CASE OF BOCHAN v. UKRAINE (No. 2)

1. The case originated in an application (no. 22251/08) 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, Ms Mariya Ivanivna Bochan (“the applicant”), on 7 April 2008.
2. The applicant was represented by her son, Mr I. Bochan, a lawyer practising in Ternopil. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostyanova, of the Ministry of Justice.
3. The applicant, relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, complained of the proceedings concerning her “appeal in the light of exceptional circumstances” grounded on the Court ’ s judgment in the applicant ’ s previous case (see Bochan v. Ukraine, no. 7577/02, 3 May 2007), as provided for under the applicable Ukrainian legislation.
4. On 6 September 2011 the Government were given notice of the application.
5. On 19 November 2013 a Chamber of the Fifth Section, composed of Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Paul Lemmens, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court ).
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
7. The applicant and the Government each filed observations. On 17 March 2014, after consulting the parties, the President of the Grand Chamber decided not to hold a hearing.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1917 and lives in Ternopil.
9. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Factual background to the case
10. Since 1997 the applicant has claimed, so far unsuccessfully, title to part of a house, owned by Mr M. at the material time, and to the land on which it stands. Her claim is based on the following arguments: that the part of the house in question was constructed at her and her late husband ’ s expense; that her husband lawfully obtained title to the property, which she subsequently inherited; that it was not sold to Mr M. despite there having initially been an agreement with the applicant ’ s son to that effect; and that the sales contract on which Mr M. ’ s claim to the property was based was forged.
11. The applicant ’ s property claim was considered on numerous occasions by the domestic courts. Eventually, following the reassignment of the case by the Supreme Court to lower courts with different territorial jurisdiction, the applicant ’ s claim was dismissed. Relying on the statements of seventeen witnesses, one of whom was heard in person, and documents submitted by Mr M., the courts at two levels of jurisdiction found that Mr M. had bought the foundations of the part of the house in question from the applicant ’ s son in 1993 and had subsequently built it at his own expense. Mr M., accordingly, was the lawful owner of that part of the house and had the right to use the land on which it had been constructed. The final decision, upholding the rulings of the lower courts, was taken by the Supreme Court on 22 August 2002.
B. The Court ’ s judgment in the first case
12. On 17 July 2001 the applicant lodged an application with the Court, complaining in particular of unfairness in the domestic court proceedings concerning her claim. She also complained of the length of the proceedings and alleged a violation of Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention on account of their outcome.
13. On 3 May 2007 the Court delivered a judgment in the case, which became final on 3 August 2007. The Court held that there had been a violation of Article 6 § 1 of the Convention, having regard to the circumstances in which the applicant ’ 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 (see Bochan, cited above, § 85).
14. The Court reasoned as follows.
“74. ... [The] reassignment [of the applicant ’ s case] was ordered by the Supreme Court after having expressly disagreed with the findings of the lower courts as to the facts and having stated its position concerning one of the principal aspects of the case ... even before the new assessment of facts and taking of evidence by the lower courts took place ... Considering in addition the Supreme Court ’ s failure to provide reasons for the reassignment, the Court is of the opinion that the applicant ’ s fears that the judges of the Supreme Court, including its Deputy President, had a prefixed idea concerning the outcome of the case and that the judges to whom the case had been transferred on 9 October 2000 would have to consider the case in accordance with the Supreme Court ’ s view could be held to be objectively justified.
75. The Court considers that this overall procedural situation also disturbed the principle of legal certainty (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003 ‑ IX ). The fact that the Supreme Court ’ s views on the subject of the applicant ’ s case differed from those of the lower courts could not be a sole ground for its repeated re-examination. Higher courts ’ power of review should be exercised for correction of judicial mistakes, miscarriages of justice, and not to substitute the lower courts ’ assessment of facts.”
15. The Court further noted that the domestic courts had afforded no reply to the applicant ’ s submissions concerning the reliability of the witnesses ’ statements and the validity of the documentary evidence, which had been decisive for the outcome of the case (see Bochan, cited above, §§ 81-84).
16. Relying on the above findings under Article 6 § 1 of the Convention, the Court decided that it was not necessary to rule on the applicant ’ s complaint based on Article 1 of Protocol No. 1, as it raised no distinct issue (see Bochan, cited above, § 91).
17. The applicant ’ s complaints regarding the length of the proceedings and a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention were dismissed as unsubstantiated (see Bochan, cited above, §§ 87 and 93).
18. The applicant was awarded 2,000 euros (EUR) by way of just satisfaction in respect of non-pecuniary damage. The Court also noted “ that the applicant [ was ] entitled under Ukrainian law to request a rehearing of her case in the light of the Court ’ s finding that the domestic courts [ had not complied ] with Article 6 in her case ” (see Bochan, cited above, §§ 97 - 98).
19. To date, the Committee of Ministers of the Council of Europe has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention.
C. The applicant ’ s “appeal in the light of exceptional circumstances”
20. On 14 June 2007 the applicant lodged with the Supreme Court an “appeal in the light of exceptional circumstances” pursuant in particular to Articles 353 to 355 of the Code of Civil Procedure of 2004 (see paragraph 2 4 below). Relying on the Court ’ s judgment of 3 May 2007, she asked the Supreme Court to quash the courts ’ decisions in her case and to adopt a new judgment allowing her claims in full. She joined to her appeal copies of the Court ’ s judgment and of the domestic decisions.
21. On 14 March 2008 a panel of eighteen judges of the Civil Division of the Supreme Court, having examined the appeal in chambers and relying on Article 358 of the Code of Civil Procedure of 2004 (set out in paragraph 2 4 below), dismissed the applicant ’ s appeal. The relevant part of the Supreme Court ’ s decision reads as follows.
“By the judgment of 3 May 2007, the European Court of Human Rights declared the applicant ’ s complaints of unfairness in the proceedings and of a violation of Article 1 of Protocol No. 1 admissible, and the remainder of the application inadmissible. A violation of Article 6 § 1 of the Convention ... was found in the case. [The Court] ordered that the respondent State was to pay the applicant, within three months from the date on which the judgment became final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage ...
In paragraph 64 of the judgment of the European Court of Human Rights, it is noted that the applicant ’ s submissions mainly concern four issues, namely:
(a) whether the courts, which dealt with [the applicant ’ s] case, were independent and impartial;
(b) whether the fact that the case was heard by the Chemerovetsk Town Court prevented the applicant from participating in the proceedings;
(c ) whether the principle of equality of arms was observed with regard to the failure of the domestic courts to hear the witnesses whose written statements the courts admitted as evidence;
(d) whether the final decisions given by the courts of first, appeal and cassation instances were sufficiently substantiated.
