CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 octobre 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s5C131D27 { margin-top:14pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Communicated on 20 October 2020 Published on 9 November 2020   FIFTH SECTION Application no. 35544/13 Roman Oleksandrovych SABANCHEYEV against Ukraine lodged on 24 May 2013 STATEMENT OF FACTS The applicant, Mr Roman Oleksandrovych Sabancheyev, is a Ukrainian national, who was born in 1984 and lives in Sevastopol. He is represented before the Court by Ms K. Zaychenko, a lawyer practising in Kyiv. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 2 April 2010 the Sevastopol City State Administration (“the Administration”) decided to transfer 18.5 ha of land to the gardening co ‑ operative A. (“the co-operative”) for the purposes of individual cottage construction. On 13 May 2010 the local land authority issued to the applicant, a   member of the above co-operative, the State act certifying his property title to a plot of land (“the State act”) measuring 0.1 ha. The act stated that it was based on the decision of 2 April 2010. On 14 October 2010 the local prosecutor, acting on behalf of the Sevastopol City Council (“the Council”), lodged a claim against the applicant, seeking invalidation of the State act and return of the plot of land to the State. He argued that the decision of 2 April 2010 provided for a transfer of land to the co-operative, and not for a transfer of the plot of land to the applicant. Furthermore, under Article 12 of the Transitional provisions of the 2001 Land Code, it was the Council which exercised functions in respect of lands located within populated communities, but it had not adopted any decisions in respect of the applicant. As the owner of the plot of land, the Council was therefore entitled, under Article 387 of the 2003 Civil Code (the owner’s right to reclaim property from unlawful possession) to reclaim it from the applicant. On 26 October 2011 the Nakhimovskyy District Court of Sevastopol (“the District Court”) rejected the claim. It held in essence that State acts certifying property titles to land could not be invalidated by courts and that the remedy for the protection of the breached right chosen by the prosecutor was not based on law. It further held that there had been no breaches on the part of the applicant when he had received the State act, so that the reference to Article 387 of the Civil Code was ungrounded. On 29 March 2012, following the prosecutor’s appeal, the Sevastopol City Court of Appeal (“the Court of Appeal”) quashed the judgment of 26   October 2011, invalidated the State act and ordered the applicant to return the plot of land to the State. It held, in particular, that the decision of 2 April 2010 did not provide for a transfer of plots of land to individuals. The applicant had therefore obtained the plot of land in breach of the law, due to which the State act had to be declared invalid. It also found erroneous the District Court’s conclusion that the State acts could not be invalidated by the courts, because that possibility was mentioned by the Supreme Court in a decision adopted by its plenary on 16 April 2004. Finally, the court of Appeal held that since the plot of land was located within the city of Sevastopol, under Article 12 of Transitional Provisions of the Land Code it was the Council which exercised the functions of disposal of that land and, under Article 387 of the Civil Code, it could seek its recovery from a person who received it without legal grounds. The applicant appealed in cassation against the judgment of 29   March 2012 with the Higher Specialised Civil and Commercial Court (“the HSC”). He submitted that by a final decision of 10 October 2012 adopted in the similar case concerning his neighbour Zh., who was also a member of the co-operative and who had also been issued the State act pursuant to the decision of 2 April 2010, the HSC rejected the prosecutors’ similar claim against Zh. In that decision, a copy of which the applicant attached to his appeal in cassation, the HSC found that invalidation of the State act without challenging the lawfulness of a decision which served as a basis for issuing the act was not provided for by law. Since the prosecutor had not challenged the basis for issuing of the State act to Zh., and only limited his submissions to arguing that the local authorities had not adopted any decision concerning a transfer of a plot of land and issuing of the State act to Zh., invalidation of the State act without invalidation of a decision on the basis of which the State act had been issued would be in breach of the law. Moreover, the decision of 2 April 2010 contained an appendix with a list of members of the co-operative (including Zh.), who had privatised plots of lands. The fact of privatisation was also confirmed by the land development plan. The applicant thus argued that the Court of Appeal had wrongly invalidated his State act. He further submitted that he had received all documents necessary for receiving the plot of land, that the decision of 2   April 2010 had contained the appendix with the list of members of the co ‑ operative (including him), who had privatised plots of land, and that the fact that the decision had not stated that the plots of land had been transferred to those members had been a clerical error made by a person who had prepared it. It was clear that the land had been allocated to the co ‑ operative for further transfer of separate plots to its members, because it had been founded for that very purpose. Accordingly, he argued that the decision of 2   April 2010 had been a valid basis for issuing him the State act, that that decision had not been invalidated and that the judgment of 29   March 2012 thus had to be quashed. By a summary ruling of 28 November 2012, the HSC, sitting in a single ‑ judge formation, refused to grant leave to the applicant’s appeal in cassation. It did not specifically address the applicant’s arguments, including his reference to its decision of 10 October 2012. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention about the unfairness of the proceedings in his case and, in particular, that the Higher Specialised Civil and Commercial Court unreasonably refused to grant leave to his appeal in cassation, even though in the similar case concerning Zh. it did so and had rejected the prosecutor’s claim. The applicant also complains under Article 1 of Protocol No. 1 that as a result of the above proceedings he was unlawfully deprived of his property. QUESTIONS TO THE PARTIES 1.     Were the proceedings in the present case fair for the purposes of Article   6 §   1 of the Convention? In particular, did the Higher Specialised Civil and Commercial Court comply with its obligation under that provision of the Convention to give reasons for its decision and to reply to specific, pertinent and important argument, notably to the applicant’s reference to its decision of 10 October 2012 adopted in the case of Zh.?   2.     Do the facts of the case give rise to a violation of Article 1 of Protocol   No. 1?