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FIFTH
SECTION
CASE OF
MATSYUK v. UKRAINE
(Application
no. 1751/03)
JUDGMENT
STRASBOURG
10
December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Matsyuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment:
PROCEDURE
- The
case originated in an application (no. 1751/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Vadym Gavrylovych
Matsyuk (“the applicant”), on 28 November 2002.
- The
applicant was represented by Mr Yavorskyy, a lawyer practising in
Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that his right to access to a court
under Article 6 § 1 of the Convention had been violated because
the domestic courts refused to examine a complaint he lodged against
a decision of the tax police on the ground that that decision had not
been given in the correct form.
- By a partial decision of 15 January 2008, the
Court decided to adjourn the examination of the above
complaint and declared the remainder of the application inadmissible.
Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the adjourned part of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1938 and lives in Bila Tserkva.
- Between
1998 and 2000 the Bila Tserkva Tax Police (“the police”)
instituted and subsequently discontinued several sets of criminal
proceedings against the applicant for property embezzlement and tax
evasion.
- On 6 November 2001 he claimed compensation from the
police for pecuniary and non-pecuniary damage in respect of the above
proceedings.
- By a letter of 23 November 2001 the police informed the
applicant that his claims had to be rejected as unsubstantiated. They
noted that he had been found guilty and amnestied in one set of the
proceedings and that the property which had been seized from him in
the course of the proceedings had in fact remained in his possession.
- On 10 December 2001 the applicant repeated his claim,
which remained without reply.
- On 20 February 2002 he brought proceedings before the
Bila Tserkva Town Court (“the Bila Tserkva Court”)
against the police, claiming compensation for pecuniary and
non-pecuniary damage in respect of the criminal proceedings against
him.
- On 4 March 2002 the court stayed the examination of
his claim in the part concerning the pecuniary damage having
indicated some shortcomings which had to be rectified by 27 March
2002. It referred to section 12 of the Act “On the
procedure of compensation for damage caused to citizens by unlawful
actions of bodies of inquiry, pre-trial investigation authorities,
prosecutors and courts” (“the Compensation Act”),
according to which the amount of compensation for pecuniary damage
was to be established by a resolution of the respective authority
(the police in the present case). The court noted that the police had
rejected the applicant’s claim for such compensation by their
letter of 23 November 2001 and that the applicant had not
introduced a judicial appeal against that refusal. As to his claim in
the part concerning the non-pecuniary damage, it was subsequently
examined by the domestic courts and rejected as unsubstantiated.
- On 26 March 2002 the applicant introduced a complaint,
by which he challenged the refusal of his claim by the police.
Referring to his two requests to them of 6 November and
10 December 2001, he argued that he had made every attempt
to settle the issue before bringing the judicial action.
- On 23 April 2002 the court rejected the above claim as
time-barred, referring to the fact that the applicant had failed to
raise it within six months after he had become aware of the
discontinuation of the criminal proceedings against him
(February 2000).
- On 25 October 2002 the Kyiv Regional
Court of Appeal (“the Court of Appeal”) quashed the above
decision on the applicant’s appeal and remitted the case for
fresh examination. It noted that the first-instance court had wrongly
considered that the applicant’s claim concerned the criminal
proceedings against him. Instead, it should have been deemed to
concern the refusal of the police to award him compensation for
pecuniary damage. It further noted in that connection that the
first-instance court had failed to clarify whether the police had
issued a resolution concerning the applicant’s compensation
claim.
- On 21 November 2002 the Bila Tserkva
Court refused to consider the applicant’s complaint, since no
resolution in that respect had been issued by the police in
accordance with section 12 of the Compensation Act. The court also
relied on the fourth paragraph of Article 248-3 of the Code of Civil
Procedure in the part compliant with the Constitution pursuant to the
decision of the Constitutional Court of 23 May 2001. It considered
that it had no jurisdiction over the case, as the aforementioned
provision provided for “a different procedure for lodging
claims”, namely through challenging a resolution of the police.
Accordingly, the court instructed the applicant that he could apply
to the tax police “for settling the compensation issue under
the legally envisaged procedure”.
- The applicant appealed, submitting that the
first-instance court had been unduly formalistic as the police had
clearly stated their position in the letter of 23 November 2001. He
further argued that he could not be held responsible for the
inadequate form of the response to his claim.
- On 17 January 2003 the Court of Appeal upheld the
finding of the Bila Tserkva Court that given the absence of a
resolution there was no procedural basis for the judicial examination
of the applicant’s claim.
- On 21 March 2003 the Supreme Court of Ukraine rejected
the applicant’s cassation appeal as unsubstantiated.
II. RELEVANT DOMESTIC LAW
- The
relevant constitutional provisions, as well as references to the
pertinent practice of the Constitutional Court and the Supreme Court,
can be found in Ponomarenko v. Ukraine, no. 13156/02, §§
15, 17 and 19, 14 June 2007.
- The
relevant provisions of the Compensation Act are cited in the partial
admissibility decision of 15 January 2008 concerning this
application.
- Paragraph
4 of Article 248-3 of the Code of Civil Procedure 1963 (as worded at
the material time) read as follows:
“The following complaints shall be outside the
courts’ jurisdiction:
- ... against actions or acts of an official of a body
of inquiry, preliminary investigation, prosecution or court with
regard to which a different procedure for lodging claims is
established....”
