I correctly predicted that there was a violation of human rights in SHEVCHUK v. UKRAINE.
Information
- Judgment date: 2022-09-22
- Communication date: 2017-06-19
- Application number(s): 30854/09
- Country: UKR
- Relevant ECHR article(s): 6, 6-1, 8, 8-1, P1-1
- Conclusion:
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings
Article 6-1 - Fair hearing) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.506968
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Ms Olena Sylvestrivna Shevchuk, is a Ukrainian national who was born in 1953 and lives in Kamyanka in the Chernihiv Region.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant alleges that she cohabited with a certain V.G.
as an unregistered life partner in his flat from 1985 until V.G.’s death in 2005.
Initially, the flat belonged to the municipality but V.G.
privatised it in 1993 and obtained an ownership certificate, which was in his name only.
On an unspecified date V.G.
drew up a will, bequeathing the flat to his grandson, A.G.
The applicant was allegedly unaware of either act prior to V.G.’s death.
She was registered at the time as residing at a different address in another village.
V.G.
died in July 2005.
The applicant brought a claim against A.G., represented by his father (the deceased’s son) and the privatisation authorities, seeking a declaration that she, as a member of the deceased’s family who had permanently resided in the flat prior to his death, retained the right to a protected tenancy in respect of the flat.
She sought on those grounds to invalidate the flat’s privatisation and its transfer to A.G. On 10 November 2006 the first-instance court rejected the applicant’s claim as unsubstantiated.
It held that there was proof that the applicant had lived in the flat prior to V.G.’s death, but that that had been on a temporary basis, without a right to a protected tenancy.
On 25 January 2007 the Chernihiv Regional Court of Appeal overruled the judgment and allowed the applicant’s claim.
It held that it had been proven that the applicant had cohabited with V.G.
from 1985 to his death and had been a member of his family within the meaning of Article 64 § 2 of the Housing Code, having a right to a protected tenancy in the flat within the meaning of Article 64 § 1 of the Code (see “Relevant domestic law” below).
The Court of Appeal held that the evidence showed that the applicant had lived in the flat for twenty years, which meant that the first-instance court’s interpretation of her as living there on a temporary basis had been erroneous.
The Court of Appeal held that the fact that at the material time the applicant had been registered as residing at a different address did not constitute conclusive evidence which precluded a finding that she was a member of the deceased’s family and had cohabited with him.
On 10 October 2007 a three-judge panel of the Supreme Court, sitting as a court of cassation, rejected appeals by the defendants and a prosecutor and upheld the Court of Appeal’s judgment.
It found that there was no sign of any error that justified quashing the decision.
According to the applicant, she obtained an ownership certificate for the flat in her name following the Supreme Court’s decision of 10 October 2007.
The certificate was set aside later, once the Supreme Court decision had been quashed in extraordinary review proceedings (see below).
On an unspecified date the defendant, A.G., represented by his father, lodged an appeal for an extraordinary review of the 10 October 2007 decision in the light of “exceptional circumstances”.
He argued that the impugned decision had led to a divergent application of the Supreme Court’s case-law.
The applicant alleges that she was not informed of that appeal or of its examination by the Supreme Court.
On 25 December 2008 the Civil Chamber of the Supreme Court allowed the extraordinary appeal, quashed the Supreme Court panel’s decision of 10 October 2007 and the appellate decision of 25 January 2007 and upheld the first-instance court’s judgment.
By way of reasoning, it held that the decisions in the applicant’s case had led to divergences in its case-law, referring to a case originating in Kyiv, which had also concerned a plaintiff seeking to invalidate the privatisation of a flat.
In that case, a Supreme Court panel had held that a plaintiff registered as residing at a different address at the time of privatisation could not be considered as having acquired a right to a protected tenancy of a flat where he or she was not registered.
The Civil Chamber held that the position taken by the Supreme Court panel in that case had been correct while the one taken in the applicant’s case had been wrong.