As can be seen from the case materials, the applicant was represented in the [domestic] proceedings by her son, a lawyer ... During the entire duration of the proceedings she failed to appear before the court, although she was duly informed of the hearings.
None of those taking part in the case, including Mr B.I. [the applicant ’ s son], asked for the witnesses to be summoned ... Mr B.I. failed to submit witness statements ... capable of proving that the house was constructed at his (or his father ’ s or his mother ’ s) expense.
None of the parties, including Mr B.I., sought the withdrawal of the [first-instance] judge. Complaints of the court ’ s lack of objectivity ... were only raised by Mr B.I. after the judgment had been adopted in the case.
As can be seen from the case materials, the validity of the sales contract of 18 March 1993, according to which Mr M. purchased from Mr B.I. half of the foundations and some of the construction materials, was not challenged ... There is also a document confirming that the left-hand side of the house was constructed at Mr M. ’ s expense and a document according to which Mr M. paid Mr B.I. 1,550,000,000 karbovanets [the former transitional currency of Ukraine before September 1996] for the foundations of the left-hand side of the house. These circumstances were not refuted by the expert examination in the case.
In its judgment, the European Court of Human Rights also noted that the applicant ... had failed to provide evidence that she had suffered discrimination in the enjoyment of her property rights, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, on account of the outcome of the civil proceedings. [The Court] concluded that the applicant ’ s complaints [under these provisions] were to be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. Therefore, the European Court of Human Rights concluded that the [domestic] courts ’ decisions were lawful and well-founded and decided to award the applicant compensation in the amount of EUR 2,000 only for the violation of the ‘ reasonable time ’ requirement by the Ukrainian courts.
In the light of the foregoing, the courts ’ decisions in the case may not be quashed on the grounds mentioned in Mrs Bochan ’ s application.
Relying on [Article] 358 of the [Code of Civil Procedure of Ukraine ], the panel of judges of the Civil Division of the Supreme Court of Ukraine
To refuse to allow the appeal [of Mrs M. I. Bochan ] for review in the light of exceptional circumstances of the judgment of 19 January 2001 of the Chemerovetsk Town Court of the Khmelnytsk Region, the decision of 1 March 2001 of the Khmelnytsk Regional Court of Appeal and the decision of 22 August 2002 of the Supreme Court of Ukraine. ”
22. On 8 April 2008 the applicant lodged a new “appeal in the light of exceptional circumstances” with the Supreme Court. She argued that the decision of 14 March 2008 had been based on an incorrect “ interpretation ” of the Court ’ s judgment of 3 May 2007 and requested the Supreme Court to reconsider the merits of the case in the light of the Court ’ s findings under Article 6 § 1 of the Convention in that judgment as noted in paragraph 15 above.
23. On 5 June 2008 a panel of seven judges of the Civil Division of the Supreme Court, relying on Article 356 of the Code of Civil Procedure of 2004, declared the appeal inadmissible, as it contained no arguments capable of serving as grounds for reconsideration of the case in the light of exceptional circumstances pursuant to Article 354 of the Code of Civil Procedure of 2004 (see paragraph 2 4 below for the text of Article 354 and for the relevant extracts from Article 356 of the Code).
A. Code of Civil Procedure of 2004
24. The relevant extracts from the Code, as worded at the material time, read as follows.
Article 353 – The right to challenge judicial decisions in the light of exceptional circumstances
“1. Parties to proceedings ... have the right to challenge before the Supreme Court of Ukraine judicial decisions in civil cases in the light of exceptional circumstances after [those decisions] have been reviewed in cassation .”
Article 354 – Grounds for an appeal in the light of exceptional circumstances
“1. After judicial decisions in civil cases have been reviewed in cassation, they may be reviewed in the light of exceptional circumstances if they are appealed against on the [following] grounds:
(1) divergent application of the law by the cassation court (or courts);
(2) a finding by an international judicial authority, whose jurisdiction has been recognised by Ukraine, that a [domestic] judicial decision violated the international commitments of Ukraine.”
Article 355 – Lodging of an appeal in the light of exceptional circumstances
“1. An appeal may be lodged within one month of the discovery of exceptional circumstances.
2. An appeal in the light of exceptional circumstances is to be lodged in accordance with the rules applicable to cassation appeals.
Article 356 – Admissibility of an appeal in the light of exceptional circumstances
“1. The question of admissibility of an appeal in the light of exceptional circumstances ... is to be decided in chambers by a panel of seven judges ...
2. An appeal is to be declared admissible ... if at least three judges so decide ...
3. The decision concerning the admissibility of an appeal ... cannot be appealed against ...
4. A copy of the decision declaring an appeal admissible ... is to be sent to the parties ...
5. If an appeal has been declared admissible ... the court may suspend the execution of the relevant decisions.
6. The rules set out in paragraphs 1 to 4 of this Article are not applicable to an appeal lodged on the ground provided for in paragraph 2 of Article 354 of this Code.”
Article 357 – Procedure for examination in the light of exceptional circumstances
“1. Examination of a case in the light of exceptional circumstances is a kind of cassation procedure [ різновидом касаційного провадження ].
2. The case is to be heard by a panel of judges representing at least two-thirds of the members of the Civil Division of the Supreme Court of Ukraine ...
4. Examination of the case in the light of exceptional circumstances is to be carried out under the rules applicable to cassation proceedings.”
Article 358 – The powers of the Supreme Court of Ukraine when examining cases in the light of exceptional circumstances
“1. When examining a case in the light of exceptional circumstances the Supreme Court of Ukraine has the power:
(1) to dismiss an appeal and to leave a decision unchanged ...
(2) to quash, in full or in part, a judicial decision and to remit the case for fresh consideration to the court of first instance, the court of appeal or the court of cassation ...
(3) to quash a decision of the court of appeal or of the court of cassation and to uphold a decision which was wrongly quashed ...
(4) to quash the decisions in the case and to discontinue the proceedings ...
(5) to amend a decision or to adopt a new decision on the merits of the case ...”
Article 360 – The force of the Supreme Court ’ s decisions
“The decisions adopted by the Supreme Court of Ukraine in the light of exceptional circumstances have the force of law when delivered and cannot be appealed against.”
