Communicated on 8 January 2018
FIFTH SECTION
Application no. 25877/08
Tetyana Orestivna TATARYN against Ukraine
and 10 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The summary of the facts, as submitted by the applicants, is provided below with reference to each application.
1. Tataryn v. Ukraine (no. 25877/08)
(a) Circumstances of the case
In the beginning of October 2001 the applicant allegedly got pregnant from K, a man she had known since 1997. On 1 July 2002 the applicant gave birth to her son. As K. did not acknowledge his paternity and refused to support the child, the applicant instituted civil proceedings. Two expert examinations were ordered by the court. The experts carried out a forensic immunological expertise of the blood and saliva samples provided by the applicant, K. and the applicant’s son. The experts concluded that K.’s paternity “could not be excluded”. The experts did not carry out DNA examination.
On 5 April 2006 the Sambir District Court of Lviv Region, having questioned the applicant, K. and other witnesses and having examined the expert reports and other evidence, found that K.’s paternity had not been sufficiently proved. That decision was upheld by the Lviv Regional Court of Appeal and by the Khmelnytskyy Regional Court of Appeal, acting as a court of cassation. The applicant’s request for ordering a DNA test was ignored by the courts.
(b) Relevant domestic law
Article 143 of the Code of Civil Procedure (2004) empowers the court to order expert examination if such examination is necessary to establish relevant circumstances. Article 146 of the Code provides, inter alia, that if a party to the case evades participating in the expert examination, the court may acknowledge the fact or refuse to acknowledge it, depending on which party evades the expert examination (paragraph 1). In the event the defendant evades undergoing forensic biological (genetic) examination in the paternity or maternity disputes, the court may take a ruling for compulsory appearance of the defendant for the expert examination.
2. Kotenko v. Ukraine (no. 2575/09)
By a court decision the applicant was obliged to provide financial support in the amount of 1/4th of his income to his child living separately.
In November 2006 the applicant instituted civil proceedings against the State bailiffs claiming that they had erroneously determined his debt for child support in the amount of 75,083.05 Ukrainian hryvnias (UAH) and that they had taken wrongful actions to ensure the collection of the debt. The applicant claimed in particular that the bailiffs determined the debt on the basis of gross income the applicant had received as a private entrepreneur without deducting his expenses incurred in the course of those activities.
In June 2007 the expert accounting report, ordered by the court, confirmed that the applicant’s actual income was much lower and the debt for child support constituted UAH 1,650.90.
On 9 November 2007 the Zhytomyr District Court found that the bailiffs wrongly determined the amount of child support debt because the applicant’s actual income had to be determined after the deduction of the relevant expenses.
On 13 February 2008 the Zhytomyr Regional Court of Appeal quashed the above decision and dismissed the applicant’s claim as unfounded. The Court of Appeal considered that the first-instance court needlessly ordered expert accounting report and mistakenly examined the case under the tax legislation because the amount of child support was not a matter of tax law. The Court of Appeal concluded that the bailiffs had correctly determined the amount of debt by referring to the available information on the applicant’s income.
The applicant lodged a cassation appeal, arguing that the concept of “income” was an economic category determined under the tax law even for the purpose of child support dispute. He contended that the Court of Appeal had failed to distinguish gross and net income, it had failed to determine his net income and it had not taken into account the findings of the expert accounting report indicating the actual income received by the applicant.
On 9 July 2008 the Supreme Court dismissed the applicant’s cassation appeal generally stating that the Court of Appeal had taken a lawful and reasoned decision.
3. Karetskyy v. Ukraine (no. 4829/09)
The applicant and his wife worked in an agricultural company. In the course of the reorganisation of their company they received a tractor of 1992 manufacture date as a part of compensation scheme for their share. As the tractor was completely unusable, the applicant deposited it to the scrap yard and received UAH 580 in return. The value of the tractor was confirmed by an expert report of 10 October 2005.
On 16 May 2006 the Henichensk District Court found that the tractor had been a property of three other individuals who had earlier received it as a compensation of salary debts. The applicant and his wife were therefore obliged to return the tractor. That decision was upheld by the upper courts. In particular, the Supreme Court dismissed the applicant’s cassation appeal on 29 September 2006.
On 13 June 2007 the same district court found that it was not possible to return the tractor in kind and decided that the applicant and his wife had to provide pecuniary compensation. In determining the amount of compensation, the court noted that, according to the expert estimation provided in the court hearing, on 27 April 2007 the real value of that model of tractor issued in 1992 constituted UAH 8,509.
