FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32671/02 by Lyudmila Vasilyevna SKORIK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Volodymyr Butkevych , Margarita Tsatsa-Nikolovska , Javier Borrego Borrego , Renate Jaeger , Mark Villiger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 2 August 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 Lyudmila Vasilyevna Skorik , is a Ukrainian national who was born in 1963 and lives in the city of Kyiv , Ukraine . She was represented before the Court by Ms E. A. Prikhodko , who resides in Kyiv . The Ukrainian Government (“the Government”) were represented by their Agent, Ms I. Shevchuk , 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.

In 1987 the applicant inherited a house with a plot of land. She subsequently had a land dispute with her neighbours, Ms G. and Ms T., as to the limits of their respective plots.

On 2 August 1988 the Shevchenkivsky District Court of Kyiv found for the applicant in her dispute with G. concerning the border between their plots of land. On 23 May 1990 the Kiev City Court quashed the decision of 2 August 1988 and remitted the case for fresh consideration. The proceedings were subsequently terminated. On 18 March 1991 the first-instance court issued a ruling on reversal of execution of the decision of 2 August 1988.

On 24 June 1991 the Executive Committee of the Shevchenkivsky District Council of Kyiv (hereafter “the Executive Committee”) decided that the limits of the plots should be in accordance with technical reports which had been drawn up in 1964.

On 16 October 1991 the Shevchenkivsky District Court of Kyiv found against the applicant in her dispute with G. as to the use of a shed situated on the border of the applicant ’ s and G ’ s plots of land. The court decided that, despite the fact that according to the technical reports of 1964 the shed was situated on the applicant ’ s plot of land, there were no documents which could prove the property rights for the shed in question. The court further found that according to the testimonies of witnesses, since the 1950s the shed had been used by the household in which G. lived.

On 20 November 1991 the Kiev City Court upheld in cassation the decision of the first-instance court.

On 6 April 1992, following the above judicial decisions, the Executive Committee invalidated its decision of 24 June 1991 and approved the current limits of the plots in question. This decision was to the applicant ’ s disadvantage.

In November 1999 the applicant instituted proceedings in the Shevchenkivsky District Court of Kyiv against G., T. and the Executive Committee, challenging the decision of 6 April 1992 and requesting that all obstacles to her free use of her land be removed.

In May and November 2000 the court ordered forensic expert reports to be drawn up in the case. The first concluded that the actual limits of the land plots did not correspond to the technical documentation, and the second concluded that the actual limits corresponded to the decision of the Executive Committee of 6 April 1992.

At the court hearing of 24 May 2001 the applicant sought to introduce an additional claim seeking the invalidation of land ownership certificates issued to G. and T. in June 2000. The defendants objected to this new claim as unrelated and noted that the applicant could submit it separately. The court subsequently rejected this additional claim within the impugned proceedings.

On 6 December 2001 the Shevchenkivsky District Court of Kyiv found against the applicant, having established that she had challenged the decision of 6 April 1992 outside the statutory time-limit and that the actual border between the plots of land, as confirmed by the forensic report, corresponded to the decision of 6 April 1992. Given the validity of the decision of 6 April 1992 the court rejected the remainder of the applicant ’ s arguments as unfounded.

On 13 March 2002 the Kyiv City Court of Appeal upheld the judgment of 6 December 2001. On 31 May 2002 the applicant posted a cassation appeal, which was received by the court on 10 June 2002 .

On 14 June 2002 the Shevchenkivsky Local Court rejected the applicant ’ s request for a cassation appeal as having been submitted too late. The court stated that, under the new wording of Article 321 of the Code of Civil Procedure (hereafter “the CCP”), which had entered into force on 4 April 2002, the time-limit for lodging an appeal in cassation was one month, and that the applicant had exceeded that time-limit by only submitting her appeal on 10 June 2002 .

On 7 October 2002 the Kyiv City Court of Appeal upheld the ruling of 14 June 2002 , stating that the applicant had lodged her appeal on 10 June 2002, which had been outside the new one-month time - limit established by law , and had not requested an extension of the time-limit for lodging such an appeal .

On 28 October 2002 the applicant ’ s representative lodged an appeal in cassation against the rulings of 14 June and 7 October 2002.

On 27 May 2003 the Supreme Court returned the appeal to the first-instance court to decide on compliance of the appeal with procedural formalities, namely on the fact that the applicant ’ s representative had submitted the cassation appeal on her own behalf and not on behalf of the applicant.

By a ruling of 25 June 2003 the Shevchenkivsky Local Court requested that the applicant ’ s representative bring the cassation appeal in compliance with procedural formalities and fixed the deadline for doing so at 18 August 2003. The representative resubmitted the appeal with the same shortcomings.

On 19 August 2003 the first-instance court returned the cassation appeal without consideration for failure to comply with procedural formalities.

On 24 October 2003 the Kyiv City Court of Appeal upheld the ruling of 19 August 2003.

