FIFTH SECTION

CASE OF BOCHAN v. UKRAINE

(Application no. 7577/02)

JUDGMENT

STRASBOURG

3 May 2007

FINAL

03/08/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 

In the case of Bochan v. Ukraine,

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

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

Having deliberated in private on 3 April 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 7577/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Mariya Ivanivna Bochan (“the applicant”), on 17 July 2001.

2.  The applicant was represented by her son, Mr I. Bochan, a lawyer practicing in Ternopil. The Ukrainian Government (“the Government”) were represented by their Agents, Mr Y. Zaytsev and Mrs I. Shevchuk.

3.  On 20 January 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. It also decided, pursuant to Rule 41 of the Rules of Court, to give priority to the application.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1917 and lives in the town of Ternopil.

A.  Background of the case

5.  In 1989 her husband and son, Mr B.P. and Mr B.I., became members of the Cooperative Society for Construction and Repair “Kooperator” (the “Society”). On 22 May 1990 the Ternopil Town Executive Committee (the “Committee”) transferred two plots of land in Ternopil to the Society for the construction of three houses. By decision of 14 November 1990, the Committee transferred a part of that land to the applicant's husband and son for the erection of a two-flat house. On 27 November 1990 the general assembly of the Society adopted a decision similar to the Committee's decision of 14 November 1990. On an unspecified date the Committee transferred the land, with which Mr B.P. and Mr B.I. had been provided, back to the Society.

6.  On 2 December 1991 the general assembly of the Society, headed by Mr B.I., decided to terminate the Society's activity. It further decided to transfer the Society's property to its members. In particular, Mr B.P. was granted the left side of a house and Mr B.I. was granted its right side. As it was later established by the domestic courts, in 1991 there was only the foundation of the future house. In December 1991 the Society closed its bank account. The Society's state registration was annulled in September 1995.

7.  The house was erected by autumn 1994.

8.  Between 1995 and 1997 Mr B.P. unsuccessfully lodged with the Ternopil Town Council (the “Council”) a number of applications, requesting the Council to grant him a right to use the plot of land on which the left part of the house had been constructed.

9.  On 17 February 1997 Mr B.P. died. The applicant inherited all his possessions.

10.  On 8 April 1997 the Council granted Mr B.I. a right to use the plot of land on which the right side of the house had been built.

11.  In June 1997 the applicant lodged with the Ternopil Town Court an administrative law complaint against the Council for failure to consider the request to grant her a right to use the plot of land on which the left part of the house had been constructed. On 9 July 1997 the court found in favour of the applicant and ordered the Council to consider the merits of the applicant's request at its next session.

12.  On 23 July 1997 the Council granted Mr M. a right to use the plot of land, on which the left side of the house had been built, for construction purposes.

B.  Criminal proceedings

13.  In 1996 Mr M. lodged with the Ternopil Regional Prosecutor's Office a criminal law complaint against Mr B.I., accusing the latter of fraud. Mr M. alleged that Mr B.I. had unlawfully attempted to take possession of the left part of the house, which Mr M. had bought from him according to a sales contract of 18 March 1993. On 9 July 1996 the prosecutors initiated criminal proceedings against Mr B.I.

14.  In 1997 Mr B.I. lodged with the Ternopil Regional Security Service Department a criminal law complaint, accusing Mr M. of fraud. Mr B.I. alleged that Mr M. had falsified the official documents in respect of the left part of the house in order to become its owner. On 13 March 1997 the department initiated criminal proceedings against Mr M.

15.  On 25 May 1997 both criminal cases were joined. On 15 July 1997 the Ternopil Town Police Department terminated the criminal proceedings on the ground of absence of corpus delicti in the actions of Mr B.I. and Mr M. The police established that Mr M. had not been a member of the Society in 1991. It also found that there were two different copies of the decision of the general assembly of the Society of 2 December 1991, one of which confirmed the membership of Mr M. and contained his name instead of the name of Mr B.P., the latter being mentioned in the other copy of that decision. The police held that the existence of two different versions was of no importance, as none of the copies had been duly certified by a notary. It further stated that, according to the expert examination of the sales contract of 18 March 1993, the contract had been forged by way of combination of two printed texts. The police also found that the contract had no binding force, as it had not been certified by a notary or by the Society.

C.  First set of civil proceedings

16.  In July 1997 the applicant instituted proceedings in the Ternopil Town Court against the Council, seeking the annulment of the latter's decision of 23 July 1997 to grant Mr M. a right to use the plot of land, on which the left side of the house had been built. She further requested the court to oblige the Council to grant her a right to use the plot of land under the left side of the house for an indefinite period of time. The applicant was represented in the proceedings by her son, Mr B. I. Mr M. joined the proceedings as a third party.

