FIFTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 326/03 by Galina Ivanovna GURZHYY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 1 April 2008 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Volodymyr Butkevych , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 19 November 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 partial decision of 13 March 2007,

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 Galina Ivanovna Gurzhyy , is a Ukrainian national who was born in 1940 and lives in Energodar , the Zaporizhzha region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev .

A. The circumstances of the case

The applicant is a pensioner. She has no home telephone line.

In 1999 Mr D. fatally injured the applicant ’ s son in a car accident in the town of Zaporizhzha , 130 kilometr e s away from the applicant ’ s home town.

On 7 August 2001 the applicant instituted civil proceedings against Mr D., seeking non-pecuniary damages and funeral expenses.

On 4 December 2001 the Leninsky District Court of Zaporizhzha ( Ленінський районний суд м. Запоріжжя – hereafter “the Leninsky Court ” ) awarded the applicant 3,105 hryvnyas (UAH) in respect of the funeral expenses and dismissed the remainder of her claims. On 13 May 2003 the Zaporizhzha Regional Court of Appeal ( Апеляційний суд Запоріжської області – hereafter “the Court of Appeal” ) upheld th at judgment on an appeal by the applicant.

In June 2003 the applicant, acting without legal representation, appealed in cassation to the Supreme Court. In accordance with the procedural rules applicable at the material time, the cassation appeal was lodged with the first-instance court, which was to rule on its compliance with the procedural formalities.

On 18 A ugust 2003 the Leninsky Court found numerous procedural shortcomings in the applicant ’ s cassation appeal and gave her a time-limit by which to rectify them. The applicant provided a corrected version of the cassation appeal ; however, on 10 October 2003 the Leninsky Court decided to return her submissions as “not lodged,” having found that the applicant had not rectified the shortcomings properly .

On 25 October 2003 the applicant appealed against the decision of 10 October 2003. On 9 December 2003 the Court of Appeal dismissed her appeal.

On 19 December 2003 the applicant requested the Court of Appeal to mail her a copy of the decision of 9 December 2003. On 15 January, 27 April, 17 May and 31 July 2004 the applicant addressed the same request to the Leninsky Court . She sent her requests by registered mail, enclos ing with each one an empty stamped envelope for a reply . Having received no response, the applicant complained to the Human Rights Ombudsman ( Уповноважений Верховно ї Ради України з прав людини ) . On 19 August 2004 the Office of the Ombudsman informed the applicant that her complaint had been transferred to the Zaprorizhzha Regional Council of Judges ( Рада Суддів Запорізької області – hereafter “the Council of Judges” ) for consideration. On 13 September 2004 the Council of Judges informed the applicant that on 3 September 2004 the Leninsky Court had mailed her a copy of the requested decision.

On 30 September 2004 the applicant received the decision of 9 December 2003 and on 26 October 2004 lodged a cassation appeal against it with the Supreme Court. On 10 November 2004 the Supreme Court informed the applicant that it had mailed her cassation appeal to the Leninsky Court for a ruling on its compliance with the procedural formalities.

According to the Government, on 16 November 2004 the Leninsky Court found that the applicant ’ s cassation appeal had procedural shortcomings: she had, in particular, failed to indicate the scope of the appeal and to provide proper references to the decision appealed against or the law allegedly misinterpreted by the lower courts. The court gave the applicant a time-limit of 10 December 2004 by which to rectify these shortcomings . This decision was despatched to the applicant on 17 November 2004. On 20 December 2004 the Leninsky Court decided to return the applicant ’ s cassation appeal as “not lodged” as she had failed to rectify the shortcomings in issue. This decision was despatched to her on 21 December 2004. The Government presented copies of the aforementioned decisions and of the cover ing letters , dated 17 November 2004 and 21 December 2004, in which the Leninsky Court had informed the applicant that it was enclosing the m for her information .

According to the applicant, she never received these letters.

O n 28 April 2006 the applicant requested the Leninsky Court to inform her of the status of her cassation appeal, sending her request by registered mail with an envelope for a reply. She has not received a reply .

B. Relevant domestic law

Under Articles 319 and 320 of the Code of Civil Procedure of 1963 (repealed as of 1 September 2005), parties to civil litigation were entitled to appeal against decisions of the first-instance court and the appellate court to the Supreme Court of Ukraine, acting as the Court of Cassation.