B. The Enforcement of Judgments and the Application of the Case-Law of the European Court of Human Rights Act, 2 3 February 2006 [1]
25. The relevant parts of the Act, as worded at the material time, read as follows.
“This Act regulates relations emanating from: the State ’ s obligation to enforce judgments of the European Court of Human Rights in cases against Ukraine; the necessity to eliminate the causes of a violation by Ukraine of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto; the need to implement European human rights standards in the legal and administrative practice of Ukraine; and the necessity to create conditions to reduce the number of applications against Ukraine before the European Court of Human Rights.”
“1. For the purposes of this Act these terms are used with the following meanings:
The Convention – the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto agreed to be binding by [the Parliament] of Ukraine;
The Court – the European Court of Human Rights;
Beneficiary – (a) an applicant before the European Court of Human Rights in a case against Ukraine in whose favour the Court rendered its judgment or in whose case the parties have reached a friendly settlement, or their representatives, or successors ...
Enforcement of [the Court ’ s] judgment – (a) payment of compensation to the Beneficiary and adoption of individual measures; and ( b ) adoption of general measures;
Section 2 – Enforcement of [the Court ’ s] judgment
“1. The [Court ’ s] judgments are to be binding and enforceable for Ukraine in accordance with Article 46 of the Convention.
2. The procedure for enforcement of the judgment is to be determined by this Act, the Enforcement of Proceedings Act, and by other regulations, having regard to the specific provisions of the present Act.”
Section 10 – Additional individual measures
“1. Individual measures are to be adopted in addition to the payment of compensation and are aimed at restoring the rights of the Beneficiary [which have been] infringed.
2. Individual measures include:
(a) restoring as far as possible the legal status which the Beneficiary had before the Convention was violated ( restitutio in integrum );
3. The previous legal status of the Beneficiary is to be restored, inter alia, by means of:
(a) reconsideration of the case by a court, including reopening of the proceedings in that case;
(b) reconsideration of the case by an administrative body.”
Section 11 – Actions which the Office of the Government ’ s Agent shall take with regard to individual measures
“1. The Office of the Government ’ s Agent, within three days from receipt of the Court ’ s notification that the judgment has become final:
(a) sends the Beneficiary a notification explaining his right to initiate proceedings for the review of his case and/or to reopen the proceedings according to the law in force;
III. Law and practice in the Council of Europe Member States
26. A comparative survey of national legislation and practice in thirty- eight of the member States of the Council of Europe demonstrates that many States have put in place domestic mechanisms providing for the possibility to request review of civil cases terminated by a final judicial decision on the basis of a finding of a violation of the Convention by the Court. In particular, in twenty- two of the member States surveyed, the domestic Code of Civil Procedure explicitly provides for the possibility for a successful applicant to request review of a civil case on the basis of a finding of a violation by the European Court of Human Rights or another international court. This is so for Albania, Andorra, Armenia, Azerbaijan, Croatia, the Czech Republic, Estonia, the former Yugoslav Republic of Macedonia, Georgia, Germany, Latvia, Lithuania, the Republic of Moldova, Montenegro, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Switzerland and Turkey. In all those States, requests for review are to be made to a court. However, the level of jurisdiction differs from member State to member State. In some, it is the highest court which entertains the request, that is the Supreme Court (which is the case in Albania, Azerbaijan, Estonia and Lithuania) or the Constitutional Court (the Czech Republic). In others, the request is made to the court whose decision is challenged (Croatia, the former Yugoslav Republic of Macedonia and Serbia ). Normally, review is not automatic and is subject to admissibility criteria, such as time-limits, an applicant ’ s standing and substantiation of the request ( this is the case, for example, in Albania, the former Yugoslav Republic of Macedonia, Georgia, Montenegro and Turkey). Some domestic provisions provide for other conditions to be met, for example that the serious consequence of the violation continues to exist (Romania), or that compensation has not remedied the breach (Slovakia), or that the applicant could not be compensated by any other means (Estonia).
27. While in sixteen of the thirty- eight member States surveyed, review of civil cases on the basis of a finding of a violation of the Convention by the Court is currently not explicitly provided for by the existing legal provisions ( this is the case in Austria, Belgium, France, Greece, Hungary, Ireland, Italy, Liechtenstein, Luxembourg, Monaco, the Netherlands, Poland, Slovenia, Spain, Sweden and the United Kingdom (England and Wales) ), in some of those States it may still be open to applicants to seek re ‑ examination in such a situation pursuant to the procedure of review in the light of new facts emerging or procedural errors having been committed (for example, France, the Netherlands and Poland).
IV. Committee of Ministers ’ RECOMMENDATION No. R (2000) 2
28. In its Recommendation No. R (2000) 2, adopted on 19 January 2000 at the 694 th meeting of the Ministers ’ Deputies, the Committee of Ministers noted that the practice in supervising the execution of the Court ’ s judgments demonstrated that re-examination of a case or reopening of proceedings proved in certain circumstances the most efficient, if not the only, means of achieving restitutio in integrum. The Committee of Ministers, therefore, called upon the States to introduce mechanisms for re-examining a case following the finding of a violation of the Convention by the Court, especially where:
“ ( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and
(ii) the judgment of the Court leads to the conclusion that
(a) the impugned domestic decision is on the merits contrary to the Convention, or
(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
29. The applicant complained of the proceedings concerning her “appeal in the light of exceptional circumstances” (“exceptional appeal”) culminating in the Supreme Court ’ s decision of 14 March 2008. In particular, she argued that when dealing with her exceptional appeal the Supreme Court had failed to take into account the Court ’ s findings under Article 6 § 1 of the Convention in its judgment of 3 May 2007 pertaining to the domestic courts ’ assessment of the evidence (see paragraph 15 above). It had also omitted to address some important aspects of the case, notably the validity of the principal documentary evidence on which the domestic courts ’ decisions had been based. Moreover, its reasoning relating to the outcome of the applicant ’ s previous application had contradicted the Court ’ s findings in the judgment of 3 May 2007 (see paragraphs 13 and 18 above). According to the applicant, the unfair manner in which the Supreme Court had dealt with her exceptional appeal had entailed a fresh violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These provisions read, in so far as relevant to the applicant ’ s submissions, as follows.
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
30. At the outset, the Court notes that the present application is a sequel to a previous application lodged by the same applicant in relation to civil litigation concerning a dispute over title to immovable property. In its judgment of 3 May 2007 concerning that application, the Court held that the domestic courts ’ decisions had been reached in proceedings which failed to respect Article 6 § 1 fair - hearing guarantees of independence and impartiality, legal certainty and the requirement to give sufficient reasons (see paragraphs 13-15 above). Relying principally on the Court ’ s judgment of 3 May 2007, the applicant lodged an exceptional appeal with the Supreme Court challenging the said decisions. In the proceedings decided in March 2008, which are the subject of her present application, the Supreme Court rejected her appeal, holding that the domestic decisions had been correct and well founded.
