FIFTH SECTION

DECISION

Application no. 42152/10 Mariya Stanislavivna ROGACH against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 10 December 2019 as a Committee composed of:

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 12 July 2010,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Mariya Stanislavivna Rogach, is a Ukrainian national, who was born in 1940 and lives in Uzhgorod.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lishchyna from the Ministry of Justice. Until 5 September 2018 the applicant was represented by Mr Petro Nemesh, a lawyer practising in Uzhgorod.

3 . The applicant owns a house on Shtefanyka Street in the village of Velykyy Bereznyy, Zakarpattya Region.

4 . In 2004-2005 the Velykyy Bereznyy Council (“the local council”) approved a programme to connect the village to mains gas and ordered a specialist organisation in this field, “Ukrndiagroproekt”, to develop the project. According to the applicant, her house was unlawfully excluded from the project. At the same time, according to the letter from “Ukrndiagroproekt”, the project did not incorporate two houses on Shtefanyka Street, including the applicant ’ s house, because their owners refused that the pipelines be located on the surface and elevated to the facades of their houses (this was the only technically viable possibility for this street). As it appears from the available documents, the construction works were, at least partially, financed by the inhabitants of the village. It also appears that the applicant did not contribute to the cost of construction.

5 . On 1 September 2004 the village council approved the composition of the so-called Pushkina Street Committee created in relation to the installation of the gas pipelines. According to the information provided by the Government, the Committee was never registered as a legal entity or otherwise formalised (see paragraph 21 below).

6 . Seeking the connection of her house to mains gas the applicant lodged numerous requests with the local authorities, but to no avail as the issue should have been resolved first with the inhabitants of Pushkina Street who financed the constructions of the pipelines. On 27 May 2008 she brought court proceedings against the local council claiming to have her house connected to mains gas. She also claimed compensation in respect of pecuniary and non-pecuniary damage.

7 . On 10 March 2009 the Uzhgorod Local Court allowed the applicant ’ s claims in part and ordered the local council to examine her request to be connected to mains gas within one month of the court decision coming into force and to adopt the relevant decision. The applicant did not appeal, and the decision became enforceable on 20 March 2009.

8 . It appears that on 19 June 2009 the local council adopted the decision granting permission for the applicant ’ s house to be connected to mains gas of Shtefanyka Street or Pushkina Street. No copy of that decision was provided to the Court.

9 . According to the applicant, on 29 June 2009, in order to draw up technical documentation for the construction works, she addressed the Pushkina Street Committee (hereafter – the Street Committee) to request its approval for connecting her house to mains gas. It appears that the applicant claimed that it be done free of charge. A similar request was made also by the local council. No copies of the relevant documents were provided.

10 . According to the applicant, on 14 July 2009 the head of the Street Committee replied that the relevant approval would be given to the applicant upon payment of certain monetary contributions to the Street Committee and two residents of Pushkina Street. No copies of the relevant documents were provided.

11 . Considering these requirements unlawful, on 5 August 2009 the applicant instituted court proceedings against the Street Committee. The applicant claimed that the relevant approval for her connection to the pipeline should have been given free of charge. The applicant referred to the provisions of the Civil Code governing the use of property and responsibility for causing damage. She also referred to Article 31 of the Law on Local Self-Governance providing for the list of issues in the competence of the executive committees of the local councils (e.g. in the field of construction).

12 . On 20 August 2009 the Uzhgorod Local Court returned the applicant ’ s claim unexamined. In its one-page ruling it stated that the Street Committee was not a legal entity, which was a prerequisite for the case to be examined in civil proceedings.

13 . On 1 September 2009 the applicant appealed. She maintained that the Street Committee was a public legal entity as its status and activities were envisaged and regulated by Article 140 of the Constitution of Ukraine and Article 14 of the Law on Local Self-Governance (see paragraphs 18 and 20 below).

14 . On 17 November 2009 the Zakarpattya Regional Court of Appeal upheld the ruling of 20 August 2009. The relevant part of the decision reads as follows:

“In accordance with Article 80 of the Civil Code, a legal entity is an organisation established and registered in accordance with the law, having civil legal capacity, and which can be a claimant and defendant before the courts.

In accordance with Article 14 of the Law “On Local Self-Governance in Ukraine”, village, city and district in the cities councils may permit, at the residents ’ initiative, the establishment of house, street, block or other community organisations and vest them with part of their authority, finances and property; the legal status, procedures for organisation and activities of community organisations shall be established by law.

Currently the issues of legal status, procedures for organisation and activities of community organisations are unregulated in view of the absence of a relevant law.

Due to the lack of any data that the Street Committee is a legal entity, it cannot act as a defendant in the court proceedings in accordance with Article 30 of the Code of Civil Procedure.”

