KOTENKO AND OTHERS v. UKRAINE - 2575/09 (Judgment : No Article 6 - Right to a fair trial : Fifth Section Committee) [2019] ECHR 474 (20 June 2019)

In the case of Kotenko and others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar ,

Having deliberated in private on 28 May 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on various dates indicated in the appendix.

2. The Ukrainian Government ("the Government") were represented by their Agent, Mr I. Lishchyna .

3. The applicants alleged under Article 6 § 1 of the Convention that the domestic courts had failed to give reasons for their decisions, and did not deal with the pertinent and important arguments raised by the applicants during the proceedings.

4. On 8 January 2018 notice of the above complaints was given to the Government and the remainder of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Application no. 2575/09by V. Kotenko

5. By a court decision the applicant was under an obligation to provide financial support in the amount of a quarter of his income for his child, who was living separately.

6 . In November 2006 the applicant instituted civil proceedings against the State bailiffs service, claiming that they had erroneously determined his debt for child support in the amount of 75,083.05 hryvnias (UAH) [1] and that they had taken wrongful actions to ensure the collection of the debt. The applicant claimed, in particular, that the bailiffs had determined the debt on the basis of the gross earnings the applicant had received as a private entrepreneur, without deducting the expenses he had incurred in the course of those activities. The bailiffs objected to the claim and submitted that they had received the information about the applicant ' s income from the tax authorities.

7. The court ordered an expert accounting report to determine the actual income of the applicant at the relevant time.

8 . In June 2007 the expert provided the report, indicating that the applicant had submitted to the tax authorities the information about his gross earnings obtained in the course of his business activities. The expert further concluded that the applicant ' s actual income was much lower than that determined by the bailiffs and that the debt for child support constituted UAH 1,650.90 [2] .

9 . On 9 November 2007 the Zhytomyr District Court, relying on the expert report, found that the bailiffs had wrongly determined the amount of child-support debt.

10. 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 had needlessly ordered an expert accounting report which was based on the tax legislation, given that the amount of child support was not a matter of tax law. The Court of Appeal noted that the bailiffs had relied on the official data obtained from the authorities and had correctly determined the amount of debt by referring to the available information on the applicant ' s income. The Court of Appeal then added that the applicant had not provided any evidence to disprove the amounts of income determined by the bailiffs.

11. The applicant lodged an appeal on points of law, arguing that the Court of Appeal had endorsed the bailiffs ' calculation without dealing with his objections based on the expert report.

12. On 9 July 2008 the Supreme Court dismissed the applicant ' s appeal on points of law, stating in general terms that the Court of Appeal had taken a lawful and reasoned decision.

B. Application no. 45712/10by L. Kobilyeva

13. Ms Kobilyeva married her husband in 1984. 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 a flat ownership certificate was issued to the applicant ' s husband.

14 . In 2008 the applicant divorced her husband. In 2009 she instituted civil proceedings against her former husband, arguing that the flat was their common marital property and that she was entitled to half of the flat.

15. On 21 July 2009 the Bila Tserkva Town Court dismissed the claim as unsubstantiated, stating that the flat was the personal property of the former husband and not part of their marital property. The court had regard to the written evidence as well as oral statements of the company director, who had submitted that the company had provided the flat to the applicant ' s former husband in order to reward him for his professional achievements. The court referred to Article 57 of the Family Code of 2002, which provided that rewards and awards for personal achievements of one of the spouses were part of his or her individual property and not the marital property of both spouses.

16. The applicant appealed, arguing, among other things, that the court had wrongly resolved the dispute on the basis of the Family Code of 2002, which had come 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 had been in force when her former husband had acquired the flat, the latter had been the common marital property of the spouses, and no exceptions were made for rewards or awards for personal achievements of one of the spouses.

17. On 27 October 2009 the Kyiv Regional Court of Appeal dismissed the applicant ' s appeal as unfounded, holding that she had failed to prove that the flat was the marital property of the former spouses and that she had made any contribution to the acquisition of the flat. The applicant then raised those arguments before the Supreme Court. On 16 February 2010 the Supreme Court dismissed as unfounded an appeal on points of law lodged by the applicant.