In accordance with Article 323 of the Code, cassation appeals were to be lodged with the first-instance court that had dealt with the case. Should the judge to whom the case had been allocated determine that the appeal had procedural shortcomings, he or she was to grant a time-limit by which to rectify them. The appeal was to be declared inadmissible and sent back to the appellant if the latter had not followed the instructions of the judge. The Code did not provide for any specific form of service of the respective decisions.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that by their prolonged failure to inform her of the status of her cassation appeal, the judicial authorities had hindered her right of access to the C ourt of C assation.

THE LAW

The applicant complained under Article 6 § 1 of the Convention that by their prolonged failure to inform her of the status of her cassation appeal, the judicial authorities had hindered her right of access to the C ourt of C assation.

The Government submitted that the applicant ’ s right of access to the Court of Cassation had not been infringed. In particular, the Leninsky Court had despatched the decisions of 16 November and 20 December 2004 to the applicant promptly.

The applicant generally disagreed. She maintained that the conduct of the domestic authorities had been such as to hinder her right to obtain fair final determination of her claims.

The Court observes that neither party has commented whether at the present time, being fully apprised of the decisions of 16 November and 20 December 2004, the applicant can effectively request reinstatement of the proceedings and pursue her case. However, the Court does not find it necessary to determine this issue, as it finds this complaint inadmissible on other grounds.

The Court reiterates that defective notification of court decisions can, in principle, raise an issue under Article 6 § 1 (see, inter alia , generally Hennings v. Germany , judgment of 16 December 1992, Series A no. 251 ‑ A, and Sukhorubchenko v. Russia , no. 69315/01, §§ 53-54 , 10 February 2005 ). At the same time, Article 6 cannot be construed as conferring on litigants an automatic right to obtain a specific form of service of court documents, such as by registered mail ( see Bogonos v. Russia ( dec .), no. 68798/01, 5 February 2004). Neither has it been argued in the present case that such a right could be derived from the national law. Furthermore, the Court considers that it is incumbent on the interested party to display special diligence in the defence of his interests and to take the necessary steps to apprise himself of the developments in the proceedings (see , among other authorities, Teuschler v. Germany ( dec .), no. 47636/99, 4 October 2001 ; Trukh v. Ukraine ( dec .), no. 50966/99 , 14 October 2003; and Aleksandr Shevchenko v. Ukraine , no. 8371/02, § 27 , 26 April 2007 ). The question in the present case is therefore not to what extent the judicial authorities ensured that the applicant was promptly served with their decisions, but to what extent they hindered her reasonable efforts to access them.

In this regard the Court observes that covering letters of 17 November and 21 December 2004, which were apparently sent to the applicant by regular mail, cannot in themselves serve as conclusive proof that the decisions of 16 November and 20 December 2004 were received in good time by the applicant. The Court notes, furthermore, that on 28 April 2006 the applicant requested the Leninsky Court to update her on the status of her cassation appeal and apparently received no response. In this context, the Court has no reason to doubt that the applicant remained unaware about the decisions of 16 November and 20 December 2004 until the case was communicated to the respondent Government.

At the same time, in the absence of any arguments to the contrary, the Court must give credence to the Government ’ s submission that the letters of 17 November and 21 December 2004 had been properly despatched to the applicant. Having never received them, the applicant has not shown that, being deprived of any information, she attempted to contact the Leninsky Court either in writing, by telephone, or in any other manner between November 2004 and April 2006. Nor has she argued that this would have been ineffective, for instance, on account of deficiencies in the court records (see, by contrast, Sukhorubchenko , cited above, §§ 45, 50). The Court accepts that the applicant might have felt embittered by her previous ineffective correspondence with the Leninsky Court . Other ways of contacting this court, located 130 kilometres away from her home town, might have presented some difficulty to the applicant, a pensioner having no legal representation and no home telephone line. At the same time, these circumstances are not sufficient in themselves to constitute a denial of access to a court as the Government cannot be held responsible for them ( see Bogonos , cited above ).

In sum, the Court considers that the applicant in the present case has not been denied access to a court of cassation. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible .

Claudia Westerdiek Peer Lorenzen              Deputy Registrar President