CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 28 janvier 2021

.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 } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s6983F43D { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s36C5EC9D { margin-top:14pt; margin-left:35.72pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-family:Arial; font-size:11pt; font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s7A11F50B { margin-left:6.52pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-weight:normal; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3D24CB6C { margin-top:14pt; margin-left:29.2pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s13F94BE0 { font-family:Arial; letter-spacing:-0.3pt } .sC8FE61A5 { font-family:Arial; font-style:italic; letter-spacing:-0.3pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC1AEB4B0 { width:19.69pt; display:inline-block } .s9D5CE0CF { width:164.55pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     FIFTH SECTION DECISION Application no. 24233/09 Yuriy Mykhaylovych ZELYK against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 28   January 2021 as a Committee composed of:   Mārtiņš Mits, President,   Lətif Hüseynov,   Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar, Having regard to the above application lodged on 25 April 2009, 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 1.     The applicant, Mr Yuriy Mykhaylovych Zelyk, is a Ukrainian national, who was born in 1958 and lives in Kryzke. He was represented before the Court by Ms O. Sapozhnikova, a lawyer practising in Kyiv. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Proceedings for deprivation of legal capacity 4 .     On 3 December 2007 the Markivka District Court deprived the applicant of his legal capacity in view of his chronic mental disorder. No   appeal was lodged against that decision and the judgment became final (see paragraph 13 below). 5 .     On 24 March 2008 the applicant requested a renewal of the time-limit for lodging an appeal against the decision of 3 December 2007. The request was granted. 6 .     On 23 July 2008 a panel of three judges (Ya., M., and L.) of the Luhansk Regional Court of Appeal considered the applicant’s appeal and reversed the decision of 3 December 2007, finding that the applicant had not been properly summoned to the hearing. It remitted the case to the first-instance court for a fresh hearing. 7.     On 7   October 2008 the proceedings were discontinued without any decision being taken on the merits. Divorce proceedings 8.     On 15 January 2008 the applicant’s wife initiated divorce proceedings in the Markivka District Court. 9 .     On 25 January 2008 the court dissolved the marriage between the applicant and his wife, referring, among other matters, to the court decision of 3   December 2007 which was available in the case file. The applicant appealed. 10 .     On 4 August 2008 judge P. of the Luhansk Regional Court of Appeal rejected the applicant’s appeal as inadmissible. It considered that the applicant, as a legally incapacitated person, had no standing to lodge an appeal in person. The applicant lodged an appeal on points of law. 11 .     On 8 December 2008 the Supreme Court of Ukraine relied on the same grounds (lack of the applicant’s standing) to dismiss the applicant’s appeal on points of law as inadmissible. Relevant domestic law Civil Code of 16 January 2003 12.     In accordance with Article 40   §   1 of the Civil Code, a physical person is to be treated as legally incompetent from the point at which a court decision on the matter takes effect. Code of Civil Procedure of 18 March 2004 (as worded at the relevant time) 13 .     In accordance with Article 223 of the Code of Civil Procedure, a court decision takes effect after the expiry of the time-limit for appeal (if no appeal is lodged). In the event of an appeal, the decision, if it has not been reversed, takes effect after consideration of the case by the appellate court. COMPLAINTS 14.     The applicant complained under Article 6   §   1 of the Convention that his right of access to the Court of Appeal and the Supreme Court in the divorce proceedings had been groundlessly restricted. THE LAW 15.     The applicant complained that the Luhansk Regional Court of Appeal and the Supreme Court had mistakenly refused to consider his appeals by groundlessly relying on the earlier court decision on his incapacitation, which was no longer in effect. The applicant referred to 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 ...” Admissibility The parties’ submissions 16.     The Government submitted that the applicant had not exhausted domestic remedies. In particular, once the decision on the applicant’s incapacitation had been reversed, the applicant could have applied to the first-instance court, seeking a review of his divorce case in the light of new circumstances. 17.     The Government then stated that they could not obtain copies of the applicant’s appeals to the Luhansk Regional Court of Appeal and the Supreme Court because the case file was in the city of Luhansk, which was temporarily outside the Government’s control. However, they emphasised that the applicant had not provided copies of his appeals either. According to the Government, the applicant was a vexatious litigant and he had failed to disclose to the courts dealing with his appeals the fact that the decision on his legal incapacitation had been reversed. The Government therefore contended that the applicant had prevented those courts from ruling on his appeals in full knowledge of the facts. Moreover, the applicant had not properly signed all his submissions to the Court, thus failing to comply with the Rules of Court. The Government therefore argued that the present case had to be dismissed as inadmissible for abuse of the right of application to the Court. 