SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74104/01 by Ninel Andriyivna IVANOVA against Ukraine

The European Court of Human Rights (Second Section), sitting on 15 June 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mr M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 22 March 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Ninel Andriyivna Ivanova, is a Ukrainian national, who was born in 1930 and lives in Kyiv, Ukraine.

A. The circumstances of the case

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

1. Dispute about the ownership of the corridor in the applicant's house

In December 1998 the applicant instituted proceedings against S.V.S. (a neighbour) alleging that he had unlawfully seized and re-designed a corridor in their shared house. On 19 August 1999 the Podilskiy District Court of Kyiv allowed the applicant's claim, declared the corridor in question to be the applicant's property and ordered S.V.S. to remove the unauthorised changes in the corridor's design.

On 8 February 2001 the Deputy President of the Supreme Court of Ukraine lodged a supervisory review protest against the judgment of 19 August 1999 on the ground that the first instance court had erred in its assessment of evidence and in the application of the law.

On 26 February 2001 the Presidium of the Kyiv City Court quashed the judgment and remitted the case for fresh consideration.

On 3 July 2002 the Podilskiy District Court of Kyiv dismissed the applicant's claim due to her failure to pay in full the State tax for the introduction of the complaint.

2. Proceedings concerning the construction of an apartment building in the applicant's neighbourhood

In June 1998 the applicant instituted proceedings against B.O.M. and C.A.V. (private persons, customers of the constructor) alleging that the construction of a seven-floor apartment building in her neighbourhood was unlawful, unauthorised, violated her privacy and property rights, and created a noise nuisance. She claimed compensation for material and moral damage.

The building expert opinion of 15 July 1999 indicated that the construction complied with the plan authorised by the Kyiv City Department of Architecture and it was not detrimental to the applicant's house.

On 20 October 1999 the Shevchenkovsky District Court of Kyiv rejected the applicant's claim. The court found that the construction had been properly authorised and did not affect any of the applicant's property rights.

On 25 September 2000 the Presidium of the Kyiv City Court, following the protest (extraordinary appeal) of the Kyiv City Prosecutor requested by the applicant, quashed that part of the judgment concerning the claims of noise nuisance and compensation for moral damage. These claims were therefore remitted for fresh consideration.

On 31 January 2002 the Shevchenkovsky District Court of Kyiv found the applicant's submissions unsubstantiated as the construction work was carried out within the hours prescribed by law and did not exceed the noise nuisance limits. On 4 June 2002 the Kyiv City Court of Appeal upheld this judgment.

B. Relevant domestic law

The relevant domestic law is set out in the decision of 14 October 2003 declaring admissible the case of Naumenko v. Ukraine (no. 41984/98).

COMPLAINTS

With respect to the dispute about the ownership of the corridor in the applicant's house ( the first litigation ), the applicant complains under Article 6 § 1 of the Convention that the courts' decisions were unfair. In particular she complains that her right to a fair hearing was violated by the quashing of the judgment in her favour. The applicant submits that her right to the peaceful enjoyment of her possessions, within the meaning of Article 1 of Protocol No. 1, was also violated as a result.

Concerning the proceedings instituted by the applicant against the construction of an apartment building ( the second litigation ), the applicant complains that the hearings were unfair since the outcome of the proceedings was not in her favour. She invokes Articles 6 § 1 and 13 of the Convention. The applicant also alleges that the construction itself infringed Article 1 of the Protocol No. 1. Finally, the applicant invokes Article 17 of the Convention, for no specific reason.

THE LAW

1. The first litigation

a. Complaints about the quashing of a final judgment

According to the applicant, the Kyiv City Court's decision of 26 February 2001 infringed Article 6 § 1 of the Convention, which provides in part as follows:

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

The applicant further complains that the Kyiv City Court's decision of 26 February 2001 infringed her right to the peaceful enjoyment of her possessions, as secured by Article 1 of Protocol No. 1, which provides insofar as relevant as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...”

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

b. Complaints about the unfairness of the decision of 3 July 2002

The applicant further complains of the unfairness of the decision of the Podilskiy District Court of Kyiv of 3 July 2002 whereby her claim was dismissed due to her failure to pay the State tax for the introduction of the complaint. She invokes Article 6 § 1 of the Convention, cited above.

The Court observes that, by failing to observe the required formalities, the applicant failed to challenge this decision before the Kyiv City Court of Appeal. She has therefore not exhausted the remedies available to her under Ukrainian law, as required by Article 35 § 1 of the Convention.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The second litigation

The Court notes, in the first place, that the Kyiv City Prosecutor's protest filed with the Presidium of the Kyiv City Court against the judgment of 20 October 1999 was lodged following the applicant's request and was accepted in her favour. The applicant does not raise any complaint regarding this aspect of the procedure.

She complains that the ensuing proceedings were unfair and violated Articles 6 § 1 (cited above), 13 and 17 of the Convention and Article 1 of Protocol No.1 (also cited above).

Articles 13 and 17 of the Convention read as follows:

Article 13:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 17:

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

Under Article 35 § 1 of the Convention “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”.

The Court observes that the applicant failed to lodge a cassation appeal with the Supreme Court of Ukraine against the decision of the Kyiv City Court of Appeal on 4 June 2002, which she was free to do under the domestic legislation (see Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002).

As to the applicant's allegations about the unfairness of the judgment of 20 October 1999 of the Shevchenkovsky District Court of Kyiv, in that part which was not quashed, the Court observes that the applicant again failed to exhaust the remedies available to her under Ukrainian law as she did not appeal against this judgment to the Kyiv City Court under the cassation procedure. Her “ protest ” application lodged with the Kyiv City Prosecutor cannot be taken into account as this procedure is not a remedy within the meaning of Article 35 § 1 of the Convention (see Kucherenko v. Ukraine (dec.), no. 41974/98, 4 May 1999).

It follows that these complaints must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.1 to the Convention concerning the challenge to a final and binding court decision under the extraordinary appeal procedure;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President