17.  In the course of the proceedings, the applicant submitted that her late husband had been the owner of the left part of the house, which had been constructed on the plot of land at issue, as he had been granted that part of the house pursuant to the decision of the Society of 2 December 1991. After her husband's death she inherited his property, including the left part of the house. The construction works were carried out at her and her late husband's expense. She further argued that, although her son had initially agreed to sell the part of the house to Mr M., the latter had refused to pay the price, upon which they had agreed. Thus, the left part of the house was not sold to Mr M.

18.  Mr M., in his turn, argued that in 1993 he had bought from Mr B.I. the foundation of the left part of the house and some construction materials, which formally belonged to Mr B. P. Mr M. further argued that they had agreed that Mr B. I. would complete the construction works. The latter having failed to do so, Mr M. built the left part of the house at his own cost. Between 1993 and 1994, Mr M. paid Mr B. I. around USD 10,0001 by instalments. Following this, Mr M. refused to pay Mr B. I. higher amounts, as he had completed the construction works himself. Mr M. submitted copies of two documents dated 20 January 1995, according to which Mr B. I. had received from Mr M. 1,550,000,000 karbovanets (the former transitional currency of Ukraine before September 1996) for the left part of the house and that the latter had built that part of the house and reimbursed the money, which Mr B. I. had paid for the construction materials. Mr M. alleged that Mr B. I. had signed these documents as the head of the Society.

19.  The applicant, in reply, contended that the documents, submitted by Mr M. in support of his claim that he had constructed the house and that he had purchased it, including the contract of 1993, had been forged. Referring to the general interpretation of the relevant domestic law given by the Plenum of the Supreme Court of Ukraine, she further argued that, even assuming that Mr M. had participated in the construction of the left part of the house, he could not claim ownership rights in its respect.

20.  The Council submitted that its decision of 23 July 1997 was lawful, as Mr M. had provided it with the documents which had proved that he had constructed the left part of the house.

21.  On 27 August 1997 the Ternopil Town Court found for the applicant and quashed the Council's decision of 23 July 1997. It further ordered the Council to grant the applicant the right to use the land at issue for an indefinite period of time. The court held that Mr M. had not qualified to be granted that right, as he had not been a member of the Society and there was no information in the notary's register that the Society had transferred the plot of land in question to him.

22.  The Council appealed in cassation.

23.  On 29 September 1997 the Ternopil Regional Court informed the Supreme Court of Ukraine about the Council's request for the case to be transferred to another court. The Council alleged that the applicant's son was a member of the family of one of the judges of the Ternopil Regional Court. On 7 October 1997 the Supreme Court ordered that the appeal in cassation against the first instance court's decision was to be heard by the Khmelnytsk Regional Court, instead of the Ternopil Regional Court. The applicant was not informed either about the Council's request or about the decision of the Supreme Court to reassign the case.

24.  On 20 November 1997 the Khmelnytsk Regional Court upheld the decision of 27 August 1997.

25.  On 10 April 1998 the Deputy Prosecutor of the Khmelnytsk Region lodged a protest with the Presidium of the Khmelnytsk Regional Court, seeking initiation of supervisory review proceedings in the applicant's case. On 27 April 1998 the Presidium allowed the protest, quashed the decisions of 27 August and 20 November 1997, and remitted the case for a fresh consideration to the Ternopil Town Court. It held that the courts had failed to examine all the circumstances of the case. In particular, they had disregarded the sales contract of 1993 and the receipts for the money paid by Mr M. pursuant to that contract. The Presidium emphasised that there was no evidence in the case file that Mr B.P. had been a member of the Society. It also noted that there had been no building at the time when the Society had decided to transfer its part to Mr B. P. Moreover, the parties failed to submit documentary evidence in support of their claims for ownership rights.

26.  On 22 June 1998 the Supreme Court ordered the Ternopil Town Court to transfer the case to the Khmelnytsk Regional Court, the latter being responsible for selecting a first instance court to reconsider the case. According to the Government, the Ternopil Town Court did not comply with the instructions of the Supreme Court and did not transfer the case.

27.  On 3 July 1998 the Ternopil Town Court found for the applicant. On 25 August 1998 the Ternopil Regional Court upheld the decision of the first instance court. The courts of both instances held that there was enough evidence that Mr B.P. had been a member of the Society. This fact had been established by the Ternopil Town Court in its judgment of 9 July 1997, which had not been appealed against and had become final, and the applicant could not be held responsible for the absence of other documents proving the membership of her deceased husband. The courts also held that the decision of the general assembly of the Society of 2 December 1991 had, in fact, provided for the transfer of certain objects situated on the plot of land at issue, i.e. the foundation and some construction materials, erroneously referring to them as a building. With regard to the sales contract of 1993, the courts stated that Mr B.I. had not been entitled to sell the left part of the house, irrespective of whether he had acted in his capacity as the head of the Society or as a private person. They also referred to the findings of the police of 15 July 1997 that the contract had been falsified. Similarly, they found that the documents submitted by Mr M., in particular a copy of the decision of the general assembly of the Society of 2 December 1991, stating that he had been one of its members and had been granted the left part of the building, and the receipts in respect of the construction expenses were not valid. In any event, a contribution to the construction expenses could not be a valid ground for an ownership claim.

