FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13706/02 
by Igor Vasylyovych PANCHENKO 
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 3 April 2006 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs M. Tsatsa-Nikolovska
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 12 January 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Igor Vasylyovych Panchenko, is a Ukrainian national who was born in 1965 and lives in Kyiv.

A.  The circumstances of the case

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

In March 1995 Mr I. instituted proceedings in the Minskyy District Court of Kyiv (the “Minskyy Court”) against the applicant, seeking invalidation of the sales contract of a flat, which he had concluded with the applicant. On an unspecified date the applicant lodged a counter-claim, seeking the eviction of Mr I. from the disputed flat.

On 25 April 1996 the court found for Mr I. On 24 July 1996 the Kyiv City Court (the “Kyiv Court”) upheld this decision.

On 4 February 1997 the Deputy President of the Supreme Court of Ukraine, following the applicant’s request, lodged a protest with the Presidium of the Kyiv Court, seeking initiation of supervisory review proceedings in the case. On 3 March 1997 the Presidium allowed the protest, quashed the decisions of 25 April and 24 July 1996, and remitted the case for a fresh consideration. It held that the courts had failed to examine all the circumstances of the case and had incorrectly applied the relevant law.

On 15 December 1998 the Minskyy Court found for Mr I. By a ruling of 29 January 1999, it rejected the applicant’s objections as to the accuracy of the minutes of the court hearing.

On 25 October 1999 the Deputy Prosecutor of Kyiv, following the applicant’s request, lodged a protest with the Presidium of the Kyiv Court, seeking initiation of supervisory review proceedings in the case. There is no information in the case file as to whether the Presidium considered the merits of the protest.

On 24 November 1999 the Minskyy Court quashed the ruling of 29 January 1999 in the light of the newly discovered circumstances. By two decisions of the same date, it accepted all the applicant’s objections, and quashed the decision of 15 December 1998.

On 31 October 2000 the Minskyy Court found for the applicant and ordered the eviction of Mr I. from the flat. On 22 November 2000 it adopted a supplementary decision, rejecting the applicant’s claim concerning the invalidation of the ownership certificate of Mr I., which the latter had received in 1994. On the same date the court adopted a separate ruling, referring the applicant’s criminal law complaint against Mr I. to the prosecution.

On 27 December 2000 the Kyiv Court upheld the decision of 31 October 2000. The court also quashed the separate ruling of 22 November 2000 and partially amended the supplementary decision of the same date.

On 19 April 2001 the President of the Kyiv Court, following the request of Mr I., lodged a protest with the Presidium of that court, seeking the initiation of supervisory review proceedings in the case. On 28 May 2001 the Presidium allowed the protest, quashed the decisions of 31 October and 27 December 2000, as well as the supplementary decision of 22 November 2000, and remitted the case for a fresh consideration. It held that the courts had failed to examine all the circumstances of the case or take into account the instructions contained in its decision of 3 March 1997. The applicant was not present at the hearing before the Presidium and was not informed about it. The applicant also alleges that the submissions of the President of the Kyiv Court were not communicated to him. He was informed about the decision of the Presidium on 11 June 2001.

On 11 October 2001 the panel of three judges of the Supreme Court rejected the applicant’s appeal in cassation against the decision of 28 May 2001. It held that the latter decision was in accordance with procedural and substantive law, and that the applicant’s appeal was unsubstantiated.

On an unspecified date the applicant withdrew his claims concerning the eviction of Mr I. and the invalidation of the latter’s ownership certificate. Following this, Mr I. lodged with the courts an additional claim, seeking annulment of the sales contract concluded between the applicant and a certain Mrs M.

On 25 April 2002 the Kyiv City Court of Appeal, the former Kyiv City Court, sitting as a first instance court, found for the applicant. On 19 February 2003 the Supreme Court upheld this decision.

B.  Relevant domestic law

Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure

Section 319

The Court of Cassation

“The Court of Cassation is the Supreme Court of Ukraine.”

Section 320

Persons having the right to lodge a cassation appeal

“Parties and other persons who participate in court proceedings, and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations, may lodge a cassation appeal against judgments and rulings adopted by the court of first instance, only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court.

