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FIFTH
SECTION
CASE OF KHRISTOV v. UKRAINE
(Application
no. 24465/04)
JUDGMENT
STRASBOURG
19
February 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Khristov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Stanislav
Shevchuk, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24465/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Dmitriy Stepanovich
Khristov (“the applicant”), on 5 July 2004.
- The applicant died on 1 August 2006. On 1 March 2008
his children, Gennadiy Khristov, Olena Kristova, and Lyudmyla
Filobok, being the sole heirs of the applicant, expressed their wish
to continue the proceedings before the Court on the applicant's
behalf. The applicant and his children were represented by Mr M.
Khoteyev, a lawyer practising in Melitopol. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Y. Zaytsev.
- The
applicant alleged, in particular, that a final judgment in his favour
had been quashed by way of extraordinary review, in violation of
Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1.
- On
11 May 2006 the President of the Fifth Section decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lived in Melitopol.
- In
1996 a Moldovan national transferred his car to the applicant and
issued a power of attorney granting the applicant broad rights in
respect of the car including, inter alia, the right to drive
and to sell it. The Moldovan national, however, remained the owner of
the car.
- The
applicant did not pay customs clearance for importing the car from a
foreign country. In order to comply with the requirements of domestic
customs law, the applicant returned across the Ukrainian border every
third month, declaring the car as newly imported and giving an
undertaking to re-export it within the following three-month period.
- In
October 1998 the applicant was unable to undertake his regular trip
outside Ukraine because of health problems. On 2 June 1999 the
applicant attempted to cross the border with his car. However, the
customs officer, having noted that the three-month re-export period
was substantially overdue, seized the car pending adjudication of the
applicant's administrative offence.
- On
24 June 1999 the Primorskyy District Court of Mariupol (hereafter
“the District Court”) found the applicant guilty of a
customs offence, fined him 74 Ukrainian hryvnas (UAH) and ordered the
confiscation of the car.
- On
27 August 1999 the Primorskyy District Prosecutor, at the applicant's
request, lodged with the District Court a protest,
seeking to open the extraordinary review proceedings in the
applicant's case.
- On
14 October 1999 the District Court, by way of extraordinary review,
adopted a judgment by which it quashed the fine as being time-barred,
while leaving the confiscation order in force.
- On
16 March 2000 the car was sold by public auction at the price of UAH
7,970 in the course of the enforcement of the judgment of 24 June
1999. The funds received from the sale were transferred to the State
budget.
- On
23 October 2000 the President of the Donetsk Regional Court, on a
request by the applicant for extraordinary review, reopened the
proceedings in the applicant's case and quashed the judgments of
24 June 1999 and 14 October 1999, finding, in particular,
that under the Constitution the car could not be confiscated from the
applicant as he had not been its owner.
- On
16 March 2001 the applicant brought a claim in the Starokyivskyy
District Court against the Ministry of Justice and the Customs
Office, seeking recovery of the confiscated car or reimbursement of
its value and compensation for non-pecuniary damage.
- On
10 April 2001 the court left the claim unexamined on account of the
applicant's failure to comply with procedural requirements, stating,
inter alia,
that the applicant failed to provide any calculation of the
non-pecuniary damage and to enclose the documents for the car.
- By
letters of 12 April 2001, 10 October 2001, 19 March 2002 the
Customs Office confirmed to the applicant that he could be reimbursed
the value of the confiscated car upon finalisation of procedural
formalities.
- On
25 April 2002 the President of the Supreme Court, upon a request by
the Customs Office for extraordinary review, reopened the proceedings
in the applicant's case and, relying on Article 294 of the Code on
Administrative Offences, quashed the judgment of 23 October 2000
in the applicant's favour as unfounded, thereby upholding the
District Court's judgments of 24 June and 14 October 1999. The
judgment provided, inter alia,
that under customs law, which was applicable in the applicant's case,
confiscation was to be ordered irrespective of whether the applicant
had been the owner of the car or not.