28.  By letter of 12 October 1998, the Deputy President of the Supreme Court requested the Ternopil Town Court to send the case file to the Supreme Court for supervisory review. By the same letter, he informed the Ternopil Town Court and Mr M. that the execution of the judgment of 3 July 1998 was suspended.

29.  On 22 December 1998 the Deputy President of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking the initiation of supervisory review proceedings in the applicant's case. On 24 March 1999 the panel of three judges of the Supreme Court allowed the protest, quashed the decisions of 3 July and 25 August 1998, and remitted the case for a fresh consideration. It held that there was no evidence that the left part of the house was owned by either the Society or Mr B.P. Moreover, there was no information as to the latter's membership of that Society, and the lower courts had not verified whether the house had been erected by him in compliance with relevant regulations. The panel further stated that the first instance court had failed to take into consideration the written testimonies of the persons, who had participated in the construction of the house. It stressed that its findings should be taken into account in the new consideration of the case.

30.  On 25 August 1999 the Ternopil Town Court found for the applicant. The court for the most part reiterated the findings contained in the decision of 3 July 1998. It also held that the Society had been the owner of every construction object on the land at issue before it transferred the title to these objects to its members, including Mr B.P. On 28 September 1999 the Ternopil Regional Court upheld the decision of 25 August 1999.

31.  On 6 June 2000 the Deputy President of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking again the initiation of supervisory review proceedings in the applicant's case. On 5 July 2000 the panel of three judges of the Supreme Court allowed the protest, quashed the decisions of 25 August and 28 September 1999, and remitted the case for a fresh consideration. It held that the lower courts had failed to take into account the instructions contained in its decision of 24 March 1999. The panel reiterated that the first instance court had failed either to verify whether the Society had been the owner of the objects in question; whether the Society had been in fact liquidated and, if so, when it had been liquidated; whether the Society had been granted a construction permit; or to establish who had actually constructed the part of the house at issue. The panel found that the Society had not had authority to transfer the land to third parties and its members had not had rights to build houses on that land. It finally held that Mr M. had in fact obtained the plot of land at issue as well as all the documentation in respect of the left part of the house, which remained in his actual possession.

32.  On 9 October 2000 the Supreme Court, following the request of Mr M., invited the Khmelnytsk Regional Court to assign the case to one of the first instance courts in the Khmelnytsk region. On 1 November 2000 the regional court transferred the case to the Chemerovetsk Town Court.

33.  In November 2000 Mr M. lodged a counter claim, seeking recognition of his ownership rights in respect of the left part of the house.

34.  On 19 January 2001 the Chemerovetsk Town Court ruled in favour of Mr M. and rejected the applicant's claims. It held that Mr M. had lawfully bought the foundation of the left part of the building and had completed the construction himself, which was supported by the evidence examined in the proceedings. In particular, the court stated that the contract of 1993 was valid, as it had been seized by the police from the flat of Mr M. in 1997, and the two documents of 20 January 1995 were, according to the expert's conclusions, also valid. The court further noted that the written testimonies, certified by a notary, of 16 witnesses, who had carried out construction works, and Mr D., who had been heard by the court as a witness, confirmed that Mr M. had built the left part of the house at his own cost. The court also relied on the letter of 28 February 1996, submitted by Mr M., in which the Ternopil Regional Prosecutor's Office stated that, according to the conclusions of its inquiry into the matter, the left part of the house was built by Mr M. The court also found that the latter was in actual possession of that part of the house, as he had been paying all the communal charges in its respect. The court refused to admit as evidence copies of the bills of costs in respect of construction materials, submitted by the applicant, on the ground that it was not possible to establish whether these construction materials had been used to build the left part of the house.

35.  On 16 February 2001 the applicant requested the Supreme Court to transfer the case to another court on the grounds that it would be difficult for her to participate in the hearings before the Chemerovetsk Town Court with regard to her age and state of health, on one hand, and the distance between her place of residence and the place of the hearing, on the other. On 25 February 2001 the Supreme Court rejected her request as unsubstantiated.

36.  On 1 March 2001 the Khmelnytsk Regional Court upheld the decision of 19 January 2001. It also considered that Mr B.P. had not been a member of the Society, as there were no documents proving his membership and he had resided in another location.

37.  In the course of the proceedings before the Chemerovetsk Town Court and the Khmelnytsk Regional Court, the applicant requested the courts to summon the witnesses, on whose written statements Mr M. had relied to show that he had constructed the left part of the building. She argued that these testimonies were false and that some of these witnesses could confirm her submissions that certain construction works had been carried out at her and her late husband's expense. The courts did not reply to her request.

38.  In September 2001 the applicant lodged an appeal in cassation against the decisions of 19 January and 1 March 2001 under the new transitional cassation procedure. She complained of the lower courts' incorrect assessment of the evidence. The applicant also argued that the courts had refused to summon the witnesses on whose written testimonies they had relied in their decisions. She maintained that neither she nor her representative had had an opportunity to question these witnesses.

