European Court of Human Rights

 

FIFTH SECTION

CASE OF YAKUSHCHENKO v. UKRAINE

(Application no. 57706/10)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

24 October 2019

 

This judgment is final but it may be subject to editorial revision.

In the case of Yakushchenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Gabriele Kucsko-Stadlmayer, President,
          Yonko Grozev,
          Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 1 October 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 57706/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vadim Yegorovich Yakushchenko (“the applicant”), on 21 September 2010.

2.  The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

3.  On 11 September 2018 notice of the complaints under Article 6 § 1 of the Convention concerning the fairness of the proceedings and Article 13 of the Convention were given to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

4.  The Russian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1937 and lives in Gola Prystan, Ukraine. From the late 1970s until 2001 the applicant lived and worked in the town of Yuzhno-Sakhalinsk, Russia. He owned a flat in the city of Odessa, Ukraine.

6.  On 26 September 2000 V.S., an acquaintance of the applicant, sold the applicant’s flat to H.S. That transaction was attested by a Ukrainian notary in Odessa. V.S. acted on the applicant’s behalf on the basis of a power of attorney of 1 August 2000 attested by a notary of the Korsakovskiy district, Sakhalin Region (in Russia).

7.  On 9 April 2001 the applicant lodged a claim with the Illichivskyy District Court of Odessa (“the first-instance court”) arguing, among other things, that V.S. had sold the applicant’s flat illegally, since the relevant power of attorney had been forged and that the applicant had never intended to sell the flat.

8.  In the course of the proceedings, the first-instance court requested the notary of the Korsakovskiy district (Sakhalin Region, Russia) to provide information regarding whether she had certified the impugned power of attorney of 1 August 2000. In April 2001 that notary submitted an extract from the register of notary deeds from the relevant time in which the power of attorney was not mentioned. According to the extract, the numbering of the notary deeds had been different from that indicated on the impugned power of attorney. In a letter to the president of the Sakhalin regional notary chamber, she stated that she had not attested the impugned power of attorney. That statement was subsequently submitted to the Ukrainian authorities and examined by the court dealing with the applicant’s dispute.

9.  The first-instance court then ordered an expert examination in order to determine, among other things, whether or not the applicant had signed the power of attorney of 1 August 2000. On 22 October 2001 the expert concluded that the applicant had not signed that power of attorney. According to the report, the expert was provided with a photocopy of the impugned power of attorney.

10.  On 27 December 2001 the first-instance court delivered a judgment in the applicant’s favour and declared the power of attorney of 1 August 2000 and the sale agreement of 26 September 2000 null and void.

11.  On 5 October 2005 the Odessa Regional Court of Appeal quashed that judgment on the grounds that one of the defendants, the purchaser of the flat, had not been duly informed of the court hearings. The case was remitted to the first-instance court for a fresh hearing.

12.  In March 2007 H.S. lodged a counterclaim with the first-instance court seeking, among other things, recognition of her ownership of the flat on the basis of the sale agreement of 26 September 2000.

13.  On 6 March 2009 the Malynovskyy District Court of Odessa, acting as a court of first instance, dismissed the applicant’s claim as unsubstantiated and found that H.S. had title to the flat. The court found in particular that (i) the sale agreement of 26 September 2000 had been properly attested by a Ukrainian notary in Odessa, who had accepted the power of attorney presented by V.S, and (ii) the expert examination of 22 October 2001 could not be taken as a basis for invalidating the sale agreement because the expert had been given a copy and not the original of the power of attorney of 1 August 2000. The court considered that it could not declare the document invalid without examining its original in the course of the trial and without its original being examined by an expert. As regards the Russian notary who allegedly had not attested the power of attorney, the court noted that the applicant had failed to summon her as a third party; moreover, she had not certified each page of the extract from register of notary deeds.

14.   The applicant appealed, arguing, among other things, that the court had failed to give due consideration to the Russian notary’s extract from the register of notary deeds, which had not contained any information about the impugned power of attorney. The applicant argued that a copy of the extract had been duly prepared by the Russian notary because all the pages of the extract had been glued, thread-stitched and then sealed and signed by the notary on the last page. Moreover, the court had failed to give any assessment of the written statement by the Russian notary to the effect that she had not attested the impugned power of attorney. The applicant argued that it had not been necessary to summon the Russian notary as a third party and that, in any event, the court had been in a position to summon her of its own motion. The applicant furthermore contended that he could not have been blamed for not providing the original of the power of attorney, which he submitted was a fake document.

15.  On 11 November 2009 the Odessa Regional Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the Malynovskiy District Court of Odessa of 6 March 2009. The appellate court noted in particular that the first-instance court had correctly found that the original copy of the power of attorney had not been submitted for the expert examination of 22 October 2001; nevertheless, the applicant had not in fact requested any additional expert examination. As to the written explanations given by the Russian notary and the extract from the register of notary deeds, those documents did not provide grounds for invalidating the power of attorney.

16.  The applicant lodged an appeal on points of law in which he repeated his arguments as to the lack of reasoning given by the lower courts. On 14 May 2010 the Supreme Court dismissed the applicant’s appeal on points of law, ruling that the decisions had been lawful and substantiated.

II. RELEVANT DOMESTIC LAW

17.  The relevant domestic law can be found in the judgment in the case of Mala v. Ukraine (no. 4436/07, §§ 29 and 30, 3 July 2014).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18.  The applicant complained that his pertinent and important arguments had not been duly addressed by the domestic courts, in breach of Article 6 § 1 of the Convention.

