FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16411/03 by Nadiya Vasylivna MILOVANOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 October 2007 as a Chamber composed of:

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

Having regard to the above application lodged on 26 April 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Nadiya Vasylivna Milovanova, is a Ukrainian national who was born in 1944 and lives in Konotop, the Sumy Region. She was represented before the Court by Ms R. Ovcnynnikova, a lawyer practising in Konotop. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In April 2001 the applicant instituted proceedings in the Konotop Town Court against Mrs and Mr M., seeking their eviction from a house, which allegedly belonged to her. The applicant together with her lawyer took part in the se proceedings.

In her submission before the court, the applicant stated that in 2000 the defendants had asked her to sell them the house which belonged to her father. The latter, having been disabled, resided at the applicant ’ s premises and the house was unoccupied. On 23 June 2000 the applicant ’ s father died, the applicant having become his sole heir. On 29 June 2000 she issued a power of attorney to Mrs M., authorising her to complete all formalities necessary for the applicant ’ s acquisition of her late father ’ s house and plot of land and, subsequently, to sell that property.

On 21 November 2000 the applicant withdrew the power of attorney. Meanwhile, Mrs and Mr M. had started renovation of the house in order to move therein. The applicant asked them to cease the works and to vacate the house, but they refused.

In their submissions before the court, the defendants explained that in 1999 the applicant had advertised the house for sale. In April 2000 they went to see it; the applicant asked USD 1,000 (around UAH 5,550) [1] for the house, but they refused to buy it at that price. In M a y 2000 the applicant contacted them and proposed to buy the house for UAH 3,000 [2] . They agreed. The applicant further asked them to prepare all documents necessary for formalising the sale and, accordingly, reduced the price to UAH 2,800 [3] . Before the documents were ready the applicant ’ s father died and under Ukrainian law the house, which was a part of the inheritance, could not be sold for the following six months . Mrs and Mr M. followed the applicant ’ s proposition that in the meantime they would complete all formalities necessary for the applicant ’ s acquisition of her late father ’ s house and plot of land in order to finalise the sale of that property by the end of December 2000. On 29 June 2000 the applicant was paid UAH 2,800 by Mr M. in the presence of two witnesses. The applicant issued a written receipt for that sum and gave them the keys from the house. Subsequentl y, Mrs and Mr M. commenced its renovation. On 16 December 2000 they learnt that the applicant had withdrawn the power of attorney which she had given to Mrs M. The latter tried to contact the applicant, but she avoided meeting with or speaking to her.

Mrs and Mr M. lodged two counter-claims with the same court, requesting it to establish th at the sale of the house and land had in fact taken place and that they had thus become the owners of that property.

In the course of the proceedings, the court studied the power of attorney of 29 June 2000 and the receipt of the same date in the parties ’ presence. It also heard eight witnesses on behalf of both parties. One of those witnesses, who had been present during the transfer of money in exchange of the keys to the house, stated that at that time the parties had agreed that the sum of money corresponded to the total price of the house. The parties to the dispute had an opportunity to question all witnesses heard by the court.

On 24 December 2001 the court ruled against the applicant. It found that the applicant had sold the house to Mrs and Mrs M. for the price which they had paid. The court held that this was confirmed by the relevant documents, in particular, the power of attorney authorising Mrs M. to sell the house for the price of UAH 2,800 [4] and the receipt issued by the applicant in respect of the same amount, as well as by the submission s of the witnesses made in the course of the hearing s .

The court further ruled that by operation of Article 30 of the Land Code of 1990 Mrs and Mr M. had also become the owners of the land on which the house stood. It further ordered the applicant to reimburse the court fee in the amount of UAH 51 [5] paid by the defendants.

On 25 January 2002 the applicant appealed against the judgment of the first instance court, alleging that the latter had wrongly assessed the evidence. She argued that the price of the house agreed on by the parties had been USD 1,000 [6] and that Mrs and Mr M. were obliged to pay her an additional amount of UAH 2,200 [7] . The applicant also alleged that the power of attorney examined by the first instance court had been forged in that it had been signed by a different person . She stated that the court should have avoid ed deciding on the question of ownership of the land without first establishing its value.

On 25 March 2002 the Sumy Regional Court of Appeal ruled that it would hear the case on 15 April 2002. The parties were informed accordingly.

On 12 April 2002 the applicant made a phone call to the registry of the court of appeal , requesting that the hearing be adjourned . She was told that her request could not be granted.

By a telegram of 14 April 2002, which the registry of the court of appeal received on the same day, the applicant again requested the adjournment of the hearing, explaining that her lawyer was not able to attend it due to her participation in another hearing.

