In this case the applicant complained that the review \u201cin the light of newly discovered circumstances\u201d and the eventual quashing of a final and enforceable judgment in his favour in civil proceedings that had been completed were unjustified and thus contrary to Article 6 \u00a7 1 of the Convention. He also alleged a violation of Article 1 of Protocol No. 1 on account of the quashing of the judgment, since he had lost his established title to the disputed property.<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Mitsopoulos v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n M\u0101rti\u0146\u0161 Mits, President, Having regard to:<\/p>\n the application (no.\u00a062006\/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Greek national, Mr\u00a0Atanasios Georgios Mitsopoulos (\u201cthe applicant\u201d), on 15 November 2009;<\/p>\n the decision to give notice to the Ukrainian Government (\u201cthe Government\u201d) of the complaints under Article\u00a06\u00a0\u00a7\u00a01 of the Convention and Article\u00a01 of Protocol\u00a0No.\u00a01 regarding the reopening of the proceedings in the applicant\u2019s case and the quashing of the binding and enforceable judgment favourable to him and to declare the remainder of the applications inadmissible;<\/p>\n the parties\u2019 observations;<\/p>\n the fact that the Government of Greece did not express the wish to make use of their right to intervene in the proceedings (Article 36 \u00a7 1 of the Convention);<\/p>\n Having deliberated in private on 18 November 2021,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n INTRODUCTION<\/strong><\/p>\n 1. In this case the applicant complained that the review \u201cin the light of newly discovered circumstances\u201d and the eventual quashing of a final and enforceable judgment in his favour in civil proceedings that had been completed were unjustified and thus contrary to Article 6 \u00a7 1 of the Convention. He also alleged a violation of Article\u00a01 of Protocol No. 1 on account of the quashing of the judgment, since he had lost his established title to the disputed property.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicant was born in 1959 and lives in Kyiv. The applicant was represented by Mr\u00a0V. Teterskyy, a lawyer practising in Kyiv.<\/p>\n 3. The Government were represented by their Agent, most recently Mr\u00a0I.\u00a0Lishchyna of the Ministry of Justice.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 5. On 23\u00a0September 2002 the applicant bought a house from a private individual.<\/p>\n 6. In January 2003 that individual instituted civil proceedings before the Obolonskyy District Court in Kyiv, challenging the validity of the contract of sale.<\/p>\n 7. In March 2003 the applicant lodged a counterclaim with the same court, essentially claiming title to the disputed house.<\/p>\n 8. Subsequently, several other individuals joined the proceedings, including M., who was in possession of the house until at least 7\u00a0November 2007 (see paragraph 9 below).<\/p>\n 9. Following several reconsiderations of the case, on 22\u00a0January 2007 the Obolonskyy District Court found in part for the applicant, having acknowledged his title to the house together with its outbuildings and associated constructions. On 7\u00a0November 2007 the Supreme Court upheld that judgment and, accordingly, it became binding and enforceable on that date.<\/p>\n 10. In April 2009 M. lodged an application with the Obolonskyy District Court for review of the judgment of 22\u00a0January 2007 \u201cin the light of newly discovered circumstances\u201d (see paragraph 14 below). M. alleged that, while the original court proceedings had been pending, she had not been aware that the house had been renovated to the extent that it could no longer be regarded as the object of the disputed contract of sale. She added that the renovation had been conducted under the supervision of her representative.<\/p>\n 11. The applicant challenged that application, arguing that during the proceedings the house had been in the possession and under the control of M., who, consequently, had been aware of the renovation. Moreover, her application for review of the judgment of 22\u00a0January 2007 had been lodged out of time.<\/p>\n 12. On 20\u00a0May 2009 the Obolonskyy District Court allowed M.\u2019s application, quashed the judgment of 22\u00a0January 2007 and reopened the proceedings on the merits. The court held that \u201chaving examined the material of the case and having heard the parties, it considered that the application could be allowed\u201d. The court provided no further explanation in that regard.<\/p>\n 13. The reopened proceedings involved several reconsiderations on the merits and, eventually, were terminated by a final decision of the Higher Specialised Court in Civil and Criminal Matters on 27\u00a0April 2016, upholding the judgment of the Kyiv Court of Appeal of 3\u00a0November 2015, by which the applicant\u2019s claims were partly allowed. In particular, his title to the house was acknowledged, whereas no such acknowledgment was made as regards the adjacent and associated constructions and any improvements made to the entire estate after 23 September 2002. Moreover, his opponents were ordered not to hinder the exercise of his right of ownership over the house.