C. Application no. 20805/11by T. Rusnachenko

18. The applicant ' s husband worked at company O. from 1981 until his death on 3 July 2006.

19. On 20 December 1995 company O., the applicant ' s husband and K., a construction company, concluded an agreement under which the applicant ' s husband was to be provided with a three-room flat, no. 42, in a multi-storey building. Company O. financed the construction work. As a party to that agreement, the applicant ' s husband was obliged to carry out internal repairs 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 was under construction.

20. On 22 December 1998 company K., company O. and another company which was 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 a three-room flat, no. 42. On the same date company O. issued a certificate stating that the applicant ' s husband was the 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 work had not been completed.

21. In 2002 company K. made further arrangements and agreements aimed at raising funds for the completion of the building. In 2005 company K. transferred the flat at issue to another individual.

22 . 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.

23. The applicant appealed, arguing that her husband had been expressly designated as a party to 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 assigned its rights to the flat to the applicant ' s husband. Lastly, the applicant argued that the rights to the flat had been retained by her husband ' s family after his death.

24 . On 21 September 2010 the Kirovohrad Regional Court of Appeal dismissed the applicant ' s appeal, holding that the claim against company K. was groundless because it had been just a technical contractor and not a party responsible for the provision and distribution of flats; it had been the responsibility of company O. to provide the applicant ' s husband with the flat. However, there was no evidence that company O. still existed as a legal entity or had any successors. Furthermore, the applicant herself had never been a party to the agreements with the defendants.

25. The applicant then raised those arguments before the Supreme Court. On 19 January 2011 the Supreme Court dismissed as unfounded an appeal on points of law.

D. Application no. 41732/11by V. Kostrytskyy

26. The applicant ' s grandmother worked in an agricultural collective farm and was entitled to a share in the plots of land allocated to that farm. According to the applicant, his grandmother had died without having actually been provided with the share of land.

27. The applicant instituted civil proceedings against the local authorities and the collective farm, claiming that, as his grandmother ' s successor, he had to be provided with the share of land to which his grandmother had been entitled. He enclosed, among other things, official letters from the domestic authorities confirming to him that his grandmother had had the right to a share of land.

28 . Following the applicant ' s request, on 4 March 2010 the Obukhiv District Court ordered the local land resources department to submit to the court the land ownership documents given to the farm, including an official list of citizens who had been given the shares in the plots of land allocated to the farm. As the official list had not been provided, on 30 March 2010 the court requested it once again. Subsequently, the court sent a warning that administrative liability could be imposed for failure to submit the requested list of citizens.

29. On 25 may 2010 the Obukhiv District Court dismissed the applicant ' s claim after finding that he had failed to substantiate it and to prove that his grandmother had not received any share of land. The court stated, in particular, that the applicant had failed to submit the official list of citizens who had been given shares in the plots of land allocated to the farm. The court noted that its attempt to obtain that evidence had not been successful.

30. The applicant appealed, arguing that (i) the fact that his grandmother had not received the share of land had been confirmed, in his opinion, by the official replies from the local authorities which he had submitted to the court; and (ii) he did not have access to the list of citizens mentioned by first-instance court.

31. On 4 November 2010 the Kyiv Court of Appeal dismissed the applicant ' s appeal, endorsing the first-instance court ' s reasoning that by not providing the official list of citizens who had received the shares of land, the applicant had failed to prove that his grandmother had not received any such share.

32. The applicant lodged an appeal on points of law, arguing that he could not have access to the above-mentioned 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, in his opinion, that his grandmother had not been allocated the share of land to which she had been entitled.

33. On 4 January 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the appeal on points of law, noting that the applicant had failed to present the above-mentioned list of citizens in support of his claim.

II. RELEVANT DOMESTIC LAW

34. Relevant domestic law can be found in the judgments in the case of Voloshyn v. Ukraine (no. 15853/08 , § 22, 10 October 2013) and Mala v. Ukraine ( no. 4436/07 , §§ 29 and 30, 3 July 2014) .

THE LAW

I. JOINDER OF THE APPLICATIONS

35. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

36. The applicants complained that their pertinent and important arguments had not been duly addressed by the domestic courts, in breach of Article 6 § 1 of the Convention.

37. Article 6 § 1 reads, in so far as relevant, as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

A. Admissibility

38. The Government submitted that the domestic courts were better placed to interpret and apply domestic law, as well as to assess the evidence in the applicants ' cases. They submitted that the domestic courts had duly reasoned their decisions and therefore the applicants ' complaints were manifestly ill-founded.

