GUZENKO v. UKRAINE
Inadmissible
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Volodymyr Stanislavovych Guzenko, is a Ukrainian national who was born in 1960 and lives in the town of Korosten, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's family and Mr. B. shared a communal apartment. In March 1998 the Korosten Local Executive Council granted Mr B.'s request to privatise his part of the apartment (“the disputed property”). Subsequently, Mr B. gave the disputed property as a donation to Mrs T. and Mrs Ta. On 3 November 1998 the applicant and his wife instituted proceedings against Mr B., Mrs T. and Mrs Ta., and the Korosten Local Executive Council in the Korosten Court challenging the privatisation and seeking to have the donation contract declared null and void. In particular, the applicant alleged that Mr B., being a Russian national, had no right to privatise the disputed property. Since Mr B. was residing in Russia, on 19 May 1999 the court asked the Embassy of the Russian Federation in Ukraine (the Embassy) to provide it with the information about Mr B.'s nationality. On 24 May 1999 the Head of the Consular Department of the Embassy replied that the requested information had been confidential. He further indicated that the Ukrainian authorities could lodge a request with the Ministry of Justice of the Russian Federation, as prescribed by Article 5 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”). On 16 September 1999 the applicant sought a ruling to request the Russian authorities to state whether Mr B. had been a Russian national on the date of the privatisation. He also requested suspension of the proceedings until the Korosten Court received a reply. On 11 November 1999 the court granted the applicant's petition. In December 1999 the request was transmitted to the Russian authorities. The Korosten Court requested that Mr B. be questioned, the applicant's claim be served on him and that he be summoned to the Korosten Court. The Korosten Court also asked for copies of the documents concerning Mr B.'s nationality on the date of the privatisation. In the period from 3 November 1998 to 15 December 1999 the Korosten Court scheduled some ten hearings. They were scheduled at intervals ranging from several days and two or three months. On 5 June 2000 Mrs T. and Mrs Ta. lodged a counterclaim, seeking a ruling to oblige the applicant's family not to hinder them in their use of the apartment. They also claimed compensation for pecuniary and non-pecuniary damage. On 16 February 2001 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the reply from the Russian authorities had been received. Since the request was not executed in a due manner, it was sent back to the Ministry of Justice of the Russian Federation. On 21 March 2001 the applicant lodged an additional claim. He requested the Korosten Court to rule that he had the right to use the disputed property. On 12 February 2002 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the request in respect of serving the documents and questioning Mr B. had not been performed by the Russian authorities, since Mr B. had failed to appear before them. On 14 March 2002 the court scheduled a hearing. It was adjourned as the parties failed to appear. On 3 April 2002 the Korosten Court dismissed the applicant's petition that a new request be sent to the Russian authorities. The applicant unsuccessfully challenged the judge sitting in his case. On 23 April 2002 the court held a hearing in the case. On 6 August 2002 Mr B. authorised Mr T. to represent him in the proceedings before the Korosten Court. On 21 August 2002 the court partly allowed the claims lodged by Mrs T. and Mrs Ta. and rejected the applicant's claims. In particular, the court found that on the date of the privatisation Mr B. had had Ukrainian nationality. The court found no proof in support of the applicant's allegations. The applicant appealed against the judgment contesting, in particular, the first-instance court's finding that Mr B. had been a Ukrainian national at the time. According to the Government's observations, in October 2002 the court of appeal, following the applicant's request, asked the Ministry of Justice of the Russian Federation to provide it with the information about Mr B.'s nationality. The reply containing information about Mr B.'s nationality reached the court of appeal on 19 June 2003. Neither the applicant nor the Government informed this Court of the content of that reply. On 4 December 2002 the court of appeal dismissed the applicant's appeal as unsubstantiated and upheld the judgment given by the first-instance court. In January 2003 the applicant lodged an appeal in cassation with the first-instance court, which transferred it for consideration to the Supreme Court. On 31 October 2003 the Supreme Court remitted the appeal in cassation to the first-instance court, for certain shortcomings to be rectified by the applicant. In a ruling of 3 December 2003 the Korosten Court stated that the applicant could re-lodge his appeal in cassation after these shortcomings had been rectified, but before 20 December 2003. On 19 December 2003 the applicant re-lodged his appeal in cassation. On 26 February 2004 the Supreme Court upheld the decisions of the lower courts. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January) provides as follows: “1. The judicial authorities of the Contracting States shall extend legal assistance in civil, family, and criminal matters in accordance with the relevant provisions of the present Convention....... “ “When acting pursuant to this Convention, the competent judicial authorities of the Contracting States shall communicate with one another through their central, regional, and other agencies, unless a different liaison procedure is prescribed hereunder. The Contracting States shall determine lists of their central, regional, and other agencies duly empowered to maintain direct contacts by notice to the depository.” “The Contracting States shall provide one another with legal assistance by performing such procedural and other acts as are stipulated by the legislation of the Contracting State requested to take such measures, including, but not limited to, the execution and sending of documents, the conduct of inspections and searches, the recovery and delivery of physical evidence, the performance of expert examinations, the questioning of parties to the proceedings, third parties, suspects, indicts, victims, witnesses, and experts, efforts to track down certain individuals, criminal prosecution, the extradition of persons to be held criminally liable or face that punishment already fixed for them in appropriate sentences, the recognition and enforcement of judgments in civil matters, verdicts on civil claims, executive endorsements, and the service of process.” “1. When acting upon a letter of request, the authority addressed shall apply the legislation of its own country. If petitioned by the authority seeking assistance, it may also apply the procedural rules of the Contracting State where the latter is based, unless such rules are inconsistent with the legislation of the Contracting State where such assistance is sought. 2. If the authority addressed is not competent to satisfy the request submitted, it shall pass it onto a competent authority and shall notify the authority requesting assistance accordingly. 3. If petitioned by the authority seeking assistance, the authority addressed shall notify the latter and the other parties concerned of the time and place of the request's fulfilment so that they should be able to attend its satisfaction in accordance with the legislation of the Contracting State where such assistance is sought. 4. Where the precise address of the person identified in a letter of request is unknown, the authority addressed shall take the measures necessary to ascertain such address in accordance with the legislation of the Contracting State where such authority is based. 5. After completing its action on a letter of request, the authority addressed shall return the corresponding documents to the authority which applied for that assistance; where the legal assistance sought cannot be provided as requested, the authority addressed shall also report those circumstances that prevent such performance and shall return the corresponding documents to the authority seeking that assistance.” “1. That judicial authority addressed by a letter of request shall serve process in accordance with that procedure in effect in its Contracting State if the documents to be delivered have been executed in the latter's language or in Russian or are accompanied by duly certified translations into such languages. Otherwise, it shall pass such documents on to the recipient if the latter agrees to accept them voluntarily. 2. If the documents concerned cannot be delivered at the address indicated in a letter of request, the judicial authority addressed shall initiate the measures necessary to ascertain such address. Should it prove impossible for the judicial authority addressed to find out that address, it shall advise the judicial authority seeking assistance accordingly and return the documents due for service.” “The requested service of process shall be confirmed by an appropriate acknowledgement which shall be signed by the recipient and evidenced by the official seal of the judicial authority addressed, indicate the date of such service, and carry the signature of an officer of the serving judicial authority, or by another document issued by the latter and describing the manner, place and time of the service performed.”