FIFTH SECTIONCASE OF GRYNENKO v. UKRAINE(Application no. 65890/13)     JUDGMENT STRASBOURG20 September 2022    This judgment is final but it may be subject to editorial revision. In the case of Grynenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lado Chanturia, President, Ganna Yudkivska, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 65890/13) 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 Pavlo Yuriyovych Grynenko (“the applicant”), on 4 October 2013;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1;the parties’ observations;Having deliberated in private on 9 June 2022,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns an alleged breach of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the domestic courts’ disregard of the final judgment recognising the applicant’s title to a flat and conferring the title to the same flat to a third person.THE FACTS2. The applicant was born in 1971 and lives in Lviv. He was represented before the Court by Mr A. Kychenok, a lawyer practising in Kyiv.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.Background to the case5. On 18 August 2003 the applicant signed an investment contract (“the 2003 contract”) with LDBK no. 2 (“Львівський домобудівний комбінат №2”), a private construction company. Under the terms of the contract the applicant was to finance the construction of a flat (flat no. 8) in an apartment building; in exchange, LDBK no. 2 was to transfer the ownership of that flat to the applicant once the construction work had been completed and the utilities had become operational. By the end of 2004 the applicant had fulfilled his obligations under the contract.6. In August 2005 LDBK no. 2 lodged a claim against the applicant, seeking the termination of the 2003 contract and compensation for an alleged breach of contractual obligations. The applicant lodged a counterclaim in November 2005, arguing that he had fully complied with the terms of the contract and seeking confirmation that the legal title to the flat belonged to him (“the first set of proceedings”). On 23 December 2005 the first-instance court allowed LDBK no. 2’s claim and terminated the 2003 contract. The applicant appealed against that decision.7. In the meantime, on 30 December 2005 LDBK no. 2, without the applicant’s knowledge and consent, entered into a contract (“the 2005 contract”) with LDBK (“Львівський домобудівний комбінат”), another private construction company, which in turn, on 4 January 2006 signed an investment contract with K. (“the 2006 contract”), under which the ownership of the flat was to be transferred to K. after the completion of the construction work.8. Following sets of court proceedings, on 3 June 2010 the Higher Commercial Court (“the HCC”) eventually dismissed LDBK no. 2’s claim against the applicant (see paragraph 6 above) and allowed the applicant’s counterclaim, finding that the applicant had duly complied with his obligations under the 2003 contract and had thus acquired title (майнові права) to the flat. The HCC’s judgment was not amenable to further appeal.9. On 3 August 2010 an application lodged by K. seeking to have the proceedings reopened on account of newly discovered circumstances was rejected by the Lviv Regional Commercial Court as K. had not been a party to the proceedings and thus had no right under the law to seek a review. Similar applications lodged by the prosecutor’s office and LDBK were also rejected by the courts.10. In December 2010 the applicant instituted proceedings against LDBK no. 2. and LDBK, seeking to have the 2005 contract declared unlawful and to have it rescinded. By a final decision of 11 August 2011, the HCC allowed the applicant’s claim and declared the 2005 contract null and void ab initio, as at the time of its signing, a valid investment contract had already been concluded in respect of the same flat between the applicant and LDBK no. 2, the terms of which the applicant had duly fulfilled.11. In June 2011 LDBK no. 2, in its turn, instituted proceedings against the applicant, seeking to have the 2003 contract rescinded, arguing that the contract lacked important substantive elements. The claim was eventually rejected by the domestic courts.Proceedings brought by K.12. On 9 April 2009 K. instituted proceedings (“the second set of proceedings”) in the Shevchenkivskyi District Court of Lviv (“the District Court”) against LDBK, seeking to have her ownership of the flat recognised by virtue of the 2006 contract, as LDBK had failed to transfer ownership of the flat to her, in breach of that contract. LDBK acknowledged the claim as well-founded, and on 21 April 2009 the District Court allowed the claim. The applicant appealed, arguing that he had not been notified that the proceedings would take place, even though they had concerned his rights and obligations, given that he had title to the flat.13. On 10 December 2009 the Lviv Regional Court of Appeal allowed an appeal lodged by the applicant, quashed the