FIFTH SECTION
DECISION
Application no. 50199/10
Oleksandr Vasylyovych STOROZHUK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 7 July 2020 as a Committee composed of:
Mārtiņš Mits, President,
Ganna Yudkivska,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 19 August 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Oleksandr Vasylyovych Storozhuk, is a Ukrainian national who was born in 1954 and lives in Kyiv. He was represented before the Court by Ms I.V. Kovalchuk, a lawyer practising in Kyiv.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 2 December 1997 a Bar Association (hereinafter “the Association”), the applicant (who was at the time vice-president of the Association) and Y. – the purchasers – entered into a contract for the purchase of a flat situated in the centre of Kyiv with a company and four individuals – the sellers. The contract provided that the Association would acquire title to one fifth of the flat, while the applicant and Y. would acquire two fifths each.
5. On 6 January 1998 the applicant allocated his share of the flat to the Association for use free of charge.
6. At an unspecified time the Association renovated the flat at its own expense. It has used it as its office ever since.
7. According to the applicant, from February 2004 he ceased to be vice‑president of the Association, but remained a member.
8. On 17 May 2006 the Association’s president issued an order stating that some of its advocates and experts would be sent, at the Association’s expense, on a business trip to Edinburgh from 19 to 29 May 2006 to participate in a conference organised by the International Association of Lawyers and work on the Association’s cases. S. was among the experts. According to the applicant, S. was a member of the High Qualification Commission of Judges of Ukraine.
9. On 27 April 2007 the Association’s president issued an order stating that a team of three people would be sent, at the Association’s expense, on a business trip to Paris from 1 to 8 May 2007 to participate in a seminar on international financial management. According to the applicant, the daughter of a Supreme Court judge, Gr., was among them.
10. On 28 April 2007 the Association planned to send some of its advocates and experts on a business trip to Austria from 1 to 8 May 2007 to participate in an academic and practical seminar on the subject “Current trends in the development of European family and inheritance law” in Vienna. According to the applicant, all the experts mentioned in the relevant internal document of the Association were judges. Judge G. was among them. The programme of the eight-day trip included excursions and free time in the city, but did not mention any lectures or discussions.
11. On 25 July 2007 the applicant was expelled from the Association.
12. On 14 September 2007 the Association’s president issued an order stating that some of its advocates and experts would be sent, at the Association’s expense, on a business trip to Washington D.C. from 19 to 26 September 2007 to participate in the 30th conference of the Ukrainian American Bar Association and work on the Association’s cases. According to the applicant, the husband of Judge Gr. was among them.
13. According to the Government, on 20 November 2007 seven members of the Association lodged a claim with the Shevchenkivskyy District Court of Kyiv against the applicant, seeking to invalidate the part of the purchase contract relating to the applicant’s title. On 21 January 2008 the applicant contested the above claim, referring to the statutory limitation period and the matrimonial rights of his wife. On 16 October 2009 the claimants lodged an application to withdraw their claim. On the same date the Shevchenkivskyy District Court of Kyiv dismissed the claim.
14. On 19 February 2008 the Association lodged a claim against the applicant and other parties to the purchase contract (see paragraph 4 above), including Y. and the Main Department of Justice in Kyiv as third parties, seeking to invalidate the terms of the purchase contract relating to the applicant’s title to two fifths of the flat.
15. On 3 September 2009 Y., who also owned two fifths of the flat, gifted his share to the Association.
16. On 16 October 2009 the Shevchenkivskyy District Court of Kyiv allowed the claim, declaring the relevant part of the contract invalid and that the Association was the owner of the disputed share of the flat. The court found that the money paid for the acquisition of the applicant’s two fifths of the flat had not belonged to him, as he had received it from the Association, and that the aim of the purchase contract had been for the Association to acquire the whole flat. The claim was examined by Judge G., sitting as a single judge.
