CASE OF SOKURENKO AND STRYGUN v. UKRAINE
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
5. The applicants live in the village of Samgorodok, the Cherkassy region, Ukraine. 6. In February 2002 the “Agro-Ros” Ltd company instituted two sets of proceedings against the Smilyanskiy District Council and each of the applicants, challenging the decision of the Council to provide the applicants with certain plots of land. 7. By two decisions of 12 August 2003, the Cherkassy Regional Commercial Court found against the applicants. On 18 November 2003 the Kyiv Commercial Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance court. 8. On 16 March 2004 the Higher Commercial Court of Ukraine, upon the applicants’ appeals, quashed the decisions of the lower courts and remitted the case for a fresh consideration. 9. On 25 May 2004 the Supreme Court of Ukraine, upon appeal of the “Agro-Ros” Ltd company, quashed the resolutions of the Higher Commercial Court (постанови Вищого господарського суду) on the ground that the findings of the Higher Court had not corresponded to the factual circumstances and had been unfounded and erroneous, and upheld the resolutions of the Kyiv Commercial Court of Appeal. 10. The relevant extract of the Constitution of Ukraine reads as follows: “State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power. Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine.” “Justice in Ukraine is administered exclusively by the courts... The jurisdiction of the courts extends to all legal relations that arise in the State. Judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction...” “In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction...” “...The main principles of judicial proceedings are: 1) legality...” 11. The relevant provisions of the Act (in the wording of 18 March 2004) read as follows: “1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction... 2. The Supreme Court of Ukraine shall: 1) review ... the cases under the cassation procedure in the situations established by law... 7) exercise other powers pursuant to the law.” 12. The Code of Commercial Procedure (formerly Arbitration Procedure) was significantly reworded on 21 June 2001. At that time the fourth level of jurisdiction was introduced in the Commercial Procedure. According to the relevant provisions of the Code, a cassation appeal to the Higher Commercial Court, similar to the one found in other member States of the Council of Europe, and a second (or repeated) cassation appeal to the Supreme Court are now available to the parties in a commercial case. The Commercial Procedure is the only judicial procedure of Ukraine where the fourth level of jurisdiction exists and where the Supreme Court acts as a second cassation instance (in criminal and civil procedures it acts as an ordinary court of cassation and in administrative and administrative offences’ procedures, it performs only extraordinary review). The relevant provisions of the Code of Commercial Procedure (in the wording of 15 May 2003) read as follows: “A commercial court shall nullify proceedings in the case, if 1) a dispute is not subject to examination in the commercial courts of Ukraine;...” “The parties to a case as well as the Prosecutor General of Ukraine have the right to appeal in cassation to the Supreme Court of Ukraine against the resolution of the Higher Commercial Court of Ukraine adopted following the review of a decision of a first instance commercial court, that has entered into force, or a resolution of the Commercial Court of Appeal, [as well as the ruling of the Higher Commercial Court of Ukraine on return of the appeal (request for review) in cassation].” “The Supreme Court of Ukraine reviews in cassation the resolutions [or rulings] of the Higher Commercial Court of Ukraine if they are appealed against: 1) on the basis of the application by the Higher Commercial Court of Ukraine of a law or normative act which contravenes the Constitution of Ukraine; 2) where a decision contravenes decisions of the Supreme Court of Ukraine or of a higher court of a different specialisation on the issue of the application of the norms of substantive law; 3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same provision of the law or any other normative act differently in similar cases; [3-1) due to the inconsistency of the resolutions or rulings with the international treaties of Ukraine agreed as binding by the Verkhovna Rada of Ukraine;] 4) where an international judicial body whose jurisdiction is recognised by Ukraine finds that a resolution [or ruling] has violated the international obligations of Ukraine.” “...The resolution [or ruling] of the Higher Commercial Court of Ukraine shall be reviewed in cassation on the basis of the rules for consideration of the case in the first-instance commercial court, save for “The Supreme Court of Ukraine, following consideration of an appeal in cassation, or a request for review in cassation lodged by the Prosecutor General of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine, shall be entitled to: 1) leave the resolution [or ruling] unchanged and dismiss the appeal (request); 2) quash the resolution and remit the case to the first-instance court for further consideration [or quash the ruling and remit the case for further consideration to the Higher Commercial Court]; 3) quash the resolution [or ruling] and nullify the proceedings in the case.” “The resolutions [or rulings] of the Higher Commercial Court of Ukraine shall be quashed if they contravene the Constitution of Ukraine, international treaties agreed as binding by the Verkhovna Rada of Ukraine, or if the substantive law has been misapplied otherwise.” “... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.” “Instructions, contained in the resolution of the Supreme Court of Ukraine, shall be binding for the first-instance court during a new consideration of the case [and for the Higher Commercial Court of Ukraine during consideration of the materials of the appeal in cassation or the request for review in cassation]. The resolution of the Supreme Court of Ukraine, following a re-examination of the case on the basis of an appeal in cassation against the resolution [or ruling] of the Higher Commercial Court of Ukraine shall not include instructions as to the admissibility or inadmissibility of evidence, the superiority of one type of evidence over another, the norms of substantive [or procedural] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case.”