39.  On 22 August 2002 the Chamber in Civil Cases of the Supreme Court considered the merits of the applicant's appeal in cassation and rejected it. The Supreme Court held that Mr M. had lawfully purchased a part of the foundation of the building and had valid grounds to use the plot of land on which the left part of the building had been constructed. The court also held that the written statements of the witnesses, confirming that Mr M. had completed the construction, had been lawfully admitted as evidence in the case.

D.  Second set of civil proceedings

40.  In 2002 the applicant and Mr B. I. instituted another set of proceedings in the Ternopil Town Court against Mr M., two other members of the family of Mr M., and the Ternopil Town Council, seeking the annulment of the ownership certificate of Mr M. in respect of the house. The applicant and Mr B. I. also sought the annulment of certain other official documents, in which it was mentioned that Mr M. had built a part of the house.

41.  On 12 November 2002 the court found against the applicant and Mr B. I. On 4 February 2003 and 26 May 2004, respectively, the Ternopil Regional Court of Appeal and the Supreme Court upheld the decision of the first instance court.

42.  According to the applicant, the courts, which considered her second claim, based their decisions on the findings of the Chemerovetsk Town Court, the Khmelnytsk Regional Court and the Supreme Court of Ukraine made in the course of the first set of civil proceedings (see paragraphs 34, 36 and 39 above).

II.  RELEVANT DOMESTIC LAW

A.  Code of Civil Procedure of 1963 (“the Code”) (repealed as of 1 September 2005)

43.  Under Article 133 § 1 of the Code, the President of the Supreme Court of Ukraine and his or her deputies, as well as the presidents of the regional courts were entitled to transfer a case from one court to another, upon request of the parties, other participants in the proceedings, the prosecutor, or on their own motion. Article 133 § 2 envisaged that the court, which was dealing with the case, could transfer it to another court, (a) if the former court found that it would be more expedient to examine the case in the court which enjoyed jurisdiction over the place of the principal events of the case, or in the court other than the one chosen by the plaintiff; (b) if the former court allowed the well-founded request of the defendant, whose place of residence had been previously unknown, to hear the case in the court which enjoyed jurisdiction over the place of the defendant's actual residence. No formal decision was adopted concerning the transfer of the case.

44.  According to Article 135 of the Code, the case, which was transferred from one court to another pursuant to Article 133, should be accepted by the recipient court. No disputes between the courts over their jurisdiction were allowed.

45.  Pursuant to Articles 327, court decisions, rulings and resolutions might have been reviewed in supervisory review proceedings.

46.  Under Article 337 the court that considers a case in supervisory review proceedings had power:

(a)      to leave a judgment, ruling, resolution without changes, and refuse a protest;

(b)      to quash, in full or in part, a judgment, ruling, resolution and to remit a case for a fresh consideration to court of first or cassation instance;

(c)      to quash, in full or in part, a judgment, ruling, resolution and to discontinue proceedings or leave a case without consideration;

(d)      to uphold one of the judgments, rulings, resolutions in a case;

(e)      to change a judgment, ruling or resolution or to adopt a new decision, without remitting the case for a fresh consideration, if it does not require collection or an additional verification of evidence, the circumstances of the case are established by court of first instance fully and correctly, but an error was made in the application of the norms of substantive law.

47.  Article 341 provided that instructions of the court which had reviewed a case were binding on the court which later re-examined it. These instructions were binding within the limits envisaged by Article 319 of the Code. According to paragraph 2 of the latter provision, court of cassation had no competence to establish facts which had not been established or disproved by a contested judgment, to decide in advance on question of reliability of a particular piece of evidence, prevalence of certain evidence, and on questions as to which norm of substantive law was to be applied or which decision was to be made in the course of new consideration of the case.

B.  Code of Civil Procedure of 2004 (“the new Code”) (entered into force on 1 September 2005)

48.  According to Article 353 of the new Code, the parties to the proceedings are entitled to lodge with the Supreme Court of Ukraine an appeal against the court decisions, which were subject to review in cassation, in view of the exceptional circumstances.

49.  Under Article 354, the court decisions in civil matters may be reviewed in view of exceptional circumstances if they are appealed against on the ground that an international judicial authority, whose jurisdiction was recognised by Ukraine, found that a decision in a civil case violated the international commitments of Ukraine.

50.  Articles 356 and 357 provide that the appeal on the above ground shall be examined by the panel of at least two-thirds of judges of the Chamber in Civil Cases of the Supreme Court under the rules applicable to cassation proceedings.

51.  Pursuant to Article 334, the panel has power

(a)      to reject an appeal;

(b)      to quash, in full or in part, the decision at issue and to remit the case for a fresh consideration to the court of first instance, the court of appeal or cassation;

(c)      to quash the decision of the court of appeal or cassation and to uphold the decision which was wrongly quashed;

(d)      to quash the decisions in the case and to discontinue the proceedings;

(e)      to change the decision or to adopt a new decision on the merits of the case.

