CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 22 septembre 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sFA2E6780 { margin-top:12pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD8958917 { margin-top:12pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2112BDD8 { margin-top:6pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7D73FE43 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sBD1BE8CC { width:33.89pt; display:inline-block } .s8C122C8C { width:158.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION CASE OF SHEVCHUK v. UKRAINE (Application no. 30854/09)             JUDGMENT   STRASBOURG 22 September 2022   This judgment is final but it may be subject to editorial revision. In the case of Shevchuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Ivana Jelić, President,   Ganna Yudkivska,   Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   30854/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2009 by an Ukrainian national, Ms Olena Sylvestrivna Shevchuk (“the applicant”), born in 1953 and living in Kamyanka, who was represented by Mr   B.   Fokiy, a lawyer practising in Chernivtsi; the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr   I.   Lishchyna of the Ministry of Justice; the parties’ observations;   Having deliberated in private on 10 February 2022, Delivers the following judgment, which was adopted on that date: SUBJECT-MATTER OF THE CASE 1.     The application concerns, in the main, the applicant’s complaints under Article   6   §   1 and Article 8 of the Convention and Article 1 of Protocol No. 1 about the conduct and outcome of the civil proceedings leading to the allegedly unjustified deprivation of her right to a protected tenancy in a flat, eviction from there and loss of her ownership title to it. 2.     The applicant cohabited with a certain V.G. as an unregistered partner in his flat in Glyboka from 1985 until V.G.’s death in July 2005. In 1993 V.G., at the time the only registered tenant of the flat, privatised it and obtained an ownership certificate from the Glyboka Village Council. In 2003 V.G. drew up a will, bequeathing the flat to his grandson, A.G. 3 .     In January 2006 the applicant brought an action in the Glybotskyy District Court of the Chernivtsi Region (“the Glybotskyy Court”) against A.G. and the Glyboka Village Council, asking the court to recognise that she had been living in V.G.’s flat as a member of his family and thus had the right to a protected tenancy (“the first set of proceedings”). As part of the same action, she also sought to invalidate the flat’s privatisation by V.G. in 1993, of which she allegedly had become aware only after his death. On 10   November 2006 the Glybotskyy Court dismissed the applicant’s action, finding that she had been living in the flat on a temporary basis, having acquired no right to a protected tenancy, and was officially registered in her mother’s house in another village – Kamyanka. On 25   January   2007 the Chernivtsi Regional Court of Appeal (“the appellate court”) quashed the Glybotskyy Court’s judgment and allowed the applicant’s action. On 10   October   2007 a three-judge panel of the Supreme Court rejected the parties’ cassation appeals against the appellate court’s decision of 25   January 2007. 4 .     On 25 December 2008 the Civil Chamber of the Supreme Court (“the CCSC”), sitting in camera allegedly without summoning the parties, allowed A.G.’s “appeal in the light of exceptional circumstances” of 22   May   2008, quashed the decisions of 25   January and 10   October   2007 and upheld the judgment of the Glybotskyy Court of 10 November 2006. The CCSC held that the contested judicial decisions in the applicant’s case had led to divergent application of the relevant legislation, referring to a case originating in Kyiv, in which the Supreme Court had held, according to the Government in its decision of 17 October 2007, that a plaintiff registered as residing at a different address at the time of privatisation could not be considered as having acquired the right to a protected tenancy regarding the flat where he or she had not been registered. 5 .     Having been informed of the decision of the CCSC of 25   December 2008 in January 2009, on 12 February 2009 the applicant lodged with the Supreme Court an “appeal in the light of exceptional circumstances” against it, arguing that it contravened other decisions of the Supreme Court and had led to divergent case-law. The Supreme Court refused to examine the applicant’s appeal. 6.     In the meantime, by the order of 3 December 2007 the Glyboka Village Council granted the applicant’s privatisation request regarding the flat. On that basis she received an ownership certificate in her name and continued living in the flat. 7 .     