SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72269/01 by Aleksandr Georgiyevich STRIZHAK 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 , Mrs A. Mularoni, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application lodged on 10 February 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Georgiyevich Strizhak, is a Ukrainian national who was born in 1938 and currently resides in Dnipropetrovs'k. He is represented before the Court by Mr Renat Mukhamedzhanov, co-chairman of the Regional Human Rights Centre in Dnipropetrovs'k (a non-governmental organisation). The respondent Government are represented by their Agents - Ms Valeria Lutkovska, succeeded by Ms Zoryana Bortnovska.

A. The circumstances of the case

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

On 5 September 1938 the Troika tribunal of the Department of the NKVD [National Commissariat of the Internal Affairs (the equivalent of the KGB and Ministry of the Interior at the material time) was created in 1934 as a part of the United General Political Department of the USSR ( ОДПУ ). The Decree of the Central Executive Committee ( Указ ЦВК СРСÐ ) of 10 July 1934 also created special extraordinary courts within its structure that dealt with “antirevolutionary” and “socially harmful elements”. Approximately two million persons were convicted and sentenced by these tribunals in the former USSR] of the Ukrainian Soviet Socialist Republic in the Dnipropetrovs'k Region ( Тр Ñ– йка У правління Н ародного Комісаріату Ð’ нутрішніх Справ УPСР по Дніпропетровській області ) resolved that the applicant's father was a “socially harmful element” after a purported robbery (“ соціально шкідливий елемент ”), and sentenced him to 5 years' imprisonment in a correctional labour camp.

The applicant's father died on 26 March 1976.

On 28 March 1980 the Dnipropetrovs'k Regional Court quashed the resolution of 5 September 1938 of the Troika tribunal upon the protest lodged by the prosecutor of the Dnipropetrovs'k Region. It also terminated the proceedings in the case. In particular it found that

“... there is no evidence of ... robbery...

... the investigation in the case was conducted in grave violation of the rules of procedural law.

No criminal proceedings in the case were initiated; the [applicant's father] was not charged; there was no indictment in the case. In the course of the investigation of the case, the elementary rights of the accused were not respected (the right to defend oneself, etc.).

In such circumstances the resolution of the Troika has to be annulled and the proceedings in the case shall be terminated on the basis of an absence of any corpus juris in his actions ...”

On 29 May 1980 the Dnipropetrovs'k Regional Court issued written notice to the applicant that the proceedings in his father's case had been terminated and that the Troika's resolution of 5 September 1938 had been annulled.

On 24 February 1997 the Commission on Rehabilitation of the Dnipropetrovs'k Municipal Council requested the President of the Dnipropetrovs'k Regional Court to provide information concerning the conviction of the applicant's father on 5 September 1938, as the notice of 29 May 1980 contained insufficient information about it. The Commission was also requested to state whether the father's conviction had been politically motivated.

On 4 March 1997 the Deputy President of the Dnipropetrovs'k Regional Court issued written notice to the Commission on Rehabilitation of the Dnipropetrovs'k Municipal Council that

“... by a resolution of the Dnipropetrovs'k Regional Court of 28 March 1980, the resolution of the Troika has been annulled and the proceedings in the case terminated due to the lack of proof of guilt.”

From March 1997 until May 2000, the applicant unsuccessfully appealed to the Deputy President of the Dnipropetrovs'k Regional Court and the President of that court, and wrote to the Supreme Court of Ukraine, claiming the untruthfulness of the notice and asking that it be reworded, since it did not correspond to the resolution of Dnipropetrovs'k Regional Court of 28 March 1980 and, accordingly, his father's memory had been defamed. He also sought initiation of criminal proceedings against the Deputy President of the Dnipropetrovs'k Regional Court.

On 8 August 1997 the Deputy President of the Criminal Division of the Supreme Court remitted the applicant's complaint about the notice of 4 March 1997 to the President of the Dnipropetrovs'k Regional Court for consideration on the merits. He also requested that the notice be rectified and that a public apology be presented to the applicant.

By letters sent to the applicant by the Supreme Court of Ukraine on 26 September and 24 December 1997, the applicant's claim was rejected as being unfounded. In particular, on 24 December 1997, the Deputy President of the Supreme Court of Ukraine recognised that the applicant's father had been rehabilitated; the former also confirmed that he had been convicted for political reasons. On 8 September, 10 September 1997 and 22 April 1998, the President of the Dnipropetrovs'k Regional Court refused to annul the written notice or to reword it.