The applicant and his wife appealed, arguing that the district court had failed to take into account the expert report of 10 October 2005 providing the real value of the tractor in dispute and wrongly took a market value of analogous tractor in good condition.
On 22 July 2008 the Kherson Regional Court of Appeal dismissed the applicant’s appeal considering that the impugned decision was lawful and substantiated.
The applicant lodged cassation appeal arguing that the courts did not reply to his contention that the real value of the tractor in dispute was much lower. The applicant referred to the expert report of 10 October 2005 and other evidence available in the file.
On 4 September 2008 the Supreme Court dismissed the applicant’s cassation appeal as unfounded.
4. Farzaliyev v. Ukraine (no. 33452/10)
The applicant constructed a garage on a land plot which was allocated to him. K., a private individual, blocked the entrance to the garage, considering that it was partly located on K.’s neighbouring land plot. The case was brought before the Ovidopol District Court which ordered a technical examination to clarify the real size of the land plots. On 11 March 2008 the expert found that K.’s land plot was in reality smaller than the size indicated in his land plot certificate; moreover, a part of the applicant’s land plot was mistakenly included in K.’s land plot certificate; the applicant’s certificate for the land plot corresponded to the actual size of his land plot. Local authorities admitted the mistake in allocating the land plot to K.
On 28 May 2009 the Ovidopol District Court found that the applicant unlawfully occupied a part of K.’s land plot and had to remove his garage from K.’s land plot. The court did not refer to the expert report of 11 March 2008.
The applicant appealed, arguing that the first-instance court had failed to deal with the mistake in K.’s land plot certificate which was established by the expert report of 11 March 2008 and admitted by the domestic authorities.
On 22 September 2009 the Odessa Regional Court of Appeal dismissed the applicant’s appeal considering that the decision was lawful and substantiated. On 7 December 2009 the Supreme Court dismissed as unfounded the applicant’s cassation appeal which included the same contentions.
5. Kobilyeva v. Ukraine (45712/10)
Both the applicant and her husband worked at a rubber production company. In 2000 the company provided the applicant’s husband with a flat in which all the family resided. In 2002 the flat ownership certificate was issued to the applicant’s husband.
In 2008 the applicant divorced her husband. In 2009 she instituted civil proceedings against the former husband, arguing that the flat was their common marital property and that she was entitled to a half of the flat.
On 21 July 2009 the Bila Tserkva Town Court dismissed the claim as unsubstantiated stating that the flat was a personal property of the former husband and it was not a part of their marital property. The court had regard to the oral representations of the company director who submitted that the company had provided the flat to the applicant’s husband in order to reward him for his professional achievements. Under Article 57 of the Family Code of 2002, the rewards and recompenses for personal achievements of one of the spouses were part of his/her individual property and not the marital property of both spouses.
The applicant appealed arguing that the court had wrongly resolved the dispute on the basis of the Family Code of 2002 which came into effect on 1 January 2004 and which could not apply retrospectively to the property regime in respect of the flat at issue. Under the Marriage and Family Code of 1969, which was in effect on the date on which her former husband had acquired the flat, the latter was a common marital property of the spouses and there was no exception such as rewards or recompenses for personal achievements of one of the spouses.
On 27 October 2009 the Kyiv Regional Court of Appeal dismissed the applicant’s appeal as unfounded considering that she had failed to prove that the flat was a marital property of the former spouses. On 16 February 2010 the Supreme Court dismissed as unfounded the applicant’s cassation appeal which included the same arguments.
6. Rusnachenko v. Ukraine (no. 20805/11)
Since 1981 until his death on 3 July 2007 the applicant’s husband worked at company O.
On 20 December 1995 company O., the applicant’s husband and K., construction company, concluded an agreement under which the applicant’s husband had to be provided with a three-room flat no. 42 in a multi-storeyed building. Company O. financed the construction works. As a party to that agreement, the applicant’s husband was obliged to carry out internal reparation works in the flat. On 26 July 1996 the administration of company O. and its trade union confirmed that the applicant’s husband and his family, which included two children, were entitled to flat no. 42 in the building which had been under construction.
On 22 December 1998 company K., company O. and another company, participating in the financing of the construction of the building, concluded another agreement specifying once again that the applicant’s husband would be provided with the three-room flat no. 42. On the same date company O. issued a certificate stating that the applicant’s husband was successor of company O. under the agreements of 20 December 1995 and 22 December 1998 given that company O. had been declared bankrupt and the construction works had not been completed.
