CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 22 mai 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .sB09F7C54 { width:216.79pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }                                                                                                                                FIFTH SECTION DECISION Application no. 35640/08 Denys Anatoliyovych ARCHEBASOV against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 22 May 2018 as a Committee composed of:   Erik Møse, President,   Síofra O’Leary,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having regard to the above application lodged on 15 July 2008, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Denys Anatoliyovych Archebasov, is a Russian national who was born in 1984 and lives in Solonytsivka, Kharkiv Region. He was represented before the Court by Mr S.   Syrotenko, a lawyer practising in Kharkiv. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. A.     First set of proceedings 3.     On 9 April 2001 the applicant’s sister bought a flat in Kharkiv from G. At the time, title to the flat was the subject of a legal dispute between various parties, including G., which had been pending before the Moskovskyy District Court in Kharkiv since 1998. Although that court had issued an order on 30 December 1998 banning any legal transactions involving the property, the sale contract of 9 April 2001 was officially registered. 4.     On an unspecified date the applicant’s sister was joined as a defendant in the proceedings. 5.     At a court hearing on 17 February 2004 the applicant’s mother, who was representing her daughter (the applicant’s sister), made oral submissions on her behalf. She stated that at the time when she had purchased the flat in April 2001 her daughter had not been informed of the ongoing court proceedings regarding title to the flat. Nor had she been aware of the court order of 30 December 1998 banning any legal transactions involving the flat (see paragraph 3 above). The applicant’s mother also stated that the applicant was residing in the flat at the time, though it was not his officially registered residence. 6.     On 18 February 2004 the Moskovskyy District Court delivered a judgment, finding that the flat had belonged to a private company U. and had been illegally sold to various parties through several transactions, including the sale to the applicant’s sister in April 2001. The court invalidated the transactions and ordered the eviction of the applicant’s sister “together with all her family members and [any other] residents”. 7.     Under Article 292 § 1 of the Code of Civil Procedure of 1963, in force at the material time, an appeal against the judgment of 18 February 2004 could be lodged within a month. 8.     In March 2004 the applicant’s sister appealed to the Kharkiv Court of Appeal, essentially challenging the Moskovskyy District Court’s finding that the flat had belonged to U. She made no submissions as regards the applicant. 9.     On 10 June 2004 the Kharkiv Court of Appeal dismissed her appeal as unsubstantiated and upheld the judgment of 18 February 2004. It became enforceable on the same date. 10.     In July 2004 the applicant’s sister lodged a cassation appeal with the Supreme Court. 11.     On 11 April 2007 the Supreme Court dismissed the applicant’s sister’s cassation appeal as unsubstantiated. 12.     On 25 July 2007 the Supreme Court dismissed as unfounded an extraordinary appeal lodged by the applicant’s sister, in which she had alleged that the Supreme Court’s decision of 11 April 2007 had been inconsistent with its previous decisions in similar cases. 13.     In the meantime, on 29 August 2005 the applicant lodged an appeal against the judgment of 18 February 2004 with the Kharkiv Court of Appeal, stating that it had concerned his rights as a resident in the flat and that, since he had not been informed of the proceedings before the Moskovskyy District Court, he had been unable to take part. Furthermore, he had been living with his sister in the flat since February 2002 and was actually her dependant. However, he had been unable to officially register himself as living there, because any changes to the official records concerning the flat had been blocked by the court order of 30 December 1998 (see paragraph 3 above). 14.     The applicant also applied to the Kharkiv Court of Appeal for an extension of the time-limit for his appeal against the judgment of 18   February 2004, stating that he had only become aware of the judgment in August   2005 when State bailiffs had visited the flat in order to enforce it. 15.     On 18 September 2007 the Kharkiv Court of Appeal rejected the applicant’s extension application and, consequently, refused to examine his appeal of 29 August 2005. The court noted, among other things, that the applicant’s sister had taken part in the proceedings before the Moskovskyy District Court and had subsequently challenged the judgment of 18   February 2004 before the higher courts, and that, had the applicant considered that the judgment of 18 February 2004 had concerned his rights, he must have become aware of it before August 2005. 