By decision of the Constitutional Court of Ukraine No. 6-pп/2001
of 23 May 2001 this provision was declared unconstitutional in
the part concerning lack of the courts’ jurisdiction to examine
complaints “against actions or acts of an official of a body of
inquiry, preliminary investigation, prosecution...”, where the
legislation provided only for extrajudicial settlement.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE APPLICANT’S RIGHT OF ACCESS TO A
COURT
- The
applicant complained, relying on Articles 6 § 1 and 13 of the
Convention, that he had been denied access to a court. The Court
considers that this complaint falls to be examined solely under
Article 6 § 1 of the Convention (see Ferenc Rózsa and
István Rózsa v. Hungary, no. 30789/05, § 14,
28 April 2009), which provides as relevant:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
domestic remedies, having failed to request the domestic courts to
oblige the police to issue a resolution concerning his compensation
claim so that his subsequent judicial action for damages would have
an adequate procedural basis. They contended that it would have been
a simple formality.
- The
applicant contested their arguments.
- The
Court considers that the Government’s objection is closely
linked to the substance of the applicant’s complaint and that
its examination should therefore be joined to the merits.
B. Merits
- The
applicant submitted that his right of direct access to a court,
albeit enshrined in the Constitution, had wrongly been made dependant
on the will of the authority against which he had been complaining
and which could not have reasonably been expected to entertain his
preferences as to the form of its decisions.
- According to the Government, the applicant’s
right of access to a court had not been infringed. They maintained
that the domestic courts had acted in compliance with the procedural
legislation, according to which the applicant could challenge only a
resolution of the police, but not the contents of their letter. The
Government referred in this connection to section 12 of the
Compensation Act, under which the amount of compensation for
pecuniary damage in the applicant’s case was to be established
by a resolution of the tax police. Thereafter, had the applicant
disagreed with it, he could have further challenged it before the
courts.
- The
Court reiterates that Article 6 § 1 of the Convention secures to
everyone the right to have any claim relating to his or her civil
rights and obligations brought before a court or tribunal. In this
way it embodies the “right to a court”, of which the
right of access, that is, the right to institute proceedings before
courts in civil matters, constitutes one aspect (see, as a
long-established reference, Golder v. the United Kingdom,
21 February 1975, §§ 35-36, Series A no. 18,
and, for more recent case-law, Mendel v. Sweden, no. 28426/06,
§ 73, 7 April 2009). This right is not, however,
absolute and may be subject to legitimate restrictions. Where an
individual’s access is limited either by operation of law or in
fact, the restriction will not be incompatible with Article 6 where
the limitation does not impair the very essence of the right and
where it pursues a legitimate aim, and there is a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see Ashingdane v. the United Kingdom,
28 May 1985, § 57, Series A no. 93). At the same time,
in order for the right of access to a court to be effective, an
individual must have a clear, practical opportunity to challenge an
act that is an interference with his or her rights (see Ponomarenko
v. Ukraine, no. 13156/02, § 36, 14 June
2007). The Court also underlines that in the domain of interpretation
of domestic legislation, in particular, procedural rules applicable
to judicial proceedings, its role is limited to verifying whether the
effects of such interpretation by the domestic authorities, notably
the courts, are compatible with the Convention (see Zvolský
and Zvolská v. the Czech Republic, no. 46129/99, § 46,
ECHR 2002 IX).
- Turning
to the present case, the Court notes that the applicant, before
bringing judicial action, had sought compensation for pecuniary
damage from the police, who informed him by a letter of 23 November
2001 that his claim had been rejected and explained their reasoning
for that decision. After their failure to respond to his renewed
claim of 10 December 2001, the applicant applied for
compensation to the Bila Tserkva Court, but was instructed that he
had first to appeal against the refusal of the tax police to award it
to him of 23 November 2001 (see paragraph 11 above). After
he fulfilled that requirement, the courts of three levels of
jurisdiction dismissed without consideration his complaint on the
ground that the decision of the police, which he was challenging, had
not been issued as a resolution but stated in a simple letter. The
courts relied on section 12 of the Compensation Act (see
paragraphs 15, 17-18 and 20 above), according to which it was for the
tax police to establish the amount of compensation for pecuniary
damage. To sum up, the domestic courts instructed the applicant
to apply to the tax police for a resolution about the amount of the
compensation for pecuniary damage after the latter had rejected such
compensation claim as a whole by their letter of 23 November 2001 and
after the applicant had judicially challenged that rejection in
compliance with the earlier instruction of the Bila Tserkva Court of
4 March 2002.
- The
Court notes, without undertaking to interpret the applicable domestic
procedural legislation, which is not its role, that the respective
interpretation by the domestic courts lacked consistency (given the
misleading instruction to the applicant of 4 March 2002)
and deprived the applicant of the opportunity to challenge, in a
clear and practical procedure, the refusal of the administrative
authorities to pay compensation in connection with criminal
proceedings.
- The Court therefore dismisses the Government’s
objection as to the exhaustion of domestic remedies previously joined
to the merits (see paragraphs 23 and 25 above) and finds that the
applicant did not have a practical, effective right of access to a
court.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 15,000 in respect of non-pecuniary damage.
- The
Government contested that claim.
- The
Court considers that the finding of a violation of Article 6 § 1
of the Convention constitutes in itself sufficient just satisfaction
in the circumstances (see Ponomarenko, cited above, § 44).
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government’s
preliminary objection as to the exhaustion of domestic remedies in
respect of the applicant’s complaint under Article 6 § 1
of the Convention about a lack of access to a court, and rejects
it;
- Declares the complaint concerning a lack of
access to a court admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the applicant’s lack
of access to a court;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
