained the signs of incorrect application of the procedural rules by lower courts, if a similar case was pending before the Chamber, if application of the law by lower courts run contrary to the practice of the court of cassation, or if the appellate court had acted as a first-instance court in the case. The case could also be referred to the Chamber if the decision had significant importance for uniform application of law and if the appeal showed that erroneous application of material or procedural law led or could lead to incorrect decision in the case. Article 329 of the Code provided for the filter of cassation appeals by a panel of three judges of the Civil Chamber of the Supreme Court who decided whether or not leave to appeal should be granted. No participation of the parties was foreseen at that stage of proceedings. Leave to appeal was granted unless the panel unanimously decided otherwise. Article 347-2 provided for review of the final decisions in the light of newly discovered circumstances on the grounds of, inter alia , circumstances, that had been significant for the case, but had not been or could not be known by a party to civil proceedings at the material time. Similar provision is contained in Article 361 of the new Code of Civil Procedure which is in force since 1 September 2005. COMPLAINTS The applicant complained under Article 6 § 1 of the Convention about a lack of public hearing in the Supreme Court of Ukraine and a lack of reasoning in its decision. She further complained, in substance, about a lack of sufficient reasoning in the lower courts’ decisions. Relying on Article 13 of the Convention, she maintained that the provisions of the domestic legislation, in particular the Decree of the Government no. 146 of 26   February 1993, were formulated in such a way that she could not seek what she considered the full payment of the child support maintenance. THE LAW 1.     The applicant complained that the court proceedings before the Supreme Court of Ukraine were not public and that the decision contained no reasoning. She relied on 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 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. When 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, the manner of application of this provision must depend on the special features of the proceedings involved (see, mutatis mutandis , Monnell and Morris v. the United Kingdom , judgment of 2 March 1987, Series A no. 115, §§   56-57, Glender v. Sweden (dec.), no. 28070/03, 6 September 2005, and Sale v.   France , no. 39765/04, §   17, 21 March 2006). The Court observes that in the instant case the issue for decision in leave to appeal proceedings is whether the applicant, in her written request, has demonstrated the existence of arguable grounds which would justify referral of her civil case to the Chamber of the Supreme Court. The Court recalls that leave to appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the cassation court and the reasoning for rejecting a request for leave to appeal was not detailed (see, respectively, among other authorities, Glender v. Sweden (dec.), cited above; and Sali v. Sweden (dec.), no. 67070/01, 10 January 2006). As to the applicant’s complaint about lack of hearing before the panel of the Supreme Court, in the circumstances of the present case, the Court is satisfied that the question whether or not to grant leave to appeal could be adequately resolved on the basis of the case file and the written submissions of the appellant, and that, accordingly, the absence of an oral hearing before the panel was justified. As to the applicant’s complaint about lack of sufficient reasoning, the Court considers that in the present case, when the Supreme Court refused leave to appeal, there was no need for detailed reasoning since it was clear that the request for leave to appeal was rejected because the applicant had not demonstrated the existence of arguable grounds which would have justified referral of the case to the Chamber of the Supreme Court (see Sale , cited above, § 17). It follows that these complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. 2.     The applicant further complained that the lower courts failed to examine arguments in support of her claim. She relied in substance on Article 6 § 1 of the Convention. The Government submitted an objection about non-exhaustion of domestic remedies by the applicant. They maintained that the applicant could have claimed revision of the above decision in the light of newly discovered circumstances. The applicant challenged this objection. The Court does not consider its necessary in the circumstances of the case to examine this objection of the Government as this complaint is, in any event, inadmissible for the reasons stated below. The Government, with reference to the Court’s case-law, maintained that the Court’s competence did not extend to the examination of whether the domestic courts assessed the evidence before them correctly. They further reiterated that the Convention did not lay down any rules on the admissibility of evidence as such or any rules on its assessment. The Government further submitted that the domestic courts had taken a uniform approach in the applicant’s case, had examined comprehensively the applicant’s claim and had substantiated the refusal of this claim. Therefore, in the Government’s opinion no right of the applicant had been violated in the present case. The applicant disagreed and noted that according to its case-law the Court could look into the errors of facts or law made by the domestic courts if they had infringed the rights and freedoms protected by the Convention She further maintained that the Government’s argument as to the uniform approach taken by the courts in her case was misleading, since in another set of proceedings against her ex-husband for additional maintenance due to needs of the child under Article 86 of the Marriage and Family Code the first instance court had allowed her claim in part but the Court of Appeal had quashed that decision and had rejected her claim for being unsubstantiated. According to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law ( Vanyan v. Russia , no.   53203/99, §   45, 15 December 2005). The Court reiterates that Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is, moreover, necessary to take into account, inter alia , the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Ruiz Torija v.   Spain , judgment of 9   December 1994, Series   A no.   303 ‑ A, §   29). The Court notes that in the instant case the domestic courts rejected the applicant’s claim for being unsubstantiated. In their decisions, they observed that in her claim, the applicant requested that the child support maintenance be reassessed, while under the domestic law the maintenance obligations of her ex-husband deemed to be fulfilled completely, since he had complied with the requirements of the domestic law that obliged him to pay totality of the child support maintenance prior to his departure for abroad. At the material time, neither Article 85 of the Marriage and Family Code nor any other Article of this Code provided for the child support maintenance to be reassessed under the circumstances referred to by the applicant, namely that her husband failed to leave the country. The legislation provided for additional maintenance only in the event of a change in the situation of the child (Article 86 of the Code), but not in the situation of the absent parent. In the Court’s view, the domestic courts, having found that the applicant’s claim could not be derived from the legal provisions invoked by her, were not obliged to make detailed analysis of the arguments advanced by the applicant in support of her claim. In this context, the Court observes that the national legislature introduced the possibility of seeking maintenance reassessment in a situation like the one of the applicant only on 15 March 2006. The Court considers that the reasons given by the domestic courts for rejecting the applicant’s claim were sufficiently clear and the lack of detailed answer to each of the applicant’s arguments was justified in the circumstances of the case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 3.     The applicant finally complained under Article 13 of the Convention that the domestic legislation prevented her from obtaining a reasonable amount of child maintenance. Article 13 of the Convention provides: “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.” According to the Court’s case-law, Article 13 of the Convention requires that, where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he or she should have a remedy before a national authority in order both to have his or her claim decided and, if appropriate, to obtain redress. However, Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority (see Gustafsson v. Sweden , judgment of 25 April 1996, Reports of Judgments and Decisions 1996 ‑ II, §   70). In the absence of any arguable claim found in the present case, 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. For these reasons, the Court unanimously Declares the application inadmissible.   Claudia Westerdiek   Peer Lorenzen   Registrar   President   [1] around EUR 1,670.14 at the material time [2] around EUR 13.53 at the material time [3] The provisions on civil status registration remained in force, awaiting adoption of a new law.