The basis for such an appeal is the incorrect application of the norms of substantive law or an infringement of the norms of procedural law.”

Section 321

The deadlines for lodging an application for annulment

“The deadline for lodging an application by the prosecutor is three months from the date of delivery of the ruling or judgment of the Court of Appeal, or one year from the date of delivery of the ruling or judgment of the court of first instance, if these rulings or decisions have not been appealed against.”

Section 329

The procedure for consideration of the issue of the transfer of a case for consideration by the judicial chamber

“The issue of the transfer of a case for consideration by a judicial chamber is to be considered by a panel of three judges, in camera, without the participation of the parties to the proceedings.

The case shall be transferred for a hearing by a judicial chamber if one of the judges of the court reaches that conclusion. ...

If the grounds for transferring a case to a chamber are not satisfied, the court shall adopt a ruling refusing to allow the applicant’s claims.”

Section 334

The powers of the Court of Cassation

“The Court of Cassation has the power to:

1) adopt a ruling rejecting the application for annulment;

2) adopt a ruling fully or partly annulling the judicial decision at issue and remitting the case for a re-hearing to the court of first instance or appellate court;

3) adopt a ruling annulling the decision at issue and leaving in force a judgment that was quashed by an appeal court in error;

4) adopt a ruling annulling the decision at issue, terminating the proceedings in a civil case and refusing to allow an applicant’s claims;

5) change the decision on the merits of the case and not remit it for further consideration.”

Chapter II. Transitional Provisions

“1. This Law shall enter into force as from 29 June 2001.

2. Laws and other normative acts adopted before this Law entered into force are effective in so far as their provisions do not conflict with the Constitution of Ukraine and this Law.

3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local court decisions.

4. Protests against judicial decisions lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the procedure for consideration of cassation appeals (касаційних скарг).

5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed within three months in accordance with the procedure for the consideration of cassation appeals [to the Supreme Court of Ukraine].”

COMPLAINTS

1.  The applicant complains under Article 6 § 1 of the Convention about a violation of his right to a hearing within a reasonable time in the determination of his civil rights.

2.  The applicant further complains about the outcome and unfairness of the supervisory review proceedings before the Presidium of the Kyiv City Court of 28 May 2001. He alleges that the Presidium was not an independent and impartial tribunal, the proceedings were not public, and the decision was taken in his absence. He invokes Article 6 § 1 of the Convention.

3.  The applicant finally complains under Articles 6 § 1 and 13 of the Convention about a lack of access to a court, since the merits of his appeal in cassation against the decision of the Presidium of the Kyiv City Court of 28 May 2001 were not considered by the Supreme Court of Ukraine, sitting as a Chamber in Civil Cases.

THE LAW

Length of the proceedings

1.  The applicant complains about the length of the proceedings, invoking Article 6 § 1 of the Convention which provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law...”

The Court notes that the overall duration of the proceedings was five years and eleven months, excluding the intervals between 24 July 1996 and 3 March 1997, 15 December 1998 and 24 November 1999, 27 December 2000 and 28 May 2001, when no proceedings were pending. The period falling within the Court’s competence ratione temporis lasted four years and one month.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

Quashing of the final and binding judgment

2.  The applicant further complains about the outcome and unfairness of the supervisory review proceedings before the Presidium of the Kyiv City Court on 28 May 2001. He again invokes Article 6 § 1 of the Convention.

However, the Court observes that the applicant was informed about this decision of the Presidium on 11 June 2001, more than six months before the date on which the application was submitted to the Court (12 January 2002). Accordingly, this part of the application has been submitted too late and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Tribunal established by law

3.  The applicant also complains under Articles 6 § 1 and 13 of the Convention about a lack of access to a court, since the merits of his appeal in cassation against the decision of the Presidium of the Kyiv City Court of 28 May 2001 were not considered by the Supreme Court of Ukraine, sitting as a chamber in civil Cases. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of it to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Article 6 § 1 of the Convention concerning the length of the civil proceedings and the alleged unfairness of the proceedings before the panel of three judges of the Supreme Court of Ukraine;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

PANCHENKO v. UKRAINE DECISION


PANCHENKO v. UKRAINE DECISION