15 . On 24 December 2009 the applicant appealed in cassation on points of law relying on similar arguments to those in her appeal. In particular, she referred again to the Law on Local Self-Governance to prove her point that community organisations were part of the self-government authorities. She did not contest the court ’ s point as to the lack of special law on the community organisations although it had been adopted as early as in 2001 (see paragraph 21 below).

16 . On 24 February 2010 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal on points of law. It found that the applicant ’ s cassation appeal did not contain any arguments that necessitated the examination of the case file and that her arguments did not prove any violation of material or procedural laws by the lower courts.

17 . In December 2011 the local council acquired into its property the pipelines located, inter alia , on Pushkina Street. By the decision of 12 December 2011 they were transferred to the Public Joint Stock Company “Zakarpatgas” (a company in charge of gas supplies). It is unclear whether the applicant applied to the latter to have her house connected to the mains gas.

18 . Article 140 of the Constitution of Ukraine in force at the material time read as follows:

Article 140

“...

Village, city and district city councils may permit, at the residents ’ initiative, the establishment of house, street, block or other community organisations and vest them with part of their authority, finances and property”.

19 . According to Article 30 of the Code of Civil Procedure in force at the material time, claimants and defendants in civil proceedings may act as individuals and legal entities as well as the State. According to Article 80 of the Civil Code in force at the material time, a legal entity is an organisation established and registered in accordance with the law, having civil legal capacity, which can be claimant and defendant before the courts. According to Articles 87 and 89 of the Code a legal entity is created from the day of its state registration and the information about the state registration shall be included to the unified state register of legal entities.

20 . Article 14 of the Law on Local Self-Governance in force at the material time read as follows:

Article 14. Community Organisations

“1. Village, city and district city councils (in case of their creation) may permit, at the residents ’ initiative, the establishment of house, street, block or other community organisations and vest them with part of their authority, finances and property.

2. The legal status, procedures for organisation and activities of community organisations according to the place of residence shall be established by law.”

21 . On 11 July 2001 the Law on Community Organisations no. 2625-III was adopted and on 15 August 2001 it came into force. The Law regulates in detail the legal status, procedure for creation and registration, competencies, activities and other issues concerning the community organisations. Section II provides for the procedure of establishment of a community organisation. In particular it envisages that a community organisation may be established at the initiative of the local community subject to the approval of the local council; it must adopt articles regulating its activities and be legalised by way of state registration or notification of the local council of its establishment (Article 13). Registration of a community organisation must be carried out by the executive committee of the relevant local council and upon registration it shall acquire the status of a legal entity. Article 28 of the Law explicitly provides that the decisions, acts or omissions of community organisations or their members may be challenged before the relevant local council or the court.

22 . The Government provided examples from the domestic courts ’ case-law in which the claimants sued private persons co-financing the construction of a gas pipeline and who refused to consent for the claimants to connect to the pipeline.

In particular, the judgment of the Kompaniivka Local Court of Kirovograd Region of 16 May 2013 in the case no. 391/109/13-ц concerned a claim lodged by a private person against several other private persons in connection with their refusal to agree to the claimant ’ s connection to the gas pipeline until the payment of certain fees. In this case, while a so-called “cooperative” was allegedly created in order to ensure the construction of a pipeline (the defendants being it members), it was never registered as a legal entity. The court thus found that the cooperative never existed and that essentially all the works were done and financed separately by every resident. The court found unlawful that one of the residents hindered the claimant in the connection to the pipeline.

By the judgment of 18 April 2013, in case no. 564/137/13, the Kostopil Local Court of Rivne Region found that to connect to the gas pipeline the claimant (who had unlawfully connected to it and was later disconnected) should have obtained an agreement from other residents of the street, who co-financed the construction of the pipeline, and paid a respective fee. The court noted that ruling otherwise would lead to the breach of the property rights of the street residents.

COMPLAINTS

23 . The applicant complained under Article 6 § 1 of the Convention about the refusal of the domestic courts to consider her claim on the merits on the ground that the Street Committee lacked legal capacity and could not be a party to civil proceedings.

THE LAW

24 . The applicant complained of a violation of her right of access to court guaranteed by Article 6 § 1 of the Convention which reads, insofar as relevant, as follows:

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

25 . In their submissions the Government stated that Article 6 of the Convention did not apply in the present case. According to the Government, the connection of the applicant ’ s house to the mains gas could only have been done with the consent of the inhabitants of the neighbouring streets, in particular Pushkina Street, who shared the cost of the construction works. The applicant, however, claimed that her house be connected free of charge, which claim had no basis in the domestic law.