On 15 April 2002 the Sumy Regional Court of Appeal heard the case in the absence of the applicant and her lawyer, Mr M. having been present . It delivered a decision rejecting the applicant ’ s appeal. The court held that it could hear the case on the basis of the materials before it in the absence of the applicant, for which no explanation had been furnished. The Sumy Regional Court of Appeal found that the first instance court had accurately established the facts of the case and that it had reached the correct conclusions. The applicant ’ s submissions that the power of attorney had been forged did not appear persuasive and could not serve as a basis for the revision of the judgment.

The applicant appealed in cassation, complaining inter alia about the failure of the court of appeal to respond to her motion for the adjournment of the hearing before it and that it had heard the case in her absence. She further lodged a motion with the Supreme Court, requesting leave to take part in the hearing before it .

On 29 October 2002 a panel of three judges of the Supreme Court, sitting in camera, rejected the applicant ’ s appeal in cassation, finding that the lower courts had not infringed substantive or procedural laws. The panel held that there were no grounds for referring the case to the Civil Chamber of the Supreme Court.

B. Relevant domestic law

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

According to Article 172 of the Code, a court had to adjourn a hearing if one of the parties failed to appear before it and there was no confirmation that he or she had been duly informed about that hearing . A court could adjourn a hearing if a party, who had been duly informed about the date and time of the hearing, failed to appear for the reasons which the court found justifiable.

Pursuant to Articles 301 and 305, the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and the evidence which allegedly had not been examined in compliance with the Code. It was entitled

(a) to reject an appeal;

(b) to quash the judgment of the first instance court and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined;

(c) to quash the judgment of the first instance court and to discontinue the proceedings;

(d) to change the judgment or to adopt a new judgment.

According to Article 307, the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration

(a) if the case had been considered by a person, who had not been entitled to sit as a judge in the case;

(b) if the judgment had been adopted or singed by a judge who had not heard the case;

(c) if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing; or

(d) if the judgment concerned the rights and obligations of persons who had not participated in the case.

Under Article 320, the grounds for an appeal in cassation were incorrect application of substantive law by the lower courts or violation of procedural rules. Article 328 provided that the case should be referred to the Chamber of the Supreme Court

(a) if the appeal raised an issue of incorrect application of the procedural rules by lower courts;

(b) if a similar case was pending before the Chamber;

(c) if application of the law by lower courts run contrary to the practice of the court of cassation; or

(d) if the court of appeal had acted as a first instance court in the case.

The case could also be referred to the Chamber if the decisions had significant importance for uniform application of the law, or if the appeal contained information about the erroneous application of substantive or procedural law which had led or could have led to the wrongful decision in the case.

Article 329 of the Code provided for the filter of appeals in cassation by a panel of three judges of the Supreme Court who were entitled to decide whether or not leave to appeal should be granted. No participation of the parties was foreseen at that stage of proceedings. Leave to appeal was granted unless the panel unanimously decided otherwise.

Pursuant to Article 334, the court of cassation had 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 or the court of appeal;

(c) to quash the decision of the court of appeal and to uphold the judgment of the first instance court;

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

(e) to change the decision on the merits of the case.

2 . Land Code of 1990 (“the Land Co de”) (repealed as of 25 October 2001)

According to Article 30 of the Land Code, in case of transfer of the ownership title to a building, the right to own or use a plot of land was also transferred, if the contract of sale of the building did not stipulate otherwise.

3 . Land Code of 2001 (“the New Land Code”) (in force as of 25 October 2001)

According to Article 120 of the New Land Code, in case of transfer of the ownership title to a building, the right to own or use a plot of land can also be transferred on the basis of a contract.

COMPLAINTS

The applicant complained under Articles 6 § 1 and 13 of the Convention that the Sumy Regional Court of Appeal and the Supreme Court had heard the case in her and her lawyer ’ s absence.

THE LAW

The applicant complained about a violation of Articles 6 § 1 and 13 of the Convention, which read, in so far as relevant, as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

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 a cting in an official capacity.”

The Government submitted that the applicant had had a fair hearing in her case. She was represented by a lawyer and could present all necessary arguments and evidence in defence of her interests.

The Government further maintained that t he applicant also had had an effective access to the higher courts. She was duly informed about the date and place of the hearing before the court of appeal and, thus, she was not prevented from attending it herself. If necessary, she could have found another lawyer to represent her, given that her lawyer was busy with another case. They also argued that the applicant had failed to give clear reasons for her request for adjournment of the hearing. In any event, it was the discretion of the court of appeal to grant such a request . The fact that the court did not do so could not be sufficient to doubt that the proceedings in the applicant ’ s case were unfair.

The applicant disagreed, stating that she had had no possibility to defend her case before the higher courts. The applicant contended that the complexity of the case had required that her lawyer had been able to take part in the proceedings before those courts; and that she had promptly informed the court of appeal about the grounds for the requested adjournment, which could not have been judged as unreasonable. The applicant further submitted that she had found it difficult for her to attend the hearing on appeal because of lack of funds. Finally, she alleged that the court of appeal, by ignoring her request for adjournment, had violated her right to defend her interests through legal assistance.