judgment of 21 April 2009 and remitted the case to the District Court for fresh examination. During the new first-instance hearing, the applicant, who had been admitted to the proceedings as a third party, sought to have the 2006 contract declared null and void and to have K. evicted from the flat. He argued, inter alia, that by virtue of the 2003 contract – which had been declared valid and fulfilled and which he had signed three years earlier than K. had signed the 2006 contract – he had title to the flat, although he had never been granted access to it.14. On 31 March 2011 the District Court suspended the proceedings until another set of proceedings instituted by the applicant concerning the validity of the investment contract of 30 December 2005 between LDBK no. 2. and LDBK could be resolved (see paragraph 10 above). The District Court noted that the outcome of those proceedings would be decisive for the case that it was hearing.15. On 20 June 2011 LDBK no. 2 offered the applicant the opportunity to invest in another flat and stated that it would apply the contribution he had made under the 2003 contract to the new flat. The applicant rejected the offer, stating, inter alia, that it was insufficiently detailed. He insisted that LDBK no. 2 comply with the 2003 contract.16. On 12 March 2012 the District Court confirmed K.’s title to the flat in issue and rejected the applicant’s appeal. It found, inter alia, that K. had acquired the flat in good faith, had fully complied with her investment contract, had moved into the flat and performed renovation work and that her eviction would constitute a breach of her rights. The court noted that by virtue of Article 620 of the Civil Code, the disputed flat could not be taken from K., as it was already being used by her. While conceding that final decisions delivered by the HCC had confirmed the applicant’s title to the flat, the court noted that those decisions had only been delivered in 2010, whereas K. had concluded her investment contract in 2006, when the applicant had not had any property title to the flat.17. The applicant lodged an appeal, relying on, inter alia, the final and binding judgment given by the HCC on 3 June 2010, which had established the relevant facts and confirmed his title to the disputed flat. He furthermore submitted that the 2005 contract between LDBK no. 2. and LDBK had been declared invalid ab initio by the courts and had therefore not entailed any legal consequences.18. On 19 November 2012 the Lviv Regional Court of Appeal dismissed the applicant’s appeal, referring to the same grounds as had the District Court. The applicant lodged an appeal on points of law, arguing, inter alia, that the lower courts had not respected the principle of res judicata and had acted in breach of Article 6 of the Convention.19. On 30 January 2013 K. registered her property rights to the flat with the relevant State authority and obtained a title deed.20. By a final decision of 9 April 2013 the Higher Specialised Civil and Criminal Court dismissed the applicant’s appeal on points of law, stating in a general way that there had been no evidence of a breach of material law or procedural law by the lower courts.21. On 14 November 2013 LDBK no. 2 was liquidated following bankruptcy proceedings.RELEVANT LEGAL FRAMEWORK22. Article 620 of the Civil Code, as in force at the relevant time, provided, inter alia, that a creditor was to be considered to have lost his or her right to lodge a vindicatory claim in respect of an identifiable item if the item had already been transferred to another person’s possession or use. If the item in question had not yet been transferred, the title to it was to be given to creditor in respect of whom the obligation had arisen; if it was not possible to identify that creditor, it was to be given to the creditor who had first lodged the claim.23. Article 61 of the Code of Civil Procedure, as in force at the relevant time, provided that once a judgment became effective, the circumstances established therein should not have to be proved again in another case to which the person in respect of whom the circumstances had been established was a party.THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION24. The applicant complained that the domestic courts had acted in breach of the principle of legal certainty. He relied on Articles 6 and 13 of the Convention. The Court considers that this complaint falls to be examined under Article 6 alone, which reads as follows:“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Admissibility25. 