NGOs under European Convention on Human Rights / Tymofeyeva

cannot be subordinated to any non-judicial authority. At the same time, the state is under a positive obligation to take all steps necessary to ensure that this right is guaranteed in practice. This includes putting sufficient financial resources at the disposal of their systems for the administration of justice. Article 6 of the Convention embodies the ‘right to a court’.Thus, the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. 555 This right is not, however, an absolute one. It may be subject to limitations, although these must not restrict or reduce access in such a way or to such an extent that the very essence of the right is impaired. 556 In the case of Canea Catholic Church v. Greece , 557 access to a court was refused because of the nature of the litigant. Domestic courts had ruled that the applicant church did not have legal personality under Greek law. This led to the dismissal of the action the church brought to assert its property rights. In holding that the applicant church had no capacity to take legal proceedings, the Greek Court of Cassation imposed a real restriction on the applicant church, preventing it from having any dispute relating to its property rights determined by the courts. In this connection, the Court ruled that the state had breached the right of access to a court. The case of Tserkva Sela Sosulivka v. Ukraine 558 concerned the inability of the applicant, the Ukrainian Greek-Catholic Church of the village of Sosulivka in the Chortkiv Region (Tserkva Sela Sosulivka), a religious group belonging to the patriarchate of the Ukrainian Greek-Catholic Church, to have its complaints examined on the merits. In accordance with a decision by the Ternopil Regional State Administration, the applicant was entitled to use church premises for religious ceremonies, however this decision was not fulfilled and the church had to institute the proceedings concerning the determination of its right to use religious premises, which belonged to the state. At the beginning, the applicant lodged complaints with the Ukrainian Higher Arbitration Court seeking a transfer of the church premises. This arbitration court rejected the claim on the ground that it should have been lodged with a court of general jurisdiction, not an arbitration court tasked with commercial matters. Then, the applicant church instituted proceedings in the Ternopil Court, the local first instance court of general jurisdiction, which ruled that the courts of general jurisdiction had no authority to hear disputes between legal entities. Finally, the church applied to the Kyiv Commercial Court and it held that commercial courts had no jurisdiction over the case. It explained that the dispute did not concern property issues, but a challenge against a decision taken by a state body, which was a matter to be dealt with in the course of administrative, not judicial, proceedings. A combination of the non-enforcement of the decision of the Ternopil Regional State Administration by the state authorities and an inability to institute proceedings on the merits in Ukrainian courts, led the Court to the conclusion that these actions amounted to a denial of justice by impairing the very essence of the right of access

555 HARRIS, 2009, cited above, p. 210. 556 Golder v. the United Kingdom , 21 February 1975, Series a no. 18. 557 Canea Catholic Church , cited above. 558 Tserkva Sela Sosulivka v. Ukraine , no. 37878/02, 28 February 2008.

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