At the outset, the Court notes that the applicant ’ s complaints under Articles 6 § 1 and 13 of the Convention mainly concern two aspects of the impugned proceedings, namely:

(a) the fact that the court of appeal neither adjourned its hearing nor replied to the app licant ’ s motion for adjournment ; and

(b) the fact that the Supreme Court heard the case in camera .

The Court considers that the above complaints should be examined under Article 6 § 1 of the Convention, the safeguards of that provision, implying the full panoply of a judicial procedure, are stricter than, and , normally, absorb, those of Article 13 (see, inter alia , Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI).

In so far as the applicant complained about the unfairness of the proceedings before the court of appeal, the Court recalls that under Article 6 § 1, should an appeal system exist in the domestic legal order , the State is required to ensure that persons within its jurisdiction enjoy before courts of appeal the fundamental guarantees enshrined in Article 6, regard being had to the special features of the proceedings involved (see, for instance, Podbielski and PPU Polpure v. Poland , no. 39199/98, § 62, 26 July 2005) .

The Court further recalls that in criminal cases it is of capital importance for a fair and just process that the accused should appear at his trial and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Hermi v. Italy , [GC] no. 18114/02, § 58 , 1 8 October 200 6).

Although this case-law concerns criminal proceedings, the Court considers that it is equally valid, mutatis mutandis and in certain circumstances, in civil proceedings, notwithstanding the greater latitude enjoyed by the Contracting States in the area of civil litigation (see Nideröst-Huber v. Switzerland , judgment of 18 February 1997, Reports 1997-I, p. 108, § 28).

Turning back to the circumstances of the present case, the Court notes that t he Sumy Regional Court of Appeal had powers to review the case both as to facts and as to law. It was also competent to consider new facts, which had not been examined in the first instance proceedings. The Court further observes that in her appeal the applicant contested the factual findings of the first instance court.

While the applicant had explicitly requested the hearing on her appeal to be adjourned in order that her lawyer could participate, it was nonetheless held in their absence, but in the presence of the opposite party, Mr M. Thus, the applicant and her lawyer had no possibility to present their arguments in person or to challenge the counter-arguments of Mr M.

Nevertheless, the Court considers that the guarantees of Article 6 § 1 of the Convention were respected in the present case for the following reasons.

The Court notes that the applicant first contacted the registry of the court of appeal by phone on 12 April 2002, requesting that the hearing scheduled for 15 April 2002 be adjourned, and got a negative reply. She repeated her request by telegram only on 14 April 2002, arguing that her lawyer could not attend the hearing on account of other engagements. It would therefore appear that it was the applicant and her counsel who failed to take the necessary steps to enable the court of appeal to deal with the request for adjournment appropriately.

Moreover, the Court discerns no reasonable ground for the applicant ’ s and her counsel ’ s failure to arrange for representation by another counsel or to attend that hearing in person, in the absence of a decision granting her late request. In particular, it appeared that the applicant ’ s case did not require, in the proceedings before the court of appeal, the establishment of new or complex facts or the examination of witnesses (compare, mutatis mutandis, Muttilainen v. Finland , no. 18358/02, §§ 24-26, 22 May 2007). Although the applicant ’ s appeal contained a new argument not raised before the first instance court, in particular, that the power of attorney in respect of the house and land had been forged, no corroborating evidence, like, for instance, an expert ’ s report was furnished by her, nor did she request to take evidence in her appeal, so as to compel the court of appeal to deal with that argument in detail. In this context, the Court notes that the opposite party was not represented by a lawyer either.

Having regard to the circumstances of the present case, the Court discerns no issues requiring the court of appeal to adjourn, ex officio , the hearing of 15 April 2002.

As regards the applicant ’ s contention that she did not have money to travel to the place of the court of appeal, it must be noted that she raised it first before this Court. Thus, the Court does not find itself in the position to deal with that argument.

In so far as the applicant complain ed about the lack of a hearing before the panel of the Supreme Court, the Court is satisfied that the question whether or not to grant leave to appeal was adequately resolved on the basis of the case file and the written submissions of the appellant, and that, accordingly, the absence of an oral hearing before the panel was justified (see Stepenska v. Ukraine (dec.), no. 24079/02, 12 June 2006 ).

On the whole , the Court observes that the applicant and her lawyer attended the hearings before the first instance court, and within the framework of these proceedings they were able to introduce arguments in defence of the applicant ’ s interests, submit evidence and challenge arguments of the defendants. Following the unfavourable judgment of the first instance court, the applicant and her lawyer were not hindered from lodging appeal s and presenting their arguments or evidence in writing before the higher court s .

It follows that the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. Accordingly, the Court decides to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . Around 1,047 euros – “EUR”.

[2] . Around EUR 570.

[3] . Around EUR 531.

[4] . Ibid.

[5] . Around EUR 10.

[6] . Around EUR 1,047.

[7] . Around EUR 417.