39. The applicants disagreed, arguing that domestic courts ' had not dealt with important aspects of their claims and that they had therefore compromised the fairness of the proceedings.

40. The Court considers that the complaints raised by the applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

41. The applicants maintained their complaints.

42. The Government reiterated that the domestic courts had complied with their obligation to provide reasons for their decisions and that there had been no violation of Article 6 § 1 of the Convention.

43. In accordance with its long-standing and established case-law, the Court should not act as a court of fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 61, ECHR 2015, with further references ).

44. Article 6 § 1 obliges the domestic courts to give reasons for their judgments. This duty cannot be understood as requiring a detailed answer to every argument and the question of compliance with that duty can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303 - A, and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 - I). These principles have been applied in a number of Ukrainian cases in which the Court has found a violation of Article 6 § 1 ( Benderskiy v. Ukraine , no. 22750/02, §§ 42-47 , 15 November 2007; Pronina v. Ukraine , no. 63566/00, § 25, 18 July 2006; and Bogatova v. Ukraine , no. 5231/04, §§ 18 and 19, 7 October 2010).

45. The Court will examine the specific facts of each case in accordance with the above principles.

1. Application no. 2575/09by V. Kotenko

46. Mr Kotenko argued before the courts that the bailiffs had failed to make a correct calculation of his net income in order to determine his child - support debt (see paragraph 6 above). To substantiate his claim, he relied on the expert report ordered by the court, disproving the calculation by the bailiffs (see paragraph 8 above). His claim was allowed by the first - instance court with reference to that report (see paragraph 9 above). Nevertheless, the Court of Appeal dismissed the claim, finding that the information on the applicant ' s income had been lawfully obtained by the bailiffs from the tax authorities and that the applicant had not objected to that amount.

47. The Court notes that, as it appears from the file, the applicant did not object to the information obtained by the bailiffs from the tax authorities because the whole point of his lawsuit was obviously different. Namely, he contended that the amount provided by the tax authorities did not constitute his net income but reflected his gross earnings. However, it does not appear that the Court of Appeal addressed in substance the applicant ' s key argument about the difference between his net and gross income. Nevertheless, it discarded the expert report on rather general grounds and dismissed the case entirely as unfounded. Nothing suggests that the applicant ' s principal issue was further examined by the Supreme Court.

48. In these circumstances the Court considers that the central point of the applicant ' s claim was not addressed by the domestic courts. It follows that there has been a violation of Article 6 § 1 of the Convention.

2. Application no. 45712/10by L. Kobilyeva

49. Ms Kobilyeva claimed before the domestic courts that she had a right to half of her husband ' s flat after their divorce (see paragraph 14 above). She relied on the legal presumption that during a marriage, any property acquired by the couple had to be treated as common marital property. The domestic courts found that the flat at issue fell under an exception established by law, given that the applicant ' s husband had received it as a reward for his professional achievements. The appellate court noted in addition that the applicant had failed to prove that she had made any contribution to the acquisition of the flat.

50. In her submissions to the domestic courts, the applicant insisted that the general presumption of common marital property had to apply, arguing specifically that the exception invoked by the courts had not existed at the time the flat had been given to her husband. The courts, however, disregarded those contentions, even though they concerned the heart of the dispute and critically affected the distribution of the burden of proof in the case. In the Court ' s opinion, those contentions should have been expressly addressed and examined in detail by the courts.

51. In such circumstances, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.

3. Application no. 20805/11by T. Rusnachenko

52. Ms Rusnachenko instituted civil proceedings, arguing that she had a right to a flat, given the arrangements between her late husband and two defendant companies. The first-instance court dismissed the applicant ' s claim, considering that her late husband had not been a party to the contractual arrangements, which implied that the applicant had no rights under those arrangements. That court then ruled that any alleged succession to the applicant ' s husband of company O. ' s rights had not been based on domestic law (see paragraph 22 above). Following an appeal lodged by the applicant, the appellate court partly changed the lower court ' s reasoning, finding that company O., but not the other defendant company, had a contractual obligation to provide the applicant ' s family with a flat. However, it had not been established that that company had still existed as a legal entity (see paragraph 24 above). Therefore the claim had to be dismissed as unfounded. The Supreme Court upheld those findings.

