(Applications nos. 29458/04 and 29465/04)
20 July 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Sokurenko and Strygun v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 29 May and 26 June 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Constitution (1996)
“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:
2. Judiciary Act
Article 47. The Supreme Court of Ukraine – the highest judicial body
“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.”
3. Code of Commercial Procedure
The relevant provisions of the Code of Commercial Procedure (in the wording of 15 May 2003) read as follows:
Nullification of the proceedings
“A commercial court shall nullify proceedings in the case, if
1) a dispute is not subject to examination in the commercial courts of Ukraine;...”
Review of judicial decisions of the Higher Commercial Court of Ukraine by the Supreme Court of Ukraine
The right to appeal in cassation against the judicial decisions of the Higher Commercial Court 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 grounds for appeal to the Supreme Court of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine
“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 procedure for review in cassation of the resolutions [and rulings] of the Higher Commercial Court 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 procedural actions to establish and prove the actual circumstances of the case.”
The jurisdiction of the Supreme Court of Ukraine in the course of a cassation review of the resolutions [or rulings] of the Higher Commercial Court of Ukraine
“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 grounds for quashing the resolutions [or rulings] of the Higher Commercial Court
“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.”
Resolutions of the Supreme Court
“... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.”
The binding nature of the instructions adopted in the resolution of the Supreme Court
“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.”
I. JOINDER OF THE APPLICATIONS
II. SCOPE OF THE CASE
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a[n] tribunal established by law...”
1. Parties submissions
2. Court’s assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
- to Mr Sokurenko, EUR 500 (five hundred euros) for non-pecuniary damage and EUR 50 (fifty euros) for costs and expenses;
- to Mr Strygun, EUR 500 (five hundred euros) for non-pecuniary damage and EUR 50 (fifty euros) for costs and expenses;
(b) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 20 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr Lorenzen and Mr Maruste;
(b) dissenting opinion of Mrs Jaeger.
JOINT DISSENTING OPINION OF JUDGES LORENZEN AND MARUSTE
In the present case the majority voted for finding a violation of Article 6 § 1. For the following reasons we are not able to share the opinion of the majority.
The requirement that a tribunal must be “established by law” is one of several requirements in the Convention and its Protocols that acts of national authorities shall have a sufficient basis in domestic law, cf. for example Article 5 § 1 (“in accordance with a procedure prescribed by law” and “lawful” arrest or detention), Article 8 § 2 (“in accordance with the law”), Articles 9 § 2, 10 § 2 and 11 § 2 (“prescribed by law”), Article 2 §§ 2 and 4 of Protocol No. 4 (“in accordance with law”) and Article 4 § 1 of Protocol No. 7 (“ in accordance with the law and penal procedure of that State”).
The wording “established by law” seems clearly to indicate that the scope of this requirement is more limited than a requirement that a tribunal shall act “in accordance with the law” or in a manner “prescribed by law”. A literal interpretation of that expression leads in our opinion to the result that what is required is a legal basis for the existence and organisation of a tribunal, including a determination of what matters come within the jurisdiction of that court. The term cannot be understood in the sense that a tribunal in order to be considered “established by law” must also comply with all national requirements concerning the carrying out its functions. Had this been the intention, there would have been no reasons to draft Article 6 § 1 differently in this respect from other Articles.
In the case-law of the Convention organs Article 6 § 1 has been applied in accordance with this interpretation. Thus in Zand v. Austria (cited in paragraph 23) the Commission observed that the clause envisages “the whole organizational set-up of the courts, including not only the matters coming within the jurisdiction of a certain category of courts, but also the establishment of the individual courts and the determination of their local jurisdiction” and held that its “object and purpose” requires that the “judicial organisation” cannot depend on the Executive. This interpretation was confirmed by the Court in Coëme and others v. Belgium (cited in paragraph 23). The Court has also found that a court is not established by law where the rules governing the composition of a court have not been respected (as, for example, in Posokhov v. Russia, no. 63486/00, ECHR 2003 IV, judgment of 4 March 2003, and Fedotova v. Russia, no. 73225/01, 13 April 2006). However, there is no case-law finding that where a court has jurisdiction to hear a case and is lawfully composed, the mere fact that it has not complied with domestic law concerning the exercise of its judicial functions violates the said requirement. It may lead to other violations of Article 6, such as the right to access to court or the right to a
fair trial, but cannot justify the conclusion that the court was not “established by law”. To hold otherwise would in reality imply that the Court would have to act as a fourth instance in respect of any alleged violation of national procedural rules, which it has constantly held is not its function (see, for example, Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000). Accordingly we cannot agree with the majority that the term “established by law” also covers “compliance by the tribunal with the particular rules that govern it” (cf. paragraph 24).
In the present case it is undisputed that the Supreme Court had jurisdiction to hear the case in a cassation review and that it was lawfully composed. Under the Code of Commercial Procedure it could either dismiss an appeal or quash a ruling of the Higher Commercial Court, and in the latter case either remit the case for further consideration by the first instance court or the Higher Commercial Court or nullify the proceedings. However, as the Supreme Court agreed with the decision of the first instance court upheld by an appeal court, it did – in accordance with a practice developed in its case-law – not remit the case for further consideration by another court, but upheld the decision of the first instance court. Even assuming that this practice could not be considered “lawful” under domestic law as found by the majority, we are not able to agree that it deprived the Supreme Court of being “a tribunal established by law”. Accordingly there has in our opinion been no violation of that requirement in Article 6 § 1 of the Convention.
DISSENTING OPINION OF JUDGE JAEGER
I fully agree with the dissenting opinion of Judges Lorenzen and Maruste. The majority oversteps the limits set out in the Convention in examining national procedural law with the scrutiny of a fourth instance court and setting aside a well established jurisprudence of the competent national Supreme Court.
While the Court’s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed the rights and freedoms protected by the Convention (see among many other authorities Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 45 and Streletz, Kessler and Krenz v. Germany [GC], no. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II). Nothing in the present case leads to the conclusion that infringements of that kind are occasioned by the Supreme Court in applying Article 111-18 of the Code of Commercial Procedure.
Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, mutatis mutandis, Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 541, § 59).
Turning to the present case in my view the Supreme Court interpreted and applied Article 111-18 of the Code of Commercial Procedure in a logical and convincing way. If a Cassation Court is given the competence (i) to quash judgments and to remit the case to the first instance court or to the Higher Commercial Court (under Article 111-18(2)), and in addition (ii) to leave a resolution or ruling unchanged (under Article 111-18(1)), it would need strong arguments to find this court lacking competence to uphold a lawful judgment of the first instance court. None are to be seen in this respect. After quashing the resolution of the Higher Commercial Court the decisions of the lower courts were valid again. As the Supreme Court found them to be in accordance with the relevant law there was no reason to quash them, too. Without quashing them there was no need for a remittal because the case was already decided. Any further remittal would be pointless. Thus I cannot agree on the majority’s finding of an unlawful extension of competences.
1. Words in brackets show amendments of 15 May 2003, introduced by the Law on the Introduction of Changes and Amendments to the Code of Commercial Procedure of Ukraine.