In 2002 company K. made further arrangements and agreements aimed at completing the construction of the building. In 2005 company K. transferred the flat at issue to another individual.
After the death of her husband, the applicant instituted civil proceedings against company O. and company K. seeking to oblige them to provide her with a flat analogous to the one specified in the contracts with her husband. On 12 April 2010 the Kirovskyy District Court of Kirovohrad dismissed the claim finding that the applicant’s husband “had not been a party” to the agreements of 20 December 1995 and 22 December 1998 and that therefore the defendants could not be held liable for failing to comply with any contractual obligations. As to the alleged succession of rights by the applicant’s husband in accordance with the certificate of 22 December 1998, such allegations “had not been based on law”.
The applicant appealed, arguing that her husband had been expressly designated as a party in the agreement of December 1995. In any event, under the applicable law contracts could be concluded for the benefit of a third party and such beneficiary was entitled to seek proper performance of the contract. Furthermore, company O. had lawfully assigned its rights for the flat to the applicant’s husband in the certificate of 22 December 1998. Lastly, by reference to the specific provisions of domestic law, the applicant argued that the rights to the flat had been retained by the family of the applicant’s husband after his death.
On 21 September 2010 the Kirovohrad Regional Court of Appeal dismissed the applicant’s appeal holding that the claim against company K. had been groundless because it had been the responsibility of company O. to provide the flat. As to the claim against company O., there had been no information about its successor. Furthermore, the applicant herself had never been a party to the agreements with the defendants.
On 19 January 2011 the Supreme Court dismissed as unfounded the applicant’s cassation appeal which included the same arguments.
7. Pokalchuk v. Ukraine (no. 32135/11)
The applicants own a part of a house. I.B. and D.B., who own another part of the house, constructed an annex adjacent to their part.
The applicants instituted civil proceedings against I.B. and D.B., claiming that the defendants had unlawfully constructed the annex using a part of the applicants’ land plot. I.B. and D.B. submitted a counterclaim seeking to invalidate the applicants’ land plot ownership certificate. The Holosiyivskyy District Court decided to conduct a construction and technical expert examination.
On 3 March 2008 the expert issued a report finding in particular that a part of the newly-constructed annex was partly located on the applicants’ land plot; the new fence constructed by I.B. and D.B. was located on the applicant’s land plot; the wall of the annex did not respect the marginal zone for maintenance works and there were no roof drainage system installed preventing the penetration of water on the applicants’ land plot.
On 8 October 2008 the first-instance court dismissed the applicants’ claim as unsubstantiated, stating that the applicants had failed to provide any evidence in support of their allegations about violation of their property rights. The court further dismissed as unfounded the defendants’ counterclaim.
The applicants appealed arguing that the court had failed to take into account the expert report of 3 March 2008 which had specified the nature of the breaches committed by the defendants directly affecting their property rights. On 15 April 2010 the Kyiv Court of Appeal upheld the decision of the first-instance court noting that the expert report addressed issues which had not been requested and that the report was not binding.
On 23 November 2010 the Supreme Court dismissed as unfounded the applicant’s cassation appeal which included the same arguments.
8. Kostrytskyy v. Ukraine (41732/11)
The applicant’s grandmother worked in an agricultural collective farm and was entitled to a land share in the land plots allocated to that farm. The grandmother died without being actually provided with the land share. The domestic authorities confirmed to the applicant that his grandmother had the right to receive a land share. The applicant instituted civil proceedings against the local authorities and the collective farm claiming that he, as the grandmother’s successor, had to be provided with the land share to which his grandmother had been entitled.
On 25 may 2010 the Obukhiv District Court dismissed the applicant’s claim after finding that the applicant had failed to substantiate his claim and to prove that his grandmother had not received any land share. In particular, the applicant had failed to submit the official list of citizens who had been given the land shares in the land plots allocated to the farm. The court noted that its attempt to obtain this evidence had not been successful.
The applicant appealed arguing that (i) the fact that the grandmother had not received the land share was confirmed by the official replies of the local authorities; (ii) he did not have access to the list of citizens mentioned by first-instance court.
On 4 November 2010 the Kyiv Court of Appeal dismissed the applicant’s claim supporting the first-instance reasoning that, by not providing the official list of citizens who had received the land shares, the applicant had failed to prove that his grandmother had not received any land share.
