Article title Rescission of Final Court Judgments as Property Right Violation in the Case Law of the European Court of Human Rights and Today’s Situation Regarding This Issue in the Ukrainian Court’s Jurisprudence
Authors

Deputy Minister of Justice of Ukraine, Commissioner for European Court of Human Rights, Honored Lawyer of Ukraine ivan.lishchina@gmail.com

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 11/2019
Сторінки [256-271]
DOI https://doi.org/10.33498/louu-2019-11-256
Annotation

In cases where the European Court of Human Rights (ECHR) recognizes a violation of the right to property enshrined in article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, impressive amounts of just satisfaction are awarded. In this context, rescission of final court judgments is the form of this right violation which is most often established by the ECHR in cases against Ukraine.

The article examines the historical and theoretical background of the onset and development of the ECHR’s case law involving final court judgment rescission as a violation of the right to property, cases of such violations against Ukraine, as well as the possibility to identify new violations coming under this category within the court system in its currently existing state. The author arrives at the conclusion that the Ukrainian court still comprises the procedures capable of leading to rescission of final court’s jurisprudence judgments and, accordingly, to violation of the right to property. These procedures are reopening of the term for filing an appeal or a cassation appeal against judgments and case review upon discovery of new facts. Both procedures do not represent an automatic violation of the principle of legal certainty. Nevertheless, if they are abused, in particular, if the term for appellate review is reopened without proper grounds, or if an application for case review upon discovery of new facts is granted, actually being “a hidden appeal”, or if a case is tried after reopening and goes beyond the newly discovered facts, this can entail a violation of the right to property.

The author also notes that national courts should be particularly cautious when granting applications for reopening of the period for appeal/cassation appeal and when considering applications for case reopening upon discovery of new facts, as well as when considering cases after such reopening, to make sure that decisions passed by them do not entail significant expenditure of the State’s budget following the ECHR judgments recognizing a violation of article 1 of Protocol to the Convention by rescission of final court judgments in favor of applicants.

 

Keywords right to property; concept of “possessions” in the meaning of article 1 of Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms; rescission of final court judgment; “hidden appeal”
References

Bibliography

 

Journal articles

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2. Lishchyna I, ‘Rehuliuvannia prava vlasnosti u Yevropeiskii konventsii: pokhodzhennia ta suchasnyi stan’ [‘Ownership Regulation in the European Convention: the Origin and Current Situation’] (2010) 9 Pryvatne pravo i pidpryiemnytstvo 150-4 (in Ukrainian).