Published on 3 November 2025
FIFTH SECTION
Application no. 45402/18
Volodymyr Mykhaylovych PROSYANIK
against Ukraine
lodged on 12 September 2018
communicated on 13 October 2025
SUBJECT MATTER OF THE CASE
The application concerns issues of lack of adequate reasoning and tribunal established by law under Article 6 § 1 of the Convention.
On 4 June 2013 the applicant and a certain S. entered into an interest free loan contract, by which the applicant borrowed from S. the sum of 1,900,080 Ukrainian hryvnias (“UAH”), that corresponded to 234,000 US dollars (“USD”), and took an obligation to give the money back by 4 June 2014. On the same day the applicant mortgaged his two-room flat in Kyiv to guarantee the payment of his debt. The mortgage contract stated that the parties agreed that the price of the flat had been equal to UAH 1,900,080, that corresponded to USD 234,000.
By November 2013 the applicant reimbursed USD 27,000, but he did not repay the remaining amount.
On 21 May 2014 S. obtained a title to the applicant’s flat.
On 4 April 2016 an expert assessed the value of the flat at UAH 1,780,000 (around USD 151,835.55).
In May 2016 S. brought civil proceedings against the applicant, seeking payment of the outstanding amount of the debt. The applicant objected, referring to section 36 of the Mortgage Act, which provided that following the termination of the extrajudicial proceedings, i.e. the transfer of a title of an immovable property to a mortgagee, a creditor is barred from claiming the outstanding amount of the debt.
On 16 November 2017 the Kyievo-Sviatoshynskyi District Court of the Kyiv Region partly allowed the claim and ordered the applicant to pay S. USD 55,164.45 of the outstanding amount of the debt, UAH 93,080.51 (around USD 3,580) of 3% of simple rate interest, and UAH 1,397,867.16 (around USD 53,764) as a penalty. The court referred to Article 599 of the Civil Code, which stated that an obligation terminates when it is executed in full and, given that the estimated value of the applicant’s flat was lower than the outstanding amount of the debt, the applicant had been obliged to pay the outstanding amount of the debt plus interest rate and the penalty. The first‑instance court did not comment on the applicant’s argument regarding the applicability of section 36 of the Mortgage Act.
The applicant appealed, reiterating his arguments in relation to the applicability of section 36 of the Mortgage Act and referring to case-law of the Supreme Court in support of his position. He also argued that the expert report of 4 April 2016 was invalid, as having been drawn up after the end of the mortgage contract. He asked the appellate court to reject the claim for penalty as being submitted outside the statutory time-limit of twelve months.
On 13 February 2018 the Kyiv Regional Court of Appeal upheld the decision of the first-instance court without commenting on the applicability of section 36 of the Mortgage Act or the cited case-law. It stated that the statutory period for the imposition of penalty was respected, being calculated from the day on which the claim had been lodged by S.
The applicant appealed on points of law. He reiterated his arguments raised on appeal.
On 22 March 2018 the panel of the Supreme Court, comprising of judges V., P. and F., held a preliminary hearing and decided that the case be examined in a written procedure by a panel of five judges.
On 11 April 2018 a panel of five judges, including judge V., L., M., F. and Sh. examined the case in a written procedure and dismissed the applicant’s appeal on points of law, endorsing the findings of the lower courts. The Supreme Court found that section 36 of the Mortgage Act was inapplicable to the applicant’s case, given that the applicant had failed to fulfil his obligation to pay the debt in full, as required by Article 599 of the Civil Code. The court referred to section 37 of the Mortgage Act, which provided that when the sum from the sale of the mortgaged property was lower than the debt, the mortgagee could claim the outstanding amount from the mortgagor. The Supreme Court commented neither on its case-law cited by the applicant nor on the fact that S., after having received a title to the flat, did not sell it. Judge P. did not hear the case for unknown reasons.
The applicant complains under Article 6 § 1 of the Convention that the decisions of the national courts lacked reasoning, that the panel of the Supreme Court was not “established by law”, given that Judge P., who had taken part in the preliminary examination of the case, did not sit in the panel of five judges, that the national courts failed to respect the principle of legal certainty and that the Supreme Court failed to mention in its decision the applicant’s written submissions in reply to written comments submitted by S.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
(i) in particular, did the domestic courts provide sufficient reasons for their decisions and were their decisions “arbitrary” and/or “manifestly unreasonable” (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 61‑64, ECHR 2015; and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 185, 6 November 2018, with further references)?
(ii) was the Supreme Court a “tribunal established by law” within the meaning of Article 6 § 1 (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 211-213, 1 December 2020)?
(iii) has there been a conflicting domestic case-law stemming from the courts of cassation in relation to the issue of applicability of section 36 of the Mortgage Act in similar circumstances? If so, has the principle of legal certainty been complied with by the Supreme Court in the present case (see, for example, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 123, 29 November 2016)?