PROCEEDINGS FOLLOWING THE REOPENING OF TERMINATED CIVIL PROCEEDINGS AFTER ECHR FOUND A VIOLATION OF THE CONVENTION WERE UNFAIR

In today’s Grand Chamber judgment1 in the case of Bochan v. Ukraine (No. 2) (application
no. 22251/08) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights. The case concerned the proceedings relating to Ms Bochan’s “appeal in the light of exceptional circumstances” based on the European Court of Human Rights’ judgment in her previous case about the unfairness of property proceedings (judgment of 3 May 2007).
The Court found that because the Supreme Court had made a distorted presentation of its findings in the 2007 judgment, Ms Bochan had not been able to have her property claim examined in the light of these findings, in the framework of the cassation-type procedure provided for under Ukrainian law. The Court considered that it was competent to examine the new issue raised in Ms Bochan’s second case without encroaching on the prerogatives of Ukraine and the Committee of Ministers under Article 46 (Binding force and implementation of judgments). It also reiterated that, while it was for the Member States to decide how best to implement its judgments, the availability of procedures allowing a case to be revisited when a violation of Article 6 had been found was the best way to achieve restoration to the applicant’s original situation.

Principal facts

The applicant, Mariya Ivanivna Bochan, is a Ukrainian national who was born in 1917 and lives in Ternopil (Ukraine). Since 1997 Ms Bochan has claimed, so far unsuccessfully, title to part of a house, owned by Mr M. at the relevant time, and to the land on which it stands. Her property claim was considered on numerous occasions by the domestic courts. Her case was eventually reassigned by the Supreme Court to lower courts with different territorial jurisdiction, and it was ultimately decided that Mr M. was the lawful owner of that part of the house and had the right to use the land on which it had been constructed. On 17 July 2001 Ms Bochan lodged an application with the European Court of Human Rights, complaining in particular of unfairness in the domestic proceedings concerning her claim. In its judgment of 3 May 2007, the Court found that there had been a violation of Article 6 § 1 (right to a fair trial), having regard to the circumstances in which Ms Bochan’s case had been reassigned by the Supreme Court and to the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively. The Court further decided that it was not necessary to rule on the applicant’s complaint based on Article 1 of Protocol No. 1 (protection of property), as it raised no distinct issue. Ms Bochan’s other complaints, including about the length of the proceedings, were dismissed by the Court as unsubstantiated. The applicant was awarded 2,000 euros in respect of
non-pecuniary damage. To date, the Committee of Ministers of the Council of Europe has not yet
concluded the supervision of the execution of the judgment2.

On 14 June 2007 Ms Bochan lodged an “appeal in the light of exceptional circumstances” as
provided for under Ukrainian law. Relying on the European Court’s judgment of 3 May 2007, she
asked the Supreme Court to quash the decisions in her case and to adopt a new judgment allowing her claims in full. Her appeal was dismissed on 14 March 2008, the Supreme Court holding that the domestic decisions had been correct and well-founded. Her second appeal was declared inadmissible on 5 June 2008 on the grounds that there had been no arguments calling for reconsideration of the case.

Decision of the Court

Article 6 § 1
Whether the Court was prevented by Article 46 from examining Ms Bochan’s complaints
The Court considered that some of Ms Bochan’s pleadings in the present case could be understood as complaining about an alleged lack of proper execution of its 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 competence4. Accordingly, the Court declared Ms. Bochan’s complaints concerning the failure to remedy the original violation of Article 6 § 1 in her previous case inadmissible. However, a new complaint was raised by Ms Bochan in her second application concerning the conduct and fairness of the proceedings decided in March 2008 – it did not concern their outcome as such or the effectiveness of the national courts’ implementation of the Court’s judgment of 3 May 2007. The Court was therefore competent to examine this new issue without encroaching on the prerogatives of Ukraine and the Committee of Ministers under Article 46 of the Convention5 (Binding force and implementation of judgments).
Whether Article 6 was applicable to the proceedings concerning Ms. Bochan’s exceptional appeal
The Court found, in the light both of the relevant provisions of the Ukrainian legislation and of the nature and scope of the exceptional appeal proceedings, that this cassation-type procedure had been decisive for the determination of Ms. Bochan’s civil rights and obligations. Consequently, Article 6 § 1 had been applicable to these proceedings. The Court reiterated that it was for the Member States to decide how best to implement its judgments and that there was no uniform approach among them as to the possibility of seeking reopening of terminated civil proceedings following a finding of a violation by the Court or as to the modalities of implementation of existing reopening mechanisms6. However, the availability of procedures allowing a case to be revisited when a violation of Article 6 had been found demonstrated a Member State’s commitment to the Convention as well as to the Court’s case-law7 and was the best way to achieve restoration to the applicant’s original situation (restitutio in integrum).
As to the fairness of the proceedings relating to Ms Bochan’s exceptional appeal
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 had been arbitrary or manifestly unreasonable. However in Ms Bochan’s case, the Supreme Court, in its decision of 14 March 2008, had grossly misrepresented the Court’s findings in its judgment of 3 May 2007. Indeed, the Supreme Court had found that Ukrainian courts’ decisions in Ms Bochan’s case had been lawful and well-founded and that she had been awarded just satisfaction for the violation of the “reasonable-time” guarantee, when the Court had in fact found a violation of the Convention on account of the unfairness of the original domestic proceedings. The Court observed that the Supreme Court’s reasoning could not be considered as a different reading of a legal text but rather as being “grossly arbitrary” or as entailing a “denial of justice”, as the distorted presentation of the Court’s 2007 judgment in the first Bochan case had defeated Ms. Bochan’s attempt to have her property claim examined in the framework of the cassation-type procedure provided for under Ukrainian law in the light of the Court’s judgment in her previous case. As a consequence, there had been a violation of Article 6 § 1 on account of the unfairness of the proceedings culminating in the decision of the Supreme Court of 14 March 2008.
Other articles Having regard to its finding under Article 6 § 1 of the Convention, the Court found that it was not necessary to examine whether, in this case, there had been a violation of Article 1 of Protocol No. 1.
Just satisfaction (Article 41)
The Court held that Ukraine was to pay the applicant 10,000 euros in respect of non-pecuniary
damage.

Source: ECHR press release

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