CASE OF SOKURENKO AND STRYGUN v. UKRAINE

1. The case originated in two applications (nos. 29458/04 and 29465/04 ) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Mykola Ivanovych Sokurenko and Mr Anatoliy Mykhaylovych Strygun (“the applicants ”), on 30 June 2004.
2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Yu. Zaytsev.
3. On 22 September 2005 the Court decided to communicate the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.
4. On 1 April 2006 this case was assigned to the newly constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1).
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants live in the village of Samgorodok, the Cherkassy region, Ukraine.
6. In February 2002 the “Agro- Ros ” Ltd company instituted two sets of proceedings against the Smilyanskiy District Council and each of the applicants, challenging the decision of the Council to provide the applicants with certain plots of land.
7. By two decisions of 12 August 2003, the Cherkassy Regional Commercial Court found against the applicants. On 18 November 2003 the Kyiv Commercial Court of Appeal dismissed the applicants ’ appeals and upheld the decisions of the first-instance court.
8. On 16 March 2004 the Higher Commercial Court of Ukraine, upon the applicants ’ appeals, quashed the decisions of the lower courts and remitted the case for a fresh consideration.
9. On 25 May 2004 the Supreme Court of Ukraine, upon appeal of the “Agro- Ros ” Ltd company, quashed the resolutions of the Higher Commercial Court ( постанови Вищого господарського суду ) on the ground that the findings of the Higher Court had not corresponded to the factual circumstances and had been unfounded and erroneous, and upheld the resolutions of the Kyiv Commercial Court of Appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
10. The relevant extract of the Constitution of Ukraine reads as follows:
“State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.
Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine .”
“Justice in Ukraine is administered exclusively by the courts ...
The jurisdiction of the courts extends to all legal relations that arise in the State.
Judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction ... ”
“In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation.
The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction...”
“ ... The main principles of judicial proceedings are:
11. The relevant provisions of the Act (in the wording of 18 March 2004 ) read as follows:
Article 47. The Supreme Court of Ukraine – the highest judicial body
“ 1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction ...
2. The Supreme Court of Ukraine shall:
1) review ... the cases under the cassation procedure in the situations established by law ...
7) exercise other powers pursuant to the law.”
3. Code of Commercial Procedure
12. The Code of Commercial Procedure (formerly Arbitration Procedure) was significantly reworded on 21 June 2001. At that time the fourth level of jurisdiction was introduced in the Commercial Procedure. According to the relevant provisions of the Code, a cassation appeal to the Higher Commercial Court, similar to the one found in other member States of the Council of Europe, and a second (or repeated) cassation appeal to the Supreme Court are now available to the parties in a commercial case. The Commercial Procedure is the only judicial procedure of Ukraine where the fourth level of jurisdiction exists and where the Supreme Court acts as a second cassation instance (in criminal and civil procedures it acts as an ordinary court of cassation and in administrative and administrative offences ’ procedures, it performs only extraordinary review).
The relevant provisions of the Code of Commercial Procedure (in the wording of 15 May 2003 ) read as follows:
Nullification of the proceedings
“A commercial court shall nullify proceedings in the case, if
1) a dispute is not subject to examination in the commercial courts of Ukraine; ... ”
Review of judicial decisions of the Higher Commercial Court of Ukraine by the Supreme Court of Ukraine
The right to appeal in cassation against the judicial decisions of the Higher Commercial Court of Ukraine
“ The parties to a case as well as the Prosecutor General of Ukraine have the right to appeal in cassation to the Supreme Court of Ukraine against the resolution of the Higher Commercial Court of Ukraine adopted following the review of a decision of a first instance commercial court, that has entered into force, or a resolution of the Commercial Court of Appeal, [as well as the ruling of the Higher Commercial Court of Ukraine on return of the appeal ( request for review ) in cassation ] .”
