Last Updated on May 19, 2019 by LawEuro
Communicated on 8 October 2018
FOURTH SECTION
Application no. 24391/10
Eduard Yuryevich SAFONOV and Natalya Olegovna SAFONOVA
against Ukraine
lodged on 19 April 2010
STATEMENT OF FACTS
1. The applicants, Mr Eduard Yuryevich Safonov and Ms Natalya Olegovna Safonova, are Ukrainian nationals, who were born in 1973 and 1976 respectively and live in Yalta.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. First set of proceedings
3. In June 2001 the applicants instituted proceedings at the Yalta City Court (“the Yalta Court”) against the Yalta City Council (“the Yalta Council”) seeking to declare as “suitable for living” the building at 39 ”г” Kirova Street in Yalta (“the Kirova building”), in which they had been residing since 1982 and which, according to them, was of no one’s property. They also requested the Yalta Court to oblige the Yalta Council to transfer the Kirova building to a communal property and to issue them a title to live therein (ордер на квартиру).
4. On 19 September 2001 the Yalta Court allowed the applicants’ claim. On an unspecified date this decision became final.
5. On 24 January 2003 the Executive Committee of the Yalta Council took a decision providing the applicants with a right to reside in apartment no. 2 at the Kirova building (“the flat no. 2”).
6. On 5 October 2004, following a decision of the Executive Committee of the Yalta Council, the applicants and their minor son became owners of flat no. 2 and the relevant privatisation certificates were issued to them.
7. On 6 October 2004 the Yalta Technical Inventory Bureau (“the Inventory bureau”) – a State unitary enterprise in charge, under Ukrainian law, of registration of real estate and development deals – registered the applicants’ property rights over flat no. 2.
8. On 7 September 2005 the Yalta Council excluded the Kirova building from the communal property register as the apartments therein had been privatised by their residents. By the same decision, the Kirova building was transferred to the joined private property of the applicants and of the owners of the building’s other flats.
9. On unspecified date the Company “Sanatoriy imeni Kirova” Ltd. (“Company 1”) applied to the Yalta Court with a request for reopening of the proceedings and review of the judgment of 19 September 2001 (see paragraph 4 above) under newly-discovered circumstances. It claimed to be the owner of the Kirova building.
10. On 18 November 2005 the Yalta Court allowed Company’s 1 request, quashed the judgment of 19 September 2001 and reopened the proceedings. In the course of the proceedings, Company 1 submitted a counter-claim seeking, inter alia, to: annul the decisions of the Yalta Council of 24 January 2003 and 7 September 2005 (see paragraphs 5 and 8 above); invalidate the applicants’ property certificates over flat no. 2; and to evict them.
11. On 12 December 2005 and 20 February 2006 the Yalta Court issued injunctions prohibiting alienation of flat no. 2.
12. On 15 June 2006 the Yalta Court rejected the applicants’ claim and partly allowed the claim of Company’s 1. The court annulled the decisions of the Yalta Council of 24 January 2003 and 7 September 2005 and invalidated the applicants’ property certificates over flat no. 2.
13. On 24 October 2006 the Court of Appeal of the Autonomous Republic of Crimea (“the ARK”) quashed the above-mentioned judgment and remitted the case for new examination to the first-instance court.
14. On 15 May 2007 the Yalta Court rejected the applicants’ and Company’s 1 claims. It found, inter alia, that there had been no need to oblige the Yalta Council to provide the applicant’s with an apartment, as claimed by the applicant in 1998, as by that time the apartment had been transferred to the private property of the applicants and their entitlement to it was not in dispute. The court further found no evidence to conclude that the Kirova building had belonged to Company 1.
15. On 15 October 2007 the Court of Appeal of the ARK quashed the above-mentioned judgment, rejected the applicants’ claim and partly allowed that of Company 1. It annulled the decisions of the Yalta Council of 24 January 2003 and 7 September 2005 (see paragraphs 5 and 8 above), invalidated the applicants’ property certificates over flat no. 2. and ordered the Inventory Bureau to register Company 1 as the owner of the Kirova building. Company’s 1 claim for the applicants’ eviction was rejected.