The decision of the panel is final.

C.  Law of Ukraine of 3 February 2006 on the Enforcement of Judgments and the Application of the Case-Law of the European Court of Human Rights (“the Law”)

52.  The relevant parts of the Law read as follows:

“This Law regulates relations emanating from: the State's obligation to enforce judgments of the European Court of Human Rights in cases against Ukraine; the necessity to eliminate reasons of violation by Ukraine of the Convention for the Protection of Human Rights and Fundamental Freedoms and protocols thereto; the need to implement European human rights standards into legal and administrative practice of Ukraine; and the necessity to create conditions to reduce the number of applications before the European Court of Human Rights against Ukraine.”

Article 1. Definitions

“1.  For the purposes of this Law the following terms shall be used in the following meaning:

...

the Convention – the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols thereto agreed to be binding by the Verkhovna Rada of Ukraine;

the Court – the European Court of Human Rights;

...

Creditor – a) an applicant before the European Court of Human Rights in a case against Ukraine in whose favour the Court rendered its judgment or in whose case the parties have reached a friendly settlement, or his representative, or his successor...

Enforcement of a judgment – a) payment of compensation to the Creditor; b) adoption of individual measures; c) adoption of general measures;

...”

Article 10. Additional individual measures

“1.  Individual measures shall be adopted in addition to the payment of compensation and are aimed at restoring the infringed rights of the Creditor.

2. Individual measures include:

a)  restoring as far as possible the legal status which the Creditor had before the Convention was violated (restitutio in integrum);

...”

2. The previous legal status of the Creditor shall be restored, inter alia, by means of:

a)  reconsideration of the case by a court, including reopening of the proceedings in that case;

b)  reconsideration of the case by an administrative body.”

Article 11. Actions which the Office of the Government's Agent shall take with regard to individual measures

“1.  The Office of the Government's Agent shall within three days from receipt of the Court's notification that the judgment has become final:

a)  send the Creditor a notification explaining his right to initiate proceedings on the review of his case and/or to reopen the proceedings according to the law in force...”

THE LAW

I.  Alleged violation of Article 6 § 1 of the Convention

A.  Complaint about the unfairness of the proceedings and the lack of impartiality and independence

53.  The applicant complained under Article 6 § 1 of the Convention about the outcome and unfairness of the first set of civil proceedings, alleging that the courts were not independent and impartial. In particular, she claimed that the Chemerovetsk Town Court and the Khmelnytsk Regional Court, which had considered her case on 19 January and 1 March 2001, respectively, had adopted their decisions under the pressure of the Supreme Court, which, in its turn, had been interested in a particular outcome of the case. She further alleged that the courts had failed to provide sufficient reasons for their decisions, and had not allowed her to question the witnesses, on whose written statements the decisions had been based. Article 6 § 1 of the Convention 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 an independent and impartial tribunal established by law.”

54.  The applicant also complained that she had had no effective access to domestic remedies, as her case had been considered by the courts which had been too far away from her place of residence. She invoked Articles 13 and 17 of the Convention, which read as follows:

Article 13

“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.”

Article 17

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

55.  The Court observes that the applicant's allegations under Articles 13 and 17 of the Convention amount to allegations of an unfair hearing and, therefore, must be examined under Article 6 § 1 of the Convention.

1.  Admissibility

56.  The Court notes that the Government have not raised any objection as to the admissibility of the above complaints.

57.  The Court considers that this part of the application raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring it inadmissible.

2.  Merits

a.  Submissions of the parties

58.  The Government submitted that the applicant had had a fair hearing in her case. In particular, the Government stated that the courts, dealing with the applicant's case, had been independent and impartial and the applicant had not been put at a substantial disadvantage vis-à-vis her opponent, irrespective of the fact that the Supreme Court had neither consulted the applicant before transferring her case to a court of different territorial jurisdiction nor provided reasons for such transfer. The Government maintained that, if the courts had transferred the case on their own initiative or upon the request of a prosecutor, they would have neither consulted the parties in advance nor provided reasons for the transfer. The Government also stated that the case was transferred to the courts, which did not enjoy territorial jurisdiction over the matter, on the ground that the applicant's son was a member of the family of one of the judges of the Ternopil Regional Court.

59.  The applicant disagreed. She alleged that the Supreme Court had reassigned the case with the aim of obtaining a decision which would have corresponded to its findings on the facts of the case and which would have been favourable to the opposite party in the proceedings. She further stated that the fact, that she had not been informed of the reasons for the reassignment, confirmed her above allegations. The applicant did not comment whether her son had family links with any regional court judge, but stated that she personally had no relatives in the said court.

b.  The Court's assessment

60.  The Court considers that in the circumstances of the instant case it has to determine whether, taken as a whole, the proceedings at issue before the Ukrainian courts were compatible with the applicant's right to have a fair hearing of its case by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention.