<\/p>\n RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n 14. Under the relevant procedural regulations (Articles 361-62 of the Code of Civil Procedure of 2004), as worded at the material time, judgments and rulings of courts of first instance, appeal courts and cassation courts could be reviewed \u201cin the light of newly discovered circumstances\u201d. Four grounds for such a review were set out, namely: (i) significant circumstances which were not and could not have been known, at the time when the case was being considered, to the person applying for such reconsideration; (ii) the intentionally false testimony of a witness, intentionally incorrect expert conclusions, intentionally incorrect translations, or forged documentary or material evidence leading to the adoption of an unlawful or unsubstantiated judgment, as established by a final judgment in a criminal case; (iii) the quashing of a judicial decision on which the judgment or ruling in issue was based; and (iv) a decision of the Constitutional Court declaring unconstitutional a law or another normative act or a part thereof, which had been applied by the court when deciding on the case, if its judgment had not already been enforced. Applications for reconsideration of a case in the light of newly discovered circumstances had to be lodged with the courts within three months of the day when the appellant became or should have become aware of the circumstances forming the grounds for such reconsideration.<\/p>\n THE LAW<\/strong><\/p>\n I. scope of the case<\/strong><\/p>\n 15. After notice of the application had been given to the respondent Government in October 2018, the applicant raised new complaints, relying essentially on Articles 6 and 8 of the Convention and Article\u00a01 of Protocol\u00a0No.\u00a01, concerning the non-enforcement of the judgment of the Kyiv Court of Appeal of 3\u00a0November 2015 (see paragraph 13 above), the alleged lack of access to the property in question and the conduct of other related proceedings, some of which were ongoing.<\/p>\n 16. The Court considers that these new complaints do not constitute an elaboration on the applicant\u2019s original complaints to the Court, on which the parties have already commented. The Court considers, therefore, that it is not appropriate to take up this matter in the context of the present case (see Piryanik v. Ukraine, no. 75788\/01, \u00a7 20, 19 April 2005).<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a01 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1<\/p>\n 17. The applicant complained that the review and the quashing of the binding and enforceable judgment of the Obolonskyy District Court of 22\u00a0January 2007 had not been based on \u201ccircumstances of a substantial and compelling character\u201d and did not concern a \u201cconscientious effort to make good a miscarriage of justice\u201d. He further complained that the quashing complained of had led to the unlawful deprivation of his property. He relied on Article 6 \u00a7\u00a01 of the Convention and Article\u00a01 of Protocol No.\u00a01, the relevant parts of which read as follows:<\/p>\n Article\u00a06 \u00a7\u00a01<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n Article\u00a01 of Protocol No.\u00a01<\/p>\n \u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.<\/p>\n …\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 18. The Court notes that the original proceedings (completed in 2007) and the renewed proceedings (completed in 2016) led to a favourable outcome for the applicant: his title to the house was acknowledged in both cases. However, contrary to what the Government argued, the judgment of the Obolonskyy District Court of 22\u00a0January 2007, the quashing of which he complained of, also acknowledged his title to the house\u2019s outbuildings and associated constructions, whereas no such acknowledgment was made in the judgment of the Kyiv Court of Appeal of 3\u00a0November 2015, eventually upheld by the final decision of the Higher Specialised Court in Civil and Criminal Matters of 27\u00a0April 2016 which terminated the proceedings in the present case (see paragraphs 9 and 13 above). Moreover, the latter judicial decisions provided no reparation for any negative consequences of the quashing of the judgment of 22\u00a0January 2007, including, in the main, the applicant\u2019s consequent inability to exercise his ownership rights over the house, as acknowledged by that judgment, for more than six years. Thus, the Government\u2019s objection to the applicant\u2019s victim status regarding his complaint under Article\u00a01 of Protocol No.\u00a01 should be dismissed.<\/p>\n 19. The Court notes that the applicant\u2019s complaints under Article\u00a06 \u00a7\u00a01 of the Convention and Article\u00a01 of Protocol No.\u00a01 are neither manifestly ill\u2011founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. They must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 20. The relevant general principles were summarised in, among other authorities, Pravednaya v.\u00a0Russia (no.\u00a069529\/01, \u00a7\u00a7\u00a024-25 and 38-40, 18\u00a0November 2004) and Lizanets v. Ukraine (no. 6725\/03, \u00a7\u00a7\u00a031-32, 31\u00a0May 2007).