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30.09.2011    source:
Arkady Bushchenko
A staggering case where Ukraine’s Supreme Court judges found a European Court of Human Rights judgement too difficult to comprehend … or more convenient to misinterpret

The Strategic Litigations Centre constantly reports on different cases of “enforcement” by our courts of European Court of Human Rights judgements. One can find dazzling examples of such enforcement in the cases of Oleksandr Yaremenko, Stanislav Lutsenko and Dmytro Shabelnyk. 

A new such example is provided by the case of Maria Ivanovna Bochan.

On 3 May 2007 the European Court issued its judgement in the case of Bochan v. Ukraine. We will not go into details about Maria Ivanovna’s civil case in domestic courts. We would mention only that the dispute concerned ownership of a house and plot of land which was, as anyone can understand, of critical importance for this lady born in 1917. The circumstances of the case are set out in detail in the ECHR judgement.

We will also not describe the whole saga of the domestic proceedings. They end with an application to the European Court and with the Court’s judgement that there had been a violation of Article 6 § 1 of the Convention on Human Rights.

The Court noted how the assignment of jurisdiction by the Supreme Court had changed. It did indeed change very strangely. One must remember that over a very large number of years the transfer of the case to another region subjected the applicant to incredible difficulties. Yet the Supreme Court for some reason did not provide grounds for its decision to change the jurisdiction, instead “having stated its position concerning one of the principle aspects of the case, namely the Society’s competence to grant property, even before the new assessment of facts and taking of evidence by the lower courts took place” (§ 74 of the Judgement). Such behaviour by the Supreme Court led the European Court to conclude that “the applicant’s fears that the judges of the Supreme Court, including its Deputy President, had a prefixed idea concerning the outcome of the case and that the judges to whom the case had been transferred on 9 October 2000 would have to consider the case in accordance with the Supreme Court’s view could be held to be objectively justified”.

The European Court also noted that the domestic courts had not provided any answers to the applicant’s arguments regarding the reliability of witnesses’ testimony and the authenticity of documents which were crucial to the outcome of the case (§81-84).

As a result, the Court decided that the applicant’s right to a fair hearing by an independent and impartial tribunal had been infringed (§ 85).

Since the Court determined that the rulings had been made as the result of an unfair hearing, it did not examine whether the applicant’s property rights had been infringed, assuming that the domestic courts by means of a fair trial would themselves decide on this.

The Court also found that there had been an infringement of the right to a reasonable time period for the hearings.

Having received such a European Court judgement which clearly demanded that all court rulings in the case be revoked, on 14 June 2007 Maria Ivanovna made the appropriate application to the Supreme Court.

Yet the ruling which was self-evident to everyone was absolutely not clear for the civil chamber of Supreme Court judges. They on 14 March 2008 rejected her application, not even considering it necessary for the applicant to take part. The Supreme Court’s argument was as follows:

“… With its judgement from 3 May 2007 the European Court of Human Rights found the applicant’s allegations that the hearing had been unfair and that there had been an infringement of Article 1 of Protocol No. 1 admissible, and the others – inadmissible. It was found that there had been an infringement of Article 6 § 1 of the Convention… [the Court] judged that the respondent State must pay the applicant … 2, 000 EUR in respect of non-pecuniary damage. ..

… In its judgement the European Court of Human Rights also  concluded that the applicant’s complaint (alleging violation of Article 14 of the Convention together with Article 1 of Protocol 1 should be excluded as openly unfounded..”

All correct, but now, attention please…

 “… Therefore the European Court of Human Rights came to the conclusion that the rulings of the [domestic] courts had been lawful and well-founded and decided to award the applicant compensation of 2, 000 EUR only over infringement of the requirement for a reasonable period by the Ukrainian courts.

Taking this into consideration, the court rulings in the case cannot be revoked on the grounds presented in Ms Bochan’s application.

Now that’s something.  Let’s check what the European Court said in § 85 of its judgement.

85.  The Court finds that, having regard to the circumstances in which the applicant’s case was reassigned by the Supreme Court and the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively, the applicant’s right to a fair hearing by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention was infringed. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

It is incredible that in SUCH a judgement from the European Court which is dealing with a case where the Supreme Court shamelessly foisted its prejudices on lower-level courts, so shamelessly that this gave grounds for doubting the impartiality of the courts, where it is stated that the courts did not answer any of the substantive arguments from the applicant during the course of the domestic hearings, the Supreme Court managed to see recognition that the rulings Maria Ivanovna was seeking to have revoked had been “lawful and well-founded”.

Like any intelligent human being Maria Ivanovna evidently assumed that what had happened was a misunderstanding, a clerical error. After all you can’t assume the Supreme Court judges cannot put letters together to form words, and words together to make up sentences, gauging the sense from those sentences.

On 8 April 2008 Maria Ivanovna Bochan once again approached the “collective intelligence” of the Supreme Court with an analogous application, politely hinting that the ruling from 14 March 2008 was the result of “an incorrect interpretation” of the European Court judgement.

Yet on 5 June 2008 the judges of the civil chambers of the Supreme Court confirmed that the ruling from 14 March 2008 was no mistake and the actual result of the mental activity of the Supreme Court’s collective intelligence.

Franz Kafka smokes nervously in a corner. ..  The Court is now in communication with the Ukrainian Government over Maria Ivanovna Bochan’s Application No. 22251 (08).


Arkady Bushchenko, bar lawyer, Head of the Board of the Ukrainian Helsinki Human Rights Union

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