61.  The Court recalls at the outset that judicial systems characterised by the supervisory review procedure which allowed a judicial decision which had become final and binding to be quashed by a higher court on an application (protest) made by a State official were incompatible with the principle of legal certainty that is one of the fundamental aspects of the rule of law for the purposes of Article 6 § 1 of the Convention (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII, Sovtransavto Holding v. Ukraine, no. 48553/99, § 72, ECHR 2002-VII, and Ryabykh v. Russia, no. 52854/99, §§ 66, 24 July 2003).

62.  The Court observes that the applicant's case was reconsidered on three occasions, following the protests lodged by the Deputy Prosecutor of the Khmelnytsk Region and the Deputy President of the Supreme Court against a total of six consecutive decisions of the first and second instance courts.

63.  However, the quashing of a final judgment is an instantaneous act, which does not create a continuing situation, even if it entails a re-opening of the proceedings as in the instant case (see, mutatis mutandis, Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004-II). The Court observes that the decisions upon the requests for the supervisory review in the applicant's case were adopted on 27 April 1998, 24 March 1999 and 5 July 2000 and thus more than six months before the date on which the application was submitted to the Court (17 July 2001). In accordance with Article 35 § 1 of the Convention, the Court therefore cannot examine this particular issue as such.

64.  The Court notes that the applicant's submissions mainly concern four issues, namely:

(a)  whether the courts, which dealt with the applicant's case, were independent and impartial;

(b)  whether the fact that the case was heard by the Chemerovetsk Town Court and the Khmelnytsk Regional Court prevented the applicant from participating in the proceedings before these courts;

(c)  whether the principle of equality of arms was observed with regard to the failure of the domestic courts to hear the witnesses whose written statements the courts admitted as evidence; and

(d)  whether the final decisions given by the Chemerovetsk Town Court on 19 January 2001, the Khmelnytsk Regional Court on 1 March 2001, and the Supreme Court on 22 August 2002 were sufficiently substantiated.

65.  As regards the first issue, the Court reiterates that in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see, among many other authorities, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 281, § 73).

66.  The Court further recalls that the existence of “impartiality”, for the purposes of Article 6 § 1, must be determined according to a subjective test, on the basis of the personal conviction and behaviour of a particular judge in a given case – that is, no member of the tribunal should hold any personal prejudice or bias – and also according to an objective test – that is, ascertaining whether the judge offered sufficient guarantees to exclude any legitimate doubt in this respect (see, among many other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 356, § 31, and Thomann v. Switzerland, judgment of 10 June 1996, Reports 1996-III, p. 815, § 30). Under the objective test, it must be determined whether there are ascertainable facts which may nevertheless raise doubts as to the courts' impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings.

67.  The Court notes that the applicant did not contest the personal impartiality of the judges who sat in her case. On the other hand, she argued that the combination of several factors objectively gave rise to doubts about the independence and impartiality of the judges of the Supreme Court and the judges to whom the case had been transferred on 9 October 2000. In particular, these factors were the reassignment of the case by the Supreme Court, which expressly disagreed with the findings of the lower courts as to the facts, and its failure to consult the applicant and to provide reasons for such reassignment.

68.  In the present case it appears difficult to dissociate the question of impartiality from that of independence, as the arguments advanced by the applicant to contest both the independence and impartiality of the court are based on the same factual considerations. The Court will accordingly consider both issues together (see Langborger v. Sweden, judgment of 22 June 1989, Series A no. 155, § 32) in determining whether there are ascertainable facts which may raise doubts as to the courts' independence and impartiality.

69.  The Court notes that the grounds for the repeated quashing of the judgments in the applicant's favour and reconsideration of the case were based on the disagreement of the Khmelnytsk Regional Court and the Supreme Court with the lower courts' assessment of the facts. Furthermore, in its decision of 5 July 2000, the Supreme Court stated its position concerning one of the core issues of the case, namely whether the Society had had the right to transfer the part of the house and the corresponding plot of land to third parties (see paragraph 31 above).

70.  The Court further observes that, after the courts of two levels of jurisdiction, namely the Ternopil Town Court and the Ternopil Regional Court, had made, for the second time, findings opposite to those of the Supreme Court, the latter transferred the applicant's case to the courts of different territorial jurisdiction. No procedural decision was issued in this respect.

71.  The Court notes that it is the role of the domestic courts to manage their proceedings with a view to ensuring the proper administration of justice. The assignment of a case to a particular judge or court falls within the margin of appreciation enjoyed by the domestic authorities in such matters. There is a wide range of factors, such as, for instance, resources available, qualification of judges, conflict of interests, accessibility of the place of hearings for the parties etc., which the authorities must take into account when assigning a case. Although it is not the role of the Court to assess whether there were valid grounds for the domestic authorities to assign a case to a particular judge or court, the Court must be satisfied that such reassignment was compatible with Article 6 § 1, and, in particular, with its requirements of objective independence and impartiality.