The applicant appealed in cassation, arguing that he could not have access to the abovementioned list and it was for the courts to take measures to obtain the list from the defendants. However, even in the absence of the list, there were official replies from the local authorities confirming that his grandmother had not been allocated the land share she had been entitled to.
On 4 January 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the cassation appeal noting that the applicant failed to present the abovementioned list of citizens in support of his claim.
9. Gnatenko v. Ukraine (no. 7899/12)
The two applicants, as well as M.G. and O.G., own flats in the same house. In 2007, following the authorisations by the authorities, M.G. and O.G. constructed an upper storey over their flat.
The applicants initiated civil proceedings against M.G. and O.G., claiming that (i) the construction of the new storey had caused additional pressure and damaged the foundation and the load-bearing walls of the whole building including their part of the house and (ii) the roof had been broken during the construction works following which the rainwater had penetrated inside and had damaged their part of the house.
On 20 January 2009 the Yalta town court, having regard to the expert examinations and other evidence, found that M.G. and O.G. had to compensate for the damage caused by the broken roof and the resulting water leak. The other allegations were dismissed as unsubstantiated.
The applicants appealed to the Crimea Court of Appeal which ordered a fresh expert examination to determine whether the alleged defects of the foundation and the principal walls had been caused by the construction of the upper storey. The Court of Appeal ordered the local bureau of technical inventory, which was admitted to the proceedings as a third party, to provide the board of experts with the file on the construction works and the technical state of the building. On 30 December 2010 the experts issued a report confirming the damage caused by the broken roof and water leak. They did not give any definitive opinion as regards the other damage claimed by the applicants because the documents on construction and technical state of the building had not been provided.
On 9 June 2011 the Court of Appeal awarded the applicants damages on account of the broken roof and water leak and dismissed the other claims.
The applicant appealed in cassation, arguing that the Court of Appeal had failed to address the question of damage to the foundation and the principal walls of the building; the Court of Appeal had not dealt with the failure by the third party to provide the file to the experts for a definitive answer on that point. On 7 July 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the cassation appeal as unfounded.
10. Lyagusha v. Ukraine (no. 16934/12)
The applicant was the chairman of the board of a company.
(a) Criminal case against the applicant
On 31 October 2001 criminal proceedings were instituted against the applicant for abuse of office. On 24 November 2003 he was convicted of that crime and given a suspended sentence. On 12 July 2004 he was dismissed from the company in view of his conviction. On 28 April 2005 the Supreme Court quashed the conviction as unfounded and remitted the case for additional investigation. On 4 May 2007 the Dobropillya District Court found that the criminal proceedings against the applicant had been initiated groundlessly and quashed the initial decision of 31 October 2001. The investigation was closed.
(b) Proceedings for reinstatement and recovery of damages from the company
Following the applicant’s claim, on 29 August 2005 the Dobropillya District Court ordered the applicant’s immediate reinstatement in his job. On 8 November 2005 the investigator suspended the applicant from his job on the grounds that the abovementioned criminal investigation was being conducted at the relevant time. On 17 November 2005 the Donetsk Regional Court of Appeal quashed the decision of 29 August 2005 and ordered a fresh examination of the case. On 27 November 2007 the proceedings were terminated because the company had been liquidated.
(c) Civil proceedings against local department of State Treasury and the local employment centre
In 2007 the applicant instituted civil proceedings claiming damages for unlawful prosecution and conviction. He also claimed that his dismissal record for conviction reasons should be declared invalid and the local employment centre should provide him with an appropriate job.
On 29 December 2009 the Dobropillya District Court awarded the applicant compensation for pecuniary damage resulting from salary losses as well as non-pecuniary damage caused by his unlawful prosecution and conviction. The court further declared invalid the official record on his dismissal and obliged the local employment centre to provide him with an appropriate job.
On 9 March 2010 the Donetsk Court of Appeal quashed that decision. It awarded the applicant compensation in respect of non-pecuniary damage only. As to the pecuniary damage, the Court of Appeal stated that the law provided for compensation in the event of temporary suspension from job during the criminal proceedings but not in the event of dismissal, which was the applicant’s case. The Court of Appeal then disallowed the claims regarding the wrong dismissal record and the obligation of the employment centre to provide him with the job. In that regard the Court of Appeal stated that the applicant had failed to apply to the local employment centre shortly after the criminal case had been closed in 2007.