31. The Court must determine in the first place whether it is prevented by Article 46 of the Convention from dealing with the various complaints made by the applicant, in view of the distribution of powers effected by the Convention between the Committee of Ministers and the Court as regards the supervision of the execution of the Court ’ s judgments (see, for instance, Lyons and Others v. the United Kingdom ( dec. ), no. 15227/03, ECHR 2003 ‑ IX). Secondly, in so far as it is not so prevented, it must examine whether the domestic proceedings on the applicant ’ s exceptional appeal attracted the guarantees of the Convention, in particular those under its Article 6 § 1 (see Steck-Risch and Others v. Liechtenstein ( dec. ), no. 29061/08, 11 May 2010) and, if so, whether the requirements of Article 6 § 1 were complied with.
32. As a preliminary to this, it is to be noted that the applicant ’ s complaints are principally directed against the proceedings in her exceptional appeal lodged on 14 June 2007 and rejected by the Supreme Court on 14 March 2008. Bearing in mind the nature and outcome of the applicant ’ s similar subsequent appeal, rejected by the Supreme Court on 5 June 2008, the Court will also take into account these proceedings (see paragraphs 5 5 -5 6 below).
A. Whether the Court is prevented by Article 46 of the Convention from examining the complaints made in the present application
33. The question of compliance by the High Contracting Parties with the Court ’ s judgments falls outside its jurisdiction if it is not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 56, 18 October 2011 ). Under Article 46 § 2, the Committee of Ministers is vested with the powers to supervise the execution of the Court ’ s judgments and evaluate the measures taken by respondent States. However, the Committee of Ministers ’ role in the sphere of execution of the Court ’ s judgments does not prevent the Court from examining a fresh application concerning measures taken by a respondent State in execution of a judgment if that application contains relevant new information relating to issues undecided by the initial judgment (see Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 61 ‑ 63, ECHR 2009 ).
34. The relevant general principles were summarised in Egmez v. Cyprus (( dec. ), no. 12214/07, §§ 48-56, 18 September 2012), as follows.
“48. The Court reiterates that findings of a violation in its judgments are in principle declaratory (see Krčmář and Others v. the Czech Republic ( dec. ), no. 69190/01, 30 March 2004; Lyons and Others v. the United Kingdom ( dec. ), no. 15227/03, ECHR 2003-IX; and Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31) and that, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B). It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 43, 24 October 2002, and Scozzari and Giunta v. Italy [GC ], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see the above-cited Scozzari and Giunta judgment, § 249). For its part, the Court cannot assume any role in this dialogue ( see Lyons and Others, cited above).
49. Although the Court can in certain situations indicate the specific remedy or other measure to be taken by the respondent State (see, for instance, Assanidze v. Georgia [GC], no. 71503/01, point 14 of the operative part, ECHR 2004-II; Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003), it still falls to the Committee of Ministers to evaluate the implementation of such measures under Article 46 § 2 of the Convention (see Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 107, ECHR 2010; Suljagić v. Bosnia and Herzegovina, no. 27912/02, § 61, 3 November 2009; Hutten - Czapska v. Poland (friendly settlement) [GC], no. 35014/97, § 42, 28 April 2008; Hutten - Czapska v. Poland [GC], no. 35014/97, §§ 231-39 and the operative part, ECHR 2006-VIII); Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005-IX; and Broniowski v. Poland [GC], no. 31443/96, §§ 189-94 and the operative part, ECHR 2004-V).
50. Consequently, the Court has consistently emphasised that it does not have jurisdiction to verify whether a Contracting Party has complied with the obligations imposed on it by one of the Court ’ s judgments. It has therefore refused to examine complaints concerning the failure by States to execute its judgments, declaring such complaints inadmissible ratione materiae (see Moldovan and Others v. Romania ( dec. ), nos. 8229/04 and 29 others, 15 February 2011; Dowsett v. the United Kingdom (no. 2) ( dec. ), no. 8559/08, 4 January 2011; Öcalan v. Turkey ( dec. ), no. 5980/07, 6 July 2010; Haase v. Germany, no. 11057/02, ECHR 2004 - III; Komanický v. Slovakia ( dec. ), no. 13677/03, 1 March 2005; Lyons and Others, cited above; Krčmář and Others, cited above; and Franz Fischer v. Austria ( dec. ), no. 27569/02, ECHR 2003 ‑ VI).
51. However, the Committee of Ministers ’ role in this sphere does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment (see Verein gegen Tierfabriken Schweiz ( VgT ), cited above, § 62; Hakkar v. France ( dec. ), no. 43580/04, 7 April 2009; Haase, cited above; Mehemi [ v. France (no. 2), no. 53470/99 ], § 43 [, ECHR 2003 ‑ IV ]; Rongoni v. Italy, no. 44531/98, § 13, 25 October 2001; Rando v. Italy, no. 38498/97, § 17, 15 February 2000; Leterme v. France, 29 April 1998, Reports 1998-III; Pailot v. France, 22 April 1998, § 57, Reports 1998-II; and Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250) and, as such, form the subject of a new application that may be dealt with by the Court.
52. On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases for example where the domestic authorities have carried out a fresh domestic examination of the case by way of implementation of one of the Court ’ s judgments whether by reopening of the proceedings (see Emre v. Switzerland (no. 2), no. 5056/10, 11 October 2011, and Hertel [ v. Switzerland ( dec. ), no. 53440/99, ECHR 2002-I ] ) or by the initiation of a [ n] entire new set of domestic proceedings (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, 18 October 2011, and Liu v. Russia (no. 2), no. 29157/09, 26 July 2011).
53. Moreover, in the specific context of a continuing violation of a Convention right following adoption of a judgment in which the Court has found a violation of that right during a certain period of time, it is not unusual for the Court to examine a second application concerning a violation of that right in the subsequent period (see, amongst others, Ivanţoc and Others v. Moldova and Russia, no. 23687/05, §§ 93-96, 15 November 2011, regarding continuing detention; Wasserman v. Russia (no. 2), no. 21071/05, §§ 36-3 7, 10 April 2008, as to the non- enforcement of a domestic judgment; and Rongoni, cited above, § 13, concerning length of proceedings). In such cases the ‘ new issue ’ results from the continuation of the violation that formed the basis of the Court ’ s initial decision. The examination by the Court, however, is confined to the new periods concerned and any new complaints invoked in this respect (see, for example, Ivanţoc and Others, cited above).