26 . The Government further contended that the applicant ’ s claims were submitted to the courts against an entity which was not a legal person and could not thus be a party to the proceedings. They noted in this respect that while on 1 September 2004 the local council approved by its decision the composition of the Pushkina Street Committee (see paragraph 5 above), it was still not a street committee as defined by the Law on Community Organisations as it was never legalised according to the procedure set out by this Law (see paragraph 21 above). The Government thus claimed that this was rather an “initiative group” of the residents of Pushkina Street.

27 . The Government also claimed that the applicant could have sued either the head of the Street Committee or the members of the Committee. In support of their position they provided examples from the domestic courts ’ case-law in which the claimants successfully sued private persons (either members of a residents ’ organisation or not) co-financing the construction of a gas pipeline, and who refused to consent for the claimants to connect to the pipeline (see paragraph 22 above). Based on that the Government argued that by not submitting her claims against the residents of Pushkina Street the applicant failed to exhaust domestic remedies. Referring to the same arguments, they alternatively claimed that the application was manifestly ill-founded.

28 . In reply to the Government ’ s first argument the applicant claimed that the local council allowed her to be connected to the mains gas free of charge. As to the possibility to sue the members of the Street Committee separately, the applicant did not comment on the accessibility or effectiveness of this remedy. The applicant noted that she appealed against the Street Committee ’ s refusal to grant her access to the pipeline but her claims were left unexamined although the Law on Local Self-Governance clearly provided that the actions and decisions of the local self-governance bodies could be appealed against. She further noted that the court of appeal had erroneously stated that a special law on community organisations was non ‑ existent although it had been adopted in 2001.

29 . The Court takes note of the Government ’ s objection as to inapplicability of Article 6 of the Convention due to the lack of basis for the applicant ’ s claims in the domestic law. The Court however observes that stating that as other inhabitants shared the cost of construction of the pipeline the applicant could not claim her connection free of charge the Government provided no reference to the applicable domestic law whatsoever. Commenting on the Government ’ s objection the applicant referred to the local council ’ s decision of 19 June 2009 which allegedly granted her this right (see paragraph 8 above), but no copy of this decision is available; likewise no further reference to the applicable domestic law was provided. Therefore, the parties ’ positions are not sufficiently developed to enable the Court to reach a conclusion on the matter. However, the Court does not consider necessary to do it as, even assuming this provision to be applicable, the application is in any event inadmissible for the reasons specified below.

30 . The Court recalls that the right of access to court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State (for the summary of the relevant case-law see, among many other authorities, Golder v. T he U nited K ingdom , 21 February 1975, § 38, Series A no. 18; Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I; and Wo ś v. Poland , no. 22860/02, § 98-100, ECHR 2006 - VII).

32 . Turning to the present case the Court observes that the applicant ’ s claim was left unexamined on the merits on the ground that the respondent, a Street Committee, was not a legal entity and could not thus be a party to civil proceedings. In this context the Court notes the specific circumstances of the case, in particular that while the Street Committee was non-existent in law, it should have existed in fact, while the applicant was supposed to address it to receive access to the pipeline. While the local court did not provide detailed reasoning for its refusal to adjudicate the case, the appellate court referred to a number of the domestic law provisions setting out the relevant rules (see paragraphs 12 and 14 above). The Court is thus ready to accept that the refusal of the domestic courts to entertain the applicant ’ s claim was in accordance with the law. It remains to be seen whether this limitation of the applicant ’ s right of access to court was such as to impair the essence of this right.

33 . The Court notes that the Government provided examples of domestic courts ’ judgments in which the claimants sought connection to the gas pipeline (see paragraph 22 above). The Court observes that while in one case there existed a street residents ’ association (in the form of a cooperative) and in the other case there did not, in both of them the claimants ’ complaints were directed against individual residents. The domestic courts examined them on the merits and adopted relevant decisions. The applicant failed to provide any comments regarding these examples stating merely that the Law on Local Self-Governance provided that the actions and decisions of the local self-governance bodies could be appealed against and that the court of appeal had ignored the existence of the special law on community organisations although it had been adopted in 2001.

34 . In the view of the above and in the absence of the arguments to the contrary from the applicant, the Court is satisfied that in the present case it was open to her to initiate civil proceedings against the residents of Pushkina Street as private persons and claim access to the pipeline. Therefore, the applicant had available to her reasonable alternative means to protect her rights effectively.

35 . Having regard to the foregoing, it cannot be said that the limitation on the applicant ’ s right of access to court complained of impaired the essence of the right or was disproportionate for the purposes of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and shall be dismissed pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 January 2020 .

Milan Blaško Síofra O ’ Leary Deputy Registrar President