In 2009 and 2010 A.G. instituted two sets of proceedings in the Glybotskyy Court, seeking the invalidation of the flat’s privatisation by the applicant in December 2007 and her eviction from the flat (“the second and third sets of proceedings”). Those claims were allowed by that court on 11   June 2009 and 23 November 2010 respectively. The judgment of 11   June 2009 was upheld by the appellate court on 14 October 2009 and no appeal on points of law was lodged with the Higher Specialised Court in Civil and Criminal Matters. The judgment of 23 November 2010 was partly amended and ultimately upheld by that court on 30 March 2011. 8 .     On an unspecified date in 2011 the applicant was evicted from the flat and moved to the house in Kamyanka (see paragraph 3 above) which at the time was owned by her daughter. 9 .     In her initial submissions in June 2009, the applicant complained under Article   6 §   1 of the Convention that the proceedings on A.G.’s “appeal in the light of exceptional circumstances” had been conducted without her knowledge and involvement and had led to the unjustified quashing of the court decisions favourable to her, and that the judgment of the Glybotskyy Court of 10 November 2006 and the decision of the CCSC of 25 December 2008 lacked reasons. She also complained under Article   8 about the said quashing. Relying on Article   1 of Protocol   No.   1, she complained about the annulment of her ownership title to the flat by the judgment of the Glybotskyy Court of 11 June 2009 (see paragraph 7 above). 10 .     In March 2018 the applicant submitted additional complaints: under Article   6 that the composition of the CCSC had not been in accordance with the law; under Article   8 about her eviction from the flat in question and the proceedings which led to it (see paragraphs 7 and 8 above); and under Article   1 of Protocol   No.   1, she also complained that her property rights regarding the flat had been violated by the decision of the CCSC of 25   December 2008 (see paragraph 4 above). THE COURT’S ASSESSMENT ALLEGEDLY UNFAIR CONDUCT AND OUTCOME of the proceedings BEFORE THE CCSC 11.     The Court, being the master of the characterisation to be given in law to the facts of the case, considers that applicant’s complaints under Article   6 §   1 and Article   8 regarding the conduct and outcome of the proceedings before the CCSC (see paragraph 4 above) are to be examined solely under Article 6 § 1. 12.     The parties did not dispute that Article   6   §   1 was applicable under its civil limb to those proceedings. In its judgment in Bochan v.   Ukraine (no.   2)   ([GC], no. 22251/08, §§ 24 and 53, ECHR 2015), the Court held that provision applicable to the same type of proceedings under Articles 353-360 of the Code of Civil Procedure of 2004, as worded at the material time. Furthermore, the “exceptional review” proceedings in the present case entailed a reconsideration of the merits of the civil dispute. Thus, the Court finds that the relevant guarantees of Article 6 § 1 applied to the proceedings at issue (ibid., §§ 46 and 56). 13.     The Court considers that the complaints under that provision regarding the conduct of those proceedings are not manifestly ill-founded within the meaning of Article   35   §   3 (a) of the Convention. Nor are they inadmissible on any other grounds. They must therefore be declared admissible. 14.     The general principles concerning the right to adversarial proceedings, closely linked to the fundamental principle of equality of arms, which the applicant’s complaints concern, have been summarized in Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017; Beer v. Austria , no. 30428/96, §§ 17-18, 6 February 2001; Hudáková and Others v. Slovakia , no. 23083/05, §§ 27 and 29, 27 April 2010; and Lazarenko and   Others v. Ukraine, nos. 70329/12 and 5others, §§ 36-37, 27 June 2017. 15.     The material before the Court, including the decision of the CCSC of 25   December 2008, contains no evidence that the applicant’s opponent’s “appeal in the light of exceptional circumstances” was sent to her, which was required by Article 356 of the Code of Civil Procedure of 2004, as worded at the material time (see Bochan , cited above, § 24), or that she was given an opportunity to comment on it before it was examined by the CCSC. The Government argued that the applicant must have been informed of A.G.’s “appeal in the light of exceptional circumstances” of 22 May 2008, but this could not be proven, since at the time the domestic case file concerning the original proceedings that had ended on 10 October 2007 (see paragraph 3 above) had not been transmitted to the Supreme Court and, consequently, the material regarding the proceedings before the CCSC (see paragraph 4 above) had not been included therein and, eventually, had been destroyed because of the expiry of the term of storage. However, the Government did not specify the period during which the material at issue had had to be kept by the Supreme Court or explain why it had not been joined to the original case file after the proceedings of review of the case “in the light of exceptional circumstances” had been terminated. Nor did the Government argue that it was impossible to prove the alleged sending of the appeal to the applicant by any other means, like, for instance, any information from the postal service regarding the Supreme Court’s outgoing correspondence and the applicant’s incoming correspondence during the relevant period of time. In this context, it may not be excluded that the appeal was sent to the applicant’s address but was not delivered to her. 16.     