17. The applicant and his wife appealed, claiming, inter alia, that Judge G. had not been impartial. In their notice of appeal, they referred to a Proposal of the President of Ukraine to the High Council of Justice of 27 November 2007, requesting it to question the impartiality and abuse of power of several judges, including Judge G., and instigate disciplinary proceedings for that purpose. The applicant and his wife also indicated that they had been carrying out their own enquiries regarding Judge G. The applicant also stated that as from February 2004 he had no longer been vice‑president of the Association.
18. On 23 December 2009 the Kyiv Court of Appeal, without commenting on the issue of the alleged lack of impartiality of Judge G., reconsidered the case on the merits and upheld the decision of the first‑instance court. The appeal was examined by three judges, presided over by Judge Z.
19. The applicant and his wife appealed in cassation, raising the issue of the lack of impartiality of Judges G. and Z. in their notice of appeal. The applicant once again referred to the Proposal of 27 November 2007, which listed the names of both judges. In addition, he stated that the results of his own enquiries had revealed a connection between Judge G. and the Association, which had paid for an “entertaining” trip abroad for her in May 2007, and that he had filed a complaint with the prosecutor’s office against Judge G. regarding this. He attached a copy of the Association’s document of 28 April 2007 relating to the business trip to Austria, in which Judge G.’s name was mentioned.
20. On 1 March 2010 the Supreme Court of Ukraine refused to open cassation proceedings. It did not comment on the allegation regarding the lack of impartiality of the judges of the Shevchenkivskyy District Court of Kyiv and the Kyiv Court of Appeal. The case was examined by Judge Gr., sitting as a single judge.
21. On 1 December 2010 S., a member of the High Qualification Commission of Judges wrote to the applicant, stating that the complaint he had lodged relating to Judge G. and other issues was devoid of any foundation.
22. Following a request by the Government, on 2 May 2019 the High Qualification Commission of Judges wrote to the Ministry of Justice to say that the applicant’s complaints concerning the actions of Judges G. and Z. introduced in 2010 had been destroyed on the expiry of the statutory storage period. The Commission did not issue a decision imposing disciplinary sanctions upon the two judges.
23. Following a request by the Government, on 2 May 2019 the High Council of Justice wrote to the Ministry of Justice, informing it that on 17 June 2010 they had received a complaint from the applicant concerning the actions of Judges G., Z. and Gr. On 27 October 2010 the complaint had been transferred to the Prosecutor General’s Office for examination.
24. Following a request by the Government, on 27 May 2019 the Prosecutor General’s Office informed them that the relevant material concerning the supervisory proceedings had been destroyed on the expiry of the statutory storage period.
25. The applicant provided a statement of 19 July 2019 issued by D., a former employee of the Association and the applicant’s assistant, claiming that from 2004 the Association had had informal relations with some Ukrainian judges and regularly arranged trips abroad for them in order to influence the decisions taken by them.Relevant domestic law
26. The relevant provisions of the Code of Civil Procedure read, at the material time, as follows:
Article 20. Grounds for withdrawal of a judge
“1. A judge shall not take part in the examination of a case and shall be challenged or asked to resign if:
1) he or she previously took part in the case as a witness, expert, translator, representative or court secretary;
2) he or she has a direct or indirect interest in the outcome of the case;
3) he or she is a family member or close relative (husband, wife ...) of a party or others involved in the proceedings;
4) there are other reasons to doubt his or her objectivity and impartiality ...”
Article 23
“1. If the grounds stipulated in Article(s) 20 ... exist, a judge ... shall be obliged to resign ...”
27. The relevant provisions relating to the powers of the appellate court are summarised in the case of Editorial Board of Grivna Newspaper v. Ukraine (no. 41214/08, § 44, 16 April 2019).
COMPLAINTS
28. The applicant complained under Article 6 § 1 of the Convention that Judges G., Z. and Gr. could not be regarded as impartial.
29. He further complained under Article 1 of Protocol No. 1 that the State had failed to provide judicial procedures that offered the necessary procedural guarantees enabling the domestic courts and tribunals to decide disputes concerning property effectively and fairly.
THE LAWComplaint under Article 6 § 1 of the Convention
30. The applicant complained that his case had not been considered by an “independent and impartial tribunal”. He relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an ... impartial tribunal...”
