CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 mai 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .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 } .s3BF0B6C7 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s61D46DEC { margin-top:0pt; margin-bottom:0pt; text-indent:7.1pt; text-align:center } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } Published on 5 June 2023   FIFTH SECTION Application no. 43018/17 Petro Dmytrovych GUYVAN against Ukraine and 2 other applications (see list appended) communicated on 17 May 2023 SUBJECT MATTER OF THE CASES The applications mainly concern the applicants’ complaints, under Article   6 § 1 of the Convention, that the domestic courts failed sufficiently to reason their decisions in the applicants’ cases. Application no. 43018/17 Guyvan v. Ukraine The applicant owns a flat in a multistorey block of flats in Poltava city centre (“the building”). The Poltava City Council granted a certain Mr S., a private entrepreneur, a permission to use, for commercial purposes, the passage leading from the street to the inner courtyard of the building and located on the ground floor of the building. The City Council treated the passage as municipal land and granted to S. an easement over it. The applicant challenged that decision before the administrative courts. The courts rejected his challenge, holding that the decision did not interfere with the applicant’s rights essentially because, at the time, the passage remained free of S.’s occupation and, in order to actually start operating in it, S. needed another permit from the mayor’s office, which had not yet been obtained. Final decision: High Administrative Court, 17 January 2017. The courts apparently provided no specific answer to the applicant’s argument that the passage did not constitute municipal land (which the council could dispose of) but was rather part of the building’s common areas and, as such, constituted joint property of the owners of the flats in the building which could not be given by the municipal authorities to third parties. The courts rejected the applicant’s references to Seryavin and Others v. Ukrain e (no.   4909/04, 10 February 2011) by stating, without providing further details, that the facts of the applicant’s case were different. Application no. 7622/18 Varitek, TOV v. Ukraine Under the sale contract of June 2014 the applicant company undertook to deliver industrial equipment (which it was to order from a South Korean manufacturer) to company G. after the latter would pay, by 10 September 2014, seventy percent of the purchase price. G. paid seventy percent of the purchase price on 4 April 2016 only and on 8 April 2016 G. demanded that the applicant company deliver the equipment within seven days. After sending the latter notice, G. agreed to sell the equipment to company S. and also entered into a guarantee agreement with company D. under which D. guaranteed to indemnify S. in case of non-performance by the applicant company (this was done without the applicant company’s involvement and apparently knowledge). The applicant company delivered the equipment on 19 August 2016. G. sued the applicant company for failure to deliver in time, asking for damages caused by compensation it had paid to S. for late delivery and for lost profit. The applicant company objected and counter-sued, arguing that the whole contract arrangement was conditional on the purchase price being paid in time, so as to allow it time to have the equipment delivered from the manufacturer. The applicant company further argued that G., in its demand of April 2016, sent eighteen months after the due date of payment, unilaterally established a time-limit for delivery which was many times shorter than the one initially agreed upon in the contract. Moreover, the applicant company argued that G., D. and S. companies were all controlled by the same individual and their deals between themselves were fictitious and merely designed to extort non-existent damages from the applicant company. The applicant company also sought to institute criminal proceedings in connection with those allegations. The Kharkiv Regional Commercial Court allowed the claim against the applicant company, finding that it had delayed delivery, which constituted a breach of the contract. The court relied on the provision of the Civil Code that provided that, if no time-limit for contract performance was set in the contract, the creditor could demand performance at any time and performance had to be completed within seven days’ from the date of demand. Thus, according to the court’s reasoning, the due date of delivery was 15 April 2016, given that the time-limit for delivery initially agreed by the parties in the contract had expired and G. established a new date in its demand of April 2016. Furthermore, the court ordered that the applicant company pay pecuniary damages and a fine, equal to those that G. had to pay to S. for delay in delivery, as well as G.’s lost profit. In a final decision, on 2 August 2017 the High Commercial Court upheld the first-instance judgment. After the completion of proceedings in 2017, an accounting expert appointed within the framework of the criminal investigation into the applicant company’s fraud allegations, found that the deals between G., D. and S. companies were indeed structured to generate artificial damages and were not accompanied by actual movement of funds. Application no. 50459/18 Kos v. Ukraine In April 2014 the applicant’s son died after being run over by Mr S. On 9 July 2014 the Fastiv Court convicted S. of breach of traffic rules (notably driving while intoxicated) resulting in a death. The court sentenced S. to five years’ imprisonment. The court suspended the sentence on the grounds that S. had no prior convictions, had cooperated with the investigation and that he “had fully compensated the victims for the damage caused” ( він повністю відшкодував їм завдану шкоду ). No further details were mentioned in the judgment. The judgment became final. In 2016 the applicant asked the company that insured S.’s civil liability to compensate him for S.’s actions. After receiving a refusal, the applicant sued the insurance company. During the proceedings the applicant and S. testified that, in fact, no compensation had been paid to the applicant and the above-mentioned statement in the criminal court’s judgment had been meant merely to ensure that S. receive a lenient sentence. In view of that evidence, the Fastiv Court and a Kyiv Regional Court of Appeal allowed the applicant’s claim. On 30 May 2018 the Supreme Court overturned the lower courts’ decisions and refused the claim. The Supreme Court found that the criminal court’s judgment conclusively established, in a binding manner, that the applicant had received full compensation (despite absence of any information as to the amount of compensation paid and the manner in which it had been paid). QUESTIONS TO THE PARTIES 1.     Did the applicants have a fair hearing in the determination of their civil rights and obligations, as required by Article 6 § 1 of the Convention? In particular, did the courts provide sufficient reasons for their decisions and were their decisions “arbitrary” and/or “manifestly unreasonable” (see, for example, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015, and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and   2   others, § 185, 6 November 2018, with further references)?   2.     In application no. 7622/18 ( Varitek, TOV v. Ukraine ), was there an interference with the applicant company’s rights under Article 1 of Protocol   No. 1 to the Convention and did the respondent State comply with the requirements of that provision? Did the respondent State discharge its positive obligation under Article 1 of Protocol No.   1 (see, for example, Sovtransavto Holding v. Ukraine , no. 48553/99, §§ 94-98, ECHR 2002 ‑ VII; S.L. and J.L. v. Croatia , no. 13712/11, §§ 57-90, 7 May 2015; Hunguest   Zrt   v.   Hungary , no. 66209/10, §§ 22-33, 30 August 2016; Nikolay   Kostadinov v. Bulgaria , no.   21743/15, §§ 53-76, 8 November 2022; and Korotyuk v.   Ukraine , no. 74663/17, § 36, 37 and 55-57, 19 January 2023)? APPENDIX List of applications   No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 43018/17 Guyvan v. Ukraine 31/05/2017 Petro Dmytrovych GUYVAN 1958 Poltava Ukrainian   2. 7622/18 Varitek, TOV v. Ukraine 01/02/2018 VARITEK, TOV 2008 Dnipro Ukrainian Vasyl Volodymyrovych BOBYL 3. 50459/18 Kos v. Ukraine 16/10/2018 Sergiy Vasylyovych KOS 1960 Palyanychentsi Ukrainian Ruslan Romanovych LABYK