FIFTH SECTION

DECISION

Application no. 31195/13 KOLOMIYETS against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 21 September 2023 as a Committee composed of:

Mārtiņš Mits , President , María Elósegui, Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 31195/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 April 2013 by the applicants listed in the appended table (“the applicants”);

the decision to give notice of the complaint concerning Article 6 § 1 to the Ukrainian Government (“the Government”), represented by their Agent, Ms O. Davydchuk, of the Ministry of Justice and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicants’ complaint that the domestic courts refused to examine their claims on their merits stating that they did not have jurisdiction over the matter (Article 6 § 1 of the Convention).

2. The first applicant, Viktor Kolomiyets, is the father of the other two applicants. I., the father of the first applicant, who died in 2010, was a veteran of the Second World War and had a right to certain social benefits according to the Law on the Status of Veterans of War and Guarantees of their Social Protection (‘the Law”). According to the Law, a veteran’s family members also had a right to certain social benefits.

3 . The applicants requested the Lugansk Town Council to recognise them as family members of I. This request was refused. The Council pointed out that for the purposes of the relevant legislation only the following persons were considered a veteran’s family members: spouses, minor children, unmarried adult children legally recognised as handicapped persons, a veteran’s unmarried caregivers who live with them, a veteran’s parents if they are not able to work, or a veteran’s wards who live with them. As the applicants did not fall within any of these categories, they were not entitled to be recognised as I.’s family members.

4. The applicants challenged the refusal in the framework of contentious civil proceedings which they instituted under the Code on Civil Procedure. On 20 December 2010 the Zhovtnevyy District Court of Lugansk refused to examine the applicants’ claims and explained to them that these claims fell to be examined the under the Code on Administrative Procedure. The applicants did not appeal against the decision of 20 December 2010.

5 . The applicants instituted judicial proceedings under the Code on Administrative Procedure before the same court. On 29 November 2011 the court examined the applicants’ claims on the merits and rejected them as not being based on law. The court pointed out that for the purposes of the Law, only the following persons were considered a veteran’s family members: parents, spouses, children, who do not have their own families, children, who have their own families, but who had become handicapped when they had been minor. The first applicant had his own family and was not handicapped. The other two applicants were I.’s grandchildren. For this reason, they could not be recognised I.’s family members for the purposes of the Law. The court also pointed out that I. was not covered by the Law on Social and Legal Protection of Servicemen and their Family Members to which the applicants referred. On 1 March 2012 the Donetsk Administrative Court of Appeal quashed that decision and terminated the proceedings explaining to the applicants that their claims fell to be examined under the Code on Civil Procedure in the framework of civil non-contentious proceedings.

6. On 11 October 2012 the Higher Administrative Court upheld the decision of 1 March 2012.

7 . The applicants instituted non-contentious judicial proceedings under the Code on Civil Procedure before the Zhovtnevyy District Court of Lugansk asking to recognise them family members of I. In their claim the applicants indicated Lugansk Town Council as a third party to the proceedings. Before the court the Lugansk City Council claimed that the applicants’ claims had to be examined in the framework of contentious civil proceedings. The court found the assertion of the defendant to be well-founded and, referring to Article 235 of the Code on Civil Procedure, on 12 December 2011 closed the proceedings in the case, explaining to the applicants that they could institute civil contentious proceedings on the same matter. Article 235 regulates issues arising out of non-contentious proceedings, including those in the framework of which a claimant seeks to establish existence of a legally significant fact.

8 . The applicants did not appeal against the decision of 12 December 2011 and did not institute further proceedings.

9. The applicants complain under Article 6 § 1 of the Convention about the failure of the domestic courts to examine the merits of their respective claims, which deprived them of their right of access to court (Article 6 § 1 of the Convention).

THE COURT’S ASSESSMENT

10. The Government submitted that the applicants had not exhausted domestic remedies because they had not appealed against the decision of 12 December 2011 (see paragraph 8 above). They also stated that the applicants’ claims had not been examined on the merits because the applicants had failed to institute civil non-contentious proceedings for establishment of a legally significant fact.

11. The applicants maintained their complaints stating that they had a right to be recognised family members of I. and that their claims had not been examined by the courts on their merits.

12. The Court does not consider it necessary to examine the objection raised by the Government because the application is inadmissible for the reasons set out below.

13. Having regard to the relevant legislation (see paragraphs 3 and 5 above), the Court observes that under domestic law the applicants did not have a right to be recognised as members of I.’s family.

14. The Court reiterates that Article 6 § 1 of the Convention does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States. The Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned. The starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see, for example, Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012 and Károly Nagy v. Hungary [GC], no. 56665/09, §§ 60-62, 14 September 2017).

15. In the light of the above principles, the Court therefore considers that Article 6 does not apply to the facts of the present case. Consequently, the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 October 2023.

{signature_p_1} {signature_p_2}

Martina Keller Mārtiņš Mits Deputy Registrar President

Appendix

List of applicants

Application no. 31195/13

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Viktor Ivanovych KOLOMIYETS

1950Ukrainian

Lugansk

2.Volodymyr Viktorovych KOLOMIYETS

1976Ukrainian

Lugansk

3.Sergiy Viktorovych KOLOMIYETS

1975Ukrainian

Lugansk