CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 janvier 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     Communicated on 6 January 2014   FIFTH SECTION Application no. 39973/09 Igor Ivanovych RUBAN against Ukraine lodged on 16 July 2009 STATEMENT OF FACTS   The applicant, Mr Igor Ivanovych Ruban, is a Ukrainian national, who was born in 1976 and lives in Bucha. He is represented before the Court by Ms Y. Razumovych, a lawyer practising in Kyiv. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 27 November 1999 the applicant married Ms S. On an unspecified date their daughter was born. On 16 August 2005 Ms S. took a bank loan for investing in the construction of a three-room flat. The loan was to be repaid in twenty years. According to the applicant, he contributed 12,000 US Dollars to the first instalment by Ms S. On 28 August 2006, after the construction was completed, the Kyiv Main Housing Department issued a certificate to Ms S. that the flat in question was her private property. On 19 December 2006 Mr S. filed for divorce. According to the applicant, he discovered from the case file that the domicile of Ms S. and their daughter was registered in the aforementioned flat. On 6 February 2007 the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court”) dissolved the marriage. On 25 February 2007 the applicant lodged a claim with the Golosiyivskyy Court for recognition of his title to a 50% share of the flat, defining that share in kind and allowing him to live there. He submitted that the flat had been acquired when he and Ms S. were married and that he had contributed financially to its maintenance, redemption of the bank loan and payment for communal services. On 16 August 2007 Ms S. founded a limited liability company “E.” and transferred the disputed flat to the company’s statutory fund. She was the sole founder of the company and the value of the flat constituted 100% of the company’s statutory fund. Ms S. appointed her mother director of the company. On 5 September 2007 Ms S. quit the company and conceded the stock capital to her mother. On 9 October 2007 the “E.” company joined the proceedings brought by the applicant, having lodged a counter-claim seeking recognition of its property rights to the flat. On 27 February 2008 the Golosiyivskyy Court rejected the applicant’s claim and found the “E.” company to be the legitimate owner of the flat. The court’s reasoning was confined to an overview of the foundation of the company and the subsequent operations with its stock capital as regards their compliance with law and the company’s statute. The applicant appealed. He submitted that Ms S. had unlawfully disposed of the disputed flat after he had initiated the judicial proceedings. He also argued that the first-instance court had failed to consider his argument that his entitlement to a share in the flat had emerged much earlier than that of the “E.” company. Lastly, the applicant referred to the undisputed fact that the flat had been acquired when he and Ms S. had been married. Accordingly, he insisted that he had the right to a share in that flat. On 7 July 2008 the Kyiv City Court of Appeal rejected the applicant’s appeal. It held that at the time of the delivery of the first-instance court’s judgment the disputed property belonged to the “E.” company and that the applicant had not challenged the latter’s property rights. As to the allegedly unlawful alienation of the flat by Ms S., the appellate court noted that that issue was not part of the applicant’s claim. The applicant appealed on points of law reiterating his earlier arguments. On 12 January 2009 the Supreme Court upheld the lower courts’ decisions. On 17 January 2009 that ruling was sent to the applicant. B.     Relevant domestic law and practice The relevant provisions of the Family Code of 2002 (as worded at the material time) read as follows: “Article 57 Personal private property of the wife and the husband 1. The following items are personal private property of the wife and the husband: 1) property he/she acquired prior to the marriage; 2) property he/she acquired as a gift or heritage during the marriage; and 3) property he/she acquired with personal money during the marriage. ... 6. The court may find that property acquired by the wife or the husband during the period of separation as a result of actual termination of marriage relationships belongs to the personal private property of the wife or the husband respectively. 7. If the money with which the property has been acquired, in addition to joint resources, includes money of one of the spouses, the share in this property, proportional to his/her contribution, constitutes his/her personal private property.” “Article 60 Grounds for the spouses to acquire the right to joint matrimonial property 1. Property acquired by the spouses during the marriage is their joint matrimonial property irrespective of whether one of them had no earnings (income) for valid reasons (education, keeping household, caring children, illness, etc.). 2. It is understood that every good acquired during the marriage, except articles for personal use, is the spouses’ joint matrimonial property.” “Article 68 Exercising the right to joint matrimonial property after dissolution of marriage 1. Marriage dissolution does not terminate the right to joint matrimonial property acquired in the marriage. 2. The co-owners exercise their right to joint matrimonial property after dissolution of marriage exclusively upon mutual consent and in accordance with the Civil Code of Ukraine.” “Article 70 The size of the husband’s and the wife’s share in the joint matrimonial property in case of the property partition 1. In case of partition of the spouses’ joint matrimonial property, the wife’s and the husband’s shares are equal unless an agreement between them or the marriage contract provides otherwise. 2. When considering a dispute with regard to property partition, the court may depart from the principle of the equality of the spouses’ shares if there are compelling reasons to do so, in particular, if one of the spouses did not care about material welfare of the family, if s/he concealed, destroyed or damaged joint property, or spent it in a way incompatible with the family interests. 3. The wife’s or the husband’s share may be increased by a judicial decision if he/she lives together with [minor] children, or incapacitated adult children, where the amount of alimony they receive is insufficient to ensure their physical and mental development, as well as medical treatment.” In her commentary on the Family Code ( Ромовська З. В. Сімейний кодекс України: Науково-практичний коментар. – 2-ге вид., перероб. і доп. – К.: Видавничій Дім Ін Юре, 2006. Стор. 142, 143 ), Professor Z.   V.   Romovska, a drafter of the Code, noted, in particular, in respect of Article   60: “5. If property is acquired during marriage, this gives rise to a presumption that it constitutes joint matrimonial property. This means that neither the wife nor the husband is obliged to prove the existence of his/her right of joint matrimonial property to goods acquired in marriage. Pursuant to Article 60, [such goods are] considered as belonging to both spouses. ... 7. Where property is acquired during marriage, the registration of the property rights (to a vehicle, a living house or other real estate) at the name of only one of the spouses does not undermine the presumption that it constitutes joint matrimonial property. In other words, if a respective document indicates, for example, only the husband as the owner or buyer, this does not mean that he is the sole owner of that property.” COMPLAINTS The applicant complains under Article 6 of the Convention of the unfairness of the domestic proceedings. He also complains under Article 5 of Protocol   No. 7 that the domestic courts violated the principle of equality of spouses.     QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the courts examine the merits of his claim regarding the legal recognition of his right to a part of the flat on the ground that it had been acquired during his marriage with Ms S.? 2.     Has the applicant been afforded equality of rights and responsibilities as regards his spouse, pursuant to Article 5 of Protocol No. 7?