On 1 April 2000 the applicant lodged complaints with the Zhovtnevy District Court of Dnipropetrovs'k to have the refusals of the Deputy President declared unlawful, and to rebut the information contained in the aforementioned notice of 4 March 1997. He also sought compensation for moral damage.

On 2 June 2000 the Zhovtnevy District Court of Dnipropetrovs'k refused to examine the applicant's claims on the ground that they fell outside the court's jurisdiction, as they concerned the actions of a judge in the course of the administration of justice.

On 20 July 2000 the Deputy President of the Dnipropetrovs'k Regional Court remitted the applicant's request to extend the time-limit for lodging his cassation appeal to the Zhovtnevy District Court of Dnipropetrovs'k.

On 27 July 2000 the Zhovtnevy District Court of Dnipropetrovs'k extended the term for lodging an appeal in cassation with the Dnipropetrovs'k Regional Court, as the applicant had not been informed until 7 July 2000 about the ruling of 2 June 2000, and would therefore have been unable to comply with the time limit for appeal in cassation.

The Government submitted that on 27 July 2000 the Zhovtnevy District Court notified the applicant that his case would be heard on 14 August 2000 in the Dnipropetrovs'k Regional Court. The applicant alleges that he did not receive this notification.

On 14 August 2000 the Dnipropetrovs'k Regional Court, in the absence of the applicant, upheld the decision of 2 June 2000.

The applicant's complaints, lodged with the President of the Dnipropetrovs'k Regional Court, for the initiation of a supervisory review of the decision of the Dnipropetrovs'k Regional Court, including a complaint about the lack of a public hearing in the consideration of his case before that court, were rejected on 24 October 2000 as being unsubstantiated. The President of the Dnipropetrovs'k Regional Court informed the applicant that the lack of a public hearing before the Regional Court had not been an obstacle to that court's examination of the matter, the applicant having been duly informed about the date and place of the hearing, of which he had been notified on 27 July 2000.

On 4 September 2003 the President of the Dnipropetrovs'k Regional Court of Appeal issued a written notice to the applicant informing him that, on 28 March 1980, the Presidium of the Dnipropetrovs'k Regional Court had quashed the resolution of the Troika of the Department of the NKVD of the Ukrainian Soviet Socialist Republic in the Dnipropetrovs'k Region of 5 September 1938 in respect of Mr G.I. Strizhak (the applicant's father), and that the proceedings in the case were terminated on the basis of an absence of any corpus juris in the actions of his father. It also stated that Mr G.I. Strizhak had been declared to have been sentenced unlawfully, and rehabilitated.

B. Relevant domestic law

1. Constitution of 28 June 1996

Article 3

“The human being, his or her ... honour and dignity ... are recognised in Ukraine as having the highest social value...”

Article 28

“Everyone has the right to respect of his or her dignity....”

Article 32

“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, the right to demand that any type of information be expunged, and also the right to compensation for material and moral damages inflicted by the collection, storage, use and dissemination of such incorrect information.“

Article 55

“Human and citizens' rights and freedoms are protected by the courts.

Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers.  ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”

Article 64

“Constitutional human and citizens' rights and freedoms shall not be restricted, except in cases envisaged by the Constitution of Ukraine.”

Article 124

“...The jurisdiction of the courts extends to all legal relations that arise within the State. ...

... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”

2. Law on the Judiciary of 5 June 1981 (repealed on 21 June 2001 with the introduction of the new Law on the Judiciary of 7 February 2002)

Article 6

Citizens' Right to Judicial Protection

“The citizens of Ukraine have the right to judicial protection from attempts ... against their honour and dignity, life and health, personal freedom and property.”

3. Law on the Judiciary of 7 February 2002

Article 1

Judicial Power

“... The jurisdiction of the courts extends to all legal relations that exist within the State.”

4. Article 136-1 of the Code of Civil Procedure

Article 136

Acceptance of claims in civil cases

“The judge individually decides on the issue of the acceptance of a claim in civil cases.

The judge refuses to accept as a claim:

1) claims which fall outside the courts' jurisdiction; ...”

Article 248-3

Complaints about decisions and actions outside the jurisdiction of the courts

“The following complaints are outside the courts' jurisdiction:  ...

