CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 janvier 2025

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 10 February 2025   FIFTH SECTION Application no. 52955/22 Vadym Volodymyrovych RADIONOV against Ukraine lodged on 31 October 2022 communicated on 23 January 2025 SUBJECT MATTER OF THE CASE The application concerns the applicant’s loss of property due to alleged fraud and his complaint under Article 1 of Protocol No. 1 that the authorities failed to comply with their obligations under that provision by failing to conduct an effective criminal investigation and to make provision for appropriate compensation. The applicant is a Ukrainian national who lived in Italy for a long time. In October 2016, after having come back to Ukraine, he learnt that his property (a house with outbuildings and two land plots) had been sold without his consent. Immediately afterwards, the applicant applied to the police and a criminal investigation on account of forgery of documents was launched. Within that framework it was established that an unknown person, with surname, name and patronymic identical to those of the applicant, had managed to register the ownership to the applicant’s property, then sold it to a certain S. who then sold it to P. who had a possibly fictitious debt to Zh. To collect the debt, Zh. obtained a court judgment against P. Enforcing the judgment, a bailiff put the property up for a public auction and G. purchased it. The public auction was held after the applicant had complained to the police about fraud. According to the applicant, the criminal investigation was ongoing when he lodged the present application with the Court. In December 2018 the applicant instituted judicial proceedings seeking to declare invalid the sales agreements in respect of his property and to reclaim it from G. On 30 October 2019 a first-instance court found against the applicant. After several remittals and re-examinations of the case, on 11   April 2022 the Volyn Court of Appeal granted the applicant’s claim in part concerning the invalidation of the contested agreements and dismissed it in part concerning the reclamation of property from G. The court reasoned that pursuant to the law, the property could not be vindicated from a bona fide owner that had acquired it in the enforcement proceedings. The court relied on Article   388 of the Civil Code which provides that property cannot be reclaimed from a person who bought it at an auction organised as part of enforcement of a court judgment. The applicant appealed in cassation but, on 17 May 2022, the Supreme Court (the SC) returned the appeal, finding that the applicant failed to state reasons for appeal in cassation provided for in Article 389 of the Code of Civil Procedure (the CCP). The applicant did not provide a copy of this SC decision. Article 389 § 2 of the CCP provides that decisions of the courts of appeals on the merits of cases can be appealed in cassation on the following grounds:   (i) the court of appeal applied a legal rule disregarding the SC’s established position on the manner of application of that rule in similar relations; (ii) the court of appeal followed an established position of the SC on a matter of application of law but the appellant presents a substantiated argument that the SC should change that position; (iii) there is no position of the Supreme Court on application of a legal rule on the relevant matter. The applicant submitted a revised fifteen-page appeal in cassation. He argued that there was no position of the SC on the question of whether the Civil Code rule according to which property could not be reclaimed from a person who purchased it at an auction organised to enforce a court judgment applied to situations where the property was taken from the owner and was sold at an auction as a result of crimes. He also pointed out various alleged breaches of procedural law by the lower courts, such as that the first-instance court and Court of Appeal had sent correspondence to the applicant’s postal address in Ukraine even though he had requested it to be sent to his lawyer’s address, due to the applicant’s frequent absences from Ukraine. He also decried the courts’ failure to solicit certain materials from the criminal case ‑ files and criticised their statements summarising the evidence and case ‑ file documents contained in the first-instance court’s judgment. By a decision dated 30 June 2022 the SC returned the applicant’s cassation appeal, finding that he failed to substantiate that there were reasons for appeal in cassation as provided for in Article 389 § 2 of the CCP. QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention? In particular: Was the appeal in cassation to the Supreme Court an effective remedy within the meaning of this provision? Did the applicant invoke before the national authorities, at least in substance, the rights on which he now wishes to rely before the Court, in compliance with the formal requirements and time-limits laid down in domestic law?   2.     Has the applicant complied with the time-limit laid down in Article   35   §   1 of the Convention (see, in particular, Sabri Güneş v.   Turkey [GC], no.   27396/06, §§ 43-62, 29 June 2012)?   3.     Did the respondent State comply with its positive obligations under Article   1 of Protocol No.   1, in particular within the framework of the criminal proceedings and civil proceedings initiated by the applicant (see, for example, Blumberga v. Latvia , no. 70930/01, §§ 64-73, 14   October 2008; S .L. and J.L. v. Croatia , no.   13712/11, §§ 57-90, 7 May 2015;   Kanevska v.   Ukraine (dec.), no.   73944/11, §§ 45-52, 17   November 2020; Nikolay   Kostadinov v. Bulgaria , no.   21743/15, §§ 53-76, 8   November 2022; Korotyuk v.   Ukraine , no.   74663/17, §§ 36-37 and 55-57, 19   January 2023)?