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.Merits26. The applicant argued that the domestic courts had breached the principle of legal certainty when they had allowed K.’s claim and disregarded the binding court decisions delivered earlier in his favour and the facts established thereby.27. The Government submitted that the domestic courts’ findings in respect of K.’s title to the flat at issue had been based on careful examination of the relevant factual and legal circumstances. There had been nothing arbitrary or manifestly unreasonable in the courts’ decisions.28. The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of the rule of law and legal certainty, encompasses the requirement that, where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII; Oferta Plus S.R.L. v. Moldova, no. 14385/04, § 97, 19 December 2006; and Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, § 61, 12 January 2006).29. The Court also reiterates that 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, among many other authorities, Bochan v. Ukraine (no.  2) [GC], no. 22251/08, § 61, ECHR 2015, with further references). In particular, a judgment is manifestly unreasonable if it does not contain any connection between the established facts, the applicable law and the outcome of the proceedings (see Anđelković v. Serbia, no. 1401/08, § 27, 9 April 2013).30. Turning to the present case, the Court notes that by a final judgment of 3 June 2010, the HCC confirmed that the applicant had title to the disputed flat by virtue of the 2003 contract, the obligations stipulated by which he had duly fulfilled. K., the prosecutor’s office and LDBK were unsuccessful in their attempts to obtain a review of the final judgment in the light of newly discovered circumstances (see paragraph 9 above). Furthermore, by another final judgment given on 11 August 2011 the HCC declared the contract between LDBK no. 2 and LDBK in respect of the flat invalid ab initio, as it was signed in breach of the law and the applicant’s rights (see paragraph 10 above). LDBK no. 2’s further attempt to have the 2003 contract declared null and void was unsuccessful (see paragraph 11 above). Therefore, the applicant could legitimately expect that, given that the relevant circumstances had been established in the first set of proceedings, his title to the flat would not be questioned and subject to re-examination.31. However, two years later, in the proceedings brought by K. concerning the same issue (title to the disputed flat), the District Court – having reassessed the applicant’s contractual obligations and ownership rights – ruled that K. had title to the flat. This judgment was upheld by the higher courts.32. It remains unclear why the courts, having been aware of the findings reached in the first set of proceedings, disregarded them and decided, contrary to those findings, that until 2010 the applicant had not had any rights in respect of the flat. This conclusion appeared to be a decisive one for the outcome of the proceedings. No explanation as to the legal grounds for such a finding can be found in the decisions of the District Court or the higher courts.33. The Court notes that in his appeals against the District Court’s judgment of 5 September 2011, the applicant specifically raised the above‑noted issue, complaining of a breach of the principle of legal certainty. However, his arguments were left unanswered.34. The Court furthermore observes that, unlike in the case of Brumărescu (cited above), in the present case the 2010 final judgment was not formally quashed in the second set of proceedings. It was rendered devoid of any legal effect, however, as the decisive circumstances established therein were reassessed and decided differently by the courts in the second set of proceedings. The Court has already found that such a situation may also amount to a breach of the principle of legal certainty, in violation of Article 6 § 1 of the Convention (see, mutatis mutandis, Esertas v. Lithuania, no. 50208/06, § 25, 31 May 2012).35. The Court notes that such a situation would also appear to be in breach of the domestic law – namely Article 61 of the Code of Civil Procedure, which provided that circumstances that had been established by a court in one case could not be contested in another case (see paragraph 23 above).36. The Government have not referred to any circumstance of a sufficiently substantial and compelling character to justify a departure from the principle of legal certainty in the present case. The Court does not find that the first set of proceedings was tarnished by a fundamental defect, such as, in particular, a jurisdictional error, or serious breaches of court procedure or abuses of power. Therefore, no pressing social need was shown to justify the courts’ disregard of the judgment in question.37. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s rights under Article 6 § 1 of the Convention were violated, since the courts in the second set of proceedings disregarded the previous judicial process. By reassessing and overruling the decisive circumstances established by the final judgment of 3 June 2010, the national courts acted in breach of the principle of legal certainty inherent in Article 6 § 1 of the Convention and did not give the applicant’s case a fair hearing (see Esertas, cited above, § 31).38.

Outcome for Article P1-1: violation