Also, it appears highly unlikely that the applicant, who had actively participated in the first set of proceedings and made submissions before the courts of three instances (see paragraph 3 above), having received a copy of her opponent’s “exceptional” appeal contesting the final judgment in her favour, which had to follow a decision declaring the appeal admissible (this was required by Article   356 of the Code of Civil Procedure of 2004, as worded at the material time, quoted in Bochan , cited above, § 24), would have decided, for no apparent reason, to abstain from submitting comments on that appeal. In this connection, the Court notes that the applicant tried to challenge the decision of the CCSC of 25 December 2008 shortly after having been informed of it (see paragraph 5 above). 17.     Therefore, in the circumstances, the Court attaches more weight to the applicant’s version of the relevant events which she consistently maintained in the proceedings before it and finds that she was not informed of her opponent’s appeal of 22 May 2008 or of its examination by the CCSC. 18.     The Court also notes that the review by the CCSC was centred on a new element in the case – the alleged inconsistency of the contested judicial decisions with the relevant case-law of the Supreme Court. Moreover, the inconsistency found by the CCSC led to a re-examination on the merits, the quashing of those decisions and to the reversal of the final outcome of the case – the applicant’s action was eventually dismissed. 19 .     In the light of the foregoing, the Court finds that the applicant was deprived of   the opportunity to have knowledge of and to comment on the opposing party’s extraordinary appeal in proceedings crucial for the determination of her dispute, which was contrary to the principle of equality of arms and her right to adversarial proceedings. 20 .     There has been therefore a violation of Article 6 § 1 of the Convention in the proceedings leading to the decision of the CCSC of 25 December 2008. 21.     In these circumstances, it is unnecessary to examine whether any divergencies in the relevant judicial practice justified or compelled reconsideration of the case by the CCSC. Nor is it necessary to decide whether the CCSC provided sufficient reasons for its decision of 25   December 2008. REMAINING COMPLAINTS 22.     The Court has examined the applicant’s remaining complaints under Articles   6 and 8 of the Convention and Article   1 of Protocol   No.   1 (see paragraphs 9 and 10 above) and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that those complaints must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.     The applicant claimed 28,000 euros (EUR) in respect of pecuniary damage, which sum allegedly represented the market value of the flat in question and EUR   15,000 for non-pecuniary damage. 24.     The applicant also claimed EUR 3,112 for the costs and expenses incurred before the domestic courts and this Court, including court fees, postal and translation expenses and legal costs. Regarding the later costs, she requested that the sum of EUR 2,900 be paid directly into the bank account of her representative, Mr B. Fokiy. 25.     The Government stated that the applicant’s claims were unsubstantiated and/or exorbitant. 26.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 27.     Having regard to the documents in its possession, the Court considers it reasonable to award the applicant 1,000 EUR covering legal costs in the proceedings before the Court, plus any tax that may be chargeable to her. The latter sum is to be paid directly into the bank account indicated by Mr   B.   Fokiy. 28.     The Court further 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, Declares the applicant’s complaints under Article 6 § 1 and Article 8 of the Convention concerning the proceedings leading to the decision of the Civil Chamber of the Supreme Court of 25 December 2008 admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that there is no need to examine the applicant’s complaint under Article 8 of the Convention; 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   500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR   1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account indicated by Mr B. Fokiy; (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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 September 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Ivana Jelić   Deputy Registrar   President