CASE OF BOCHAN v. UKRAINE (No. 2)
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Alvina Gyulumyan;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Erik Møse;Ganna Yudkivska;Guido Raimondi;Ineta Ziemele;Josep Casadevall;Krzysztof Wojtyczek;Mark Villiger;Paul Lemmens;Paul Mahoney
8. The applicant was born in 1917 and lives in Ternopil. 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. Since 1997 the applicant has claimed, so far unsuccessfully, title to part of a house, owned by Mr M. at the material time, and to the land on which it stands. Her claim is based on the following arguments: that the part of the house in question was constructed at her and her late husband’s expense; that her husband lawfully obtained title to the property, which she subsequently inherited; that it was not sold to Mr M. despite there having initially been an agreement with the applicant’s son to that effect; and that the sales contract on which Mr M.’s claim to the property was based was forged. 11. The applicant’s property claim was considered on numerous occasions by the domestic courts. Eventually, following the reassignment of the case by the Supreme Court to lower courts with different territorial jurisdiction, the applicant’s claim was dismissed. Relying on the statements of 17 witnesses, one of whom was heard in person, and documents submitted by Mr M., the courts at two levels of jurisdiction found that Mr M. had bought the foundations of the part of the house in question from the applicant’s son in 1993 and had subsequently built it at his own cost. Mr M., accordingly, was the lawful owner of that part of the house and had the right to use the land on which it had been constructed. The final decision, upholding the rulings of the lower courts, was taken by the Supreme Court on 22 August 2002. 12. On 17 July 2001 the applicant lodged an application with the Court, complaining in particular of unfairness in the domestic court proceedings concerning her claim. She also complained about the length of the proceedings and alleged a violation of Article 1 of Protocol No. 1 to the Convention taken alone and in conjunction with Article 14 of the Convention on account of their outcome. 13. On 3 May 2007 the Court delivered a judgment in the case, which became final on 3 August 2007. The Court held that there had been a violation of Article 6 § 1 of the Convention, having regard to the circumstances in which the applicant’s case had been reassigned by the Supreme Court and to the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively (see Bochan, cited above, § 85). 14. The Court reasoned as follows: “74. ... [The] reassignment [of the applicant’s case] 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 principal aspects of the case ... even before the new assessment of facts and taking of evidence by the lower courts took place ... 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 2003IX). 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.” 15. The Court further noted that the domestic courts had afforded no reply to the applicant’s submissions concerning the reliability of the witnesses’ statements and the validity of the documentary evidence, which had been decisive for the outcome of the case (see Bochan, cited above, §§ 81-84). 16. Relying on the above findings under Article 6 § 1 of the Convention, the Court decided that it was not necessary to rule on the applicant’s complaint based on Article 1 of Protocol No. 1, as it raised no distinct issue (see Bochan, cited above, § 91). 17. The applicant’s complaints about the length of the proceedings and a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention were dismissed as unsubstantiated (see Bochan, cited above, §§ 87 and 93). 18. The applicant was awarded EUR 2,000 by way of just satisfaction in respect of non-pecuniary damage. The Court also noted “that the applicant was entitled under Ukrainian law to request a rehearing of her case in the light of the Court’s finding that the domestic courts had not complied with Article 6 in her case” (see Bochan, cited above, §§ 97 and 98). 19. To date, the Committee of Ministers of the Council of Europe has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention. 20. On 14 June 2007 the applicant lodged with the Supreme Court an “appeal in the light of exceptional circumstances” pursuant in particular to Articles 353-355 of the Code of Civil Procedure of 2004 (see paragraph 24 below). Relying on the Court’s judgment of 3 May 2007, she asked the Supreme Court to quash the courts’ decisions in her case and to adopt a new judgment allowing her claims in full. She joined to her appeal copies of the Court’s judgment and of the domestic decisions. 