16. The applicants lodged a cassation appeal to the Supreme Court of Ukraine. In the meantime, Company 1 had registered its property rights over the Kirova building and on 17 January 2008 had sold it to the Company “Topaz” Ltd. (“Company 2”), but failed to have the sale contact certified by a notary.
17. On 9 April 2008 the Supreme Court quashed the judgment of 15 October 2007 (see paragraph 15 above) and sent the case for a new examination to the Court of Appeal of the ARK. The Supreme Court made no ruling on reversal of the execution of the judgment of 15 October 2007.
18. On 10 November 2008 the Court of Appeal of the ARK upheld the judgment of the Yalta Court of 15 May 2007 (see paragraph 14 above).
19. On an unspecified date the applicants’ requested the Court of Appeal of the ARK to reverse execution of the judgment of 15 October 2007 (see paragraph 15 above). Their request was returned to them in April 2009 as lodged with the wrong court.
20. On 29 January 2009 the applicants lodged the reversal request to the Yalta Court. This request was not considered until November 2009 (see paragraph 22 below). In the meantime, Company 2 had sold the Kirova building to the Company “Selbilliar” Ltd. (“Company 3”) (see paragraph 31 below).
21. On 17 June 2009 the Supreme Court upheld the decisions of the Yalta Court of 15 May 2007 (see paragraph 14 above) and the Court of Appeal of the ARK of 10 November 2008 (see paragraph 18 above).
22. On 4 November 2009, following the applicants’ claim (see paragraph 20 above), the Yalta Court reversed the execution of the judgment of the Court of Appeal of the ARK of 15 October 2007 (see paragraph 15 above) and ordered the Inventory Bureau to register the applicants’ property rights over flat no. 2. This judgment became final on 12 November 2009.
23. On 20 January 2010 the Inventory Bureau informed the applicants that it was impossible to enforce the above-mentioned judgment and to register the applicants’ property rights over flat no. 2, as this flat, as well as others in the Kirova building, had been already registered as a property of Company 3 on the basis of the sale contract of the Kirova building of 16 September 2009 (see the third set of proceedings below).
B. Second set of proceedings
24. On an unspecified date the applicants instituted administrative proceedings before the Yalta Court in which they challenged the Inventory Bureau’s failure to restore their registration as the owners of flat no. 2.
25. On 16 February 2010 the Yalta Court found for the applicants and ordered the Inventory Bureau to reinstate the registration of the applicants’ property rights over flat no. 2, on the basis of the private property certificate of 5 October 2004 (see paragraph 6 above). In doing so, the court noted that the relevant record in the State Register suggested that Company 3 was registered as the owner of the Kirova building but not of flat no. 2, which was a separate object of immovable property belonging to the applicants.
26. On 22 November 2010 the Sevastopol Administrative Court of Appeal upheld this decision.
27. According to the information provided by the applicants on 16 January 2018, this decision had become final but had, at that date, remained unexecuted.
C. Third set of proceedings
28. On an unspecified date Company 2 instituted court proceedings against Company 1 seeking a declaration that the sale contract of 17 January 2008 (see paragraph 16 above) was valid and the acknowledgment of its property rights over the Kirova building. The applicants were not involved in the proceedings and, according to them, had not been aware of them until January 2010.
29. On 21 May 2009 the Commercial Court of the ARK allowed Company’s 2 claim and declared that Company 2 was the owner of the Kirova building.
30. On 11 September 2009 the Inventory Bureau registered Company 2 as the owner of the Kirova building.
31. On 16 September 2009 Company 2 sold the Kirova building to Company 3.
32. On 22 February 2010 the High Commercial Court quashed the decision of 21 May 2009 (see paragraph 29 above) and remitted the case for a new examination.
33. On 3 March 2010 Company 3 sold the Kirova building to the Company “High tech group” Ltd. (“Company 4”).
34. On 7 June 2010 the Commercial Court of the ARK terminated the proceedings as both Company 1 and Company 2 had ceased to exist.