- ... the 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....”  (Provision declared partly unconstitutional by the decision of the Constitutional Court of Ukraine No. 6-pп/2001 of 23 May 2001).

5. Decision of the Constitutional Court in the case of the Zhovti Vody citizens on the interpretation of Article 136-1 of the Code of Civil Procedure

“... 2. The refusal of the court to accept claims and other complaints or appeals that are submitted in accordance with the law is a violation of the right to judicial protection that, in accordance with Article 64 of the Constitution of Ukraine, cannot be limited.”

6. Decision of the Constitutional Court of 23 May 2001 on the Compatibility of paragraphs 3, 4 and 5 of Article 248-3 of the Code of Civil Procedure with the Constitution

“... 4. paragraph 4 of Article 248-3 of the Code of Civil Procedure of Ukraine, which envisages that the courts shall not consider complaints against the actions and acts of officials... of the court if legislation establishes a different procedure for complaining against them, has to be understood in the following way: the courts do not consider the complaints of citizens in proceedings, established by Chapter 31-A of this Code, against the actions and acts of judges related to the domain of the administration of justice, which have to be lodged in accordance with the relevant procedural legislation of Ukraine. The acts, actions or inactivity of court officials that belong to the area of administrative activity can be appealed in contentious proceedings, in accordance with Chapter 31-A of the Code of Civil Procedure...

5. The provisions of subparagraph 3, 4 of Article 248-3 of the Code of Civil Procedure ..., which were declared unconstitutional, shall have no legal effect after the adoption of this decision.”

7. The Resolution of the Plenary Supreme Court of 1 November 1996 “on the Application of the Constitution of Ukraine in the course of the Administration of Justice”

“8. ... Article 55 of the Constitution of Ukraine envisages that every person is guaranteed the right to bring complaints against the actions or inactivity of the administration, local self-government or official persons; with reference to this, the court cannot refuse to entertain a claim on the basis of a law that limits this right ... .”

COMPLAINTS

The applicant complains, under Article 6 § 1 of the Convention, of a lack of access to a court to have his claims determined about the refusal of the Deputy President to rectify the notice of 4 March 1997. He further complains about the lack of information concerning the date and time of the hearing on 14 August 2000 in the Dnipropetrovs'k Regional Court and the lack of a public hearing on that occasion. He next claims that the judges hearing his case were not independent and impartial. He also alleges that the length of the proceedings in his case was unreasonable and that the domestic courts failed to respect the resolution of 28 March 1980 concerning the rehabilitation of his father. Moreover, he alleges a breach of Articles 13 and 17 of the Convention since there were no effective remedies for the violations in his case.

THE LAW

I. THE APPLICANT'S COMPLAINTS UNDER ARTICLE 6 § 1 OF THE CONVENTION

The applicant alleges various violations of Article 6 § 1 of the Convention, which in so far as relevant provides as follows:

“...In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

A. Applicability of Article 6 § 1 of the Convention

1. Submissions of the parties

The Government suggested that Article 6 § 1 of the Convention was not applicable in the present case as the dispute was neither serious nor decisive for the determination of the applicant's civil rights and obligations. They further maintained that the application could be rejected as being incompatible ratione materiae .

The Government considered that the resolution of the Dnipropetrovs'k Regional Court of 28 March 1980 did not require any further enforcement as it did not entail any pecuniary consequences and only constituted “satisfaction” to the rehabilitated person and the members of his family. The Government further noted that, as concerns the applicant's requests to impose criminal liability on the judge who had issued incorrect information, this is not a matter guaranteed by the Convention.

The applicant disagreed.

2. The Court's assessment

The Court notes that the applicant's complaints in reality concern the right to a good reputation. It recalls that this right is recognised as a 'civil right' within the meaning of Article 6 § 1 (see, for instance, Helmers v. Sweden , judgment of 29 October 1991, Series A no. 212-A, p. 14, § 27; Tolstoy Miloslavsky v. the United Kingdom , judgment of 13 July 1995, Series A no. 316-B, § 58). Furthermore, Article 6 applies to proceedings whose outcome is directly decisive for 'civil obligations' (see Tolstoy Miloslavsky , cited above).