19.  Article 6 § 1 reads, in so far as relevant, as follows:

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

A.    Admissibility

20.  The Government submitted that the application had been lodged after the six-month period provided in Article 35 § 1 of the Convention, given that the final decision of the Supreme Court of 14 May 2010 had been sent to the applicant on 21 May 2010 yet the applicant had sent his application form to the Court only on 17 December 2010 (which had been too late).

21.  The applicant submitted that his initial application had been lodged with the Court on 21 September 2010 (that is to say within the six-month period).

22.  The Court notes that at the relevant time Rule 47 § 5 of the Rules of Court read:

“5.  The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”

23.  The Court notes that the applicant submitted his initial letter setting out the facts and the present complaint on 21 September 2010 (that is to say within the six-month period provided by Article 35 § 1 of the Convention). Subsequently, at the Court’s request, the applicant duly submitted a full application form. Therefore, the applicant complied with the six-month rule and the Government’s objection is dismissed.

24.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

25.  The applicant maintained that the domestic courts had failed to address his important argument that he in fact had not signed the power of attorney that had been used to sell his flat to a third party.

26.  The Government submitted that the domestic courts had complied with their obligation to provide reasons for their decisions and that there had been no violation of Article 6 § 1 of the Convention

27.  The Court reiterates that, according to its long-standing and established case-law, it should not act as a court of fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015, with further references).

28.  Article 6 § 1 obliges the domestic courts to give reasons for their judgments. This duty cannot be understood as requiring a detailed answer to every argument, and the question of compliance with that duty can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A, and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). Those principles have been applied in a number of Ukrainian cases (see, for example, Benderskiy v. Ukraine, no. 22750/02, §§ 42-47, 15 November 2007; Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006; and Bogatova v. Ukraine, no. 5231/04, §§ 18 and 19, 7 October 2010).

29.  In the present case the applicant submitted before the Ukrainian courts that his flat in Odessa had been sold by V.S. to a third party without his (that is to say the applicant’s) consent. The applicant contended that he had never intended to sell the flat and that the power of attorney used by V.S. in the sales transaction had been forged. In support of those allegations the applicant referred, among other things, to the notary’s statement that she had not attested such a power of attorney, to the extract from the notary’s register showing that the disputed power of attorney had not been registered in the register of notary deeds, and to the above-mentioned expert opinion that it had not been the applicant who had signed the power of attorney.

30.  The domestic courts dismissed the applicant’s claim, ruling that the applicant had not proved those allegations. As to the notary’s statement that she had not attested the impugned power of attorney, the domestic courts declined to take that statement into account, without, however, providing any specific reasons. In the Court’s opinion, given that this statement concerned the heart of the dispute and directly concerned the validity of the disputed transaction, the domestic courts should not have discarded that evidence in such a general and dismissive manner. In addition, the Court notes that the domestic courts blamed the applicant for having failed to summon the notary as a third party, yet those domestic courts failed to elaborate what had been the particular reason for attributing that procedural status to the notary.

31.  The domestic courts then declined to examine the content of the extract from the register provided by the notary because, in their opinion, that document should have been certified by the notary on each and every page. The domestic courts, however, did not support that technical consideration with any reference to relevant procedural requirements. Furthermore, they left unanswered the applicant’s contentions that all the pages of the extract had been glued, thread-stitched and then sealed and signed by the notary on the last page.

32.  The Court considers that it was crucial to deal with those issues in a proper way, given that the courts had furthermore discarded the expert opinion refuting the veracity of the applicant’s signature on the impugned power of attorney. Having obtained the expert opinion, which stated that the applicant had not signed the power of attorney, the courts rejected it essentially on the grounds that the original power of attorney had not been presented to the expert and had not been examined in the course of the trial. However, they did not examine whether the applicant had ever been in position to present the original of the power of attorney which, he claimed, he had never signed. Despite the lack of the relevant analysis, the courts used the unavailability of the original power of attorney against the applicant for his case to be dismissed.

33.  In view of the above, the Court finds that the domestic courts failed in their duty to provide reasons for their decisions and did not address pertinent and important arguments raised by the applicant. The cumulative effect of the above procedural failings prompts the Court to conclude that the applicant’s claim was rejected in an arbitrary manner. The Court therefore finds that there has been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

34.  The applicant complained that he did not have effective remedies in relation to his allegations regarding the fraudulent sale of his flat. He relied on Article 13 of the Convention.

35.  The Government submitted that Article 13 of the Convention had not been applicable to the present case, given that the applicant’s rights had not been violated.

36.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

37.  Having regard to its findings under Article 6 § 1, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13 (see, among other authorities, Bochan (no. 2), cited above, § 68).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  Article 41 of the Convention provides:

“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.”

A.    Damage

39.  The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage and 2,906.60 Ukrainian hryvnias (UAH) in respect of pecuniary damage.

40.  The Government maintained that the applicant’s claims were unfounded.

41.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. It furthermore considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 2,400 in respect of non-pecuniary damage.

B.     Costs and expenses

42.  The applicant also claimed EUR 2,250 for the costs and expenses incurred before the Court.

43.  The Government submitted that this claim was unsubstantiated.

44.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award, in addition to the legal aid granted (EUR 850), the sum of EUR 500 for costs and expenses for the proceedings before the Court. This amount is to be paid directly into the bank account of the applicant’s representative, Mr M. Tarakhkalo, as requested by the applicant (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

C.    Default interest

45.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds that there is no need to examine the complaint under Article 13 of the Convention;

4.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)         EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of his representative, Mr M. Tarakhkalo;

(b)  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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                 Gabriele Kucsko-Stadlmayer
Deputy Registrar                                                             President