54. It is clear from the Court ’ s case-law that the determination of the existence of a ‘ new issue ’ very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut. So, for instance, in the Verein gegen Tierfabriken Schweiz ( VgT ) case (cited above), the Court found that it was competent to examine a complaint that the domestic court in question had dismissed an application to reopen proceedings following the Court ’ s judgment. The Court relied mainly on the fact that the grounds for dismissing the application were new and therefore constituted relevant new information capable of giving rise to a fresh violation of the Convention ( ibid., § 65). It further took into account the fact that the Committee of Ministers had ended its supervision of the execution of the Court ’ s judgment without taking into account the reopening refusal as it had not been informed of that decision. The Court considered that, from that standpoint also, the refusal in issue constituted a new fact (ibid, § 67). Similarly, in its recent judgment in Emre (cited above) the Court found that a new domestic judgment given following the reopening of the case, and in which the domestic court had proceeded to carry out a new balancing of interests, constituted a new fact. It also observed in this respect that the execution procedure before the Committee of Ministers had not yet commenced. Comparable complaints were, however, dismissed in Schelling v. Austria (no. 2) ( dec. ), no. 46128/07, 16 September 2010, and Steck-Risch and Others v. Liechtenstein ( dec. ), no. 29061/08, 11 May 2010), as the Court considered that on the facts the decisions of the domestic courts refusing the applications for reopening were not based on or connected with relevant new grounds capable of giving rise to a fresh violation of the Convention. Further, in Steck-Risch and Others, cited above, the Court observed that the Committee of Ministers had ended its supervision of the execution of the Court ’ s previous judgment prior to the domestic court ’ s refusal to reopen the proceedings and without relying on the fact that a reopening request could be made. There was no relevant new information in this respect either.
55. Reference should also be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it ‘ is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information ’ : ( i ) an application is considered as being ‘ substantially the same ’ where the parties, the complaints and the facts are identical (see Verein gegen Tierfabriken Schweiz ( VgT ), cited above, § 63, and Pauger v. Austria, nos. 16717/90 and 2487 2/94, Commission decisions of 9 January 1995, unreported ); (ii) the concept of complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998-I, and Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172); and (iii) where the applicant submits new information, the application will not be essentially the same as a previous application (see Patera v. the Czech Republic, no. 25326/03, Commission decision of 10 January 1996, unreported, and Chappex v. Switzerland, no. 20338/92, Commission decision of 12 October 1994, unreported ).
56. Accordingly, the powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court ’ s judgments and evaluate the implementation of the measures taken by the States under this Article will not be encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz ( VgT ), cited above, § 67).”
2. Application of the above principles to the present case
35. Turning to the present case, the Court considers that some of the applicant ’ s pleadings in the present case may be understood as complaining of an alleged lack of proper execution of the Court ’ s judgment of 3 May 2007 in her previous case. The applicant can in particular be understood as arguing that the shortcomings in the original domestic proceedings that formed the subject matter of the Court ’ s 2007 judgment were not remedied in the proceedings culminating in the Supreme Court ’ s decision of 14 March 2008, in that the Supreme Court failed to address the validity of the principal documentary evidence on which the contested decisions of the domestic courts had been based (see paragraph 29 above). However, complaints of a failure either to execute the Court ’ s judgment or to redress a violation already found by the Court fall outside the Court ’ s competence ratione materiae (see the summary of the Court ’ s case-law reproduced in the preceding paragraph, in particular Lyons and Others, cited above). Accordingly, the applicant ’ s complaints, in so far as they concern the failure to remedy the original violation of Article 6 § 1 of the Convention as found in the Court ’ s 2007 judgment, must be declared incompatible ratione materiae with the Convention pursuant to Article 35 §§ 3 (a) and 4.
36. However, the applicant ’ s new application also raises a new grievance going not so much to the outcome of the proceedings decided in 2008 by the Supreme Court as to the conduct and fairness of those proceedings – which were chronologically subsequent to and distinct from the domestic proceedings impugned in the Court ’ s 2007 judgment.
37. The applicant ’ s claim in that regard, as it can be derived from her submissions, concerns the manner in which the Supreme Court dealt with one of her principal arguments based on the Court ’ s 2007 judgment. In particular she maintained that the reasoning employed by the Supreme Court in its decision of 14 March 2008 manifestly contradicted the Court ’ s pertinent findings in its 2007 judgment (see paragraph 29 above). This new grievance thus concerns the manner in which the March 2008 decision had been reached in the proceedings concerning the applicant ’ s exceptional appeal, not either their outcome as such or the effectiveness of the national courts ’ implementation of the Court ’ s judgment (compare and contrast Steck-Risch and Others, Öcalan, and Schelling, all cited above, in which no distinct unfairness was alleged in relation to the conduct of the relevant new proceedings brought by the applicants in those cases at the domestic level). Although the applicant ’ s initiatives to have the domestic decisions in the present case reconsidered were undoubtedly connected with the execution of the Court ’ s judgment of 3 May 2007, her complaints regarding the unfairness of the subsequent judicial proceedings both concern a situation distinct from that examined in that judgment and contain relevant new information relating to issues undecided by that judgment.
38. As a consequence, in the present case the “new issue” the Court is competent to examine, without encroaching on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention, concerns the alleged unfairness of the proceedings on the applicant ’ s exceptional appeal, as opposed to their outcome as such and their impact on the proper execution of the Court ’ s judgment of 3 May 2007.
39. Accordingly, the Court is not prevented by Article 46 of the Convention from examining the applicant ’ s new complaint concerning the unfairness of the proceedings culminating in the decision of the Supreme Court of 14 March 2008. The Court will now turn to the question whether the impugned domestic proceedings attracted the fairness guarantees of Article 6 § 1 of the Convention.
B. Whether the applicant ’ s new complaint is compatible ratione materiae with Article 6 § 1 of the Convention
40. The Government maintained that Article 6 of the Convention was inapplicable to the proceedings concerning the applicant ’ s exceptional appeal. They argued that the Supreme Court ’ s decision of 14 March 2008, rejecting her first appeal, had been an interim one and had not determined her civil rights or obligations. It was the Supreme Court ’ s later decision of 5 June 2008 rejecting her second appeal that had “defined” her civil rights and obligations. However, as the applicant did not complain that the June 2008 proceedings were flawed, Article 6 was not applicable.
