FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17382/04 by Oleksiy Grygorovych BOYKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 23 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mr M. Villiger, judges , and Mr s C . Westerdiek , Section Registrar ,

Having regard to the above application lodged on 14 May 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Oleksiy Grygorovych Boyko , is a Ukrainian national who was born in 1961 and lives in the town of Lubny , Poltava region .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

From 1986 the applicant lived with his mother whose employer, the Lubny District State Enterprise of Veterinary Medicine (“the Enterprise ”), had granted her authorisation to occupy and use a house allotted to her and where she was living. On 23 February 2001 the applicant ’ s mother died.

In August 2002 the Enterprise brought proceedings in the Lubny Town Court ( місцевий суд м. Лубни , hereafter “the Town Court ”) against the applicant. It stated that since November 2001 the applicant had permanently resided at his wife ’ s house and thus, pursuant to Article 71 of the Housing Code ( Житловий кодекс України ) , had lost the right to occupy his late mother ’ s house by not having lived there for over six months. This contention was supported by, inter alia , the fact a claim that since 2001 no electricity or gas had been consumed at the house concerned. The Enterprise sought a declaratory judgment to the effect that the applicant had lost his right to occupy the house.

The Town Court held several hearings during which the applicant put questions to a number of witnesses. On 6 November 2002 the court rejected the Enterprise ’ s request, finding that there was no cogent evidence of the applicant ’ s absence from the disputed house for over six months.

On an unspecified date the Enterprise lodged an appeal with the Poltava Regional Court of Appeal ( Апеляційний суд Полтавської області , hereafter “the Court of Appeal” ) . In his observations on this appeal the applicant indicated the address of the disputed house both as his permanent address and as his address for service.

On 4 January 2003 the Court of Appeal sent the applicant a summons for a hearing scheduled for 21 January 2003. On 9 January 2003 the postal service returned the summons with a note “the indicated addressee does not reside at the address given”.

On 14 January 2003 the registry ( канцелярія ) of the Court of Appeal posted two copies of the summons, one to the address of the disputed house and another to the address of the applicant ’ s wife. The applicant contends that the address of his wife – where he did not live – was given to the court by the Enterprise . The copy of the summons sent to the address of the house in question was returned by the postal service on 15 January 2001 with a note “The addressee does not reside at the address given. The house is locked”. The other copy of the summons was served on the applicant ’ s wife, who confirmed receipt by signing the relevant form. The applicant alleged that his wife, who lived separately from him, had not informed him of the date of the hearing.

On 21 January 2003 the Court of Appeal heard the appeal of the Enterprise . The applicant was not present. The court reassessed the evidence in the case file, including evidence that according to the electricity meter no electricity had been consumed for three and a half years, and that the gas supply had been cut off in February 2001, and decided that the Enterprise had provided sufficient evidence that the applicant had not been living in the disputed house for over six months. It therefore quashed the first instance judgment and declared that the applicant had lost his right to occupy his late mother ’ s house.

The applicant appealed in cassation, indicating, inter alia , that he had not been duly summoned to the hearing before the Court of Appeal. He also requested the Supreme Court to appoint a legal aid lawyer to represent him in the cassation proceedings. On 15 December 2003 the Supreme Court refused the applicant ’ s request for leave to appeal in cassation.

B. Relevant domestic law

The service of summonses is governed by Article 94 of the Code of Civil Procedure . If a summons c annot be personally served, the postal authorities must return it to the court concerned indicating the reasons why service was not possible. However, if the person summoned is absent but an adult member of his family is present, the summons can be lawfully served on that adult relative.

Article 300 of the Code of Civil Procedure provides that

“Within one month after the completion of the necessary preparatory activities, the head of the panel to which the case has been assigned shall fix the date for the hearing. The registry of the [relevant appellate] court shall immediately send the summonses to the parties... informing them of the time and place of the hearing.”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing in that the authorities had failed to secure his presence before the Court of Appeal, and in that the domestic courts had erred in their assessment of the facts and application of the law thus resulting in a for him unfavourable outcome. Relying on Articles 6 and 13 of the Convention, he further complained about the Supreme Court ’ s refusal to appoint a legal aid lawyer.

He lastly complained under Article 8 of the Convention of a violation of his right to respect for his home.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention that, in the proceedings at issue, he did not receive a fair hearing in that the authorities had not duly notified him of the hearing on appeal, in that the domestic courts had reached a wrong decision and in that no legal aid lawyer was assigned to his case by the Supreme Court. Article 6 § 1, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing...by a ... tribunal...”