31. Noting that the applicant had not filed applications for the withdrawal of the judges concerned, the Government argued that he had not duly exhausted domestic remedies. They further observed that the applicant had only raised an issue as to the impartiality of Judge G. on the date of the appellate court’s decision, that is to say on 23 December 2009, and as to the impartiality of Judge Z. in his notice of appeal in cassation.
32. The Government further submitted that the applicant’s complaints about the alleged partiality of Judges G., Z. and Gr. were groundless. In support of this statement, they referred to the letter of 2 May 2019 from the High Qualification Commission of Judges to the Ministry of Justice stating that the latter had not issued a decision imposing disciplinary sanctions upon Judges G. and Z. With regard to Judge Gr., the Government referred to the letter from the Prosecutor General’s Office of 27 May 2019 stating that the investigation material had been destroyed on the expiry of the statutory storage period. They inferred that since Judge Gr. had occupied the post of Supreme Court judge until 2015, the High Council of Justice had not found any faults in her actions.
33. The Government concluded that, in any event, the participation of the judges concerned in trips for academic conferences, which had taken place well before the examination of the applicant’s case, did not disclose any appearance of bias on their part capable of raising objective doubts as to their impartiality. In addition, the applicant had failed to demonstrate the family link between Judge Gr. and any person who attended the business trips to Washington D.C. and Paris in 2007.
34. The applicant submitted he had complained of the impartiality of Judge G. once he had received the relevant evidence. He contended that an application for withdrawal would not have succeeded as, at the relevant time, he had had no evidence. As regards Judge Gr., the applicant stated that he had been unaware that his case would be allocated to her. He had only learned of her involvement in the case on receipt of the ruling of 1 March 2010 refusing to open cassation proceedings and therefore could not lodge an application for her withdrawal.
35. The applicant further submitted that his case had been examined by judges known for taking unlawful decisions or for having long-term personal relations with the Association and benefiting, since April 2004, from trips abroad organised and financed by it. In this connection, the applicant referred to the internal document of the Association concerning the trip to Vienna between 1 and 8 May 2007 in which Judge G. had participated six months before examining his case (see paragraph 10 above). As to Judge Z., the applicant stated that she was known in Ukraine for taking unlawful decisions. He referred to the Proposal of the President of Ukraine to the High Council of Justice of 27 November 2007 for the dismissal of a number of judges, including Judges G. and Z. Furthermore, the applicant claimed that Judge Gr. had participated in a trip to Australia held between 18 and 30 November 2006. He further claimed, referring to the Association’s order of 27 April 2007, that Judge Gr.’s daughter had participated in a trip to Paris between 1 and 8 May 2007 (see paragraph 9 above) and her husband in a trip to Washington D.C. between 19 and 26 September 2007 (see paragraph 12 above). He also claimed that his complaint to the High Qualification Commission of Judges would not have succeeded. In this regard, he referred to a letter from S., who was a member of the High Qualification Commission of Judges. It was apparent to the applicant from reading the Association’s order that S. had also participated in the trip to Edinburgh (see paragraph 8 above).
36. He further argued that in February 2004 he had ceased to be the Association’s vice-president, while the trips had become systematic after April 2004. The decisions relating to those trips had been taken by the president of the Association personally, in violation of the Association’s articles of association. None of the decisions regarding foreign trips had been taken with his participation. The applicant considered that practice to be illegal and unacceptable.
37. The Court notes that the Government suggested that the applicant had not duly exhausted domestic remedies. However, the Court will not examine this objection because, in any event, this application is inadmissible for the reasons set out below.
38. The general principles relating to impartiality under Article 6 of the Convention were recently summarised in the case of Ramos Nunes de Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and 2 others, §§ 145-50, 6 November 2018).
39. As regards the subjective aspect of impartiality, the Court notes that there is nothing in the present case that points to any prejudice or bias on the part of Judges G., Z. and Gr.
40. As to the objective test, the concerns regarding the impartiality of Judges G. and Gr. stemmed from the statement that G. and Gr.’s daughter and husband had participated in trips abroad organised and paid for by the opposing party. As regards Judge Z., the applicant relied on the Proposal of the President of 27 November 2007 as proof of her partiality.