41. The applicant submitted that Article 6 § 1 of the Convention was applicable to the proceedings concerning her exceptional appeal culminating in the decision of the Supreme Court of 14 March 2008.
42. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“ contestation ” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012 ).
43. In this regard, the character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, and so on) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, and so forth) are not of decisive consequence (see Micallef, cited above, § 74 ).
(b) Case-law concerning the applicability of Article 6 to proceedings on extraordinary appeals
44. In line with the above-mentioned principles, according to long - standing and established case-law, the Convention does not guarantee a right to have a terminated case reopened. Extraordinary appeals seeking the reopening of terminated judicial proceedings do not normally involve the determination of “civil rights and obligations” or of “any criminal charge” and therefore Article 6 is deemed inapplicable to them (see, among many other authorities, X v. Austria, no. 7761/77, Commission decision of 8 May 1978, Decisions and Reports (DR) 14, p. 171; Surmont, De Meurechy and Others v. Belgium, nos. 13601/88 and 13602/88, Commission decision of 6 July 1989, DR 62, p. 284; J.F. v. France ( dec. ), no. 39616/98, 20 April 1999; Zawadzki v. Poland ( dec. ) no. 34158/96, 6 July 1999; Sonnleitner v. Austria ( dec. ), no. 34813/97, 6 January 2000; Sablon v. Belgium, no. 36445/97, § 86, 10 April 2001; Gorizdra v. Moldova ( dec. ), no. 53180/99, 2 July 2002; Kucera v. Austria, no. 40072/98, 3 October 2002; Franz Fischer, cited above; Jussy v. France, no. 42277/98, § 18, 8 April 2003; Dankevich v. Ukraine, no. 40679/98, 29 April 2003; Steck-Risch and Others, cited above; Öcalan, cited above; Schelling, cited above; Hurter v. Switzerland ( dec. ), no. 48111/07, 15 May 2012; Dybeku v. Albania ( dec. ), no. 557/12, § 30, 11 March 2014). This is because, in so far as the matter is covered by the principle of res judicata of a final judgment in national proceedings, it cannot in principle be maintained that a subsequent extraordinary application or appeal seeking revision of that judgment gives rise to an arguable claim as to the existence of a right recognised under national law or that the outcome of the proceedings in which it is decided whether or not to reconsider the same case is decisive for the “determination of ... civil rights or obligations or of any criminal charge” (compare and contrast Melis v. Greece, no. 30604/07, §§ 18-20, 22 July 2010, which departs from the said approach).
45. This approach has been followed also in cases where reopening of terminated domestic judicial proceedings has been sought on the ground of a finding by the Court of a violation of the Convention (see, for instance, Franz Fischer, cited above ). In declaring the applicant ’ s complaint under Article 6 inadmissible in Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) (no. 32772/02, § 24, 4 October 2007), the Chamber stated:
“24. ... It is clear from its case-law that this Article is not applicable to proceedings concerning an application for a retrial or for the reopening of civil proceedings (see Sablon v. Belgium, no. 36445/97, § 86, 10 April 2001). The Court sees no reason why this reasoning should not also be applied to an application to reopen proceedings after it has found a violation of the Convention (see, in relation to a criminal case, Franz Fischer v. Austria ( dec. ), no. 27569/02, ECHR 2003 ‑ VI). It therefore considers that the complaint under Article 6 is incompatible ratione materiae with the provisions of the Convention.”
46. However, should an extraordinary appeal entail or actually result in reconsidering the case afresh, Article 6 applies to the “reconsideration” proceedings in the ordinary way (see, for instance, Sablon, cited above, §§ 88-89; Vanyan v. Russia, no. 53203/99, § 56, 15 December 2005; Zasurtsev v. Russia, no. 67051/01, § 62, 27 April 2006; Alekseyenko v. Russia, no. 74266/01, § 55, 8 January 2009; Hakkar, cited above; and Rizi v. Albania ( dec. ), no. 49201/06, § 47, 8 November 2011).
47. Moreover, Article 6 has also been found to be applicable in certain instances where the proceedings, although characterised as “extraordinary” or “exceptional” in domestic law, were deemed to be similar in nature and scope to ordinary appeal proceedings, the national characterisation of the proceedings not being regarded as decisive for the issue of applicability.
48. Thus, in San Leonard Band Club v. Malta (no. 77562/01, §§ 41-48, ECHR 2004 - IX), Article 6 was held to be applicable to proceedings concerning a request for a new trial. The Court reasoned that the request was similar to an appeal on points of law before a court of cassation, the Maltese authorities did not exercise any discretionary power but were required to give a ruling on the request, and the outcome of the new trial procedure was decisive for the applicant company ’ s “civil rights and obligations”.
49. Similarly, in Maresti v. Croatia (no. 55759/07, 25 June 2009) the Court found that proceedings concerning a request for extraordinary review of a final judgment in a criminal case fell within the scope of Article 6. In examining the nature and specific features of those proceedings, it noted that the request for extraordinary review was available to the defendant for strictly limited errors of law that operated to the defendant ’ s detriment, the request had to be lodged within a strict one-month time - limit following the service of the appeal court ’ s judgment on the defendant, and reasons justifying extraordinary review were expressly enumerated in the Croatian Code of Criminal Procedure and were not subject to any discretionary decision on the part of the Croatian Supreme Court. The Court further observed that the request for extraordinary review had its equivalent in Croatian civil proceedings in the form of an appeal on points of law in civil cases, to which Article 6 applied (see paragraphs 25-28 of the above-mentioned judgment).
50. In sum, while Article 6 § 1 is not normally applicable to extraordinary appeals seeking the reopening of terminated judicial proceedings, the nature, scope and specific features of the proceedings on a given extraordinary appeal in the particular legal system concerned may be such as to bring the proceedings on that kind of appeal within the ambit of Article 6 § 1 and of the safeguards of a fair trial that it affords to litigants. The Court must accordingly examine the nature, scope and specific features of the exceptional appeal in issue in the instant case.