In the present case, the reputation of the applicant's father was at stake. However, it also affected the applicant's reputation since his father was recognised as a “rehabilitated person” ( реабілітований ) and therefore he could not be regarded as the son of a criminal. The Court concludes therefore that Article 6 § 1 of the Convention was applicable to the proceedings in this case. Furthermore, the Court considers that, in accordance with the established case-law of the Convention, the execution of a judgment given by any court must be regarded as an integral part of the 'hearing' for the purposes of Article 6.

B. Admissibility of the complaints under Article 6 § 1 of the Convention

1. The failure of the domestic authorities to comply with the judgment of 28 March 1980 and an alleged denial of access to court

(a) Submissions of the parties

The Government emphasised that the information in the notice given by the judge had been rectified on 4 September 2003 by the President of the Dnipropetrovs'k Regional Court, who issued a new notice with correct information, corresponding to the judgment of 28 March 1980. Furthermore, they maintained that the Dnipropetrovs'k Regional Court, in its letters of 8 September 1997 and 24 July 1998, and the Supreme Court, in its letters of 26 September and 24 December 1997, had rectified the information disseminated in the notice, which constituted sufficient compensation for any damage caused to him by the notice.

Moreover, the Government submitted that the immunity of judges against civil claims lodged in connection with their professional activities was justified in view of the necessity in a democratic society to preserve their independence and impartiality, and to protect the administration of justice from undue influence (see, mutatis mutandis , A. v. the United Kingdom , no. 35373/97, ECHR 2002-X).

In conclusion, the Government considered that the applicant could no longer claim to be a victim of a violation of the Convention.

The applicant disagreed. He recalled that he had demanded the annulment of the written notice issued on 4 March 1997, and public apologies from the court in question for disseminating untrue information about his father. He claimed that his rights under Article 6 § 1 of the Convention had been infringed as his complaints about the notice had not been considered on the merits and he had been unable to take proceedings against the judge concerned.

(b) The Court's assessment

The Court recalls that an applicant can claim to be a victim of a violation of Article 6 § 1 of the Convention if “a decision or measure favourable to the applicant was not ... sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Burdov v. Russia , no. 59498/00, §§ 27-32, ECHR 2002-III; Rotaru v. Romania [GC], no. 28341/95, §§ 35 ‑ 38, ECHR 2000-V).

In the present case, the Court notes that the notice of 4 March 1997 was issued in execution of the resolution of 28 March 1980 of the Dnipropetrovs'k Regional Court. It therefore considers that this case originally raised an issue of compliance by State authorities with the final and binding judgment given in the applicant's case. In particular, the resolution of 28 March 1980 concerned the termination of criminal proceedings against the applicant's father “on the basis of an absence of any corpus juris in his actions” and this judgment should not have been called into question (see, mutatis mutandis, Sovtransavto Holding v. Ukraine , no. 48553/99, § 72, ECHR 2002 ‑ VII).

However, taking into account the particular circumstances of the case, in particular the nature of the dispute, the Court considers that the applicant may no longer claim to be a victim of a Convention violation in relation to this complaint.

A new notice was issued on 4 September 2003 by the President of the Dnipropetrovs'k Regional Court, whereby the information disseminated in the notice of 4 March 1997 was rectified. The Court finds that the new notice could, in substance, be considered adequate redress for the failure of the domestic authorities to comply with the final and binding judgment of the Dnipropetrovs'k Regional Court of 28 March 1980. Accordingly, there was also sufficient redress for any unfairness or lack of access to court, under Article 6 § 1 of the Convention, as regards this aspect of the case.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Failure to provide information about the date and time of a hearing in the Dnipropetrovs'k Regional Court on 14 August 2000

The applicant complains that he was not informed about the date and time of the hearing held on 14 August 2000 in his absence and was therefore, allegedly, denied a fair hearing before the Dnipropetrovs'k Regional Court.

The Government disagreed. In particular, they submitted to the Court a notification of 27 July 2000 sent to the applicant about the date and time of a hearing.

The Court considers, in the light of the parties' submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. Lack of a public hearing on 14 August 2000 in the Dnipropetrovs'k Regional Court

The applicant complains that his presence in the course of the hearing was necessary as the complaints concerned the written notice issued by the Deputy President of the Dnipropetrovs'k Regional Court and therefore the cassation appeal should have been heard in his presence.

The Government disagreed.