The Chamber did not name the parties in the Kyiv case, or the date, the number of the decision or other information to allow for a more precise identification.
The Civil Chamber found that the Chernihiv Regional Court of Appeal had misinterpreted the evidence as showing that the applicant had resided in the flat: it had only proved that she had lived there temporarily, not as a member of the deceased’s family entitled to a protected tenancy.
The fact that she had not challenged the privatisation of the flat while V.G.
had been alive also showed that her claim was unsubstantiated.
A.G., acting through his father, initiated eviction proceedings against the applicant following the Civil Chamber’s decision of 25 December 2008.
On 30 March 2011 the Higher Specialised Civil and Criminal Court, in a final decision, upheld a lower court decision allowing the eviction claim.
The judgment was enforced on an unspecified date and the applicant was evicted.
B.
Relevant domestic law 1.
Civil Code of 2004 At the material time Article 354 of the Code provided that judicial decisions in civil cases which had been dealt with in cassation could be reviewed in the light of exceptional circumstances on the grounds that they had resulted from a divergent application of the law by the courts of cassation.
2.
Housing Code of 1983 Article 64 § 1 of the Code provides that the family of a tenant in publicly owned housing enjoy the same rights as the main tenant.
Article 64 § 2 classifies the tenant’s spouse (in a registered civil marriage), children and parents as family members but provides that other individuals can be recognised as such if they cohabit with the tenant as members of his or her household.
3.
Housing Privatisation Act of 1992 At the material time section 8 of the Act provided that publicly owned housing could be privatised by tenants with the consent of all the members of the tenant’s family, with the tenant and his or her family members acquiring equal shares in the property.
COMPLAINTS The applicant complains under Article 6 of the Convention that the Supreme Court did not inform her of the extraordinary appeal in her case and unjustifiably quashed a final judicial decision in her favour.
Referring to Article 8 of the Convention, she complains that that decision breached her rights to a private life, home and property.
Judgment
FIFTH SECTIONCASE OF SHEVCHUK v. UKRAINE
(Application no. 30854/09)
JUDGMENT
STRASBOURG
22 September 2022
This judgment is final but it may be subject to editorial revision. In the case of Shevchuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ivana Jelić, President, Ganna Yudkivska, Arnfinn Bårdsen, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 30854/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2009 by an Ukrainian national, Ms Olena Sylvestrivna Shevchuk (“the applicant”), born in 1953 and living in Kamyanka, who was represented by Mr B. Fokiy, a lawyer practising in Chernivtsi;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice;
the parties’ observations;
Having deliberated in private on 10 February 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The application concerns, in the main, the applicant’s complaints under Article 6 § 1 and Article 8 of the Convention and Article 1 of Protocol No. 1 about the conduct and outcome of the civil proceedings leading to the allegedly unjustified deprivation of her right to a protected tenancy in a flat, eviction from there and loss of her ownership title to it. 2. The applicant cohabited with a certain V.G. as an unregistered partner in his flat in Glyboka from 1985 until V.G.’s death in July 2005. In 1993 V.G., at the time the only registered tenant of the flat, privatised it and obtained an ownership certificate from the Glyboka Village Council. In 2003 V.G. drew up a will, bequeathing the flat to his grandson, A.G.