The applicant appealed in cassation.

On 3 February 2004 the Shevchenkivsky Local Court requested that the applicant ’ s representative bring the cassation appeal in compliance with procedural formalities and fixed the deadline for doing so at 25 February 2004.

By ruling of 25 February 2004 the same court extended the deadline for the applicant ’ s representative to submit her corrected cassation appeal to 10 March 2004.

On 30 November 2004 a panel of three judges of the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation against the rulings of 19 August and 24 October 2003.

B. Relevant domestic law and practice

The Code of Civil Procedure of 1963 (with amendments)

At the time of the second - instance decision on appeal , the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the decision on appeal or within a year of the decision of the first - instance court, if the latter decision was not appealed against under the normal app eal procedure.

On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (hereafter “the Amendment Act ”), including the Article in question. It came into force on 4 April 2002 . The new wording of Article 321 created a one - month time-limit for lodging a cassation application against the decision of an appellate court.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the proceedings had been unfair. She maintained that the courts had not obtained all the documents which the applicant had considered necessary for the examination of her case and that the courts had wrongly assessed the evidence, in particular the results of the forensic evaluations.

She also complained under the same provision that the domestic courts had violated her right of access to a court by rejecting her additional claim and by refusing her request for leave to appeal in cassation. As to the latter refusal, the applicant also called into question the impartiality and independence of the first-instance court, which decided the case on the merits and then refused her cassation appeal against its own decision.

She finally complained of the length of proceedings in her case.

THE LAW

In all her complaints the applicant referred to Article 6 § 1 of the Convention, the relevant part of which read s as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”

1. The applicant complained of the alleged unfairness of the proceedings, in particular that the first-instance court refused to accept her additional claims groundlessly and assessed evidence wrongly.

The Government maintained that the domestic courts acted within their discretion and it was primarily for them to interpret and apply the relevant domestic law. They further noted that the admissibility of evidence was primarily a matter for regulation under national law and that the domestic courts had acted within their discretion and had not upset the overall fairness of the proceedings.

The applicant disagreed. She maintained that it was the court ’ s duty to examine her additional claim and its relevance, as well as to give reasons for its rejection. She further stated that the courts wrongly assessed and disregarded evidence in support of her claim and did not obtain the documents she requested.

The Court , even assuming exhaustion of domestic remedies by the applicant in conformity with the applicable procedural rules, 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 applicant asked the first-instance court during the hearings to admit her additional claim concerning the land ownership certificates issued to the defendants. The defendant was given the possibility to comment on that request and they expressed their opposition to admitting it on account of its irrelevance and the possibility to lodge such a claim separately. The court subsequently decided to refuse to admit the applicant ’ s additional claim.

The Court notes that in the circumstances of the present case the domestic court was better placed to assess the relevance of the additional claim and the expedience of its examination within the impugned proceedings. From the minutes of the hearing it is clear that the court agreed with the defendant ’ s reasoning and refused to accept the additional claim. The procedural decision does not appear to be manifestly unreasonable. Moreover, it was not alleged by the applicant that she was prevented from lodging her claim separately in a new set of proceedings.

As to the complaint about allegedly wrongful assessment of evidence by the domestic courts, the Court reiterates that it is not its task to act as a court of appeal or, as is sometimes stated, as a court of fourth instance, in respect of the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law. Furthermore, it is the domestic courts wh ich are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, among many other authorities, the judgments in Vidal v. Belgium , 22 April 1992, Series A no. 235-B, pp. 32-33, § 32 , and Edwards v. the United King dom , 16 December 1992, Series A no. 247-B, § 34).

Having regard to the materials submitted by the applicant, the Court finds that that there is nothing to show that the applicant, represented by counsel, could not present all her arguments and means of evidence to support her claims or that the proceedings were otherwise unfair and in breach of Article 6 of the Convention .

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 complained about the rejection of her cassation appeal for having been submitted too late . She maintained that the first-instance court had not been impartial and independent since it had had to decide on the admissibility of a cassation appeal against its own decision.

The Government considered that the issue raised by the applicant wa s similar to that considered by the Court in the case of Brualla Gómez de la Torre v. Spain (judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII). The y maintained that the procedural changes had taken immediate effect, that access to the cassation instance could be stricter and that the changes were foreseeable since they logically continued the judicial reform started in June 2001 .

The applicant maintained that the old procedural rules should have applied in her case, since the decision against which she appealed had been taken prior to the entry into force of the Amendment Act . She further maintained that the new rules had been applied retroactively in her case.

The Court reiterates that the right to a court, of which the right of access is one aspect (see Golder v. the United Kingdom , judgment of 21 February 1975, Series A no. 18, p. 18, § 36), is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict the exercise of the right in such a way or to such an extent that its very essence is impaired. They must pursue a legitimate aim and there must be a reasonable degree of proportionality between the means employed and the aim sought to be achieved (see Guérin v. France , judgment of 29 July 1998, Reports 1998-V, p. 1867, § 37).

The rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Pérez de Rada Cavanilles v. Spain , judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 45). The Court underlines that, since the issue concerns the principle of legal certainty, it raises not only a problem of the interpretation of a legal provision in the usual way, but of an unreasonable construction of a procedural requirement which may prevent a claim being examined on the merits, thereby entailing a breach of the right to the effective protection of the courts (see, mutatis mutandis , Miragall Escolano and O thers v. Spain , no. 38366/97, § 37, ECHR 2001-I; and Zvolský and Zvolská v. the Czech Republic , no. 46129/99, § 51, ECHR 2002-IX).

Moreover, the manner in which Article 6 applies to courts of appeal or cassation must depend on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation ’ s role in them (see, for instance, Monnell and Morris v. the United Kingdom , judgment of 2 March 1987, Series A no. 115, p. 22, § 56, and Helmers v. Sweden , judgment of 29 October 1991, Series A no. 212-A, p. 15, § 31); the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal ( Levages Prestations Services v. France judgment of 23 October 1996, Reports 1996-V, p. 1544, § 45).

The Court notes that, in the instant case, the applicant appealed in cassation after her case had been considered by the first instance and appellate courts. The Court reiterates that such appeal in cassation in the Ukrainian civil procedure may be considered an effective remedy, within the meaning of Article 35 § 1 of the Convention, for lower court decisions taken after 29 June 2001, and therefore has to be used (see Vorobyeva , cited above ). This was the applicant ’ s situation when the decision of the appellate court was adopted on 13 March 2002.

The Court further notes that the applicant ’ s request for leave to lodge an appeal was declared inadmissible on the ground that it had not been filed within the time-limit provided by Article 321 of the CCP. In the Court ’ s opinion, as with the case of Melnyk v. Ukraine ( no. 23436/03, § 26 , 28 March 2006 ), it is necessary to examine whether the calculation of the period for the running of the time-limit could be regarded as foreseeable from the point of view of the applicant.

The Court recalls the generally recognised principle of the immediate effect of procedural changes to pending proceedings (see Brualla Gómez de la Torre v. Spain , judgment of 19 December 1997, Reports 1997 ‑ VIII , § 35). This principle was confirmed in the case of Vorobyeva (cited above), where the applicant failed to make use of the remedy which was introduced whil e the judicial proceedings were still pending.

The Court notes in the present case that, in the absence of any transitional or retroactive specification in the amended provisions, the applicant could reasonably have expected , if necessary with assistance of legal advice, the new deadline to have been brought forward to 4 May 2002 ( one month after the Amendment Act came into force). The applicant would still have had a month to lodge her appeal after the amendments had been promulgated, even though this new deadline was shorter than the original time-limit under the old provisions of the CCP ( that is, 13 June 2002, three months after the decision of the Kyiv City Court of Appeal, against which the cassation appeal was brought ).

In the present case, the applicant failed to comply with the new time-limit. The immediate effect of this new procedural rule does not appear to be contrary to Article 6 § 1 of the Convention and the Court cannot speculate on whether or not the applicant ’ s cassation appeal would have be en rejected had she complied with the new time-limit. In this respect, this case is different from the Melnyk case (cited above), in which the applicant lodged her cassation appeal within one month after the entry into force of the new rules , but the domestic courts rejected it as being submitted too late, which suggested that the new procedural rule had been applied retroactively requiring her to lodge the cassation appeal before the entry into force of the new legislation and, therefore, in violation of A rticle 6 § 1 of the Convention.

As to the question of impartiality and independence of the first-instance court, the Court notes that according to the legislation which was in force at the time of the events, all appeals had to be initially considered by the first-instance court as to their compliance with the procedural formalities. Rulings on the admissibility of appeals given by the first-instance court could be appealed against to the higher courts.

The Court recalls that under Article 6 § 1 of the Convention , should an appeal system exist in the domestic legal order , the State is required to ensure that persons within its jurisdiction enjoy before the courts of appeal the fundamental guarantees enshrined in Article 6, regard being had to the special features of the proceedings in question, and that account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see, for instance, Podbielski and PPU Polpure v. Poland , no. 39199/98, § 62, 26 July 2005) .

In the circumstances of the present case, the Court, in absence of any specific arguments in support of the alleged lack of independence and impartiality of the first-instance court, cannot conclude that that the first instance court lacked independence and impartiality and rejects this complaint as manifestly ill-founded.

3. As to the length of the proceedings in question, the Court notes that they started in November 1999, when the applicant lodged her claim, and terminated in November 2004, when the Supreme Court rejected the applicant ’ s appeal against the procedural rulings of the lower court. From this period two years and five months concerned consideration of the merits and the remainder of the period was solely devoted to procedural issues. The Court does not find this period excessive 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.

Accordingly, the application of Article 29 § 3 of the Convention in the present case must be discontinued.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President