CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 juillet 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sC986E16F { font-family:Arial; color:#ffffff } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sBD1BE8CC { width:33.89pt; display:inline-block } .s827CB718 { width:157.45pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 37919/15 Iryna Olegivna VASYLEVSKA against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 4 July 2024 as a Committee composed of:   Mārtiņš Mits , President ,   María Elósegui,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar , Having regard to: the application (no.   37919/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 July 2015 by a Ukrainian national, Ms Iryna Olegivna Vasylevska (“the applicant”), who was born in 1976 and lived in Dnipro (formerly Dnipropetrovsk), and who was represented by Mr I.Y. Zheliba, a lawyer practising in Dnipro; the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The present case concerns the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention regarding a claim by the State to recover real estate from her and transfer it back to communal ownership. 2.     In December 2011 the applicant bought basement premises in a residential building located at 16 Titova Street in the city of Dnipro from a private person, Mr B. The applicant paid 310,008   Ukrainian hryvnias (UAH) (approximately 28,760 euros (EUR) at the time). She had her title to the premises registered. 3 .     As can be seen from the documents available, between 2008 and 2010 Ms B., Mr B.’s wife, rented the premises in question from the local authorities. Shortly afterwards, under a court judgment of 16 July 2010, Ms   B.’s title to the premises was acknowledged. Those proceedings were initiated by Mr M., who had apparently been renovating the premises under a contract with Ms B. and had not been paid. In her counterclaim against Mr.   M. and a number of private persons (apparently, the residents of the building), Ms B. sought to have her title over the premises acknowledged on the ground that she had conducted a major renovation of the premises at her own expense. The court upheld that argument and ruled in favour of Ms B. In December   2010 Ms B. gifted the premises to Mr B. 4 .     According to the Government, in June 2012 the local prosecutor initiated proceedings to quash the judgment of 16 July 2010 and, on an unspecified date, his claims were upheld. The Government, however, failed to provide a copy of this court judgment. 5.     In July 2012 the local prosecutor, acting in the interests of the Dnipro City Council, also initiated proceedings against the applicant and Mr and Ms   B., seeking to acknowledge the city’s title to the premises and recover them. The prosecutor claimed that the disputed premises were located in a building that in 1991 had been “on the balance sheet” of the regional utility company, that is to say under communal ownership. In 2003, by way of a special procedure and based on a number of decisions by the local authorities, the building was transferred to the communal ownership of the City of Dnipro as represented by the local utility company. The prosecutor relied on Article   388 of the Civil Code (on rei vindicatio claims) providing for the possibility to recover property even from a bona fide acquirer if it had left the possession of the lawful owner against his or her will. In her reply to the prosecutor’s claim the applicant argued that the city had never obtained a duly registered title to the premises, while she and Mr and Ms B. had had their title registered by the local authorities without any hindrance. 6.     The case was examined by the courts in two rounds of proceedings. In the first round, the prosecutor’s claims were upheld by the lower courts, but the Higher Specialised Court for Civil and Criminal Cases (“the Higher Specialised Court”) reversed the decision and referred the case back for fresh examination. The court noted that the lower courts had failed to establish all the circumstances related to the acquisition and registration of the titles to the premises in question, including, it appears, by the city. 7 .     In the second round of the proceedings, on 22 July 2014 the Krasnogvardiyskyy Local Court of Dnipro upheld the prosecutor’s claims again. It examined in detail the history of the building in question since its construction in 1959. It acknowledged that between 1991 and 2003 the building had been the region’s communal property, and that after 2003 it had become part of the city’s communal property. It also found that before 2004 (when a law on State registration of real estate property was adopted) there had been no requirement to register the title which had been considered “acquired” at the time of transfer of property. The court also noted that as no claim regarding compensation for damage had been raised by the applicant, no ruling on that matter could be made. 8.     On 27 October 2014 the above judgment was quashed by the Dnipropetrovsk Regional Court of Appeal. The Court of Appeal reasoned that the Local Court had failed to establish whether the prosecutor had identified the correct legal person in whose interests he was acting (the city council or the utility company) and questioned whether Article 388 of the Civil Code had been applicable. However, on 4 March 2015 the Higher Specialised Court quashed the above judgment of the Court of Appeal and upheld the Local Court’s judgment, endorsing its findings. 9.     According to the Government, the applicant did not file any lawsuits, either against Mr B. or the city authorities, in order to obtain compensation for damage. At the same time, they noted that in August 2014 the applicant had disposed of the disputed premises under an exchange agreement with Mr.   V., as appears, her (former) husband. In April 2015, under a division of marital property contract, the disputed premises had been divided between the applicant and Mr. V.; the applicant had been registered as the owner of her part of the premises. The applicant provided no comments on those facts. 10.     Additionally, the Government provided information that the measures undertaken by the bailiffs in 2016-2017 within the framework of the enforcement proceedings into the judgment of 22 July 2014 proved to be ineffective. In particular, the applicant never appeared upon the bailiffs summons, nor was the bailiff able to meet her at her place of residence or access the premises at issue. They noted that the enforcement proceedings have been still pending. PRELIMINARY ISSUE 11.     The Court notes at the outset that the applicant, Ms Iryna Vasylevska, died on 19 December 2021, after lodging the present application, and her minor son, D.H., as represented by his father I.H., expressed his wish to continue the proceedings before the Court in her stead. The Government, having been informed thereof, did not dispute the standing of the applicant’s son to pursue the application in her stead. 