European Court of Human Rights

Information Note on the Court’s case-law No. 182

January 2015

Bochan v. Ukraine (no. 2) [GC] - 22251/08

Judgment 5.2.2015 [GC] See: [2015] ECHR 138

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Fair hearing

Grossly arbitrary construction of European Court’s judgment by Supreme Court when dismissing exceptional appeal: Article 6 § 1 applicable; violation

Facts - The applicant was involved in longstanding but ultimately unsuccessful litigation over title to land in the domestic courts. In 2001 she lodged an application with the European Court complaining of unfairness in the domestic proceedings. In a judgment of 3 May 2007* the Court found a violation of Article 6 § 1 of the Convention on the grounds that the domestic courts’ decisions had been reached in proceedings which failed to respect the Article 6 § 1 fair-hearing guarantees of independence and impartiality, legal certainty and the requirement to give sufficient reasons. It awarded the applicant EUR 2,000 in respect of non-pecuniary damage.

Relying on the European Court’s judgment, the applicant then lodged an “appeal in the light of exceptional circumstances” (“exceptional appeal”) in which she asked the Ukrainian Supreme Court to quash the domestic courts’ decisions in her case and to allow her claims in full. In March 2008 the Supreme Court dismissed her appeal after finding that the domestic decisions were correct and well-founded. In June 2008 it declared a further exceptional appeal lodged by the applicant inadmissible.

In her application to the European Court in the instant case, the applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that in dismissing her exceptional appeal the Supreme Court had failed to take into account the European Court’s findings in its judgment of 3 May 2007.

Law - Article 6 § 1: The Court had to determine three issues: (a) whether it was prevented by Article 46 of the Convention from dealing with the applicant’s complaints given that the Committee of Ministers of the Council of Europe was still supervising execution of the judgment of 3 May 2007, (b) whether the domestic proceedings on the applicant’s exceptional appeal attracted the Convention guarantees and, if so, (c) whether the requirements of Article 6 § 1 had been complied with.

(a)  Whether the Court was prevented by Article 46 from examining the complaints - The Grand Chamber reiterated that the Committee of Ministers’ role in the sphere of execution of the Court’s judgments does not prevent the Court from examining a fresh application concerning measures taken by a respondent State in execution of a judgment if that application contains relevant new information relating to issues undecided by the initial judgment.

Some of the applicant’s pleadings in the present case could be understood as complaining about an alleged lack of proper execution of the Court’s judgment of 3 May 2007. However, complaints of a failure either to execute the Court’s judgments or to redress a violation already found by the Court fell outside the Court’s competence. The applicant’s complaints concerning the failure to remedy the original violation of Article 6 § 1 in her previous case were thus inadmissible.

However, the applicant had also raised a new grievance concerning the conduct and fairness of the proceedings decided by the Supreme Court in March 2008. She alleged, in particular, that the reasoning employed by the Supreme Court in that decision had manifestly contradicted the Court’s pertinent findings in its 2007 judgment. This new grievance was thus about the manner in which the March 2008 decision had been reached in the proceedings concerning the applicant’s exceptional appeal, not about the outcome of those proceedings as such or the effectiveness of the national courts’ implementation of the Court’s judgment. It thus concerned a situation distinct from that examined in the 2007 judgment and contained relevant new information relating to issues undecided by that judgment. Accordingly, the Court was not prevented by Article 46 of the Convention from examining the applicant’s new complaint about the unfairness of the proceedings that had culminated in the Supreme Court’s decision of March 2008.

(b)  Applicability of Article 6 to the proceedings concerning the applicant’s exceptional appeal - While Article 6 § 1 was not normally applicable to extraordinary appeals seeking the reopening of terminated judicial proceedings, the nature, scope and specific features of the proceedings on a given extraordinary appeal in the particular legal system concerned may be such as to bring the proceedings on that kind of appeal within the ambit of Article 6 § 1 and of the safeguards of a fair trial that it affords to litigants. The Court therefore had to examine the nature, scope and specific features of the exceptional appeal at issue in the instant case.

The applicable national legal framework made available to the applicant a remedy enabling a judicial review of her civil case by the Supreme Court in the light of the European Court’s finding that the original domestic decisions were defective. By virtue of the kind of judicial review it provided for, the exceptional appeal brought by the applicant could be viewed as a prolongation of the original (terminated) civil proceedings, akin to a cassation procedure as defined by Ukrainian law. That being so, while the special features of this cassation-type procedure could affect the manner in which the prescribed procedural guarantees of Article 6 § 1 operate, the Court was of the view that those guarantees should be applicable to it in the same way as they applied to cassation proceedings in civil matters generally.

That conclusion derived from the applicable domestic legal provisions was corroborated by reference to the scope and nature of the “examination” actually carried out by the Supreme Court in March 2008 before it dismissed the applicant’s exceptional appeal, leaving the contested decisions unchanged. The Supreme Court reviewed the case materials and the court decisions from the original proceedings in the light of the applicant’s new submissions based mainly on the Court’s 2007 judgment.

Thus, in the light both of the relevant provisions of the Ukrainian legislation and of the nature and scope of the proceedings culminating in the Supreme Court’s decision of March 2008 in relation to the applicant’s exceptional appeal, followed by its confirmatory decision of June 2008, the Court considered that the proceedings were decisive for the determination of the applicant’s civil rights and obligations. Consequently, the relevant guarantees of Article 6 § 1 applied to those proceedings.

Conclusion: preliminary objection dismissed (unanimously).

(c)  Compliance with Article 6 § 1 - The Court reiterated that it was not its role to act as a fourth instance and to question under Article 6 § 1 the judgments of the national courts, unless their findings could be regarded as arbitrary or manifestly unreasonable.

In the instant case, the Supreme Court had, in its decision of March 2008, grossly misrepresented the European Court’s findings in its judgment of 3 May 2007. In particular, it had recounted that the European Court had found the domestic courts’ decisions lawful and well-founded and had awarded just satisfaction for the violation of the “reasonable-time” guarantee (when in fact that complaint had been rejected as manifestly ill-founded). Those affirmations were palpably incorrect.  The Supreme Court’s reasoning did not amount merely to a different reading of a legal text. For the Court, it could only be construed as being “grossly arbitrary” or as entailing a “denial of justice”, in the sense that the distorted presentation of the 2007 judgment had the effect of defeating the applicant’s attempt to have her property claim examined in the light of that judgment in the framework of the cassation-type procedure provided for under domestic law. The impugned proceedings had thus fallen short of the requirement of a “fair trial” under Article 6 § 1.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

* Bochan v. Ukraine, 7577/02, 3 May 2007.

 

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