FIFTH SECTION

DECISION

Application no. 68264/10 Olga Mikhaylovna BEZBORODYKH against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 10 April 2018 as a Committee composed of:

Erik Møse, President, Síofra O ’ Leary, Lәtif Hüseynov , judges, and Milan Bla š ko , Deputy Section Registrar ,

Having regard to the above application lodged on 5 October 2010,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Olga Mikhaylovna Bezborodykh , is a Ukrainian national who was born in 1950 and lives in Kamenskoye , Crimea.

A. The circumstances of the case

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

3 . By a judgment of 21 August 2009, the Lenine Court rejected the applicant ’ s claim against a private enterprise, O., in a property dispute between them. The applicant did not provide the Court with a copy of that judgment for unspecified reasons.

4 . On 22 December 2009 the Crimea Court of Appeal (“the Court of Appeal”) upheld the above judgment and rejected as unsubstantiated the applicant ’ s appeal against it.

5 . On 18 January 2010 the applicant lodged an appeal on points of law with the Supreme Court of Ukraine. She challenged only the decision of 22 December 2009 and requested that the Supreme Court quash it and allow her claim. The applicant attached to her appeal only a copy of the above decision, which had been certified by the Court of Appeal.

6 . On 12 February 2010 the Supreme Court requested that the applicant rectify her appeal on points of law before 18 March 2010. In particular, it stated that: (1) in breach of the requirements of Article 326 § 5 of the Code of Civil Procedure, the applicant had not attached to her appeal on points of law copies of contested decisions of the courts of first and appellate instances, which had had their authenticity confirmed by a notary or the court which had given them; (2) the applicant had failed to pay court fees; and (3) pursuant to Article 326 § 2 (6) of the Code of Civil Procedure, the applicant also had to make a request for a decision in respect of the judgment of 21 August 2009.

7 . On 9 March 2010 the applicant submitted to the Supreme Court documents confirming payment of court fees. She also stated that along with her initial appeal on points of law she had provided a copy of the decision of 22 December 2009 certified by the Court of Appeal. She did not mention the judgment of 21 August 2009.

8 . On 26 March 2010 the Supreme Court returned unexamined the applicant ’ s appeal on points of law, holding that she had failed to submit copies of contested decisions of the courts of first and appellate instances, which had had their authenticity confirmed by a notary or the court which had given them.

B. Relevant domestic law

9 . Article 326 § 2 (6) of the 2004 Code of Civil Procedure (“the Code”), as worded at the material time, provided that an appeal on points of law had to contain, inter alia , the requests for the decision sought by the person who lodged it.

10 . Article 326 § 5 of the same Code provided that an appeal on points of law had to be accompanied, inter alia , by copies of contested decisions of the courts of first and appellate instances.

11 . Article 327 § 2 of the Code provided that an appeal on points of law lodged not in compliance with Article 326 of the Code was to be returned unexamined .

COMPLAINT

12 . The applicant complained under Articles 6 § 1 and 13 of the Convention of a breach of her right of access to the Supreme Court. She argued, in particular, that Article 326 § 5 of the Code did not require her to submit certified copies of the contested court decisions.

THE LAW

13 . Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained that the Supreme Court had breached her right of access to court. The Court, which is master of the characterisation to be given in law to the facts of the case (see, for instance, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 145, ECHR 2017), considers that the above complaint should be examined solely under Article 6 § 1 of the Convention. The above provision reads, in so far as relevant, as follows:

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

14 . The Court first reiterates that the right of access to court 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, regulation which may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention ’ s requirements rests with the Court, it is no part of the Court ’ s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, for instance, Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012; Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 89, ECHR 2016 (extracts); and, most recently, Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018).

15 . Turning to the circumstances of the present case, the Court notes that in formulating her complaint about the alleged breach of access to the Supreme Court, the applicant emphasised the argument that the latter had required her to submit certified copies of court decisions, which had not been envisaged by Article 326 § 5 of the Code and which had resulted in her appeal on points of law being returned unexamined.

16 . The Court observes that the above provision indeed did not contain an express requirement for a person lodging an appeal on points of law to attach to it certified copies of contested court decisions. On the other hand, it notes that in its decision of 12 February 2010 the Supreme Court requested that the applicant provide certified copies of decisions of the courts of both first and appellate instances. This is further confirmed by the fact that it had indicated that the applicant should also make a request for a decision in respect of the judgment of 21 August 2009. In other words, the applicant should have challenged on points of law not only the decision of 22 December 2009, but also the judgment of 21 August 2009, having attached a copy of it as well.

17 . Irrespective of the requirement to provide certified copies of the contested decisions and the fact that the applicant did provide a certified copy of the appellate decision, the Court observes that she still failed to comply with the requirement to provide also a copy of the first ‑ instance court ’ s judgment. Pursuant to domestic procedural law (see paragraph 10 above), that was in itself a sufficient reason for the Supreme Court to return her appeal on points of law unexamined. Although the latter ’ s decision was formulated in somewhat general terms – the applicant had failed to submit copies of contested decisions of the first and appellate instances, which had had their authenticity confirmed by a notary or the court which had given them – it is obvious that it included the requirement to submit also a copy of the first-instance court ’ s judgment, which the applicant had not done. The applicant did not claim that it had not been possible for her to submit such a copy – whether certified or not.

18 . In such circumstances, the Court considers that, regardless of whether the requirement to submit certified copies of the contested court decisions was clearly required by law, the applicant still did not comply, without any apparent reason, with the Supreme Court ’ s requirement to submit also a copy of the first-instance court ’ s judgment – a requirement which did not appear to be arbitrary, manifestly unreasonable, lacking precision or foreseeability, or imposing an excessive burden on her.

19 . In view of the above, the Court considers that the applicant ’ s complaint about the alleged breach of her right of access to the Supreme Court is manifestly ill-founded. It must therefore be rejected in accordance with 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 3 May 2018 .

Milan BlaÅ¡ko Erik Møse              Deputy Registrar President