Change of legal characterization of the responsibility of the defendant by the appellate court without a reason! Inability of the plaintiff to respond with allegations and evidence within the new legal characterization! Violation of a fair trial
JUDGMENT
Gusev v. Ukraine 14.01.2021 (app. no. 25531/12)
SUMMARY
Change of legal characterization of a claim by the appellate court in its decision. Right of parties to be able to put forward claims and evidence after the change of legal characterization. A fair trial, the right to be heard by both parties and the obligation to state reasons for decisions.
The plaintiff sued for civil liability against the State for the failed police operation during the arrest of his son’s abductors resulting in the loss of ransom. The Court of First Instance upheld the applicant’s claim for damages, but the Court of Appeal unjustifiably changed the legal classification from public liability due to improper performance of duties under the State’s objective liability for damages caused by unknown or insolvent and insolvent perpetrators.
The Court reiterated that the decisions of national courts must have sufficient reasons.
In the present case the ECtHR noted that while the domestic courts had upheld the applicant’s claim in two court decisions (first instance court and criminal court), the Court of Appeal decided to change the legal character of the action and examined it with a different provision. without giving the applicant the opportunity to submit relevant arguments and evidence after this reassessment. The ECtHR ruled that this change in legal characterization was completely unjustified and contrary to the requirement of Article 6 for a fair trial and the principle of adversarial proceedings. The ECtHR awarded an amount of 3,600 euros for non-pecuniary damage.
On the other hand, the ECtHR did not find that there was an excessive delay in the trial of the case at all levels of jurisdiction, therefore it considered that there was no violation of the reasonable duration of the trial.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Mykola Vasylyovych Gusev, is a Ukrainian national who was born in 1945 and lives in
Kremenchuk (Ukraine).
The case concerned Mr Gusev’s complaint about the domestic courts’ refusal to allow his claim for
damages against the police following a failed operation to arrest his son’s kidnappers, which had
resulted in the kidnappers running off with the ransom.
Mr Gusev’s son was kidnapped in July 1998. The police intended to arrest the kidnappers during the
handover of the ransom. However, when Mr Gusev threw the ransom out of a train, the kidnappers
managed to escape with the money, which they hid and subsequently spent. Mr Gusev’s son was set
free a few days after the police operation.
The kidnappers were arrested in 2002 and convicted and sentenced to terms of imprisonment in 2004.
The criminal courts found that the kidnappers had taken possession of Mr Gusev’s money owing to
the police’s poor planning and lack of coordination.
In March 2005 Mr Gusev lodged a claim against the police and the State under general tort law seeking
compensation for damages as a result of the failed operation. His claim, initially allowed in part, was
ultimately rejected in February 2011 by the Court of Appeal. The Court of Appeal changed the legal
characterisation of the applicant’s claim, examining it under a legal provision which provides for
compensation caused by unidentified or insolvent perpetrators. On that basis, it held that there was
no causal link between the police officers’ actions and the damage caused by the perpetrators, who
had been identified and their insolvency not proven.
In July 2011 the Higher Specialised Civil and Criminal Court of Ukraine upheld the 2011 judgment in a
summary ruling.
Relying in particular on Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention,
Mr Gusev alleged that the civil proceedings in his case had been excessively long and unfair because
of an unlawful application of the law.
THE DECISION OF THE COURT…
Turning to the present case, the Court notes that in the final judgment of 26 April 2004 the criminal court established that the kidnappers had taken possession of the applicant’s money owing to the negligent and imprecise planning of the police operation and the police officers’ uncoordinated actions during it. A claim for damages introduced by the applicant against the police and the State Treasury was rejected by the criminal court which stated that the applicant could lodge such a claim separately in civil proceedings. Therefore, the applicant subsequently lodged a civil claim against the police under the general tort law provisions of the Civil Code, considering them to be directly responsible for the damage caused to him.
The Court further notes that while the case was initially remitted several times for reconsideration, the applicant’s right to receive compensation from the State was not as such in a dispute, the courts having several times allowed his claim in part, including twice by the Court of Appeal. The courts only disagreed on the applicable legal provisions. Following the last remittal of the case for reconsideration on 22 June 2010, the applicant’s claim that the police owed him damages under general tort law was granted again, under Articles 1166 and 1167 of the 2003 Civil Code, by the District Court, in its judgment of 17 November 2010, apparently on the basis that negligence by the police, causal link and damage had been established.
However, the Court of Appeal – not contesting the factual findings made by the criminal courts and the District Court regarding the negligent acts and the damage – considered that there was no relevant causal link, decided to change the legal characterisation of the applicant’s civil action and examined it under a different provision, Article 1177 of the Civil Code, which provided for a specific type of objective responsibility of the State for damage caused by unidentified or insolvent perpetrators of criminal offences.