The applicant lodged a cassation appeal, insisting that the Court of Appeal had failed to examine his claim for pecuniary damage which was obviously caused by the salary losses. He further argued that when the criminal case had been closed, the company had still existed and he had no grounds to apply to the employment centre with a request for a job as suggested by the Court of Appeal; subsequently, however, his application to the employment centre had been time-barred and that was the reason why he had applied to the court with such a claim.
On 29 December 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the cassation appeal as unfounded.
11. Kravchuk v. Ukraine (no. 77435/12)
The applicant lodged a claim with the Starobesheve District Court, arguing that in 2006 B., a private individual, had published a book which reproduced a major part of the applicant’s book of 1988. In his claim the applicant asked the court to obtain from B. a copy of her book and to carry out an expert examination for plagiarism.
The applicant further requested the court to obtain from the prosecutor of the Kyivskyy District of Donetsk copies of expert examination reports of 2009 and 2011 which had been available in the criminal case on the allegations of criminal copyright infringement by B. In response, the court obtained copies of these expert reports. The 2011 report specified, among other things, that B.’s book, which was in dispute in the civil case, had partly used the text of the applicant’s book.
On 19 December 2011 the Starobesheve District Court dismissed the applicant’s claim as unsubstantiated. It stated that the reports obtained from the criminal case file were irrelevant. There was no other expert examination to confirm the alleged plagiarism. Neither was there any other evidence in support of the applicant’s claim.
The applicant appealed, arguing that the first-instance court had failed to request from the defendant a copy of her book; that the expert reports obtained from the criminal case file had been ignored for no valid reason; that no expert examination had been ordered, despite his request.
On 27 March 2012 the Donetsk Court of Appeal dismissed the applicant’s appeal, noting that the parties had failed to provide a copy of the defendant’s book which was likewise unavailable in the national library. The copies of the expert reports were not relevant because they did not concern the defendant’s book at issue.
The applicant lodged a cassation appeal, repeating his arguments before the Court of Appeal and adding that the available expert reports were directly relevant as they showed the plagiarism committed by B. in her book.
On 23 July 2012 the Higher Specialised Court for Civil and Criminal Matters dismissed the cassation appeal as unfounded.
COMPLAINTS
Relying on Article 6 § 1 of the Convention, the applicants complain that the courts failed to give reasons to their decisions and did not deal with their pertinent and important arguments during the proceedings.
Certain applicants further complain under Article 1 of Protocol No.1 that adequate protection of their property rights was not provided at the domestic level.
COMMON QUESTIONS:
Were the proceedings in the present case fair for the purposes of Article 6 § 1 of the Convention? Did the domestic courts comply with their obligation under that provision of the Convention to give reasons for their decisions and to reply to specific, pertinent and important arguments by the parties?
CASE SPECIFIC QUESTION
Additional question in applications of Pokalchuk v. Ukraine (no. 32135/11) and Kravchuk v. Ukraine (no. 77435/12):
Do the facts of the case give rise to a violation of Article 1 of Protocol No. 1?
Appendix
List of applications
No.
Application no.
Lodged on
Applicant
Year of birth
Place of residence
Represented by
25877/08
24/05/2008
Tetyana Orestivna TATARYN
1978
Rudky
2575/09
05/01/2009
Viktor Vasylovych KOTENKO
1959
Novoguyvynske
4829/09
19/12/2008
Vasyl Semenovych KARETSKYY
1930
Novotroyitske
33452/10
06/06/2010
Atakhan Nabiyevich FARZALIYEV
1922
Odesa
45712/10
03/08/2010
Lyudmyla Semenivna KOBILYEVA
1961
Bila Tserkva
20805/11
25/03/2011
Tamara Vasilyevna RUSNACHENKO
1959
Kirovograd
32135/11
22/05/2011
Oksana Yuriyivna POKALCHUK
1986
Kyiv
Olena Eduardivna POKALCHUK
1960
Kyiv
41732/11
23/09/2011
Viktor Vasylyovych KOSTRYTSKYY
1962
Deremezna
7899/12
31/08/2011
Alena Viktorovna GNATENKO
1987
Yalta
Valentina Ivanovna GNATENKO
1956
Yalta
16934/12
13/03/2012
Ivan Ivanovich LYAGUSHA
1957
Belitskoye
77435/12
29/11/2012
Petro Avksentiyovych KRAVCHUK
1947
Yubeshiv
Vitaliy Andriyovych YELOV
Full & Egal Universal Law Academy