- By
a letter of 6 August 2004 from the Customs Office the applicant was
informed about the judgment of 25 April 2002 and served with a copy
of it. The applicant alleged that he had not previously been aware of
the judgment.
II. RELEVANT DOMESTIC LAW
Code on Administrative Offences (in the wording in force at the
material time)
- Article
287 of the Code provided that a decision imposing an administrative
sanction could be appealed against, except for decisions given by a
first-instance court. The latter were final and were not subject to
the ordinary administrative appeal procedure, unless the legislation
provided otherwise.
- Article
290 of the Code provided that a prosecutor could lodge a protest
against a decision imposing an administrative sanction.
- Article
294 of the Code provided that a court judgment concerning an
administrative offence could be reviewed by a judge of the same court
upon a protest lodged by a prosecutor, or by the president of
the higher court of his or her own motion.
- On
24 September 2008 the Code was amended to the effect that it provided
an ordinary appeal procedure for challenging the decisions given by
the first-instance courts in administrative cases.
THE LAW
I. SCOPE OF THE CASE
- The
applicant complained that the administrative proceedings in his case
had been unfair in so far as the final judgment of 23 October
2000 in his favour had been quashed by the President of the
Supreme Court by way of extraordinary review. He further complained
that his attempts to have the confiscated car returned to him or its
value reimbursed had been set at nought as a
result of the extraordinary review conducted by the President of the
Supreme Court, following which the confiscation order had been
restored. The
Court finds it appropriate to consider these complaints under Article
6 § 1 of the Convention and Article 1 of Protocol
No. 1 respectively.
II. AS TO LOCUS STANDI
- The applicant died on 1 August 2006, while the case
was pending before the Court (see paragraph 2 above). It has not been
disputed that his children are entitled to pursue the application on
his behalf and the Court sees no reason to hold otherwise (see, among
other authorities, Benyaminson v. Ukraine, no. 31585/02,
§ 84, 26 July 2007, and Horváthová v.
Slovakia, no. 74456/01, §§ 25-27, 17 May
2005). However, reference will still be made to the applicant
throughout the ensuing text.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- Article
6 § 1 of the Convention provides, in so far as
relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The Government maintained that this complaint was
inadmissible since the applicant had failed to submit it within the
six-month period as required by the Convention.
- The applicant disagreed, claiming that he had been
notified about the judgment of 25 April 2002
only by the letter of 6 August 2004
from the Customs Office.
- The
applicant has submitted evidence to the effect that he became aware
of the judgment of 25 April 2002 only in
August 2004, whereas the Government provided no evidence to the
contrary. The Court therefore accepts the applicant's allegation in
that regard. It further observes that since this complaint was first
mentioned by the applicant in his submissions of 28 August 2004, no
issue under the six-month rule arises. Accordingly, the Court
dismisses the Government's objection.
- The
Court further notes that it is not disputed by the parties that the
proceedings in the applicant's case fall within the scope of Article
6 § 1 of the Convention. The Court finds that the
proceedings at issue, though classified as administrative, were in
fact of a criminal character, having regard to the nature of the
applicant's offence and to the penalty incurred, which was clearly
intended to punish and deter reoffending (see Engel and Others v.
the Netherlands, 8 June 1976, §§ 82-83, Series A
no. 22; Lauko v. Slovakia, 2 September 1998,
§ 58, Reports of Judgments and Decisions 1998 VI;
and Nadtochiy v. Ukraine, no. 7460/03, § 21, 15 May
2008).
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
Government maintained that the judgment of 23 October
2000 had been reviewed by the Supreme Court by way of the cassation
appeal procedure provided for under the Code of Civil Procedure and
that such review therefore complied with the requirements of
Article 6 of the Convention. They further insisted that
the quashing of the judgment of 23 October
2000 by the President of the Supreme Court had pursued the legitimate
aim, in particular, of rectifying the errors made by the lower court
when considering the applicant's case.
- The
applicant disagreed, claiming that the final judgment of 23 October
2000 in his favour had been quashed arbitrarily.
