{"id":17153,"date":"2021-10-21T08:46:01","date_gmt":"2021-10-21T08:46:01","guid":{"rendered":"https:\/\/laweuro.com\/?p=17153"},"modified":"2021-10-21T08:46:01","modified_gmt":"2021-10-21T08:46:01","slug":"case-of-mukiy-v-ukraine-european-court-of-human-rights-application-no-12064-08","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=17153","title":{"rendered":"CASE OF MUKIY v. UKRAINE (European Court of Human Rights) Application no. 12064\/08"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF MUKIY v. UKRAINE<\/strong>
\n(Application no. 12064\/08)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n21 October 2021<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Mukiy v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n

St\u00e9phanie Mourou-Vikstr\u00f6m, President,
\nGanna Yudkivska,
\nLado Chanturia, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the application (no.\u00a012064\/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 7\u00a0February\u00a02008 by two Ukrainian nationals, Mr\u00a0Vladimir\u00a0Davydovich\u00a0Mukiy and Ms\u00a0Galina\u00a0Stepanovna\u00a0Mukiy, born in 1953 and 1954 respectively and living, according to the most recent information in the case file, in Kurortne village, Crimea (\u201cthe applicants\u201d), who were represented by Mr M.\u00a0Shulga, a lawyer practising in Feodosiya;<\/p>\n

the decision to give notice of the application to the Ukrainian Government (\u201cthe Government\u201d), represented by their Agent, most recently Mr\u00a0I.\u00a0Lishchyna of the Ministry of Justice;<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 30 September 2021,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n

1. In March 2004 the applicants, who were tenants of a flat owned by the Karadagskyy State Nature Reserve (\u201cthe Reserve\u201d) in Kurortne for about twenty-five years, brought civil proceedings in the Feodosiya Town Court (\u201cthe Feodosiya Court\u201d) against the local authorities and the Reserve\u2019s administration, challenging the latter\u2019s refusal to allow the flat\u2019s privatisation which had been based on the prohibition to privatise real estate located in a nature reserve. By judgment of 18\u00a0August\u00a02004, the Feodosiya Court allowed the applicants\u2019 action. While the Reserve\u2019s ensuing appeal was rejected for failure to comply with procedural requirements, the Court of Appeal quashed that judgment upon an appeal which had been lodged by the Feodosiya Town Prosecutor in the Reserve\u2019s interests on 20\u00a0September 2004 and had contained essentially similar submissions on the merits of the case. The appellate court, in its judgment of 28\u00a0February\u00a02005, noted that the prosecutor\u2019s appeal was ultimately aimed at the protection of the economic and social interests of the State, since it concerned a nature reserve, which was part of the national heritage, and dismissed the applicants\u2019 action for the reason that under the relevant legislation no part of the latter could be privatised. On 21\u00a0November\u00a02007 the Zaporizhzhya Regional Court of Appeal, acting as a court of cassation, dismissed as unsubstantiated the applicants\u2019 appeal on points of law, in which they argued, inter alia, that the prosecutor had missed the deadline for lodging his appeal. The cassation court found no breach of procedural or substantive law on the part of the appellate court. During the proceedings in question the applicants were represented by a lawyer, who, inter alia, took part in the appellate court\u2019s hearing of 28\u00a0February 2005 and raised objections to the merits of the prosecutor\u2019s appeal of 20\u00a0September 2004.<\/p>\n

2. The applicants complained under Article 6 \u00a7\u00a01 of the Convention that the lodging, allegedly after the expiry of the one-month time-limit, and subsequent examination of the prosecutor\u2019s appeal against the judgment of the Feodosiya Court of 18 August 2004 had been unlawful and contrary to the equality of arms principle, since the appeal in the interests of the respondent party already represented by a lawyer had sought to put pressure on the applicants and they had not been given an opportunity to comment on it.<\/p>\n

3. The applicants further complained under Article\u00a06\u00a0\u00a7\u00a01 of the Convention about the length of the proceedings and also, under Article 6 of the Convention and Article 1 of Protocol No. 1, that the court decisions in their case had been incorrect and unfair.<\/p>\n

4. The Government disputed the applicants\u2019 allegations.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. ALLEGED VIOLATION OF ARTICLE\u00a06\u00a0\u00a7\u00a01 OF THE CONVENTION CONCERNING the prosecutor\u2019s intervention in the APPLICANTS\u2019 case<\/p>\n

5. The Court notes that the applicants\u2019 complaints concerning the prosecutor\u2019s intervention in their case (see paragraph 2 above) are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention or inadmissible on any other ground. They must therefore be declared admissible.<\/p>\n

6. The relevant general principles were summarised in Kress v.\u00a0France [GC], no.\u00a039594\/98, \u00a7\u00a7\u00a065 and 74, ECHR\u00a02001\u2011VI; Regner v.\u00a0the\u00a0Czech\u00a0Republic\u00a0[GC], no.\u00a035289\/11, \u00a7\u00a0146, 19\u00a0September\u00a02017; Todorov v.\u00a0Bulgaria (dec.), no. 39832\/98, 14 March 2002; Yvon v.\u00a0France, no.\u00a044962\/98, \u00a7\u00a032, ECHR\u00a02003\u2011V; F.W. v.\u00a0France, no.\u00a061517\/00, \u00a7\u00a027, 31\u00a0March 2005; Milatov\u00e1 and Others v.\u00a0the Czech Republic, no. 61811\/00, \u00a7\u00a059, ECHR\u00a02005\u2011V; Menchinskaya v.\u00a0Russia, no.\u00a042454\/02, \u00a7\u00a035, 15\u00a0January 2009; Batsanina v. Russia, no. 3932\/02, \u00a7\u00a027, 26 May 2009; and Korolev v.\u00a0Russia (no.\u00a02), no. 5447\/03, \u00a7\u00a034, 1\u00a0April 2010, with further references.<\/p>\n