72.  In the Court's view, the reassignment of cases is not, as such, a problem under the Convention. However, the Court notes that the applicant was not informed of the reasons for the reassignment of her case and she did not have an opportunity to comment on the matter. In the absence of any procedural decision on the reassignment, it remains unclear whether the applicant's arguments concerning possible obstacles to her participation in the proceedings due to her age and state of health were duly considered by the courts.

73.  The Court further notes that, according to the Government's submissions, the applicant's case was transferred to courts of a different territorial jurisdiction on the ground that there were doubts as to the impartiality of the Ternopil Regional Court.

74.  The Court observes that at various stages of the proceedings the Supreme Court made several attempts, one of them having been unsuccessful, to reassign the case to other courts in a different locality (see paragraphs 23, 26 and 32 above). Thus, it may be well assumed that there appeared to be legitimate grounds for such reassignment, which could outweigh the applicant's arguments concerning possible difficulties of her access to the lower courts. Nonetheless, the Court notes that the failure of the Ternopil Town Court to comply with the Supreme Court's instruction of 22 June 1998 to transfer the case to another jurisdiction (paragraph 26 above) was not addressed in any of the ensuing decisions, and it was only at the request of Mr M. that in 1999 the case was transferred (paragraph 32 above). This reassignment was ordered by the Supreme Court after having expressly disagreed with the findings of the lower courts as to the facts and having stated its position concerning one of the principle aspects of the case, namely the Society's competence to grant property, even before the new assessment of facts and taking of evidence by the lower courts took place (see paragraph 31 above). Considering in addition the Supreme Court's failure to provide reasons for the reassignment, the Court is of the opinion that the applicant's fears that the judges of the Supreme Court, including its Deputy President, had a prefixed idea concerning the outcome of the case and that the judges to whom the case had been transferred on 9 October 2000 would have to consider the case in accordance with the Supreme Court's view could be held to be objectively justified.

75.  The Court considers that this overall procedural situation also disturbed the principle of legal certainty (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003-IX). The fact that the Supreme Court's views on the subject of the applicant's case differed from those of the lower courts could not be a sole ground for its repeated re-examination. Higher courts' power of review should be exercised for correction of judicial mistakes, miscarriages of justice, and not to substitute the lower courts' assessment of facts.

76.  The Court further notes that there are other aspects of the proceedings at issue which raise doubts that the applicant's right to a fair hearing within the meaning of Article 6 § 1 of the Convention was complied with.

77.  In particular, the Court observes that the applicant complains about the lack of sufficient reasons for the courts' decisions and their refusal to call the witnesses, on whose written statements these decisions were based.

78.  In this respect, the Court recalls that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, judgment of 9 December 1994, Series A no. 303-A, § 29). The Court further recalls that, although the right to obtain the attendance and examination of witnesses is guaranteed by Article 6 § 3 (d) of the Convention to those who are charged with a criminal offence, Article 6 § 1 does not lay down any rules on the admissibility of evidence or the way it should be assessed in civil cases, leaving these matters for regulation by national law and the national courts (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Nevertheless, the Court notes that the provisions of Article 6 §§ 2 and 3 have a certain relevance outside the strict confines of criminal law in that these principles are enshrined in the general notion of a fair trial as embodied in Article 6 § 1 of the Convention (see, mutatis mutandis, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, §§ 32-35, and Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, § 30).

79.  Turning to the circumstances of the instant case, the Court notes that the dispute concerned the title to part of a building and, as a consequence, to the plot of land on which that part of the building was situated. The national courts had to establish whether the applicant had legitimate grounds to claim that her late husband had been the owner of the part of the building in question before his death.

80.  The applicant's claims were based on two main arguments. Firstly, according to the applicant, the left part of the house had been constructed at her and her late husband's expense. Secondly, her husband had lawfully obtained a title to the left part of the house pursuant to the decision of the general assembly of that Society of 2 December 1991 and, thus, neither the Society nor Mr B. I. had been entitled to sell that part of the house.

81.  The Court observes that the domestic courts rejected the applicant's first argument, relying on the written statements of sixteen witnesses, the statements of Mr D. who had been heard in person, and the letter of the prosecutor's office of 28 February 1996, confirming that Mr M. had built the left part of the house at his own expense. The applicant contested the reliability of this evidence. She also argued that some of the witnesses, whose written statements the courts examined in the proceedings, could have confirmed her submissions concerning the construction of the house. The applicant requested the courts to summon these witnesses in order that she could question them. The courts gave no reply to her request and none of the sixteen witnesses was called.

82.  It is impossible to ascertain whether the courts simply neglected to deal with the applicant's request or whether they intended to dismiss it and, if that was their intention, what their reasons for so deciding were. The Court considers that such state of affairs was detrimental to the exercise of the applicant's right to effectively present her case in the meaning of Article 6 § 1 of the Convention.