The grounds for appeal to the Supreme Court of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine
“The Supreme Court of Ukraine reviews in cassation the resolutions [or rulings] of the Higher Commercial Court of Ukraine if they are appealed against :
1) on the basis of the application by the Higher Commercial Court of Ukraine of a law or normative act which contravenes the Constitution of Ukraine;
2) where a decision contravenes decisions of the Supreme Court of Ukraine or of a higher court of a different specialisation on the issue of the application of the norms of substantive law;
3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same provision of the law or any other normative act differently in similar cases;
[ 3-1) due to the inconsistency of the resolutions or rulings with the international treaties of Ukraine agreed as binding by the Verkhovna Rada of Ukraine; ]
4) where an international judicial body whose jurisdiction is recognised by Ukraine finds that a resolution [or ruling] has violated the international obligations of Ukraine .”
The procedure for review in cassation of the resolutions [and rulings] of the Higher Commercial Court of Ukraine
“ ... The resolution [ or ruling ] of the Higher Commercial Court of Ukraine shall be reviewed in cassation on the basis of the rules for consideration of the case in the first-instance commercial court, save for procedural actions to establish and prove the actual circumstances of the case.”
The jurisdiction of the Supreme Court of Ukraine in the course of a cassation review of the resolutions [ or rulings ] of the Higher Commercial Court of Ukraine
“The Supreme Court of Ukraine, following consideration of an appeal in cassation, or a request for review in cassation lodged by the Prosecutor General of Ukraine against a resolution [ or ruling ] of the Higher Commercial Court of Ukraine, shall be entitled to:
1) leave the resolution [ or ruling ] unchanged and dismiss the appeal (request);
2) quash the resolution and remit the case to the first-instance court for further consideration [ or quash the ruling and remit the case for further consideration to the Higher Commercial Court ];
3) quash the resolution [ or ruling] and nullify the proceedings in the case.”
The grounds for quashing the resolutions [or rulings] of the Higher Commercial Court
“The resolutions [or rulings] of the Higher Commercial Court of Ukraine shall be quashed if they contravene the Constitution of Ukraine, international treaties agreed as binding by the Verkhovna Rada of Ukraine, or if the substantive law has been misapplied otherwise .”
Resolutions of the Supreme Court
“... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.”
The binding nature of the instructions adopted in the resolution of the Supreme Court
“ Instructions, contained in the resolution of the Supreme Court of Ukraine, shall be binding for the first-instance court during a new consideration of the case [and for the Higher Commercial Court of Ukraine during consideration of the materials of the appeal in cassation or the request for review in cassation ].
The resolution of the Supreme Court of Ukraine, following a re-examination of the case on the basis of an appeal in cassation against the resolution [or ruling] of the Higher Commercial Court of Ukraine shall not include instructions as to the admissibility or inadmissibility of evidence, the superiority of one type of evidence over another, the norms of substantive [or procedural] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case.”
13. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
14. The Court notes that, after the communication of the applications to the respondent Government, the applicants introduced new complaints under Articles 6 § 1 (no hearing before the Supreme Court) and 13 of the Convention, as well as Article 1 of Protocol No. 1, referring to the same events.
15. In the Court ’ s view, the new complaints are not an elaboration of the applicants ’ original complaint under Article 6 of the Convention about the alleged unlawfulness of the Supreme Court decisions lodged one and a half years earlier and on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005 ).
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicants complained that the Supreme Court could not be considered “a tribunal established by law” in the circumstances of their cases, since its decisions were not in accordance with law and violated Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a[n] tribunal established by law ... ”
17. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
18. The Government maintained that under the Constitution of Ukraine the Supreme Court was the highest judicial body in the system of courts of general jurisdiction and given that the constitutional provisions had direct effect, the Supreme Court could adopt decisions on the ground of the principle of legality.
19. They further maintained that quashing of resolutions of the Higher Commercial Court of Ukraine and upholding of the resolutions of first and second instance courts, even though the latter was not explicitly provided by the Code of Commercial Procedure, constituted a general practice of the Supreme Court in commercial cases. With a view to this practice, the applicants could not claim to be subject to a special treatment. For the same reason, the decisions of the Supreme Court in the applicants ’ cases had been foreseeable and had not violated the principle of legal certainty.