(c) Application of the above principles to the present case
51. Turning therefore to the concrete circumstances of the present case, the Court notes that at the relevant time the Code of Civil Procedure ( see paragraph 24 above, which sets out the relevant parts of Articles 353-58 ) guaranteed to parties to proceedings that had already terminated in a cassation decision “ the right to challenge before the Supreme Court ... judicial decisions in civil cases in the light of exceptional circumstances ” (Article 353, the introductory Article in the part of the Code dealing with exceptional appeals). By virtue of the following provision in the Code (Article 354 § 1), “a finding by an international judicial authority, whose jurisdiction has been recognised by Ukraine, that a [domestic] judicial decision violated the international commitments of Ukraine” was one of the two grounds on which such an exceptional appeal could be brought. Article 357 of the Code further defined “examination of a case in the light of exceptional circumstances” as being “a kind of cassation procedure”, with the Supreme Court having the same powers of review as it had in cassation proceedings and the exceptional appeal being subject to the same procedure as in cassation appeals. The Supreme Court ’ s powers of disposal of an exceptional appeal were likewise comparable to those it possessed in cassation appeals. Thus, the exceptional-appeal proceedings could result in one of the different types of decisions set out in Article 358 of the Code, in particular in a decision “ to dismiss an appeal and to leave [the contested] decision unchanged”, “ to quash, in full or in part, [the contested] judicial decision and to remit the case for fresh consideration to the [competent lower court]”, “ to quash [the contested] decision of the court of appeal or of the court of cassation and to uphold a decision which was wrongly quashed ”, or “ to amend [the contested] decision or to adopt a new decision on the merits of the case ”.
52. For the purposes of this Court ’ s examination of the nature and scope of the remedy exercised by the applicant under the Code of Civil Procedure, the background legislative context, represented by the provisions of the 2006 Enforcement of Judgments and the Application of the Case-Law of the European Court of Human Rights Act, is also capable of being of some relevance (see paragraph 25 above, which sets out the relevant parts of that Act). In particular, section 10(3)(a) of the 2006 Act states that “[t]he previous legal status of the Beneficiary” – that is, the successful applicant before this Court – “ is to be restored, inter alia, by means of a reconsideration of the case by a court, including reopening of the proceedings in that case”. Moreover, according to section 11 ( 1 ) (a) of the same Act, the Office of the Government ’ s Agent is required to send the Beneficiary “ a notification explaining his right to initiate proceedings for the review of his case and/or to reopen the proceedings according to the law in force”.
53. The applicable national legal framework thus made available to the applicant a remedy enabling a judicial review of her civil case by the Supreme Court in the light of the finding of this Court that the original domestic decisions had been defective. By virtue of the kind of judicial review that it provided for, the exceptional appeal brought by the applicant can be viewed as a prolongation of the original (terminated) civil proceedings, akin to a cassation procedure as defined by Ukrainian law. This being so, while the special features of this cassation-type procedure may affect the manner in which the prescribed procedural guarantees of Article 6 § 1 operate ( see Delcourt v. Belgium, 17 January 1970, § 26, Series A no. 11 ), the Court is of the view that those guarantees should be applicable to it in the same way as they apply to cassation proceedings in civil matters generally (see, for instance, Mushta v. Ukraine, no. 8863/06, § 39, 18 November 2010; and, mutatis mutandis, San Leonard Band Club, and Maresti, both cited above at paragraphs 48-49 ).
54. This conclusion, derived from the applicable Ukrainian legal provisions, is corroborated by reference to the scope and nature of the “examination” actually carried out by the Supreme Court on 14 March 2008 before it dismissed the applicant ’ s exceptional appeal, leaving the contested decisions unchanged. In the course of that examination, the Supreme Court reviewed the case materials and the court decisions from the original proceedings in the light of the applicant ’ s new submissions based mainly on the Court ’ s judgment of 3 May 2007 (see paragraphs 20-21 above). Thus, what occurred in the proceedings in March 2008 can well be compared to the proceedings concerning the applicant ’ s cassation appeal decided by the Supreme Court in August 2002 (see paragraph 11 above and Bochan v. Ukraine, no. 7577/02, § 39, 3 May 2007 ), to which Article 6 § 1 applied ratione materiae. In the Court’s view, in March 2008 the Supreme Court reviewed the applicant ’ s civil case “in the light of exceptional circumstances”, namely the Court ’ s 2007 judgment, in a cassation-type procedure and found no cause to overturn the contested decisions. It thereby conducted a “reconsideration”, as the 2006 Act termed it, of her property claim on new and fresh grounds linked to its interpretation of the Court ’ s judgment of 3 May 2007, albeit deciding not to change the outcome of the case and, in particular, not to order a full rehearing of the case by a lower court.
55. The above considerations are not altered by the fact that in June 2008 the Supreme Court, relying on Article 356 of the Code, rejected the applicant ’ s follow-up appeal of April 2008 as inadmissible on formal grounds without any further “ examination” of the substantive aspects of the case (see paragraph 23 above).
56. Thus, in the light both of the relevant provisions of the Ukrainian legislation and of the nature and scope of the proceedings culminating in the Supreme Court ’ s decision of 14 March 2008 in relation to the applicant ’ s exceptional appeal, followed by its confirmatory decision of June 2008, the Court considers that those proceedings were decisive for the determination of the applicant ’ s civil rights and obligations. Consequently, the relevant guarantees of Article 6 § 1 applied to those proceedings. Accordingly, the Government ’ s objection concerning the applicability of that provision to the impugned proceedings is to be rejected.
57. Independently of the conclusion as to the applicability of Article 6 § 1 to the kind of proceedings in issue in the instant case, the Court would reiterate that it is for the Contracting States to decide how best to implement the Court ’ s judgments without unduly upsetting the principles of res judicata or legal certainty in civil litigation, in particular where such litigation concerns third parties with their own legitimate interests to be protected. Furthermore, even where a Contracting State provides for the possibility of requesting a reopening of terminated judicial proceedings on the basis of a judgment of the Court, it is for the domestic authorities to provide for a procedure to deal with such requests and to set out criteria for determining whether the requested reopening is called for in a particular case. There is no uniform approach among the Contracting States as to the possibility of seeking the reopening of terminated civil proceedings following a finding of a violation by this Court or as to the modalities of implementation of existing reopening mechanisms (see paragraphs 26-27 above).
58. However, the foregoing considerations should not detract from the importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place which allow a case to be revisited in the light of a finding that the safeguards of a fair trial afforded by Article 6 have been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments as governed by Article 46 of the Convention and their availability demonstrates a Contracting State ’ s commitment to the Convention and to the Court ’ s case-law (see Lyons and Others, cited above). The Court observes in this connection Recommendation No. R (2000) 2 adopted by the Committee of Ministers, in which the States Parties to the Convention are called upon to ensure that there are adequate possibilities of reopening proceedings at domestic level where the Court has found a violation of the Convention (see paragraph 28 above ). It reaffirms its view that such measures may represent “the most efficient, if not the only, means of achieving restitutio in integrum ” (see Verein gegen Tierfabriken Schweiz ( VgT ) (no. 2), cited at paragraph 33 above, §§ 33 and 89; and Steck-Risch and Others, cited above ).
