FIFTH SECTIONCASE OF YAKUSHCHENKO v. UKRAINE(Application no. 57706/10)      JUDGMENT STRASBOURG24 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:PROCEDURE1. 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 FACTSTHE CIRCUMSTANCES OF THE CASE5. 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.RELEVANT DOMESTIC LAW17. 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 LAWALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION18. 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 ...”Admissibility20. 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.Merits25. 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.

Outcome for Article 6: violation