FIFTH SECTION

Application no. 22251/08 Mariya Ivanivna BOCHAN against Ukraine lodged on 7 April 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Mariya Ivanivna Bochan , is a Ukrainian national who was born in 1917 and lives in Ternopil .

A. The circumstances of the case

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

1. Background of the case

Since 1997 the applicant has claimed, so far unsuccessfully, title to part of a house, currently owned by Mr M., and to the land on which it stands. Her claim is based mainly on the 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 is based, was forged.

The applicant ' s case was reconsidered on numerous occasions by the domestic courts. Eventually, following the reassignment of the case by the Supreme Court to courts with different territorial jurisdiction, the applicant ' s claim was dismissed. Relying on the statements of seventeen witnesses, one of whom was heard in person, and documents submitted by Mr M., the courts at two judicial levels 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 findings of the lower courts, was taken by the Supreme Court on 22 August 2002.

2. The Court ' s judgment

On 17 July 2001 the applicant lodged an application with the Court, complaining in particular of unfairness in the 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 separately and in conjunction with Article 14 of the Convention on account of their outcome.

On 3 May 2007 the Court delivered a judgment concerning the application, which became final on 3 August 2007 (see Bochan v. Ukraine , no. 7577/02, 3 May 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 the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively (see Bochan , cited above, § 85).

In particular, the Court noted that:

“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 principle 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 2003 ‑ IX ). 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. ”

The Court further noted that t he domestic courts had given 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) .

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 did not raise a different issue (see Bochan , cited above, § 91).

The applicant ' s complaints about the length of the proceedings and of a violation of Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention were dismissed as unsubstantiated (see Bochan , cited above, §§ 87 and 93).

By the judgment, the applicant was awarded EUR 2,000 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 did not comply with Article 6 in her case (see Bochan , cited above, §§ 97 and 98) .

So far, the Committee of Ministers has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention.

3. The applicant ' s requests for the reopening of the domestic proceedings

On 14 June 2007 the applicant lodged a request with the Supreme Court for review of the case in the light of exceptional circumstances. Relying on the Court ' s judgment of 3 May 2007, the applicant asked the Supreme Court to quash the courts ' decisions in her civil case and to adopt a new judgment allowing her claims in full. She joined copies of the Court ' s judgment and of the domestic decisions to her request.

On 14 March 2008 a panel of judges of the Civil Division of the Supreme Court, having examined the request in private, decided to reject it as unsubstantiated. In particular, the Supreme Court noted that:

“ ...

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 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 ...

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, though she was duly informed of the hearings.

None of those taking part in the case, including Mr B.I. [the applicant ' s son], requested the witnesses to be summoned ... Mr B.I. failed to submit witness statements ... capable of proving that the house was constructed at his (his father ' s or his mother ' s) expense.

None of the parties, including Mr B.I., requested the withdrawal of the [first-instance] judge. Complaints of the court ' s lack of objectivity ... were raised by Mr B.I. only 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 part 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 part 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 the application of Mrs Bochan .”

On 8 April 2008 the applicant lodged with the Supreme Court a new request for reconsideration of her case in the light of exceptional circumstances. She argued that the decision of 14 March 2008 was based on an incorrect interpretation of the Court ' s judgment of 3 May 2007 and made submissions concerning the merits of the case.

On 5 June 2008 a panel of judges of the Civil Division of the Supreme Court declared the request inadmissible, as it contained no arguments capable of serving as a ground for reconsideration of the case in the light of exceptional circumstances.

B. Relevant domestic law

1. Code of Civil Procedure of 2004 (entered into force on 1 September 2005)

1 . The relevant extracts from the Code, as worded at the material time, read as follows:

Article 353. The right to challenge judicial decisions in the light of exceptional circumstances

“1. Parties to proceedings ... have the right to challenge before the Supreme Court of Ukraine judicial decisions in civil cases which were subject to review in cassation in the light of exceptional circumstances.”

Article 354. Grounds for an appeal in the light of exceptional circumstances

“1. After consideration in cassation, judicial decisions in civil cases may be reviewed in the light of exceptional circumstances if they are appealed against on the [following] grounds:

1) divergent application of the law by the cassation court (or courts);

2) a finding by an international judicial authority, whose jurisdiction was recognised by Ukraine , that a [domestic] judicial decision violated the international commitments of Ukraine .”

Article 355. Lodging of an appeal in the light of exceptional circumstances

“ ...