C. As to whether the applicant ’ s new complaint under Article 6 § 1 of the Convention satisfies the other admissibility conditions
59. The Court further finds that the applicant ’ s complaint regarding the unfairness of the proceedings culminating in the Supreme Court ’ s decision of 14 March 2008 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other ground. It must therefore be declared admissible.
D. Merits of the applicant ’ s new complaint under Article 6 § 1 of the Convention
60. As regards the question of compliance with the requirements of Article 6 § 1 in the present case, the Court observes that the applicant ’ s unfairness complaint was directed specifically against the reasoning the Supreme Court employed in its decision of 14 March 2008.
61. It reiterates that, according to its long- standing and established case-law, it is not for this Court to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for instance, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I, and Perez v. France [GC], no. 47287/99, § 82, ECHR 2004 ‑ I ), for instance where it can, exceptionally, be said that they are constitutive of “unfairness” incompatible with Article 6 of the Convention. While this provision guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court 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, for instance, Dulaurans v. France, no. 34553/97, §§ 33-34 and 38, 21 March 2000; Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007; and Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013).
62. Thus, in Dulaurans the Court found a violation of the right to a fair trial because the sole reason the French Court of Cassation had arrived at its contested decision rejecting the applicant ’ s cassation appeal as inadmissible was the result of “ une erreur manifeste d ’ appréciation ” (“a manifest error of assessment”) (see Dulaurans, cited above). The thinking underlying this notion of “ erreur manifeste d ’ appréciation ” (a concept of French administrative law), as used in the context of Article 6 § 1 of the Convention, is doubtless that if the error of law or fact by the national court is so evident as to be characterised as a “manifest error” – that is to say, is an error that no reasonable court could ever have made – it may be such as to disturb the fairness of the proceedings. In Khamidov, the unreasonableness of the domestic courts ’ conclusion as to the facts was “so striking and palpable on the face of it ” that the Court held that the proceedings complained of had to be regarded as “grossly arbitrary” (see Khamidov, cited above, § 174). In Anđelković, the Court found that the arbitrariness of the domestic court ’ s decision, which principally had had no legal basis in domestic law and had not contained any connection between the established facts, the applicable law and the outcome of the proceedings, amounted to a “denial of justice” (see Anđelković, cited above, § 27 ).
63. In the present case, the Court notes that in its decision of 14 March 2008 the Supreme Court grossly misrepresented the Court ’ s findings in its judgment of 3 May 2007. In particular, the Supreme Court recounted that this Court had found that the domestic courts ’ decisions in the applicant’s case had been lawful and well founded and that she had been awarded just satisfaction for the violation of the “reasonable time” guarantee, these being affirmations that are palpably incorrect (see paragraphs 13-18 and 21 above).
64. The Court observes that the Supreme Court ’ s reasoning does not amount merely to a different reading of a legal text. For the Court, it can only be construed as being “ grossly arbitrary ” or as entailing a “ denial of justice ”, in the sense that the distorted presentation of the 2007 judgment in the first Bochan case (cited above) had the effect of defeating the applicant ’ s attempt to have her property claim examined in the light of the Court ’ s judgment in her previous case in the framework of the cassation ‑ type procedure provided for under domestic law ( see paragraphs 5 1-53 above). In this regard, it is to be noted that in its 2007 judgment the Court found that, given the circumstances in which the applicant ’ s case had been reassigned by the Supreme Court to lower courts, the applicant ’ s doubts regarding the impartiality of the judges dealing with the case, including the judges of the Supreme Court, had been objectively justified (see paragraphs 13-15 above).
65. Accordingly, in the light of the Court ’ s findings as to the nature and the implications of the defect in the Supreme Court ’ s decision of 14 March 2008 (see paragraphs 6 3 - 6 4 above), it must be concluded that the impugned proceedings fell short of the requirement of a “fair trial ” under Article 6 § 1 of the Convention and that there has been a violation of that provision.
E. The applicant ’ s new complaint in so far as it concerns Article 1 of Protocol No. 1
66. The applicant contended that she had been unlawfully deprived of her property on account of the proceedings on her exceptional appeal. She relied upon Article 1 of Protocol No. 1.
67. The Court observes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
68. Having regard to its finding under Article 6 § 1 of the Convention (see paragraph 65 above), the Court finds that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
69. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
70. The applicant claimed 300,000 euros (EUR) in respect of damage resulting from the alleged violation of her rights under Article 6 of the Convention and Article 1 of Protocol No. 1.
71. The Government argued that the applicant had not specified the nature of the damage she had allegedly suffered on account of the Supreme Court ’ s decision in her case and had provided no evidence in support of her claim. Accordingly, the claim should be rejected in full.
72. The Court notes that the applicant did not provide any details as to the nature of the alleged damage or its gravity. Nevertheless, it considers that the applicant must have suffered some distress and anxiety on account of the “unfair” manner in which the Supreme Court dealt with her exceptional appeal, which, as a consequence, set at naught her attempts to have her property claim examined in the light of the Court ’ s judgment in her previous case in the framework of the cassation-type procedure provided for under domestic law (see paragraph 6 4 above). The Court does not judge it appropriate to examine whether any further reconsideration of the applicant ’ s property claim at domestic level is feasible in the circumstances, given in particular the considerable time that has elapsed in the meantime as well as the possible implications of such reconsideration for the principles of res judicata and legal certainty in the terminated civil litigation and for the legitimate interests of third parties. On the other hand, the reality is now that the applicant must be taken, for the purposes of the Court ’ s assessment under Article 41, as having no practical opportunity available to her to remedy the violation found in her case at the domestic level. Thus, making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 10, 0 00 for non-pecuniary damage, plus any tax that may be chargeable on that amount.
73. The applicant did not submit a claim for costs and expenses.
74. The Court 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,
1. Declares the applicant ’ s complaint under Article 6 § 1 of the Convention about the unfairness of the proceedings culminating in the decision of the Supreme Court of 14 March 2008 and her complaint under Article 1 of Protocol No. 1 that she had been unlawfully deprived of her property on account of those proceedings admissible and the remainder of the application inadmissible;