As to the applicant ’ s complaint that he was not duly informed of the hearing before the Court of Appeal, the Court reiterates that Article 6 of the Convention does not provide for specific forms of service of documents, including summonses. The question is whether an individual ’ s right to a fair trial has been denied in the circumstances of the case (see Babunidze v. Russia (dec.), no. 3040/03, 15 May 2007 with further references).

The Court notes that the applicant was aware that the Enterprise had lodged an appeal with the Poltava Regional Court of Appeal, as he filed observations on it. In those observations he indicated as his permanent address and as his address for service the address of the disputed house. However, the two notifications sent by the Court of Appeal to this address were both returned by the postal authorities as undeliverable. A further notification sent by the Court of Appeal to the address of the applicant ’ s wife was served on the latter in accordance with Article 94 of the Code of Civil Procedure.

The Court finds that the judicial authorities cannot be held responsible for the applicant ’ s failure to take appropriate measures to ensure effective receipt of any correspondence sent to him by the Court of Appeal to the address indicated by him. As to the address for service at the house in question, the applicant has not begun to explain why, if he lived at the house as he claimed, service could not be effected there. As to the attempted service at the applicant ’ s wife ’ s address, the Court notes that, although it was not ultimately effective, it constituted a further attempt by the authorities to serve the summons on the applicant, as foreseen by Article 94 of the Code of Civil Procedure.

The Court is therefore of the opinion that, as regards this complaint, the facts of the case do not disclose a violation of the applicant ’ s right to a fair hearing.

In so far as the applicant seeks to complain of the assessment of the evidence by the Court of Appeal and the outcome of the appeal proceedings, the Court reiterates that it is not a court of appeal from domestic courts and that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. It is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention . While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

The Court has found nothing in the case file on the basis of which the findings of the Court of Appeal in the applicant ’ s case should be regarded as unreasonable or arbitrary. In particular, it notes the close link between one of the factual elements in the case – whether the applicant lived at the house in questi on – and the procedural issue of service of the notice of the hearing at the same address. Accordingly, also in this respect there is no appearance of a violation of the applicant ’ s right to a fair hearing under Article 6 § 1 of the Convention.

As regards the applicant ’ s complaint of the failure to assign a legal aid lawyer to his case, the Convention does not, as such, guarantee a right to legal aid in civil proceedings (see Staroszczyk v. Poland , no. 59519/00, § 127 , 22 March 2007 ) . The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia , upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant ’ s capacity to represent him or herself effectively (see Steel and Morris v. the United Kingdom , no. 68416/01, § 61 , ECHR 2005 ‑ II ).

The Court notes that the proceedings at issue concerned the question whether or not the applicant had lost the occupancy right of a house. The answer to this question did not raise any complex legal questions but depended solely on the determination of a factual issue, namely whether or not the applicant had left this house unoccupied for a period of more than six months. To the extent that the Supreme Court would be able, in cassation proceedings, to review the assessment of the evidence and the conclusion reached by the Court of Appeal on this point, the Court has found no reasons for considering that the applicant would be incapable to represent himself effectively in demonstrating that he had not left the house unoccupied for over six months. Consequently, the failure to assign a legal aid lawyer cannot be considered as having deprived the applicant of a fair hearing within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application must be rejected for being manifestly ill-founded , pursuant to Article 35 § 4 of the Convention.

2. The applicant alleged a violation of Article 13 of the Convention as regards the failure to assign a legal aid lawyer. The Court reiterates that Article 13 of the Convention , which guarantees the right to an effective remedy in case of a violation of a Convention right , cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have . The grievance must be an arguable one in terms of the Convention (see, in particular, Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). In view of its conclusions above, the Court considers that the applicant has no such arguable claim and, c onsequently, also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. The applicant lastly alleges a violation of his right under Article 8 of the Convention, which provision reads in its relevant part:

“1. Everyone has the right to respect for his ... home .”

T he concept of “home” within the meaning of Article 8 is not limited to accommodation lawfully occupied or accommodation lawfully established (see Gillow v. the United Kingdom , judgment of 24 November 1986, Series A no. 109, § 46; and Prokopovich v. Russia , no. 58255/00, §§ 36-39, ECHR 2004-XI (extracts)). However, the applicant ’ s claim that he has continued to reside in the disputed house after the death of his mother and that he has not left this house unoccupied has remained wholly unsubstantiated. In these circumstances, the Court does not find it established that the house in issue can be regarded as the applicant ’ s “home” for the purposes of Article 8.

Accordingly, the Court rejects also this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reaso ns, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer L orenzen Registrar President