While it is naturally for the domestic courts to determine the correct legal characterisation of claims under national law, this must be done in keeping with the principle of fair trial, which requires adequate reasoning to be provided at least on the points that are decisive for the outcome of the case. In the present case, however, the Court of Appeal appears to have effectively decided on a claim that was not brought by the applicant, seeing that he had not claimed compensation as a victim of crime on the basis that the perpetrators of the kidnapping were unidentified or insolvent – which were the grounds for seeking compensation from the State under the specific compensation of victims of crime mechanism provided for under Article 1177 of the Civil Code – but had brought an ordinary tort claim against the police themselves, claiming damage as a result of the negligent or imprecise planning of their operation. In the Court’s view, such a far reaching requalification of the claim brought by the applicant required clear reasoning on, at the very least, the relationship between the provisions of general tort law and those regarding the specific State responsibility under Article 1177 of the Civil Code. However, no such reasoning was provided.
Furthermore, the Court of Appeal apparently disregarded the fact that the facts and legal issues that were relevant under Article 1177 of the Civil Code were very different from those on which the applicant’s claim had been based. In particular, while the claim brought by the applicant and argued by him required proof of negligent acts on the part of the police and causal link between such acts and the resulting damage, what the applicant would have needed to prove under Article 1177 of the Civil Code was, apparently, that he had suffered damage as a result of a criminal act and that the perpetrators were unidentified or insolvent. Since the change of legal characterisation of the applicant’s claim was made in the Court of Appeal’s judgment, it was essential, from the perspective of the most basic requirements of fair trial and the adversarial principle, to afford the applicant an opportunity to submit evidence and argue on the points relevant to the provision found to be applicable, either by returning the case for renewed examination by the District Court or in another procedural manner, based on the possibilities under domestic law.
Lastly, as regards the Government’s submission that the District Court had been mistaken in applying Articles 1166 and 1167 because it had not been established that the police had been responsible for any illegal decisions, actions or omissions, the Court notes that the District Court relied on the factual findings made in the judgment of 26 March 2004 in the related criminal proceedings and drew its conclusions on the basis of the evidence before it. Moreover, importantly, the Court of Appeal (i) did not contest those findings, (ii) did not state that they had been insufficient to prove the above-mentioned omissions on the part of the police during their operation against the kidnappers, and (iii) did not suggest that the above-mentioned facts should be further established or confirmed in any proceedings separate to those leading to the judgment of 26 March 2004 of the criminal court.
\In view of the above, the Court considers that the lack of clear reasons for the requalification of the applicant’s claim by the Court of Appeal – which initially twice allowed that claim – and its resulting conclusion against him without providing him with a possibility to submit relevant evidence and arguments following that requalification cannot but be seen as fully unjustified and contrary to the Article 6 requirement of fairness of civil proceedings and to the principle of adversarial proceedings. The summary ruling of 25 July 2011 – whereby the Higher Specialised Court upheld the Court of Appeal’s judgment of 21 February 2011 – did not add any clarity either, even though in his appeal in cassation the applicant had referred to an incorrect application of the substantive law.
There has accordingly been a violation of Article 6 § 1 of the Convention.
- Length of the proceedings
In their submissions (dated 14 January 2019) regarding the applicant’s claims for just satisfaction, the Government submitted that after the communication of the case on 12 June 2018 the applicant had introduced a new complaint concerning the length of the civil proceedings; the Government suggested that the Court should not examine that complaint.
The Court notes, however, that by a letter of 23 October 2012 the Government were informed that it had been decided, on 16 October 2012, that notice of the applicant’s complaint about the length of the civil proceedings should be given to the Government.
It further notes that in the instant case the proceedings lasted from March 2005 till 25 July 2011, that is, for six years and four months. Having examined all the materials submitted to it and having regard to the criteria established in its case-law on the subject, the Court considers that the above-mentioned length of the proceedings was not excessive or unreasonable, especially taking into account that during the above period the case was pending before the courts of three levels of jurisdiction. Although there were several reconsiderations of the case, in the Court’s view that fact alone is not such as to warrant a finding of the violation of the Convention, especially taking into account that the applicant did not indicate any particular period of inactivity which could be attributed to the domestic authorities. Lastly, the Court considers that even though the proceedings at issue were of some importance for the applicant, he did not refer to any particular ground which would require the domestic courts to deal with his case with particular urgency vis-à-vis other cases pending before them. Nor does the Court find such grounds.
In view of the above, the Court considers that the complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Article 1 of the First Additional Protocol
In the light of its findings under Article 6 § 1 of the Convention, the Court held that there was no need to consider the admissibility or merits of the applicant’s complaint under Article 1 of the First Additional Protocol.
Just satisfaction: EUR 3,600 (non-pecuniary damage) and EUR 1,000 (costs and expenses)