83.  Furthermore, the Court finds that the domestic courts, having rejected the applicant's second argument concerning the construction of the left part of the house as unsubstantiated, remained silent as to validity of the decision of the general assembly of that Society of 2 December 1991. Moreover, they did not reply to the applicant's submissions that, according to the findings of the police of 15 July 1997, the contract of 1993, pursuant to which the Society had sold the same object to Mr M., had been forged.

84.  The Court notes that questions concerning the validity of the decision of the general assembly of that Society of 2 December 1991 and of the contract of 1993 appeared to have been decisive for the outcome of the case and therefore required a specific reply. It is not the Court's task to decide what would have been the most appropriate way for the domestic courts to deal with these questions. However, in the Court's opinion, the domestic courts, by ignoring the applicant's submissions concerning the above questions altogether, even though they were specific, relevant and important, fell short of their obligation under Article 6 § 1 of the Convention to give adequate reasons for their decisions.

85.  The Court finds that, having regard to the circumstances in which the applicant's case was reassigned by the Supreme Court and the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively, the applicant's right to a fair hearing by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention was infringed. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

B.  Complaint about the length of the proceedings

86.  The applicant complained that the length of the first set of civil proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention.

87.  The Court observes that the overall duration of the proceedings before three levels of jurisdiction was around three years and three months, excluding the intervals between 20 November 1997 and 27 April 1998, 25 August 1998 and 24 March 1999, 28 September 1999 and 5 July 2000, when no proceedings were pending (see Yemanakova v. Russia, no. 60408/00, § 41, 23 September 2004, and Efimenko v. Ukraine, no. 55870/00, § 51, 18 July 2006). The period falling within the Court's competence ratione temporis lasted around three years and one month. The Court considers that this period does not disclose any appearance of a violation of the reasonable-time requirement under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.

II.  Alleged violation of Article 1 of Protocol No. 1

88.  The applicant complained that she had been unlawfully deprived of her possessions on account of the outcome of the first set of civil proceedings. She relied on Article 1 of Protocol No. 1 to the Convention, which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

89.  The Government submitted that, under the relevant domestic law as applied and interpreted by the courts in the course of both sets of civil proceedings, the applicant neither had a right nor a claim amounting to a legitimate expectation within the meaning of Article 1 of Protocol No. 1 in respect of the part of the house in question. The Government therefore maintained that the applicant's complained should be rejected as unsubstantiated.

90.  The applicant argued that she had been the lawful owner of the left part of the house as an heir of her late husband. She alleged that she had been unlawfully deprived of that property by the courts, which had considered her first civil claim. The applicant further submitted that the outcome of the second set of civil proceedings was irrelevant to the present case, as the courts, which had dealt with her claims in 2002-2004, had based their decisions on the findings of the courts, which had considered her first civil claim.

91.  The Court notes that the complaint under Article 1 of Protocol No. 1 is directly connected with those examined under Article 6 § 1 of the Convention. Having regard to its findings under the latter Article (see paragraph 85 above), the Court concludes that this complaint is admissible, but does not raise any issue different from its findings above. Consequently, it does not consider it necessary to rule on the applicant's complaint based on Article 1 of Protocol No. 1 (see Glod v. Romania, no. 41134/98, § 46, 16 September 2003, and Albina v. Romania, no. 57808/00, § 43, 28 April 2005).

III.  ALLEGED VIOLATION OF Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1

92.  The applicant alleged that she had suffered discrimination in the enjoyment of her property rights, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, on account of the outcome of the first set of civil proceedings.

93.  The Court observes that the applicant provided insufficient substantiation in respect of the above allegations. Moreover, the applicant failed to specify on which grounds she had allegedly been discriminated against. The Court therefore concludes that the applicant's complaints under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

94.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

95.  The applicant claimed UAH 10,000,0002 in respect of pecuniary and non-pecuniary damage.

96.  The Government argued that the applicant's just satisfaction claims were unsubstantiated.

97.  The Court does not discern any causal link between the breach of Article 6 § 1 of the Convention and the alleged pecuniary damage. There is, therefore, no ground for an award under this head. The Court also notes that the applicant is entitled under Ukrainian law to request a re-hearing of her case in the light of the Court's finding that the domestic courts did not comply with Article 6 in her case (see paragraphs 48-52 above).

98.  As to compensation in respect of non-pecuniary damage, the Court notes that the applicant must have suffered some distress and anxiety on account of the uncertainty and despair and accordingly, ruling on equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 2,000.

B.  Costs and expenses

99.  The applicant did not submit any claim under this head. The Court therefore makes no award.

C.  Default interest

100.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaints about the alleged unfairness of the proceedings and about a violation of Article 1 of Protocol No. 1 admissible, and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that it is not necessary to examine separately the applicant's complaint under Article 1 of Protocol No. 1;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 3 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

1. Around 7,860 euros.


2. Around 1,641,956 euros.



BOCHAN v. UKRAINE JUDGMENT


BOCHAN v. UKRAINE JUDGMENT