12.     The Court notes that in various cases in which an applicant has died during the Convention proceedings, it has taken into account the statements made by the applicant’s heirs or close family members expressing the wish to pursue the proceedings before the Court. In view of the above and having regard to the circumstances of the present case, the Court accepts that D.H. has a legitimate interest in pursuing the application in his late mother’s stead. However, for reasons of convenience, the text of this judgment will continue to refer to Ms Iryna Vasylevska as “the applicant” (see, for example, Tagiyev and Huseynov v. Azerbaijan , no. 13274/08, §§ 23-24, 5 December 2019, with further references). THE COURT’S ASSESSMENT 13.     The Government argued that the applicant had had the opportunity to either claim compensation for her investment in the disputed property under Article 390 of the Civil Code or file a claim for damages against the seller in accordance with Article 661 of the Civil Code (liability of the seller in the event that a property which has been sold is reclaimed from an acquirer following a court judgment). In that context they underlined that the applicant had failed to file any claims for compensation, despite being advised to do so by the domestic court. In support of their arguments the Government provided references to two judgments at the domestic level (cases nos. 758/542/17 and 202/11339/14-ц) in which the courts, when examining similar property recovery claims, had noted the possibility for the respondents to use such remedies. They further stated that, while there had been an interference with the applicant’s property rights, it had been lawful, being based on Article 388 of the Civil Code, had pursued the legitimate aim of protecting the property rights of the municipality – and the local community as a whole, – and had been proportionate. They concluded that the application was inadmissible. The applicant objected to those arguments. 14.     The Court does not consider it necessary to rule separately on the admissibility issues raised by the Government, given that the applicant’s complaint is in any case manifestly ill‑founded for the reasons stated below. 15.     The general principles regarding the interference with the peaceful enjoyment of possessions were summarised in, for example, Kryvenkyy v.   Ukraine (no. 43768/07, § 42, 16 February 2017) and Kanevska v. Ukraine (no. 73944/11, § 45, 17 November 2020). 16.     Based on the materials in the case file the Court considers, and the parties agreed, that the premises purchased by the applicant from Mr B. constituted her “possessions” within the meaning of Article 1 of Protocol No.   1 and that the court decisions allowing the prosecutor’s claim for the recovery of those premises from her had entailed an interference with the applicant’s property rights. 17.     In this connection, the Court must assess whether the interference was lawful and in the public interest, and whether it pursued a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Kryvenkyy , cited above, § 42). 18.     In the present case, the disputed premises were reclaimed from the applicant based on Article 388 of the Civil Code, which allows recovery of property by its lawful owner from a bona fide purchaser if the property has been disposed of against the owner’s will (see, for the summary of the domestic law on the matter, Kanevska , cited above, §§ 27-29). The Court is satisfied that the application of that Article in the present case does not appear to have been arbitrary (see Zastavska v. Ukraine (dec.), no. 57960/19, § 24, 23   March   2023). 19.     Furthermore, when examining the case, the Local Court provided detailed analysis of the history of the building in question and of the applicable legislative provisions. Its approach, endorsed by the Higher Specialised Court, does not appear arbitrary and was aimed at protecting the rights and interests of the city to have its ownership of the premises re ‑ established. 20.     In respect of the proportionality requirement, the Court observes that at the time the applicant bought the premises in question they had been duly registered by the State authorities as private property based on a court judgment which was only subsequently quashed as unlawful (see paragraph   4 above). On the other hand, basement premises in residential buildings have a special regime in domestic law: depending on their technical characteristics they can either be separate real estate objects or auxiliary premises considered joint property of the owner(s) of flats in that building (see, for a similar situation concerning attics, Seryavin and Others v. Ukraine , no. 4909/04, §§   41-2 and §§ 46-54, 10 February 2011). Accordingly, it would not be unreasonable to consider that the applicant should have shown particular diligence before signing the purchase contract. She could have contacted the local authorities with a request for detailed information or documents regarding the premises in view of that specificity (see, mutatis mutandis , Shynkarenko v. Ukraine (dec.), no. 64661/11, §§ 27-8, 15 October 2019 and compare with Zastavska , cited above, § 25). 21.     The Court further notes the Local Court’s mention of the opportunity for the applicant to bring a claim against Mr B., seeking the recovery of the amount she had paid for the premises (see paragraph 7 above). The Court has already accepted in similar situations that such an option was, as a matter of principle, available to the applicants (see Kanevska and Zastavska , both cited above, § 49 and § 26 respectively). While disagreeing with the Government on that matter the applicant nevertheless failed to provide sufficiently detailed arguments and the Court does not have any elements before it to doubt the availability of the above option. 22.     Nor can the Court overlook the information provided by the Government as to the applicant’s further transactions involving the disputed premises while the rei vindicatio proceedings were pending. In particular, according to the Government, in August 2014 (according to extracts from the relevant register it was in August 2013), the applicant disposed of the disputed premises by way of an exchange agreement with V., who was her (former) husband. She then re-acquired part of the same premises in April 2015. Therefore, at the time when the final judgment in her case was adopted on 4 March 2015 the applicant was no longer the owner of the disputed premises. The Court finds these circumstances controversial, especially in the absence of any explanations on the part of the applicant in this connection. 23.     In the light of the foregoing particular circumstances of this case, the Court considers that the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 29 August 2024.     Martina Keller   Mārtiņš Mits   Deputy Registrar   President