7. Turning to the present case, the Court notes the Government\u2019s position according to which the domestic courts did not consider that the prosecutor had missed the relevant time-limit, since his appeal against the judgment of 18\u00a0August 2004 had been lodged on 20\u00a0September 2004, the date to which the one-month term had been automatically extended because its last day, 19\u00a0September 2004, had fallen on a Sunday. The Court finds no reason to disagree with the Government, since this was specifically provided for in Articles\u00a087 and 292 of the Code of Civil Procedure of 1963 as worded at the material time (the Code was repealed with effect from 1\u00a0September 2005). The applicants\u2019 different reading of those provisions is not supported by any evidence or persuasive argument.<\/p>\n

8. Nor did the applicants show that the prosecutor\u2019s intervention in the proceedings had been unlawful or unjustified. On the contrary, the dispute was centred on whether or not the property that the applicants wished to have privatised was located within the perimeter of the State-owned nature reserve and thus concerned identifiable and important State assets and interests (compare and contrast Menchinskaya, \u00a7\u00a7\u00a036 and 37, and Korolev, \u00a7\u00a037, both cited above). Pursuant to Article 121 of the Constitution, Articles\u00a013, 121 and 122 of the Code of Civil Procedure of 1963, and sections 5, 20, 34, 35, 36(1) and 37 of the Prosecutors Act of 1991 (most of its provisions were repealed with effect from 15\u00a0July 2015) as worded at the material time, public prosecutors had the right to intervene at any stage of civil proceedings with the aim, inter alia, of defending the interests of the State. Thus, the prosecutor\u2019s intervention in the present case in order to protect such interests can be considered as having a sufficient legal basis.<\/p>\n

9. It is true that the intervention at issue was evidently to the benefit of the applicants\u2019 main opponent \u2013 the Reserve\u2019s administration \u2013 and, moreover, helped to ensure that the judgment of 18\u00a0August 2004, which had not found in its favour, could be appealed against, given that the appeal by the Reserve itself was rejected as inadmissible on procedural grounds.<\/p>\n

10. However, the Court attaches weight to the fact that under the relevant law (see paragraph 8 above), the prosecutor had essentially the same procedural status as any other party, including the applicants. There is nothing pointing to any privileged treatment given to the prosecutor\u2019s submissions or any procedural advantages accorded to him in the present case (compare Todorov v.\u00a0Bulgaria (dec.), no.\u00a039832\/98, 14\u00a0March\u00a02002 and contrast Yvon, cited above, \u00a7\u00a037; Martinie v.\u00a0France\u00a0[GC], no.\u00a058675\/00, \u00a7 50, ECHR 2006\u2011VI; and Menchinskaya, cited above, \u00a7\u00a039).<\/p>\n

11. According to the domestic case file, the prosecutor\u2019s appeal had been notified to the applicants before the Court of Appeal heard it on 28\u00a0February 2005. Even though the applicants stated that they had not received it, no complaint in that regard was raised by their lawyer during that hearing or in the applicants\u2019 appeal on points of law. Moreover, at both stages of the proceedings the applicants or their lawyer challenged the prosecutor\u2019s arguments on the merits. The applicants\u2019 right to have knowledge of and comment on all evidence adduced or observations filed in the proceedings appears to have been fully respected in the present case.<\/p>\n

12. Thus, the Court finds that the prosecutor\u2019s intervention complained of by the applicants did not put them at a \u201csubstantial disadvantage\u201d vis\u2011\u00e0\u2011vis the opposing parties to the proceedings in issue.<\/p>\n

13. Nor is there any reason to believe that the prosecutor\u2019s intervention in the present case had the aim or effect of unduly influencing the courts or undermining the appearances of a fair trial (see Batsanina, cited above, \u00a7\u00a027, with further references).<\/p>\n

14. There has accordingly been no violation of Article\u00a06\u00a0\u00a7\u00a01 of the Convention under this head.<\/p>\n

II. REMAINING COMPLAINTS<\/p>\n

15. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicants\u2019 remaining complaints under Article 6 of the Convention and Article 1 of Protocol No.\u00a01 (see paragraph 3 above) do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and\u00a04 of the Convention.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the applicants\u2019 complaints under Article\u00a06\u00a0\u00a7\u00a01 of the Convention concerning the prosecutor\u2019s intervention in the proceedings to which they were party admissible and the remainder of the application inadmissible;<\/p>\n

2. Holds that there has been no violation of Article\u00a06\u00a0\u00a7\u00a01 of the Convention.<\/p>\n

Done in English, and notified in writing on 21 October 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 St\u00e9phanie Mourou-Vikstr\u00f6m
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

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FIFTH SECTION CASE OF MUKIY v. UKRAINE (Application no. 12064\/08) JUDGMENT STRASBOURG 21 October 2021 This judgment is final but it may be subject to editorial revision. In the case of Mukiy v. Ukraine, The European Court of Human Rights…<\/p>\n

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