D. Fourth set of proceedings
35. In March 2010 the applicants instituted proceedings against Companies 2, 3 and 4 and the Inventory Bureau seeking: a declaration that the sale contracts of 16 September 2009 (see paragraph 31 above) and 3 March 2010 (see paragraph 33 above) were invalid; the restitution of their flat and of part of the building from the allegedly unlawful possession by Company 4; the confirmation of their property rights over flat no. 2 and their part of the Kirova building, the removal of obstacles to the use of their property; and the award of non-pecuniary damage. The applicants alleged, inter alia, that pursuant to the valid decision of the Yalta Council of 7 September 2005 (see paragraph 8 above) they, jointly with other individuals, had become the owners of the Kirova building and that the injunctions imposed by the Yalta Court in respect of flat no. 2 (see paragraph 11 above) had been breached by the defendants.
36. On 14 April 2011 the Yalta Court partly allowed the applicants’ claim. It found the sale contracts of 16 September 2009 and 3 March 2010 to be invalid and ordered the defendants to pay jointly non-pecuniary damage to the applicants. On the basis of the extracts from the Property Register, submitted by the Inventory Bureau, the court established that flat no. 2 had been unlawfully included in the sale contracts at issue. Having noted that the applicants’ property title to flat no. 2 and the Kirova building had been confirmed by the relevant certificates issued by the Yalta Council, which had been valid, and that the applicants were still residing in the Kirova building, the court found no need to reconfirm their property rights and dismissed the reminder of the applicants’ claims.
37. On 4 July 2011 the Court of Appeal of the ARK quashed this judgment and rejected the applicants’ claim. The applicants and the public prosecutor appealed in cassation.
38. On 25 October 2011 the High Specialised Court of Ukraine on Criminal and Civil Matters (“the HCUCCM”) upheld the judgment of 4 July 2011.
39. On 25 April 2012 the Supreme Court of Ukraine quashed the judgment of the HCUCCM of 25 October 2011 on the grounds of inconsistent application of the law and remitted the case for a new examination to the HCUCCM.
40. On 14 November 2012 the HCUCCM quashed the judgment of the Court of Appeal of the ARK of 4 July 2011 (see paragraph 37 above) and sent the case back to that court for a new examination.
41. On 6 February 2013, following a request of Company 4, the Court of Appeal of the ARK suspended the proceedings until a final decision was delivered on the claim of Company 4 against the Yalta Council and the Inventory Bureau (see the fifth set of proceedings below).
42. The applicants appealed against the above-mentioned ruling of 6 February 2013 to the HCUCCM and on 1 March 2013 their appeal was admitted to examination.
43. No information has been provided to the Court as to further developments in these proceedings.
E. Fifth set of proceedings
44. On an unspecified date Company 4 instituted proceedings in the Administrative Court of the ARK against the Yalta Council and the Inventory Bureau seeking to declare unlawful and invalid a decision of the Yalta Town Council of 16 January 2004 by which the Kirova sanatorium was transferred to the communal property of Yalta. It also requested that the Inventory Bureau would refrain from making any change in the registration titles of the Kirova building. The applicants were involved to the proceedings as a third party supporting the position of the Yalta Council.
45. On 26 March 2013 the Administrative Court of the ARK partly allowed Company’s 4 claim and invalidated the decision of the Yalta Council of 16 January 2004 as unlawful.
46. On 30 May 2013, following appeals of the applicants and the Yalta Council, the Sevastopol Court of Appeal quashed the judgment of 26 March 2013 and rejected Company’s 4 claim. This decision became enforceable from the moment of its delivery but could have been appealed against before the High Administrative Court of Ukraine. The Court has not been informed whether such an appeal has been lodged.
COMPLAINTS
47. The applicants complain about the non-enforcement of the final decisions in their favour, the length of the fourth set of proceedings and the lack of effective remedies in this respect as well as of a breach of their property rights over flat no. 2 and the Kirova building. They rely on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
QUESTIONS TO THE PARTIES
1. Was the failure of the Yalta Technical Inventory Bureau to comply with the judgments of 4 November 2009 and 16 February 2010 by the Yalta Court, given in the applicants’ favour, compatible with the applicants’ rights guaranteed by Article 6 § 1 of the Convention?
2. Was the length of the fourth set of civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 6 § 1, as required by Article 13 of the Convention?
4. Has there been an interference with the applicants’ peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1, notably with their property rights over the flat no. 2 and the Kirova building? If so, was that interference lawful for the purpose of Article 1 of Protocol No. 1? Did it impose an excessive individual burden on the applicants within the meaning of that Article?
Leave a Reply