European Court of Human Rights

 

 

FIFTH SECTION

CASE OF KRAVCHUK v. UKRAINE

(Application no. 77435/12)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

22 April 2021

 

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

In the case of Kravchuk v. Ukraine,

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

          Arnfinn Bårdsen, President,
          Ganna Yudkivska,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 77435/12) 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 Ukrainian national, Mr Petro Avksentiyovych Kravchuk (“the applicant”), on 29 November 2012;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the lack of reasons in the domestic court decisions (Article 6 § 1 of the Convention) and the courts’ failure to protect the applicant’s right of property (Article 1 of Protocol No. 1) and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 1 April 2021,

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

INTRODUCTION

1.  The case concerns the domestic courts’ duty under Article 6 § 1 of the Convention to provide reasons for their decisions.

THE FACTS

2.  The applicant was born in 1947 and lives in Lyubeshiv. The applicant was represented by Mr V. Yelov, a lawyer practising in Lutsk.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

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

5.  The applicant lodged a claim with the Starobesheve District Court, arguing that in 2006, B., a private individual, had published a book reproducing a substantial part of a book published by the applicant in 1988. In his claim the applicant specified that he did not have a copy of B.’s book and that he had unsuccessfully tried to obtain it from B. In those circumstances the applicant asked the court to obtain from B. a copy of her book and to carry out an expert examination into his allegation of plagiarism.

6.  The applicant further requested that the court obtain from the prosecutor of the Kyivskyy District of Donetsk copies of expert examination reports of 2009 and 2011, which were available in the file on the separate criminal case concerning the applicant’s allegations of criminal copyright infringement by B. In response, the court obtained copies of those reports. The 2011 report specified, among other things, that B.’s book, which was also in dispute in the civil case, had “partly used the text” of the applicant’s book.

7.  On 19 December 2011 the Starobesheve District Court dismissed the applicant’s claim as unsubstantiated. It stated that the reports obtained from the criminal case were irrelevant. There was no other expert examination to confirm the alleged plagiarism, nor was there any other evidence in support of the applicant’s claim.

8.  The applicant appealed, arguing that the first-instance court had failed to secure the evidence and to request from the defendant a copy of her book; that the expert reports obtained from the criminal case had been ignored for no valid reason; and that no expert examination had been ordered, despite his request.

9.  On 27 March 2012 the Donetsk Court of Appeal dismissed the applicant’s appeal, noting that the parties had failed to provide a copy of the defendant’s book. The appellate court stated that it had tried to obtain a copy of B.’s book from the national library; however, the book had not been available there. It added that the copies of the expert reports provided by the prosecutor’s office were not relevant because they did not concern the defendant’s book at issue in the case before it.

10.  The applicant lodged an appeal on points of law, repeating that he had had difficulties in providing the evidence in the case and that the available expert reports had been relevant because they had demonstrated the plagiarism committed by B. in her book.

11.  On 23 July 2012 the Higher Specialised Court for Civil and Criminal Matters dismissed the appeal on points of law as unfounded, emphasising that the courts had made an attempt to obtain a copy of the book from the library, but to no avail. In those circumstances, the lower courts had adopted lawful decisions finding that the applicant’s claim was unsubstantiated.

RELEVANT LEGAL FRAMEWORK

12.  The relevant domestic law can be found in the judgments in the cases of Voloshyn v. Ukraine (no. 15853/08, § 22, 10 October 2013) and Mala v. Ukraine (no. 4436/07, § 29, 3 July 2014).

THE LAW

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

13.  The applicant complained that relevant and important arguments which he had raised had not been duly addressed by the domestic courts, in breach of Article 6 § 1 of the Convention.

14.  The relevant part of Article 6 § 1 provides:

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

A.    Admissibility

15.  The Government submitted that the complaint was manifestly ill-founded because the courts had examined the case correctly. The applicant had failed to prove his claim because he had not produced the book published by B. which was the principal evidence to substantiate his allegations of plagiarism.

16.  The applicant disagreed with the Government and submitted that he could not produce the book published by B. because he had had one copy which he had given to the law-enforcement authorities as evidence in the criminal proceedings against B. The applicant insisted that he had been diligent in the proceedings, but the courts had failed to secure evidence which had not been available to him.

17.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

18.  The applicant maintained his complaint.

19.  The Government submitted that there had been no grounds to find a violation of Article 6 § 1 of the Convention.

20.  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).

21.  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).

22.  In the present case the applicant argued before the domestic courts that B. had published a book which infringed the copyright of his own book. The courts dismissed the claim after finding that the applicant had not furnished a copy of B.’s book and that he had not therefore proved his claim.

23.  The Court notes that the applicant specifically contended before the domestic courts that he had not been able to furnish that piece of evidence. For that reason, the applicant made an explicit request to the courts to secure B.’s book, which was not available to him. In response, the domestic courts tried to obtain a copy of B.’s book from the national library, but to no avail (see paragraph 9 above). However, as that attempt was unsuccessful, it remains unclear why the courts did not consider taking further steps to try to obtain the book from the defendant or from the law-enforcement authorities, which were pursuing concurrent criminal proceedings concerning related issues. Even though the domestic courts contacted the local prosecutor to obtain copies of the expert reports available in the criminal case (see paragraph 6 above), there is no indication that they tried to obtain the primary evidence in the same way, in particular the book.

24.  It appears therefore that even though the courts acknowledged the difficulties the applicant had experienced in assembling the evidence, they did not show that all the necessary measures to secure that evidence had been taken (see, in that regard, Voloshyn, cited above, § 33). Furthermore, while the courts offered some general and unspecified reasons for refusing to draw any conclusions from the expert reports provided by the prosecutor’s office, they did not order any further expert examination into the allegations of plagiarism, despite the applicant’s request.

25.  In view of the above considerations, the Court concludes that the domestic courts fell short of their obligation to examine relevant and important arguments raised by the applicant and to ensure that their decisions were free from arbitrariness.

26.  There has therefore been a violation of Article 6 § 1 of the Convention.

II.     ALLEGED VIOLATION OF ARTICLE 1 OF Protocol No. 1 to THE CONVENTION

27.  The applicant complained under Article 1 of Protocol No. 1 that adequate judicial protection of the copyright of his book had not been provided at the domestic level.

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

29.  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 1 of Protocol No. 1 (see, among other authorities, Bochan, cited above, § 68).

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  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.”

31.  The applicant claimed 130,000 euros (EUR) in respect of non-pecuniary damage.

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

33.  The Court 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 3,600 in respect of non-pecuniary damage.

34.  The applicant further claimed 2,119 Ukrainian hryvnias in respect of costs and expenses.

35.  The Government contended that the claim was unsubstantiated.

36.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 60 for costs and expenses, plus any tax that may be chargeable to the applicant.

37.  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 1 of Protocol No. 1 to 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 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 60 (sixty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                                                    Arnfinn Bårdsen
Deputy Registrar                                                                        President