CASE OF TREGUBENKO v. UKRAINE
Violation of Art. 6-1 with regard to the right to a court;Not necessary to examine Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to the right of access to a court;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
7. The applicant was born in 1947 and lives in the city of Toronto, Canada. 8. As of 1988 the applicant ran a business in the city of Yalta, Ukraine, keeping a part of his profit in cash. 9. By the Presidential Decree of 22 January 1991, the bank-notes of 50 and 100 Soviet roubles issued in 1961 ceased to circulate and had to be exchanged for the notes of the same nomination issued in 1991. The Decree of the Cabinet of Ministers of the same date specified the procedure of exchange, providing, inter alia, that a special sub-commission (hereinafter the exchange commission) should be created within the executive committees of the City or District Councils to decide on the exchange of bank-notes. The exchange commissions were empowered to allow or refuse exchanges fully or in part, depending on the legality of the source of income being proved. 10. In January 1991 the applicant put the amount of 230,000 Soviet roubles in 50 and 100 notes into an account at the Yalta Branch of the USSR State Bank. At the same time the applicant applied to the Yalta exchange commission for an exchange of that sum. On 25 March 1991 the commission (Решение комиссии Ялтинского Городского Совета народных депутатов по обмену денежных знаков) refused to exchange the full amount because of an alleged lack of proof as to the legality of the source of income, and limited the exchange to 2,462 roubles. The remaining sum of 227,538 roubles was not compensated. 11. The applicant challenged that decision before the higher exchange commission of the Republic of Crimea. On 6 May 1991 the latter upheld the decision of the Yalta exchange commission. 12. The Government submit that, in accordance with the resolution of the Cabinet of Ministers of the USSR no. 2 of 22 January 1991, which regulated the procedure for the exchange of bank-notes, this decision of 6 May 1991 was final. 13. At the same time the State Security Service checked the legality of the applicant's business and found no irregularities. 14. On 19 July 1991 the applicant instituted proceedings in the Yalta City Court against the exchange commission for its refusal to exchange the full sum of 230,000 roubles. 15. On 22 July 1991 the Yalta City Court (Определение Ялтинского городского народного суда) rejected the claim for lack of jurisdiction. 16. The applicant appealed to the Crimean Regional Court against the judgment of the Yalta City Court. On 26 August 1991 the former quashed the judgment of the latter and remitted the case for further consideration. 17. On 16 October 1991 the Yalta City Court (Решение Ялтинского городского народного суда) found for the applicant and ordered the executive committee of the Yalta City Council to exchange all the money deposited by the applicant (230,000 roubles). 18. On 8 April 1992 the Crimean Regional Court (Определение Крымского областного суда) upheld this judgment. 19. On 17 April 1992 the judgments of 16 October 1991 and 8 April 1992 were quashed by the Presidium of the Crimean Regional Court (Постановление Президиума Крымского областного суда). 20. On 14 April 1993 the Civil Chamber of the Supreme Court of Ukraine (Ухвала Верховного Суду України) quashed the latter judgment and upheld the judgments of 16 October 1991 and 8 April 1992 in the applicant's favour. This judgment was final. 21. The judgment was not fully enforced for several years. On various occasions the applicant lodged claims to have the awarded sum adjusted to the inflation rate. On 23 May 1996, 10 December 1996, 27 May 1997 and 23 June 1998, the Yalta City Court granted the claims due to the longstanding non-enforcement of the judgment in the applicant's favour. The latter court decision increased the amount to UAH 349,387.82. 22. By letter of 26 June 1998, the Yalta City Mayor requested the Deputy Prosecutor General to intervene by lodging an appeal for supervisory review (protest) against the judgment of the Supreme Court of Ukraine given in favour of the applicant. 23. On 30 June 1998 the Chairman of the Court ordered the suspension of any further enforcement of the judgement until the supervisory review appeal had been considered. 24. On 9 September 1998 the Deputy Chairman of the Supreme Court of Ukraine lodged a supervisory review appeal with the Plenary of the Supreme Court (Постанова Пленуму Верховного Суду України) against the judgments in the applicant's favour. 25. On 25 September 1998 the Plenary allowed the appeal and quashed the said judgments, upholding the initial judgment of the Yalta City Court of 22 July 1991 to reject the applicant's claim for lack of jurisdiction. The Plenary decided that, since the exchange of banknotes was regulated by the Government Decree of 1991 (paragraph 9) which provided for the non-judicial review of the decisions of exchange commissions, the dispute was outside the courts' jurisdiction under the legislation in force in 1991. 26. The Yalta Mayor then requested the Yalta City Court to reverse the enforcement of the quashed judgment and to recover from the applicant the money which had been already paid to him (15% of the sum originally awarded). According to the Government, the court did not examine that request because, under an agreement between the parties, the applicant returned the money which had been paid to him. 27. By a letter of 25 November 1998, the Constitutional Court of Ukraine informed the applicant that it had no jurisdiction to review the decisions of the ordinary courts. 28. By a resolution of 9 December 1998, the proceedings on the applicant's case were closed due to the quashing of the judgment of 16 October 1991 by the Plenary of the Supreme Court. 29. At the material time, Chapter 42 of the Code of Civil Procedure subjected final and binding judgments to a possible supervisory review. When a final judgment was given by the Supreme Court of Ukraine, it could be appealed under the supervisory review procedure by the Chairman of the Supreme Court of Ukraine, the Prosecutor General of Ukraine and his or her Deputies (Article 328), and had to be considered by the Plenary of the Supreme Court (Article 329). The judgments of the Plenary were not subject to any further review. 30. The supervisory review procedure was repealed in June 2001.