CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 août 2016

.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 } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .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 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 23 August 2016   FIFTH SECTION Applications nos. 28052/13 and 32899/13 Oleg Petrovych SABODASH against Ukraine and Zinayida Sergiyivna NADTOCHIY against Ukraine lodged on 16 April 2013 and 1 April 2013 respectively STATEMENT OF FACTS The applicant in the first case, Mr Oleg Petrovych Sabodash, is a Ukrainian national who was born in 1970 and lives in Kherson. The applicant in the second case, Ms Zinayida Sergiyivna Nadtochiy, is a Ukrainian national who was born in 1928 and lives in Sumy. Application 28052/13 Sabodash v. Ukraine The applicant sued Mr and Mrs S., the occupants of a neighbouring flat, for damages for the loss they had allegedly caused him by helping to dismantle an extension to his flat. The defendants were represented by a lawyer at the trial. On 14 July 2011 the Kherson Komsomolsky District Court rejected the applicant’s claim on the grounds that the additional part of the flat had been built illegally. On 27 September 2011 the Kherson Regional Court of Appeal quashed the first-instance court’s judgment and delivered a new judgment. The Court of Appeal awarded the applicant 9,659 Ukrainian hrvnias (UAH) in damages and UAH 411 in costs. It found that the defendants, in proceeding to dismantle the extension, had acted without lawful authorisation and without informing the applicant. They had also failed to hand back to him, the rightful owner, the material that had been left after dismantling the building work. The time-limit for an appeal expired and the Court of Appeal’s judgment became final on 17 October 2011. In March 2012 the defendants paid the judgment debt in full. On an unspecified date the Kherson regional prosecutor’s office lodged an appeal on points of law against the Court of Appeal’s judgment. The appeal was dated 5 April 2012. The prosecutor’s office stated that it was intervening on behalf of the defendants because they were pensioners and were in a difficult financial situation. It asked for the time-limit for an appeal to be extended as it had only learned about the Court of Appeal’s judgment on 4 April 2012 from a complaint by Mrs S. The applicant himself made an estimate of the defendants’ financial situation. He said it included monthly income of between UAH 2,000 and 3,000. He also alleged that they had savings, as shown by the fact that they had been in a position to pay the judgment debt as a lump sum without needing to settle it in installments. He estimated that the cost of preparing and lodging an appeal on points of law was up to UAH 695 in total. On 11 May 2012 the Higher Specialised Civil and Criminal Court (“the HSC”) extended the time-limit for an appeal in the case, stating that there were “valid reasons” for an extension. It also accepted the appeal for examination on the merits. On 10 June 2012 the applicant lodged a reply to the appeal, arguing that allowing it would be contrary to the principle of legal certainty recognised in the Court’s case-law. On 24 October 2012 the HSC quashed the Court of Appeal’s judgment and upheld the first-instance court’s judgment and reasoning. Application no. 32899/13 Nadtochiy v. Ukraine 1.     Grant of municipal land to the applicant On 4 June 2008 Sumy Municipal Council granted the applicant a plot of land for the construction of a house. The land was granted free of charge as part of the process of privatisation. On 17 September 2008 she obtained an ownership certificate for the land. 2.     First set of proceedings On 22 August 2011 the Sumy regional prosecutor brought a claim on behalf of the Sumy Regional Directorate of the State Land Committee against the applicant, with Sumy Municipal Council as a third party, seeking to have her right to the land revoked and her ownership certificate declared invalid on the grounds that the designated use of the land contradicted the city’s general zoning plan. It also stated that the applicant, contrary to the agreement with the municipal council, had failed to begin construction on the land within one year of obtaining the ownership certificate. On 12 January 2012 the Sumy Kovpakivsky District Court (“the District Court”) dismissed the prosecutor’s claim as unsubstantiated. The court found it established that the allocation of the land had not contradicted the municipal zoning plan. The court also established that the applicant had not kept to the contract with the municipal council because she had failed to begin construction of a house within two years. However, the court concluded that failure to use land according to its designated use did not provide grounds to revoke an ownership title. On 9 February 2012 the Sumy Regional Court of Appeal (“the Court of Appeal”) dismissed an appeal by the prosecutor and upheld the fist-instance court’s judgment. In addition to endorsing the first-instance court’s findings, the Court of Appeal also held that administrative courts had declared that rules by which municipal councils imposed an obligation on new owners of land to start construction on it were unlawful. It also held that the ownership certificate could not be declared invalid because the prosecutor had not challenged the municipal council’s decision of 4 June 2008 to grant the land to the applicant, which had been the basis for the ownership certificate. 3.     Second set of proceedings On 29 February 2012 the Sumy regional prosecutor brought a new claim on behalf of the Sumy Regional Directorate of the State Land Committee and Regional Agriculture Inspectorate against the applicant and the municipal council as defendants and the Sumy City Directorate of the State Land Committee, seeking to declare the municipal council’s decision of 2008 to grant land to the applicant as unlawful, to declare her ownership certificate invalid and to have the land returned to Sumy City. The District Court granted the claim on the grounds that the municipal council had failed to develop a detailed zoning plan and specific construction limits, thereby failing to serve the interests of the community. Moreover, it was not possible for that reason to verify whether the applicant’s land complied with such limits. The municipal council had also failed to prove that the land had been allocated lawfully. The District Court rejected the applicant’s argument that the action was time-barred under the statute of limitations because the prosecutor had discovered the legislative breach in June 2011. The applicant appealed, arguing in particular that the District Court’s judgment had contradicted the findings of the courts in the first set of proceedings. On 6 September 2012 and 18 January 2013 respectively the Court of Appeal and the HSC upheld the District Court’s judgment. COMPLAINTS Application no. 28052/13 The applicant complains under Article 6 § 1 of the Convention   that the public prosecutor’s intervention in support of his opponents and the extension of the time-limit for the prosecutor’s appeal were contrary to the principles of equality of arms and legal certainty. He also complains that the quashing of the final judgment in his favour was contrary to Article 1 of Protocol No. 1. Application no. 32899/13 The applicant complains that she was deprived of her property in breach of Article 1 of Protocol No. 1 to the Convention. QUESTIONS TO THE PARTIES 1.     Questions concerning case no. 28052/13 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 prosecutor’s intervention in the applicant’s case undermine the appearance of a fair trial and the principle of equality of arms (see Menchinskaya v. Russia , no. 42454/02, §§ 35-40, 15 January 2009)? –     Was the principle of legal certainty breached by the decisions to renew the time-limit for lodging the prosecutor’s appeal and to quash a final and binding judgment in the applicant’s favour (see Ponomaryov v. Ukraine , no.   3236/03, 3 April 2008)? 2.     Questions concerning both cases For both applicants, has there been an interference with the peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol   No. 1 to the Convention? If so, was that interference in compliance with the requirements of Article 1 of Protocol No. 1?