3. In January 2006 the applicant brought an action in the Glybotskyy District Court of the Chernivtsi Region (“the Glybotskyy Court”) against A.G. and the Glyboka Village Council, asking the court to recognise that she had been living in V.G.’s flat as a member of his family and thus had the right to a protected tenancy (“the first set of proceedings”). As part of the same action, she also sought to invalidate the flat’s privatisation by V.G. in 1993, of which she allegedly had become aware only after his death. On 10 November 2006 the Glybotskyy Court dismissed the applicant’s action, finding that she had been living in the flat on a temporary basis, having acquired no right to a protected tenancy, and was officially registered in her mother’s house in another village – Kamyanka. On 25 January 2007 the Chernivtsi Regional Court of Appeal (“the appellate court”) quashed the Glybotskyy Court’s judgment and allowed the applicant’s action. On 10 October 2007 a three-judge panel of the Supreme Court rejected the parties’ cassation appeals against the appellate court’s decision of 25 January 2007. 4. On 25 December 2008 the Civil Chamber of the Supreme Court (“the CCSC”), sitting in camera allegedly without summoning the parties, allowed A.G.’s “appeal in the light of exceptional circumstances” of 22 May 2008, quashed the decisions of 25 January and 10 October 2007 and upheld the judgment of the Glybotskyy Court of 10 November 2006. The CCSC held that the contested judicial decisions in the applicant’s case had led to divergent application of the relevant legislation, referring to a case originating in Kyiv, in which the Supreme Court had held, according to the Government in its decision of 17 October 2007, that a plaintiff registered as residing at a different address at the time of privatisation could not be considered as having acquired the right to a protected tenancy regarding the flat where he or she had not been registered. 5. Having been informed of the decision of the CCSC of 25 December 2008 in January 2009, on 12 February 2009 the applicant lodged with the Supreme Court an “appeal in the light of exceptional circumstances” against it, arguing that it contravened other decisions of the Supreme Court and had led to divergent case-law. The Supreme Court refused to examine the applicant’s appeal. 6. In the meantime, by the order of 3 December 2007 the Glyboka Village Council granted the applicant’s privatisation request regarding the flat. On that basis she received an ownership certificate in her name and continued living in the flat. 7. In 2009 and 2010 A.G. instituted two sets of proceedings in the Glybotskyy Court, seeking the invalidation of the flat’s privatisation by the applicant in December 2007 and her eviction from the flat (“the second and third sets of proceedings”). Those claims were allowed by that court on 11 June 2009 and 23 November 2010 respectively. The judgment of 11 June 2009 was upheld by the appellate court on 14 October 2009 and no appeal on points of law was lodged with the Higher Specialised Court in Civil and Criminal Matters. The judgment of 23 November 2010 was partly amended and ultimately upheld by that court on 30 March 2011. 8. On an unspecified date in 2011 the applicant was evicted from the flat and moved to the house in Kamyanka (see paragraph 3 above) which at the time was owned by her daughter. 9. In her initial submissions in June 2009, the applicant complained under Article 6 § 1 of the Convention that the proceedings on A.G.’s “appeal in the light of exceptional circumstances” had been conducted without her knowledge and involvement and had led to the unjustified quashing of the court decisions favourable to her, and that the judgment of the Glybotskyy Court of 10 November 2006 and the decision of the CCSC of 25 December 2008 lacked reasons. She also complained under Article 8 about the said quashing. Relying on Article 1 of Protocol No. 1, she complained about the annulment of her ownership title to the flat by the judgment of the Glybotskyy Court of 11 June 2009 (see paragraph 7 above). 10. In March 2018 the applicant submitted additional complaints: under Article 6 that the composition of the CCSC had not been in accordance with the law; under Article 8 about her eviction from the flat in question and the proceedings which led to it (see paragraphs 7 and 8 above); and under Article 1 of Protocol No. 1, she also complained that her property rights regarding the flat had been violated by the decision of the CCSC of 25 December 2008 (see paragraph 4 above). THE COURT’S ASSESSMENT
11. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that applicant’s complaints under Article 6 § 1 and Article 8 regarding the conduct and outcome of the proceedings before the CCSC (see paragraph 4 above) are to be examined solely under Article 6 § 1. 12. The parties did not dispute that Article 6 § 1 was applicable under its civil limb to those proceedings. In its judgment in Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, §§ 24 and 53, ECHR 2015), the Court held that provision applicable to the same type of proceedings under Articles 353-360 of the Code of Civil Procedure of 2004, as worded at the material time. Furthermore, the “exceptional review” proceedings in the present case entailed a reconsideration of the merits of the civil dispute. Thus, the Court finds that the relevant guarantees of Article 6 § 1 applied to the proceedings at issue (ibid., §§ 46 and 56). 13. The Court considers that the complaints under that provision regarding the conduct of those proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor are they inadmissible on any other grounds. They must therefore be declared admissible. 14. The general principles concerning the right to adversarial proceedings, closely linked to the fundamental principle of equality of arms, which the applicant’s complaints concern, have been summarized in Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017; Beer v. Austria, no. 30428/96, §§ 17-18, 6 February 2001; Hudáková and Others v. Slovakia, no. 23083/05, §§ 27 and 29, 27 April 2010; and Lazarenko and Others v. Ukraine, nos. 70329/12 and 5others, §§ 36-37, 27 June 2017. 15. The material before the Court, including the decision of the CCSC of 25 December 2008, contains no evidence that the applicant’s opponent’s “appeal in the light of exceptional circumstances” was sent to her, which was required by Article 356 of the Code of Civil Procedure of 2004, as worded at the material time (see Bochan, cited above, § 24), or that she was given an opportunity to comment on it before it was examined by the CCSC. The Government argued that the applicant must have been informed of A.G.’s “appeal in the light of exceptional circumstances” of 22 May 2008, but this could not be proven, since at the time the domestic case file concerning the original proceedings that had ended on 10 October 2007 (see paragraph 3 above) had not been transmitted to the Supreme Court and, consequently, the material regarding the proceedings before the CCSC (see paragraph 4 above) had not been included therein and, eventually, had been destroyed because of the expiry of the term of storage. However, the Government did not specify the period during which the material at issue had had to be kept by the Supreme Court or explain why it had not been joined to the original case file after the proceedings of review of the case “in the light of exceptional circumstances” had been terminated. Nor did the Government argue that it was impossible to prove the alleged sending of the appeal to the applicant by any other means, like, for instance, any information from the postal service regarding the Supreme Court’s outgoing correspondence and the applicant’s incoming correspondence during the relevant period of time. In this context, it may not be excluded that the appeal was sent to the applicant’s address but was not delivered to her. 16. Also, it appears highly unlikely that the applicant, who had actively participated in the first set of proceedings and made submissions before the courts of three instances (see paragraph 3 above), having received a copy of her opponent’s “exceptional” appeal contesting the final judgment in her favour, which had to follow a decision declaring the appeal admissible (this was required by Article 356 of the Code of Civil Procedure of 2004, as worded at the material time, quoted in Bochan, cited above, § 24), would have decided, for no apparent reason, to abstain from submitting comments on that appeal. In this connection, the Court notes that the applicant tried to challenge the decision of the CCSC of 25 December 2008 shortly after having been informed of it (see paragraph 5 above). 17. Therefore, in the circumstances, the Court attaches more weight to the applicant’s version of the relevant events which she consistently maintained in the proceedings before it and finds that she was not informed of her opponent’s appeal of 22 May 2008 or of its examination by the CCSC. 18. The Court also notes that the review by the CCSC was centred on a new element in the case – the alleged inconsistency of the contested judicial decisions with the relevant case-law of the Supreme Court. Moreover, the inconsistency found by the CCSC led to a re-examination on the merits, the quashing of those decisions and to the reversal of the final outcome of the case – the applicant’s action was eventually dismissed. 19. In the light of the foregoing, the Court finds that the applicant was deprived of the opportunity to have knowledge of and to comment on the opposing party’s extraordinary appeal in proceedings crucial for the determination of her dispute, which was contrary to the principle of equality of arms and her right to adversarial proceedings. 20. There has been therefore a violation of Article 6 § 1 of the Convention in the proceedings leading to the decision of the CCSC of 25 December 2008. 