Last Updated on April 24, 2019 by LawEuro
Communicated on 14 February 2019
FIFTH SECTION
Application no. 50199/10
Oleksandr Vasylyovych STOROZHUK
against Ukraine
lodged on 19 August 2010
STATEMENT OF FACTS
The applicant, Mr Oleksandr Vasylyovych Storozhuk, is a Ukrainian national who was born in 1954 and lives in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 December 1997 the U. Union of Advocates (hereinafter “the Union”), the applicant (who was at that time a member of the Union) and another party entered into a contract for the purchase of a flat situated in the centre of Kyiv. The contract provided that the Union would acquire title to one fifth of the flat, while the two other parties would acquire two fifths each.
On 6 January 1998 the applicant allocated his share of the flat to the Union for use.
At an unspecified time the Union renovated the flat at its own expense. It has used it as its office ever since.
On 25 July 2007 the applicant was excluded from membership of the Union.
On 19 February 2008 the Union initiated court proceedings before the Shevchenkivskyy District Court of Kyiv against the applicant and the other party to the purchase contract, seeking to invalidate the provisions relating to the applicant’s title.
On 16 October 2009 the Shevchenkivskyy District Court of Kyiv allowed the claim, declaring the relevant part of the contract invalid and that the Union was the owner of the disputed share of the flat. The court found that the money paid for the acquisition of the applicant’s two fifths of the flat had not belonged to him, as he had received it from the Union, and that the aim of the purchase contract had been for the Union to acquire the whole flat. The claim was examined by Judge G.
The applicant and his wife appealed, claiming, inter alia, that Judge G. had not been impartial. In their notice of appeal they referred to a Proposal of the President of Ukraine to the High Council of Justice of 27 November 2007 requesting it to question the impartiality and abuse of power of several judges, including Judge G., and instigate disciplinary proceedings for that purpose. The applicant and his wife also mentioned that they had been carrying out their own enquiries regarding the lack of impartiality of Judge G.
On 23 December 2009 the Kyiv Court of Appeal, without commenting on the issue of the alleged lack of impartiality of Judge G., reconsidered the case on the merits and upheld the decision of the first-instance court. The appeal was examined by three judges, including Judge Zh., the case rapporteur.
The applicant and his wife appealed in cassation, raising the issue of the alleged lack of impartiality of Judge G. and Judge Zh. in their notice of appeal. The applicant once again referred to the Proposal of 27 November 2007, which listed the names of both judges. In addition, he stated that the results of his own enquiries had revealed a connection between Judge G. and the Union, which had paid for a trip abroad for her, and that he had filed a complaint with the prosecutor’s office against Judge G. regarding this.
On 1 March 2010 the Supreme Court of Ukraine refused to open cassation proceedings. It did not comment on the allegation regarding the lack of impartiality of the judges of the Shevchenkivskyy District Court of Kyiv and the Kyiv Court of Appeal. The case was examined by Judge Gr.
B. Relevant domestic law
Article 20 § 1 of the Code of Civil Procedure provided, at the relevant time, that a judge could not take part in the examination of a case and could be challenged or should resign him or herself where: (i) he or she had previously taken part in the case as, for example, a witness, representative, expert or secretary; (ii) he or she had a direct or indirect interest in the outcome of the litigation; (iii) he or she was a family member or close relative of a party; and/or (iv) there were other grounds for doubting his or her objectivity and impartiality.
COMPLAINTS
The applicant complains under Article 6 that he did not have a fair hearing by an “independent and impartial tribunal”. According to him, the single judges who examined his case in the Shevchenkivskyy District Court of Kyiv and the Supreme Court – Judges G. and Gr. respectively – and one of the three judges that examined his case in the Kyiv Court of Appeal – Judge Zh. – had ties with his opponent.
The applicant complains under Article 1 of Protocol No. 1 that as a result of the decisions rendered by the courts that lacked impartiality, he was deprived of his possessions without any compensation.
QUESTIONS TO THE PARTIES
1. Has the applicant raised before the Kyiv Court of Appeal and the Supreme Court of Ukraine, at least in substance, his complaint under Article 6 of the Convention about his right to have a fair hearing by an “independent and impartial tribunal”? In other words, did he exhaust the domestic remedies as required by Article 35 of the Convention?
2. In the affirmative, did the applicant in the proceedings before the Shevchenkivskyy District Court of Kyiv, the Kyiv Court of Appeal and the Supreme Court of Ukraine have a fair hearing by an “impartial tribunal” for the determination of his civil rights within the meaning of Article 6 § 1 of the Convention?
3. In view of the answer to question 2, was the positive obligation of Ukraine under Article 1 of Protocol No. 1 to afford judicial procedures that offer the necessary procedural guarantees enabling the domestic courts and tribunals to adjudicate disputes effectively and fairly, fulfilled?
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