20. The Government finally maintained that the Supreme Court had not exceeded its competence envisaged by the Ukrainian legislation since its actions had been aimed at the fulfilment of the principle of legality, one of the main principles of administration of justice in Ukraine, and, accordingly, at preventing delays in the impugned proceedings. They concluded that the Supreme Court of Ukraine had not violated the applicants ’ rights under Article 6 § 1 of the Convention.
21. The applicants disagreed. They maintained that the Supreme Court was not a legislative body; therefore, it could not introduce a practice which would have force of law.
22. The Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with (see Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 37).
23. According to the Court ’ s case-law, the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society [does] not depend on the discretion of the Executive, but that it [is] regulated by law emanating from Parliament” (see Zand v. Austria, application no. 7360/76, Commission ’ s report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70 and 80). Nor, in countries where the law is codified, can the organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 98, ECHR 2000 ‑ VII ).
24. The Court further reiterates that, as it has previously held, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal”, but also compliance by the tribunal with the particular rules that govern it. In the Zand case (cited above), the Commission expressed the opinion that the term “a tribunal established by law” in Article 6 § 1 envisages “the whole organisational set-up of the courts, including ... the matters coming within the jurisdiction of a certain category of courts ...”
25. In the Coëme and Others v. Belgium (cited above, §§ 107-109 ), the Court came to the conclusion that the domestic court did not have jurisdiction to try some of the applicants on the basis of practice not established by law and, therefore, it could not be considered a tribunal “established by law”.
26. In the instant case, the Court notes that under Article 111-18 of the Code of Commercial Procedure the Supreme Court, having quashed the resolution of the Higher Commercial Court, could either have remitted the case for a fresh consideration by the lower court or nullified the proceedings (see paragraph 12 above). Instead it upheld the decision of the Court of Appeal and such course of action was not provided for under the Code of Commercial Procedure, as the Government admitted in their observations (see paragraph 19). The Court further notes that there was no other provision extending the Supreme Court ’ s competence to this type of decision. Finally, the Court considers that the general provisions of the Constitution of Ukraine, relied on by the Government (see paragraph 10 above) could not serve as a sufficient legal basis for a very specific competence not existing in the relevant procedural legislation.
27. The Court reiterates that in some situations it accepted that the highest judicial body, which is competent to interpret the law, could take a decision, which was not strictly provided by the law. Such application of law, however, had had an exceptional character and the court in question had given clear and plausible reasons for the exceptional departure from its usual competence (see Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain ( dec.), no. 14929/02, 13 May 2003 ). In the present case, however, the Supreme Court did not give any reasons for taking a decision, exceeding its jurisdiction in deliberate breach of the Code of Commercial Procedure, and taking such type of decisions, as the Government maintained, became a usual practice for the Supreme Court of Ukraine.
28. In the Court ’ s view, having overstepped the limits of its jurisdiction, which were clearly laid down in the Code of Commercial Procedure, the Supreme Court could not be considered the “tribunal established by law” within the meaning of Article 6 § 1 of the Convention in respect of the impugned proceedings.
29. Accordingly, there has been a violation of Article 6 § 1 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
30. 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.”
31. The applicants claimed 1,600 euros (EUR) each in respect of pecuniary damage and EUR 7,000 each in respect of non-pecuniary damage.
32. The Government maintained that the applicants did not submit all necessary documents in support of their claims and that the amounts of non-pecuniary damage were exorbitant and unsubstantiated.
33. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, on equitable basis, it awards each of the applicants EUR 500 in respect of non-pecuniary damage.
34. The applicants also claimed EUR 1,400 each for the costs and expenses incurred before the Court.
35. The Government noted that these claims were based on the assumption of the applicants that they would have to travel to Strasbourg. Since it was not the case, the Government maintained that these claims should be rejected as unsubstantiated.
36. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court notes that the applicants were not represented and were granted leave to use Ukrainian language in the proceedings before the Court. Therefore, the Court considers it reasonable to award each of the applicants the sum of EUR 50 for the postal expenses incurred in the proceedings before the Court.
37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Decides unanimously to join the applications;