21. In these circumstances, it is unnecessary to examine whether any divergencies in the relevant judicial practice justified or compelled reconsideration of the case by the CCSC. Nor is it necessary to decide whether the CCSC provided sufficient reasons for its decision of 25 December 2008. 22. The Court has examined the applicant’s remaining complaints under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 (see paragraphs 9 and 10 above) and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that those complaints must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. The applicant claimed 28,000 euros (EUR) in respect of pecuniary damage, which sum allegedly represented the market value of the flat in question and EUR 15,000 for non-pecuniary damage. 24. The applicant also claimed EUR 3,112 for the costs and expenses incurred before the domestic courts and this Court, including court fees, postal and translation expenses and legal costs. Regarding the later costs, she requested that the sum of EUR 2,900 be paid directly into the bank account of her representative, Mr B. Fokiy. 25. The Government stated that the applicant’s claims were unsubstantiated and/or exorbitant. 26. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 27. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant 1,000 EUR covering legal costs in the proceedings before the Court, plus any tax that may be chargeable to her. The latter sum is to be paid directly into the bank account indicated by Mr B. Fokiy. 28. The Court further 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,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account indicated by Mr B. Fokiy;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Ivana Jelić Deputy Registrar President
FIFTH SECTION
CASE OF SHEVCHUK v. UKRAINE
(Application no. 30854/09)
JUDGMENT
STRASBOURG
22 September 2022
This judgment is final but it may be subject to editorial revision. In the case of Shevchuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ivana Jelić, President, Ganna Yudkivska, Arnfinn Bårdsen, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 30854/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2009 by an Ukrainian national, Ms Olena Sylvestrivna Shevchuk (“the applicant”), born in 1953 and living in Kamyanka, who was represented by Mr B. Fokiy, a lawyer practising in Chernivtsi;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice;
the parties’ observations;
Having deliberated in private on 10 February 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The application concerns, in the main, the applicant’s complaints under Article 6 § 1 and Article 8 of the Convention and Article 1 of Protocol No. 1 about the conduct and outcome of the civil proceedings leading to the allegedly unjustified deprivation of her right to a protected tenancy in a flat, eviction from there and loss of her ownership title to it. 2. The applicant cohabited with a certain V.G. as an unregistered partner in his flat in Glyboka from 1985 until V.G.’s death in July 2005. In 1993 V.G., at the time the only registered tenant of the flat, privatised it and obtained an ownership certificate from the Glyboka Village Council. In 2003 V.G. drew up a will, bequeathing the flat to his grandson, A.G.
3. In January 2006 the applicant brought an action in the Glybotskyy District Court of the Chernivtsi Region (“the Glybotskyy Court”) against A.G. and the Glyboka Village Council, asking the court to recognise that she had been living in V.G.’s flat as a member of his family and thus had the right to a protected tenancy (“the first set of proceedings”). As part of the same action, she also sought to invalidate the flat’s privatisation by V.G. in 1993, of which she allegedly had become aware only after his death. On 10 November 2006 the Glybotskyy Court dismissed the applicant’s action, finding that she had been living in the flat on a temporary basis, having acquired no right to a protected tenancy, and was officially registered in her mother’s house in another village – Kamyanka. On 25 January 2007 the Chernivtsi Regional Court of Appeal (“the appellate court”) quashed the Glybotskyy Court’s judgment and allowed the applicant’s action. On 10 October 2007 a three-judge panel of the Supreme Court rejected the parties’ cassation appeals against the appellate court’s decision of 25 January 2007. 4. On 25 December 2008 the Civil Chamber of the Supreme Court (“the CCSC”), sitting in camera allegedly without summoning the parties, allowed A.G.’s “appeal in the light of exceptional circumstances” of 22 May 2008, quashed the decisions of 25 January and 10 October 2007 and upheld the judgment of the Glybotskyy Court of 10 November 2006. The CCSC held that the contested judicial decisions in the applicant’s case had led to divergent application of the relevant legislation, referring to a case originating in Kyiv, in which the Supreme Court had held, according to the Government in its decision of 17 October 2007, that a plaintiff registered as residing at a different address at the time of privatisation could not be considered as having acquired the right to a protected tenancy regarding the flat where he or she had not been registered. 