The Court considers, in the light of the parties' submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. The independence and impartiality of the courts dealing with the applicant's case

The applicant maintains that the judges dealing with his case were not independent and impartial, as the case concerned their administrative superior, i.e. the Deputy President of the Dnipropetrovs'k Regional Court. He submitted that these judges had an interest in finding a favourable outcome for their superior.

The Court notes that, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia , to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see, among many other authorities, Findlay v. the United Kingdom , judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73). It further recalls that the existence of “impartiality”, for the purposes of Article 6 § 1, must be determined according to a subjective test, i.e. on the basis of the personal conviction and behaviour of a particular judge in a given case and, also, according to an objective test, i.e. ascertaining whether the judge offered sufficient guarantees to exclude any legitimate doubt in this respect (see, among many other authorities, Bulut v. Austria , judgment of 22 February 1996, Reports 1996-II, p. 356, § 31, and Thomann v. Switzerland , judgment of 10 June 1996, Reports 1996-III, p. 815, § 30). The Court considers it necessary to examine the issues of independence and impartiality together, as the arguments advanced by the applicant relate to both elements and are based on the same factual considerations (see Langborger v. Sweden , judgment of 22 June 1989, Series A no. 155, p. 16, § 32).

However, the Court finds that the applicant's complaints under this head must be rejected because he has failed to provide any substantiation of his doubts. The hierarchical link in itself does not suffice to legitimate the applicant's claim. Furthermore, it was possible for the applicant to challenge the judges hearing his case on the grounds of prejudice or to request the transfer of the case for a hearing in a different jurisdiction (see Posokhov v. Russia (dec.), no. 63486/00, 9 July 2002), but he did not avail himself of these possibilities.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6. The length of the proceedings in the applicant's case

The applicant submitted that the length of the proceedings in his case exceeded the requirement of 'reasonableness' enshrined in Article 6 § 1 of the Convention.

The Court notes that the judicial proceedings upon the applicant's claims for rectification of the information disseminated in the written notice of 4 March 1997 lasted from April 2000 (when the applicant lodged his complaints with the first instance court) to 14 August 2000 (the date of the ruling of the Dnipropetrovs'k Regional Court). That is a total of 4 months and 13 days before two levels of jurisdiction. Having regard to the criteria established by the case-law of the Convention, i.e. the complexity of the case, the conduct of the applicant and the conduct of the judicial authorities (see Kudła v. Poland [GC], no. 30210/96, ECHR 2000-XI, § 124), the Court is of the opinion that the length of the proceedings in the present case did not exceed a 'reasonable time' within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

II. THE APPLICANT'S COMPLAINTS UNDER ARTICLES 13 AND 17 OF THE CONVENTION

A. Alleged infringement of Article 13 of the Convention

The applicant complains about the infringement of Article 13 of the Convention as the domestic courts failed to hear his complaints on the merits. Article 13 reads as follows:

“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.”

The Court reiterates that Article 13 of the Convention guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under Article 13. However, Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among other authorities, Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 54 and Stockholms Försäkrings- och Skadeståndsjuridik AB v. Sweden , no. 38993/97, judgment of 16 September 2003, § 68).

The Court considers that the applicant's claim was “arguable” within the meaning of Article 13 of the Convention and therefore this provision was applicable in the instant case. However, it recalls that a remedy under Article 13 of the Convention does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of the complaint (see the Islamic Republic of Iran Shipping Lines v. Turkey (dec.), no. 40998/98, 10 April 2003) .

That being so, the Court is satisfied that the Ukrainian courts reviewed the admissibility of the applicant's complaint about the failure of the Deputy President of the Dnipropetrovs'k Regional Court to issue a correct written notice concerning the circumstances of his father's conviction in 1930's, to a sufficient degree to provide him an effective remedy for the purposes of Article 13 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

B. Alleged infringement of Article 17 of the Convention

Finally, the applicant alleges that his right under Article 17 of the Convention was infringed by the domestic authorities. This provision reads as follows:

“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.”

The Court finds that the applicant's assertions are wholly unsubstantiated, and that nothing in the facts of the present case discloses any evidence of a breach of this provision.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints about the alleged failure of the judicial authorities to inform him properly about the time of the hearing on 14 August 2000 and the non-public nature of that hearing;

Declares inadmissible the remainder of the application.

S. Dollé J.-P.-Costa Registrar President