16.     In September 2007 the applicant and his sister lodged cassation appeals against the decision of 18 September 2007 with the Supreme Court, essentially arguing that the Kharkiv Court of Appeal had failed to examine the applicant’s application for an extension of the time-limit thoroughly and fairly. 17.     On 24 December 2007 the Supreme Court, sitting in a single-judge formation, under Article 328 § 3 of the Code of Civil Procedure of 2004 (as worded at the material time), dismissed their cassation appeals as wholly unsubstantiated. On 15 January 2008 that decision was sent to the applicant. 18.     According to the applicant’s submissions to the Court, on 21 July 2005 he and his sister had been informed by the State bailiffs that they were obliged to vacate the flat pursuant to the judgment of the Moskovskyy District Court of 18 February 2004. Allegedly, in September 2005 they had been “forcibly” evicted from the flat, though the applicant provided no details in that regard. B.     Second set of proceedings 19.     In February 2005 S. instituted civil proceedings against Y. in the Moskovskyy District Court, claiming title to the flat. 20.     On 25 March 2005 the court found for S., noting that in the course of the proceedings Y. had agreed that title to the flat should be transferred to S. 21.     In December 2005 the applicant and his sister lodged appeals with the Kharkiv Court of Appeal against the judgment of 25 March 2005. 22.     On 14 February 2006 the court dismissed their appeals, holding that the proceedings had not concerned their rights or obligations. In making its decision, the court referred mainly to the judgment of the Moskovskyy District Court of 18 February 2004. 23.     On 24 March 2008 cassation appeals lodged by the applicant and his sister were dismissed as wholly unsubstantiated. COMPLAINTS 24.     Relying on Article 6 § 1 of the Convention, the applicant complained that the decisions of 18   September and 24 December 2007, which had ultimately left his appeal against the judgment of the Moskovskyy District Court of 18 February 2004 unexamined, had been unjust and unreasoned; that the proceedings concerning his appeal against that judgment had been excessively long; and that his cassation appeal against the decision of the Kharkiv Court of Appeal of 18 September 2007 had not been examined by a panel of the Supreme Court, that is to say a court established by law. 25.     Relying on Article   8 of the Convention, the applicant complained of a violation of his right to respect for his home on account of the decisions taken in the first set of proceedings. THE LAW A.     Alleged violation of Article 6 § 1 of the Convention 26.     In so far as the applicant complained under Article 6 § 1 of the Convention of unfairness in the proceedings concerning his appeal against the judgment of the Moskovskyy District Court of 18 February 2004, the Court reiterates that Article   6 does not compel Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the requirements of Article   6 must be complied with, such as the guarantee to litigants of an effective right of access to the courts for the determination of their “civil rights and obligations” (see, among other authorities, Morice v.   France [GC], no. 29369/10, § 88, ECHR 2015). The “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, particularly where the conditions of admissibility of an appeal are concerned (see, among other authorities, Vo v.   France [GC], no. 53924/00, § 92, ECHR 2004 ‑ VIII). The rules which govern the conditions for the admissibility of appeals are designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty, and those concerned must expect those rules to be applied (see, among other authorities, Andrejeva v. Latvia [GC], no.   55707/00, § 99, ECHR 2009). The Court has also held that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This applies, in particular, to the interpretation by courts of rules of a procedural nature such as time-limits governing the submission of documents or lodging of appeals. The Court’s role is, however, to ascertain whether the effects of such an interpretation are compatible with the Convention (see Muscat v. Malta , no. 24197/10, §   43, 17   July 2012, with further references). 27.     In the present case, by its decision of 18   September 2007, which was eventually upheld by the decision of the Supreme Court of 24 December 2007, the Kharkiv Court of Appeal refused the applicant’s application for an extension of the time-limit for his appeal against the judgment of the Moskovskyy District Court of 18 February 2004, concluding that, contrary to what the applicant had stated in his appeal, he must have become aware of the judgment before August 2005 (see paragraph 15 above). Although the decision of 18 September 2007 did not specify the date on which the applicant supposedly had become aware of the judgment, the appellate court gave him a sufficiently clear and specific reply that he had failed to put forward valid reasons for lodging a belated appeal. 28.     The Court finds no defect in the way the applicant’s appeal against the judgment of the Moskovskyy District Court of 18 February 2004 was dealt with by the Kharkiv Court of Appeal. Nor is there any indication of unfairness in the proceedings before the Supreme Court, in particular in so far as the applicant’s complaints concern the alleged violation of the principle of a “tribunal established by law” (see paragraph 24 above). The Supreme Court examined the applicant’s cassation appeal sitting in a single ‑ judge formation, which was in accordance with the relevant procedural regulations (see paragraph 17 above), whereas the applicant failed to provide any evidence or persuasive argument for his own interpretation of those regulations, notably that his cassation appeal should have been examined by a panel of the Supreme Court. 29.     Furthermore, the Court finds no indication of arbitrariness or inadequate reasoning to raise an issue under Article 6 § 1 with respect to the decisions of the Kharkiv Court of Appeal and the Supreme Court of 18   September and 24 December 2007 respectively. 30.     Notably, it appears from the applicant’s vague and undetailed submissions that, while the proceedings concerning title to the flat were pending before the Moskovskyy District Court and subsequently before the Kharkiv Court of Appeal, he was residing with his sister in the flat (see paragraphs 5 and 13 above). She was a party to the proceedings and was represented by her (and the applicant’s) mother at the hearing of 17   February 2004. The applicant’s sister was duly informed of the judgment of the Moskovskyy District Court of 18   February 2004 and made use of her right of appeal (see   paragraph 8 above). The applicant did not argue that there had been any lack of contact between him and his sister and mother, with the result that delivery of the judgment of 18 February 2004, allegedly determining his rights as regards the flat, had remained unknown to him until August 2005. Furthermore, it appears that he became aware of the court order of 30 December 1998 banning any legal transactions involving the flat in the course of his attempts to officially register himself as living at the flat and consequently must have been aware of the pending proceedings regarding title (see paragraphs 5 and 13 above). 31.     In these circumstances, the Court finds that the applicant’s statement that he had only become aware of the judgment of the Moskovskyy District Court of 18 February 2004 in August 2005 is neither persuasive nor supported by any evidence. Moreover, that statement contradicts his statement that the State bailiffs had informed him of the judgment on 21   July 2005 (see paragraph 18 above). In any event, the applicant submitted no arguments to justify his request for reconsideration of the judgment of the Moskovskyy District Court of 18 February 2004, almost a year and a half after the one-month time-limit for lodging an appeal against the judgment had expired and about a year and two months after it had become enforceable (see paragraphs 7, 9 and 13 above). 32.     Therefore, even assuming that the applicant was residing in the flat and that the judgment of the Moskovskyy District Court of 18 February 2004 did concern his rights, the applicant’s complaints under Article 6 § 1 of the Convention of unfairness in the proceedings concerning his appeal against that judgment should be rejected as manifestly ill-founded pursuant to Article 35 § 3 (a) and 4. 33.     In so far as the applicant complained about the length of the proceedings concerning his appeal, the Court notes that they lasted for about two years and four months before the courts of two levels of jurisdiction (see paragraphs 13-17 above). This period does not appear to be excessive. Moreover, the applicant made no detailed and reasoned argument that the examination of his appeal had been protracted. Nor did he suggest that during the period of about two years that his appeal had been pending before the Kharkiv Court of Appeal he had taken any steps either to find out the reasons for that delay or to expedite the examination of his appeal. 34.     In the light of the foregoing, the Court finds that this part of the applicant’s complaints under Article 6 § 1 of the Convention should also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4. B.     Alleged violation of Article 8 of the Convention 35.     As to the applicant’s complaint under Article 8 of the Convention, even assuming that he could arguably claim that the flat had been his “home” within the meaning of that provision of the Convention, the Court finds that the applicant failed to make use of the available procedural avenues in order to raise this complaint in accordance with the relevant domestic rules. Accordingly, even assuming that it cannot be rejected on other grounds, this part of the application must be rejected for non ‑ exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 14 June 2018.   Milan Blaško   Erik Møse Deputy Registrar   President