18.     Furthermore, according to the Government, the domestic courts could not be blamed for any unjustified restriction of the applicant’s access to court because he had not informed them about the reinstatement of his legal capacity. The complaint therefore did not raise any issue under Article   6   §   1 of the Convention. 19 .     The applicant submitted that he had used all effective remedies in respect of his complaint. Moreover, there were no grounds to dismiss his case for abuse of the right of application. The applicant then admitted that he had not informed the courts during the divorce proceedings about the incapacitation proceedings, as he had considered that that case was irrelevant to the divorce action. The applicant argued that he had reason to believe that the courts would have been aware of that information on their own. The Court’s assessment 20.     The Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with (see Andrejeva v. Latvia [GC], no. 55707/00, § 97, ECHR   2009 ). The right to a court is not absolute, but is subject to limitations permitted by implication, in particular where the conditions of admissibility of appeals are concerned (see Golder v. the United Kingdom , 21 February 1975, § 38, Series A no. 18, and Baka v. Hungary [GC], no. 20261/12, §   120, ECHR 2016). 21.     In the present case the applicant’s divorce proceedings were examined by the first-instance court, following which the applicant decided to lodge an appeal in person (see paragraph 9 above). The appellate court declared the applicant’s appeal inadmissible on the grounds that the appeal could not be submitted by a legally incapacitated person (see paragraph 10 above). The court relied on the information in the case file to the effect that the applicant had been deprived of his legal capacity by the binding court decision of 3   December 2007. The Supreme Court further refused on the same grounds to examine the applicant’s appeal on points of law (see paragraph 11 above). The crux of the applicant’s complaint is that the decision on his incapacity had been reversed by the time his both appeals were rejected and that the courts had therefore made a factual mistake. 22.     It is true that at the time of the inadmissibility rulings in question (see   paragraphs 10 and 11 above), the decision on the applicant’s legal incapacity had been reversed (see paragraph 6 above). However, there is no indication that the courts dealing with the divorce proceedings had been aware of that new fact. In that regard the Court notes that, even though the Luhansk Court of Appeal was dealing with both the incapacitation and divorce proceedings, those cases were assigned to different judicial compositions (see paragraphs 6 and 10 above). Moreover, the applicant has not provided copies of his appeals in the divorce case to show that he informed the relevant courts accordingly. In fact, it appears from the applicant’s submissions to this Court that he had been silent on that point during the divorce proceedings (see paragraph 19 above). In these circumstances there are no grounds to hold that the applicant has ever raised this issue before the relevant courts and that he has taken all the necessary steps to enable the courts to examine his appeals in full knowledge of the facts. 23.     Furthermore, given that the courts possessed information on the valid and binding decision regarding the applicant’s incapacitation, as established by the first-instance court, they had no reasonable grounds to question that information and double-check it of their own motion when deciding on the admissibility of the appeals . 24.     In these circumstances, given that the courts reasonably relied on the facts established by the first-instance court, on the basis of the information provided by the parties to the civil dispute, the decisions rejecting the applicant’s appeals did not impose a disproportionate restriction on his right of access to a court. 25.     On a more general level, the Court finds no disproportionality in the authorities’ policy on restricting the procedural rights of legally incapacitated persons. As it has stated, such restrictions may be justified for the incapacitated person’s own protection, the protection of the interests of others and the proper administration of justice (see Nataliya Mikhaylenko v.   Ukraine , no. 49069/11, §   35, 30 May 2013). Contrary to Nataliya Mikhaylenko (cited above) , the restriction at issue did not concern the dispute about the applicant’s incapacity as such. In that regard it is noteworthy that the applicant’s appeal against the decision on his incapacitation was entertained by the courts and examined on the merits (see paragraphs 5 and 6 above). 26.     In conclusion, the Court does not need to rule on each objection of the Government, as the present complaint, in the light of the foregoing, is manifestly ill-founded and should be dismissed as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 February 2021.   {signature_p_2}   Martina Keller   Mārtiņš Mits   Deputy Registrar   President