53. Assessing the decisions of the domestic courts, the Court notes that even if the first-instance court had erred in finding that the applicant ' s husband had not been a party to the contractual arrangements with two defendant companies, the appellate court had not maintained that point. In response to the applicant ' s appeal, the appellate court determined with sufficient clarity whether the applicant ' s late husband had a right to a flat, who had to ensure such a right and why it had turned out to be impossible to do so in practice. The appellate court specifically focused on the role of each defendant company and explained the different reasons why neither of them could be held liable. Similarly, there is nothing to suggest that the courts failed to examine the question of the succession to company O. ' s rights. Both the first-instance court and the appellate court addressed that part of the case. The Court finds no other pertinent argument which was not examined by the domestic courts.

54. In sum, the Court does not find that the domestic courts ' decisions were arbitrary or manifestly unreasonable or that any key argument raised by the applicant remained unanswered. In these circumstances, the Court finds that there has been no violation of Article 6 § 1 of the Convention.

4. Application no. 41732/11by V. Kostrytskyy

55. Mr Kostrytskyy brought an action before the domestic courts, claiming that his late grandmother had not received a share of land from a collective farm and arguing that he had inherited that entitlement. The courts dismissed the claim after finding that the applicant had failed to prove that his grandmother had not received any share of land.

56. Even though the domestic courts acknowledged the difficulties the applicant had experienced in assembling the evidence relevant for the case, they still dismissed his claim, essentially for lack of proof. Namely, further to the applicant ' s request, the first-instance court ordered the domestic authorities to provide an official list of citizens who had been given shares of land (see paragraph 28 above). However, the authorities failed to furnish the list. The first-instance court stated only that its attempts to obtain the list from the authorities had not been successful. It neither explained the reasons for its inability to obtain the document at issue, nor showed that all the necessary measures to secure that evidence had been taken. Despite appeals lodged by the applicant on that point, there is nothing to suggest that the higher courts addressed that issue (see, in that regard, Voloshyn v. Ukraine , cited above, § 33). In the meantime, the applicant repeatedly referred to other official documents proving, in his opinion, that his grandmother had not received any share of land. Whether or not those documents confirmed the disputed facts was an important aspect of the case, which, however, had not been duly examined by the courts.

57. Accordingly, the Court finds that the domestic courts fell short of their obligation to examine arguments which were relevant and important.

58. There has therefore been a violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

60. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sums indicated in the appendix. It rejects any additional claims for just satisfaction raised by the applicants.

61. The Court 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,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in applications nos. 2575/09(lodged by V. Kotenko ), 45712/10(lodged by L. Kobilyeva ) and 41732/11(lodged by V. Kostrytskyy );

4. Holds that there has been no violation of Article 6 § 1 of the Convention in application no. 20805/11(lodged by T. Rusnachenko );

5. Holds

(a) that the respondent State is to pay the applicants in applications nos. 2575/09, 45712/10and 41732/11, within three months, the amounts stated in the appendix, plus any tax that may be chargeable to them, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that the amount awarded in respect of costs and expenses in application no. 41732/11shall be paid into the bank account of the representative;

(c) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on such amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

6. Dismisses the remainder of the applicants ' claims for just satisfaction.

Done in English, and notified in writing on 20 June 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Yonko Grozev
Deputy Registrar President

No.	Application no.	Lodged on	Applicant Date of birth Place of residence Nationality	Represented by	Amount awarded for non - pecuniary damage	Amount awarded for costs and expenses
1	2575/09	05/01/2009	Viktor Vasylovych KOTENKO 05/03/1959 Novoguyvynske Ukrainian	Tetyana LEVCHUK	EUR 2,400	0
2	45712/10	03/08/2010	Lyudmyla Semenivna KOBILYEVA 03/12/1961 Bila Tserkva Ukrainian	Mykhailo TARAKHKALO Vitaliia LEBID Olena PROTSENKO Oryna CHILUTYAN	EUR 2,400	0
3	20805/11	25/03/2011	Tamara Vasilyevna RUSNACHENKO 11/07/1959 Kirovograd Ukrainian	Vladimir FILSHTEYN	n/a	n/a
4	41732/11	23/09/2011	Viktor Vasylyovych KOSTRYTSKYY 24/02/1962 Deremezna Ukrainian	Ihor HARNAHA	EUR 2,400	EUR 400

[1] . About 11,659 euros (EUR) at the relevant time

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