41. The Court will first examine whether the applicant’s concerns relating to Judge G. were objectively justified.
42. The Court observes that the Government did not dispute that trips had been financed by the Association and that Judge G. had participated in one of them. They stated, however, that the applicant’s concerns had been groundless, since the trips had been for research purposes and had taken place before the examination of the applicant’s case.
43. In this regard, the Court notes that the programme of the eight-day trip to Vienna, in which, according to the applicant, Judge G. had participated as a so-called expert six months before examining his case, included two excursions – “Vienna Woods” for four hours and another to Salzburg for nine hours, with the rest of the time being dedicated to “free time in Vienna”. The programme does not mention lectures or discussions dedicated to the topic “Current trends in the development of European family and inheritance law”, as was stated in the Association’s document of 28 April 2007 (see paragraph 10 above). Therefore, the Court has serious doubts that the trip was made for “research purposes”, as claimed by the Government. According to the documents provided, the Association paid for the trips and, accordingly, it may be assumed that Judge G. participated in a trip for free. This fact raises an issue as to her partiality, since she, sitting as a single judge, ruled on a case initiated by the Association against one of its former members, the applicant, and rendered a decision in favour of the Association. In these circumstances, the Court considers that the applicant’s concerns that Judge G. lacked impartiality can be considered to be objectively justified.
44. This being so, the Court reiterates that, in civil matters, a violation of Article 6 § 1 of the Convention cannot be based on the alleged lack of independence or impartiality of a decision-making tribunal or the breach of an essential procedural guarantee by that tribunal if the decision taken was subject to subsequent control by a judicial body that has full jurisdiction and ensures respect for the guarantees laid down in that provision (see, for instance, Helle v. Finland, 19 December 1997, § 46, Reports of Judgments and Decisions 1997-VIII and Denisov v. Ukraine [GC], no. 76639/11, § 65, 25 September 2018).
45. The Court observes that the Kyiv Court of Appeal, which reviewed the applicant’s case, had full jurisdiction to assess matters of fact and law (see, mutatis mutandis, Editorial Board of Grivna Newspaper, cited above, § 68).
46. As regards the applicant’s allegation with respect to Judge Z.’s partiality, the Court points out that a mere assumption cannot objectively justify the applicant’s concerns as to her partiality. In the lack of any other evidence than the Proposal of the President of Ukraine to the High Council of Justice of 27 November 2007 (see paragraph 35 above), it cannot be concluded that the applicant’s doubts about Judge Z.’s impartiality were objectively justified.
47. The Court further notes that the applicant stated in his notice of appeal that, for the same reason, he had doubts as to the impartiality of Judge G., who decided his case before the Shevchenkivskyy District Court of Kyiv. As clarified above, however, this was not sufficient to objectively justify the applicant’s doubts.
48. Noting then that there is nothing else to indicate that the proceedings in the applicant’s case before the Kyiv Court of Appeal were not within the requirements of fairness, the Court sees no reason to consider that his case was not heard in accordance with Article 6 § 1 of the Convention at the appeal stage.
49. Lastly, as to the applicant’s complaint relating to the alleged partiality of Judge Gr. of the Supreme Court, the Court notes that the Government commented on the documents produced by the applicant, denying any family relationship between those attending the Paris and Washington D.C. business trips and Judge Gr. Underlining that it is not its place to establish whether there is a family relationship between those mentioned above, and in the absence of evidence, the Court concludes that the applicant has failed to substantiate his complaint. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Alleged violation of Article 1 of Protocol No. 1 to the Convention
50. The applicant further complained under Article 1 of Protocol No. 1 that he had not been afforded judicial procedures that offered the necessary procedural guarantees enabling the domestic courts and tribunals to decide disputes concerning property effectively and fairly.
51. In view of its findings above in respect of the complaint under Article 6 § 1 of the Convention, the Court finds that this complaint is likewise manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 September 2020.
Anne-Marie DouginMārtiņš Mits
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy