BORISOV v. UKRAINE (European Court of Human Rights)

Communicated on 3 January 2019

FOURTH SECTION

Application no.2371/11
Vyacheslav PetrovichBORISOV
against Ukraine
lodged on 24 December 2010

STATEMENT OF FACTS

The applicant, Mr Vyacheslav PetrovychBorisov, is a Ukrainian national who was born in 1957 and lives in Odesa.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 2001 the applicant purchased a garage in Odesa. Subsequently, he converted the garage into a shop.

In March 2003 two neighbours instituted civil proceedings contesting the applicant’s ownership of the garage and seeking to have the converted garage demolished, given that the conversion had allegedly been unlawful and that it caused a deterioration of their living conditions and violated their property rights.

On 14 March 2005 the Prymorskyy District Court of Odesa declared invalid the garage purchase agreement concluded by the applicant in 2001. The court then found that the applicant had not obtained all appropriate authorisations for the conversion of the garage. On those grounds the court ordered the demolition of the converted garage.

On 7 June 2005 the Odesa Court of Appeal upheld the court decision of 14 May 2005, whereupon the demolition order became enforceable.

On 29 June 2005 the applicant appealed on points of law to the Supreme Court. He asked the Supreme Court to suspend the enforcement of the demolition order for the period of consideration of his appeal on points of law. On the same day he asked the bailiffs to postpone the enforcement proceedings.

In July 2005 the converted garage was demolished by the bailiffs.

On 26 October 2005 the Supreme Court decided to suspend the enforcement of the demolition order.

On 27 September 2006 the Supreme Court allowed the applicant’s appeal on points of law, quashed the decisions of the lower courts as unfounded and remitted the case to the first-instance court for a new consideration. The Supreme Court stated that the lower courts had failed to establish the standing of the neighbours in challenging the applicant’s purchase agreement; the courts had paid no attention to the statute of limitation in relation to that part of the claim; and the courts had made an unfounded conclusion that the garage had been converted without all the relevant authorisations.

On 2 August 2007 the applicant introduced a claim against the two neighbours, seeking damages for the losses he had sustained as a result of the demolition of his property.

On 24 December 2009 the Prymorskyy District Court of Odesa, in joint proceedings, dismissed the neighbours’ claims as well as that of the applicant. The court found that the neighbours had no standing to challenge the validity of the applicant’s property title to the garage and, moreover, that part of the claim had been time-barred. The court then found that the applicant had converted the garage in accordance with the legal requirements and on the basis of all the necessary administrative authorisations. As regards the applicant’s claim for damages, there were no grounds to make any award because the neighbours could not be held liable for lawfully exercising their right of access to a court.

On 21 June 2010 that decision was upheld by the court of appeal.

On 30 August 2010 the Supreme Court dismissed the applicant’s appeal on points of law.

The applicant lodged complaints with the domestic authorities seeking that criminal and disciplinary proceedings be instituted against the judge of Prymorskyy District Court of Odesa who adopted the decision of 14 March 2005 and ordered the demolition of his property. Those complaints were apparently dismissed.

B.  Relevant domestic law

Article 1176 § 5 of the Civil Code of 2003 provides that damage caused to a natural or legal person by an unlawful court decision in a civil case must be fully compensated for by the State, in the event of it being established by a final court judgment that the judge(s) who influenced the adoption of the unlawful decision had committed a crime.

COMPLAINTS

1.  The applicant complains under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 that his immovable property was demolished without any grounds and that he could not obtain any compensation on that account.

2.  The applicant complains that the length of civil proceeding in his case was not reasonable.

QUESTIONS TO THE PARTIES

1.  Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, did that interference impose an excessive individual burden on the applicant?

2.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?

3.  Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

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