<\/p>\n 21. In the present case, the final and enforceable judgment of the Obolonskyy District Court of 22\u00a0January 2007, acknowledging the applicant\u2019s title to the disputed property, was reviewed and quashed because of \u201cnewly discovered circumstances\u201d. This was done upon an extraordinary appeal lodged by a party to the original proceedings, M., under the relevant procedure provided for in the Code of Civil Procedure of 2004, which does not appear to be in itself incompatible with the requirements of a fair hearing (see, mutatis mutandis, Pravednaya, cited above, \u00a7\u00a028). However, the extraordinary appeal in question contained no indication that the judgment against which it had been directed had been marred by a serious judicial mistake or a miscarriage of justice. Moreover, that appeal was based on contradictory arguments: allegedly, M. had not been aware of the outcome of the house\u2019s renovation even though she had commissioned it and it had been carried out when the house had been in her possession (see paragraphs 8 and 10 above). Although, in his comments on that application, the applicant specifically pointed to that contradiction and generally to the absence of any valid grounds for the requested review, the Obolonskyy District Court merely endorsed M.\u2019s arguments without providing any further explanation in that regard (see paragraphs 11 and 12 above).<\/p>\n 22. Accordingly, the Court concludes that the review and the quashing of the final and enforceable judgment of the Obolonskyy District Court of 22\u00a0January 2007 were not based on \u201ccircumstances of a substantial and compelling character\u201d and were thus contrary to the principle of legal certainty embodied in Article\u00a06 \u00a7\u00a01 of the Convention (see Pravednaya, \u00a7\u00a7\u00a032-34, and Lizanets, \u00a7\u00a7\u00a033-35, both cited above).<\/p>\n 23. That conclusion cannot be altered by the Government\u2019s arguments that the extraordinary appeal was lodged by a private person and not by a State body, and that during the review proceedings the applicant had the opportunity to present his case and to challenge the opposing party\u2019s submissions, and that subsequently the courts found for the applicant.<\/p>\n 24. Furthermore, because of the quashing of the judgment in issue, the applicant was deprived of his title to the house, which was restored by a final decision on 27 April 2016 (see paragraph 13 above), and to the outbuildings and associated constructions, without any acceptable justification being provided or any compensation being available. This placed an excessive burden on him (see Brum\u0103rescu v. Romania [GC], no.\u00a028342\/95, \u00a7\u00a7 77-80, ECHR 1999\u2011VII, and Pravednaya, cited above, \u00a7\u00a7\u00a039-42).<\/p>\n 25. The foregoing considerations are sufficient for the Court to find that there has been a violation of Article 6 \u00a7\u00a01 of the Convention and Article\u00a01 of Protocol No.\u00a01.<\/p>\n III. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 26. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n Damage, costs and expenses<\/strong><\/p>\n 27. As regards pecuniary damage, the applicant claimed 3,182,106\u00a0euros\u00a0(EUR) for lost income which, according to his detailed calculations, he would have obtained had he been able to lease the house and to deposit part of the money thus earned with a bank during the period between September 2002 and July 2019; he also claimed EUR\u00a045,688 for money and precious objects which allegedly had been stolen from his house.<\/p>\n 28. The applicant also claimed EUR\u00a030,000 in respect of non-pecuniary damage.<\/p>\n 29. The applicant lastly claimed 56,886.16 United States dollars (approximately EUR 50,000) in respect of costs and expenses in the domestic proceedings and before the Court.<\/p>\n 30. The Government, referring mainly to their objections regarding the admissibility of the applicant\u2019s complaint under Article\u00a01 of Protocol\u00a0No.\u00a01 and the merits of his complaint under Article\u00a06\u00a0\u00a7\u00a01 of the Convention (see paragraphs 18 and 23 above), stated that the applicant\u2019s claims regarding pecuniary and non-pecuniary damage were unsubstantiated. They also stated that most of his claims for costs and expenses were either not supported by the required documentary evidence or excessive.<\/p>\n 31. The Court considers that, in the circumstances of the present case, the question of the application of Article 41 of the Convention is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant (Rule 75 \u00a7\u00a7 1 and 4 of the Rules of Court).<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 6\u00a0\u00a7\u00a01 of the Convention;<\/p>\n 3. Holds that there has been a violation of Article 1 of Protocol\u00a0No.\u00a01;<\/p>\n 4. Holds that the question of the application of Article 41 of the Convention is not ready for decision and, accordingly,<\/p>\n (a) reserves that question in whole;<\/p>\n (b) invites the Government and the applicant to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; and<\/p>\n (c) reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be.<\/p>\n Done in English, and notified in writing on 9 December 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 M\u0101rti\u0146\u0161 Mits
\nCASE OF MITSOPOULOS v. UKRAINE<\/strong>
\n(Application no. 62006\/09)<\/em>
\nJUDGMENT
\n(Merits)
\nSTRASBOURG
\n9 December 2021<\/p>\n
\nJovan Ilievski,
\nIvana Jeli\u0107, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n