5. Having been informed of the decision of the CCSC of 25 December 2008 in January 2009, on 12 February 2009 the applicant lodged with the Supreme Court an “appeal in the light of exceptional circumstances” against it, arguing that it contravened other decisions of the Supreme Court and had led to divergent case-law. The Supreme Court refused to examine the applicant’s appeal. 6. In the meantime, by the order of 3 December 2007 the Glyboka Village Council granted the applicant’s privatisation request regarding the flat. On that basis she received an ownership certificate in her name and continued living in the flat. 7. In 2009 and 2010 A.G. instituted two sets of proceedings in the Glybotskyy Court, seeking the invalidation of the flat’s privatisation by the applicant in December 2007 and her eviction from the flat (“the second and third sets of proceedings”). Those claims were allowed by that court on 11 June 2009 and 23 November 2010 respectively. The judgment of 11 June 2009 was upheld by the appellate court on 14 October 2009 and no appeal on points of law was lodged with the Higher Specialised Court in Civil and Criminal Matters. The judgment of 23 November 2010 was partly amended and ultimately upheld by that court on 30 March 2011. 8. On an unspecified date in 2011 the applicant was evicted from the flat and moved to the house in Kamyanka (see paragraph 3 above) which at the time was owned by her daughter. 9. In her initial submissions in June 2009, the applicant complained under Article 6 § 1 of the Convention that the proceedings on A.G.’s “appeal in the light of exceptional circumstances” had been conducted without her knowledge and involvement and had led to the unjustified quashing of the court decisions favourable to her, and that the judgment of the Glybotskyy Court of 10 November 2006 and the decision of the CCSC of 25 December 2008 lacked reasons. She also complained under Article 8 about the said quashing. Relying on Article 1 of Protocol No. 1, she complained about the annulment of her ownership title to the flat by the judgment of the Glybotskyy Court of 11 June 2009 (see paragraph 7 above). 10. In March 2018 the applicant submitted additional complaints: under Article 6 that the composition of the CCSC had not been in accordance with the law; under Article 8 about her eviction from the flat in question and the proceedings which led to it (see paragraphs 7 and 8 above); and under Article 1 of Protocol No. 1, she also complained that her property rights regarding the flat had been violated by the decision of the CCSC of 25 December 2008 (see paragraph 4 above). THE COURT’S ASSESSMENT
11. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that applicant’s complaints under Article 6 § 1 and Article 8 regarding the conduct and outcome of the proceedings before the CCSC (see paragraph 4 above) are to be examined solely under Article 6 § 1. 12. The parties did not dispute that Article 6 § 1 was applicable under its civil limb to those proceedings. In its judgment in Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, §§ 24 and 53, ECHR 2015), the Court held that provision applicable to the same type of proceedings under Articles 353-360 of the Code of Civil Procedure of 2004, as worded at the material time. Furthermore, the “exceptional review” proceedings in the present case entailed a reconsideration of the merits of the civil dispute. Thus, the Court finds that the relevant guarantees of Article 6 § 1 applied to the proceedings at issue (ibid., §§ 46 and 56). 13. The Court considers that the complaints under that provision regarding the conduct of those proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor are they inadmissible on any other grounds. They must therefore be declared admissible. 14. The general principles concerning the right to adversarial proceedings, closely linked to the fundamental principle of equality of arms, which the applicant’s complaints concern, have been summarized in Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017; Beer v. Austria, no. 30428/96, §§ 17-18, 6 February 2001; Hudáková and Others v. Slovakia, no. 23083/05, §§ 27 and 29, 27 April 2010; and Lazarenko and Others v. Ukraine, nos. 70329/12 and 5others, §§ 36-37, 27 June 2017. 