21. On 14 March 2008 a panel of 18 judges of the Civil Division of the Supreme Court, having examined the appeal in chambers and relying on Article 358 of the Code of Civil Procedure of 2004 (set out in paragraph 24 below), dismissed the applicant’s appeal. The relevant part of the Supreme Court’s decision reads as follows: “By the judgment of 3 May 2007, the European Court of Human Rights declared the applicant’s complaints of unfairness in the proceedings and of a violation of Article 1 of Protocol No. 1 admissible, and the remainder of the application inadmissible. A violation of Article 6 § 1 of the Convention ... was found in the case. [The Court] ordered that the respondent State was to pay the applicant, within three months from the date on which the judgment became final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage ... In paragraph 64 of the judgment of the European Court of Human Rights, it is noted 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 prevented the applicant from participating in the proceedings; (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; (d) whether the final decisions given by the courts of first, appeal and cassation instances were sufficiently substantiated. As can be seen from the case materials, the applicant was represented in the [domestic] proceedings by her son, a lawyer ... During the entire duration of the proceedings she failed to appear before the court, although she was duly informed of the hearings. None of those taking part in the case, including Mr B.I. [the applicant’s son], asked for the witnesses to be summoned ... Mr B.I. failed to submit witness statements ... capable of proving that the house was constructed at his (or his father’s or his mother’s) expense. None of the parties, including Mr B.I., sought the withdrawal of the [first-instance] judge. Complaints of the court’s lack of objectivity ... were only raised by Mr B.I. after the judgment had been adopted in the case. As can be seen from the case materials, the validity of the sales contract of 18 March 1993, according to which Mr M. purchased from Mr B.I. half of the foundations and some of the construction materials, was not challenged ... There is also a document confirming that the left-hand side of the house was constructed at Mr M.’s expense and a document according to which Mr M. paid Mr B.I. 1,550,000,000 karbovanets [the former transitional currency of Ukraine before September 1996] for the foundations of the left-hand side of the house. These circumstances were not refuted by the expert examination in the case. In its judgment, the European Court of Human Rights also noted that the applicant ... had failed to provide evidence 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 civil proceedings. [The Court] concluded that the applicant’s complaints [under these provisions] were to be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. Therefore, the European Court of Human Rights concluded that the [domestic] courts’ decisions were lawful and well-founded and decided to award the applicant compensation in the amount of EUR 2,000 only for the violation of the ‘reasonable-time’ requirement by the Ukrainian courts. In the light of the foregoing, the courts’ decisions in the case may not be quashed on the grounds mentioned in Mrs Bochan’s application. Relying on [Article] 358 of the [Code of Civil Procedure of Ukraine], the panel of judges of the Civil Division of the Supreme Court of Ukraine [Decided]: To refuse to allow the appeal [of Mrs Bochan M. I.] for review in the light of exceptional circumstances of the judgment of 19 January 2001 of the Chemerovetsk Town Court of the Khmelnytsk Region, the decision of 1 March 2001 of the Khmelnytsk Regional Court of Appeal and the decision of 22 August 2002 of the Supreme Court of Ukraine.” 22. On 8 April 2008 the applicant lodged a new “appeal in the light of exceptional circumstances” with the Supreme Court. She argued that the decision of 14 March 2008 had been based on an incorrect “interpretation” of the Court’s judgment of 3 May 2007 and requested the Supreme Court to reconsider the merits of the case in the light of the Court’s findings under Article 6 § 1 of the Convention in that judgment as noted in paragraph 15 above. 23. On 5 June 2008 a panel of seven judges of the Civil Division of the Supreme Court, relying on Article 356 of the Code of Civil Procedure of 2004, declared the appeal inadmissible, as it contained no arguments capable of serving as grounds for reconsideration of the case in the light of exceptional circumstances pursuant to Article 354 of the Code of Civil Procedure of 2004 (see paragraph 24 below for the text of Article 354 and for the relevant extracts from Article 356 of the Code).