CASE OF BOCHAN v. UKRAINE
Remainder inadmissible;Violation of Art. 6-1;Not necessary to examine P1-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed
Peer Lorenzen
4. The applicant was born in 1917 and lives in the town of Ternopil. 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. 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. 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 10,000 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 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. 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). 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: to leave a judgment, ruling, resolution without changes, and refuse a protest; 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; to quash, in full or in part, a judgment, ruling, resolution and to discontinue proceedings or leave a case without consideration; to uphold one of the judgments, rulings, resolutions in a case; 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. 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 to reject an appeal; 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; to quash the decision of the court of appeal or cassation and to uphold the decision which was wrongly quashed; to quash the decisions in the case and to discontinue the proceedings; to change the decision or to adopt a new decision on the merits of the case. The decision of the panel is final. 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.” “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; ...” “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.” “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...”