2. An appeal in the light of exceptional circumstances shall be lodged in accordance with the rules applicable to cassation appeals ... ”

Article 357. Procedure of examination in the light of exceptional circumstances

“1. Examination of a case in the light of exceptional circumstances is a kind of cassation procedure.

2. The case shall be heard by a panel, of which at least two-thirds shall be judges of the Civil Division of the Supreme Court of Ukraine ...

4. Examination of the case in the light of exceptional circumstances shall be carried out under the rules applicable to cassation proceedings.”

Article 358. The powers of the Supreme Court of Ukraine when examining cases in the light of exceptional circumstances

“1. When examining a case in the light of exceptional circumstances the Supreme Court of Ukraine shall have the power:

1) to dismiss an appeal and to leave a decision without changes ...

2) to quash, in full or in part, the judicial decision and to remit the case for fresh consideration to the court of first instance, the court of appeal or the court of cassation ...

3) to quash the decision of the court of appeal or of the court of cassation and to uphold the decision which was wrongly quashed ...

4) to quash the decisions in the case and to discontinue the proceedings ...

5) to change the decision or to adopt a new decision on the merits of the case ... ”

Article 360. The force of the Supreme Court ' s decisions

“1. The decisions adopted by the Supreme Court of Ukraine in the light of the exceptional circumstances shall have the force of the law when delivered and cannot be appealed against.”

B. The Act on the Enforcement of Judgments and the Application of the Case-Law of the E uropean Court of Human Rights, 3 February 2006

2 . The relevant parts of the Act, as worded at the material time, read as follows:

“This Act 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 the causes of the violation by Ukraine of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto; the need to implement European human-rights standards into the legal and administrative practice of Ukraine; and the necessity to create conditions to reduce the number of applications against Ukraine before the European Court of Human Rights.”

Article 1. Definitions

“1. For the purposes of this Act these terms shall be used with the following meanings:

...

the Convention – the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and the 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 [the Court ' s] judgment – a) payment of compensation to the Creditor; b) adoption of individual measures; c) adoption of general measures;

...”

Article 2. Enforcement of [the Court ' s] judgment

“1. The [Court ' s] judgment shall be binding and enforceable for Ukraine in accordance with Article 46 of the Convention.

2. The procedure of enforcement of the judgment shall be determined by this Act, the Enforcement Proceedings Act, and by other regulations, having regard to the specific provisions of the present Act.”

Article 10. Additional individual 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 the proceedings in that case;

b) reconsideration of the case by an administrative body.”

Article 11. Actions which the Office of the Government ' s Agent shall take with regard to individual measures

“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 for the review of his case and/or to reopen the proceedings according to the law in force...”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the outcome of the proceedings concerning her appeal in the light of the exceptional circumstances. She also complains that they were unfair. In particular, she argues that the Supreme Court failed to take into account the Court ' s findings in her previous case.

The applicant further complains that she was unlawfully deprived of her property and invok es Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Does the refusal of the Supreme Court to reopen the domestic proceedings in the light of the Court ' s judgment in Bochan v. Ukraine (no. 7577/02, 3 May 2007 ) constitute a “new issue” under the Convention falling within the Court ' s jurisdiction (see Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02 , ECHR 2009 ‑ ...; Steck-Risch and Others v. Liechtenstein ( dec .), no. 29061/08, 11 May 2010; Öcalan v. Turkey ( dec .), no. 5980/07 , 6 July 2010; and Schelling v. Austria (No. 2) ( dec .), no. 46128/07, 16 September 2010)?

2. In particular, has the Court ' s judgment in the applicant ' s previous case, cited above, created a basis for a new actionable domestic claim for the purposes of Article 6 § 1 of the Convention (see, mutatis mutandis , Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, §§ 46-49, ECHR 2001 ‑ XI )?

3. If so, has the applicant been afforded access to court in respect of such claim, as guaranteed by that provision?

4. May the applicant ' s claim be qualified as an “asset” for the purposes of Article 1 of Protocol No. 1? If so, h as the applicant been afforded access to judicial procedures to reargue her claim in the context of the High Contracting Parties ' positive obligation under Article 1 of Protocol No. 1 (see, for instance, Jokela v. Finland , no. 28856/95, § 45, ECHR 2002 ‑ IV, and Sovtransavto Holding v. Ukraine , no. 48553/99, § 96, ECHR 2002 ‑ VII )?