2. The Court's assessment
- The
Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which, in
its relevant part, declares the rule of law to be part of the common
heritage of the Contracting States. One of the fundamental aspects of
the rule of law is the principle of legal certainty, which requires,
among other things, that where the courts have finally determined an
issue, their ruling should not be called into question (see
Brumărescu v. Romania [GC], no. 28342/95, § 61,
ECHR 1999 VII).
- Legal
certainty presupposes respect for the principle of res judicata
(ibid., § 62), that is, the principle of the finality of
judgments. This principle underlines that no party is entitled to
seek a review of a final and binding judgment merely for the purpose
of obtaining a rehearing and a fresh determination of the case.
Higher courts' power of review should be exercised to correct
judicial errors and miscarriages of justice, but not to carry out a
fresh examination. The review should not be treated as an appeal in
disguise, and the mere possibility of there being two views on the
subject is not a ground for re-examination. A departure from that
principle is justified only when made necessary by circumstances of a
substantial and compelling character (see Ryabykh v. Russia,
no. 52854/99, § 52, ECHR 2003 IX). The Court
therefore has to assess whether, in a given case, the power to launch
and conduct an extraordinary review was exercised by the authorities
so as to strike, to the maximum extent possible, a fair balance
between the interests of the individual and the need to ensure the
effectiveness of the system of justice (see, mutatis mutandis,
Nikitin v. Russia, no. 50178/99, § 57,
ECHR 2004 VIII, and Savinskiy v. Ukraine, no. 6965/02,
§ 23, 28 February 2006).
- Turning
to the present case the Court observes that under the Code
on Administrative Offences, court judgments imposing an
administrative sanction could not be appealed against under the
ordinary appeal and cassation appeal
procedures. In this connection the Court observes that it has already
found a violation of Article 2 of Protocol No. 7
on account of the lack of an effective appeal procedure in
administrative cases (see Gurepka v. Ukraine, no. 61406/00,
§§ 57-62, 6 September 2005). It further notes that the
President of the Supreme Court quashed
the judgment of 23 October 2000 by
way of the extraordinary review procedure envisaged by Article 294
of the Code on Administrative Offences, clearly referring in
particular to that Article in his judgment. Accordingly, the
Government's contentions that the applicant's case was reviewed by
the Supreme Court under the cassation appeal procedure fall to be
dismissed.
- The
Court observes that the extraordinary review procedure at issue could
be initiated either on a prosecutor's protest
or on a motion of the president of a higher court. It follows that
this procedure was not directly accessible to a party to the
proceedings, the latter being only allowed to plead before the
relevant officials to reopen proceedings. The power to review court
judgments under this procedure was not subject to any time-limit or
special grounds, so that final and binding judgments were liable to
be challenged indefinitely. The principle of legal certainty
therefore came to be extremely vulnerable within that review
procedure.
- The
Court further observes that the evidence in the case file does not
suggest that there existed any “circumstances of a
substantial and compelling character”
that could justifiably explain why the final judgment of 23 October
2000 was reviewed and quashed. It appears that the only reason for
the review was that the applicant's case was to be reconsidered in
the light of a different law, thereby turning such a review into an
appeal in disguise. The Court finds therefore that in the present
case the principle of legal certainty has not been respected.
- In
the light of the above considerations, the Court concludes that the
reopening of the proceedings in the applicant's case by
way of extraordinary review, following which the judgment
of 23 October 2000 was quashed, breached the principle of legal
certainty and the applicant's right to a fair trial under
Article 6 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- Article 1
of Protocol No. 1 to the Convention provides as follows:
“Every 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.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government submitted that this complaint was inadmissible since the
applicant had failed to submit it within the six-month period as
required by the Convention.
- The
applicant disagreed.
- The
Court, referring to its conclusions under Article 6 § 1
of the Convention as regards the applicants' compliance with the
six-month rule (see paragraph 28 above), rejects the
Government's objection in this respect.
B. Merits
1. The parties' submissions
- The
Government maintained that the Supreme Court had acted in
accordance with the procedure prescribed by domestic legislation and
its purpose was to correct the mistake which had been made by the
lower court in the applicant's case. Accordingly, the interference
with the applicant's right under Article 1 of Protocol No. 1 was
proportionate as it had been made in the public interest.