15. The material before the Court, including the decision of the CCSC of 25 December 2008, contains no evidence that the applicant’s opponent’s “appeal in the light of exceptional circumstances” was sent to her, which was required by Article 356 of the Code of Civil Procedure of 2004, as worded at the material time (see Bochan, cited above, § 24), or that she was given an opportunity to comment on it before it was examined by the CCSC. The Government argued that the applicant must have been informed of A.G.’s “appeal in the light of exceptional circumstances” of 22 May 2008, but this could not be proven, since at the time the domestic case file concerning the original proceedings that had ended on 10 October 2007 (see paragraph 3 above) had not been transmitted to the Supreme Court and, consequently, the material regarding the proceedings before the CCSC (see paragraph 4 above) had not been included therein and, eventually, had been destroyed because of the expiry of the term of storage. However, the Government did not specify the period during which the material at issue had had to be kept by the Supreme Court or explain why it had not been joined to the original case file after the proceedings of review of the case “in the light of exceptional circumstances” had been terminated. Nor did the Government argue that it was impossible to prove the alleged sending of the appeal to the applicant by any other means, like, for instance, any information from the postal service regarding the Supreme Court’s outgoing correspondence and the applicant’s incoming correspondence during the relevant period of time. In this context, it may not be excluded that the appeal was sent to the applicant’s address but was not delivered to her. 16. Also, it appears highly unlikely that the applicant, who had actively participated in the first set of proceedings and made submissions before the courts of three instances (see paragraph 3 above), having received a copy of her opponent’s “exceptional” appeal contesting the final judgment in her favour, which had to follow a decision declaring the appeal admissible (this was required by Article 356 of the Code of Civil Procedure of 2004, as worded at the material time, quoted in Bochan, cited above, § 24), would have decided, for no apparent reason, to abstain from submitting comments on that appeal. In this connection, the Court notes that the applicant tried to challenge the decision of the CCSC of 25 December 2008 shortly after having been informed of it (see paragraph 5 above). 17. Therefore, in the circumstances, the Court attaches more weight to the applicant’s version of the relevant events which she consistently maintained in the proceedings before it and finds that she was not informed of her opponent’s appeal of 22 May 2008 or of its examination by the CCSC. 18. The Court also notes that the review by the CCSC was centred on a new element in the case – the alleged inconsistency of the contested judicial decisions with the relevant case-law of the Supreme Court. Moreover, the inconsistency found by the CCSC led to a re-examination on the merits, the quashing of those decisions and to the reversal of the final outcome of the case – the applicant’s action was eventually dismissed. 19. In the light of the foregoing, the Court finds that the applicant was deprived of the opportunity to have knowledge of and to comment on the opposing party’s extraordinary appeal in proceedings crucial for the determination of her dispute, which was contrary to the principle of equality of arms and her right to adversarial proceedings. 20. There has been therefore a violation of Article 6 § 1 of the Convention in the proceedings leading to the decision of the CCSC of 25 December 2008. 21. In these circumstances, it is unnecessary to examine whether any divergencies in the relevant judicial practice justified or compelled reconsideration of the case by the CCSC. Nor is it necessary to decide whether the CCSC provided sufficient reasons for its decision of 25 December 2008. 22. The Court has examined the applicant’s remaining complaints under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 (see paragraphs 9 and 10 above) and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that those complaints must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. The applicant claimed 28,000 euros (EUR) in respect of pecuniary damage, which sum allegedly represented the market value of the flat in question and EUR 15,000 for non-pecuniary damage. 24. The applicant also claimed EUR 3,112 for the costs and expenses incurred before the domestic courts and this Court, including court fees, postal and translation expenses and legal costs. Regarding the later costs, she requested that the sum of EUR 2,900 be paid directly into the bank account of her representative, Mr B. Fokiy. 25. The Government stated that the applicant’s claims were unsubstantiated and/or exorbitant. 26. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 27. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant 1,000 EUR covering legal costs in the proceedings before the Court, plus any tax that may be chargeable to her. The latter sum is to be paid directly into the bank account indicated by Mr B. Fokiy. 28. The Court further 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,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account indicated by Mr B. Fokiy;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Ivana Jelić Deputy Registrar President