- The
applicant disagreed, claiming that the interference with his property
rights had not been proportionate.
2. The Court's assessment
- Both
parties agreed that the final and binding judgment of 23 October
2000 in the applicant's favour conferred a possession on him within
the meaning of Article 1 of Protocol No. 1 in that
that judgment opened to the applicant legal channels of obtaining
reimbursement for the wrongful confiscation of the car. The
parties further agreed that the quashing of the judgment of
23 October 2000 by the Supreme Court constituted an interference
with the applicant's right under Article 1 of Protocol No. 1.
The Court does not find any reason to depart from the parties'
opinion.
- It
remains, therefore, to be established whether the interference had
been justified. In this regard the Court reiterates that a “fair
balance” must be struck between the demands of the general
interest of the community and the requirements of the protection of
the individual's fundamental rights. The requisite balance will not
be struck where the person concerned bears an “individual and
excessive burden” (see, mutatis
mutandis, Brumărescu
cited above, § 78).
- The
Court observes that the Government's argument that the impugned
interference was made in public interest is similar to the one
submitted by them under Article 6 § 1 of the
Convention. Having found a violation of Article 6 § 1
of the Convention, the Court concludes that, although the correct
application of the law is undeniably a “public interest”,
in the circumstances of the present case it was pursued in violation
of the fundamental principle of legal certainty. Accordingly, this
argument must be dismissed.
- In
the circumstances, therefore, the Court finds that the “fair
balance” was upset and that the applicant bore an individual
and excessive burden. There has, accordingly, been a violation of
Article 1 of Protocol No. 1.
V. THE REMAINDER OF THE APPLICATION
- The
applicant complained under Article 6 § 1 of the
Convention about the length of the proceedings in his case. He
further complained under Article 6 § 1 and
Article 13 of the Convention that the courts dealing with his
case had not been impartial. Relying on Article 6 § 3 (a)
of the Convention, the applicant complained that he had been
unlawfully induced to sign an administrative record documenting his
offence. He finally alleged that he had been discriminated against on
the ground of social status, in violation of Article 14 of the
Convention.
- The
Court has examined the remainder of the applicant's complaints and
considers that, in the light of all the material in its possession
and in so far as the matters complained of were within its
competence, they did not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
Accordingly, the Court rejects them as manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the
Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 5,000 United States dollars (the “USD”)
(approximately 3,902 euros (EUR)) as the compensation for the
confiscated vehicle and USD 40,000 (approximately EUR 31,213) as
compensation for the loss of his job which had been allegedly an
ultimate consequence of the confiscation measure. He further claimed
USD 55,000 (approximately EUR 42,918) in respect of
non-pecuniary damage.
- The
Government contested these claims, stating that they were groundless.
- The
Court first notes that the applicant has failed to specify how the
loss of his job was connected to the quashing of the judgment, and it
rejects this part of the claim. He also claimed pecuniary damage on
the basis of the value of the car which was confiscated. However, it
was the applicant's claim in the proceedings, and indeed the basis
for the court's judgment of 23 October 2000, that he was not the
owner of the car. The issue under Article 41 of the Convention is how
much pecuniary compensation, if any, should be granted in respect of
the loss of the judgment of 23 October 2000. The Court notes that the
applicant has not made any submissions in this respect, considers
that it cannot speculate on the matter and also rejects this part of
applicant's pecuniary damage claims as unsubstantiated.
- The
Court further considers that the applicant must have suffered some
non-pecuniary damage as result of the violations found, which cannot
be made good by the Court's mere finding of a violation. Making its
assessment on the equitable basis, the Court awards the applicant
EUR 2,000 for non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award in this respect.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint under Article 6 § 1
of the Convention concerning the quashing of the final judgment of
23 October 2000 by way of
extraordinary review and the complaint under Article 1 of
Protocol No. 1 admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the quashing of the
final judgment of 23 October 2000
by way of extraordinary review;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into the national currency of
Ukraine at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
