Last Updated on May 19, 2019 by LawEuro
Communicated on 2 October 2018
FOURTH SECTION
Applications nos. 30034/08 and 62006/09
Lidiya Yuriyivna GUMINILOVYCH against Ukraine
and Atanasios Georgios MITSOPOULOS against Ukraine
lodged on 6 June 2008 and 15 November 2009 respectively
STATEMENT OF FACTS
The applicant in application no. 30034/08 is a Ukrainian national, who was born in 1957 and lives in Ivano-Frankivsk.
The applicant in application no. 62006/09 is a Greek national, who was born in 1959 and lives in Kyiv. He is represented before the Court by Mr V. Teterskyy, a lawyer practising in Kyiv.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Application no. 30034/08 lodged on 6 June 2008
The applicant instituted civil proceedings before the Ivano-Frankivsk Town Court, challenging the validity of a contract regarding the division of joint property belonging to her and her former husband, G.
On 29 August 2006 the Ivano-Frankivsk Town Court ruled in her favour and invalidated the disputed contract.
On 17 October 2006 the Ivano-Frankivsk Regional Court of Appeal dismissed G’s appeal for failure to pay the court fee in accordance with the relevant regulations. Accordingly, on that date the judgment of 29 August 2006 became binding and enforceable,
On 23 November 2006 the Supreme Court dismissed G’s cassation appeal.
On 26 June 2007 the Ivano-Frankivsk Regional Court of Appeal allowed G’s application for reconsideration of the decision of 17 October 2006 in the light of newly discovered circumstances. In particular, it was discovered that at the relevant time no information had been provided to G concerning the exact amount of the court fee which he had had to pay for lodging his appeal against the judgment of 29 August 2006.
On 19 September 2007 the appellate court reconsidered the case on the merits and quashed the judgment of 29 August 2006, having found that the first-instance court had wrongly assessed the facts and had incorrectly applied the law. The applicant’s claim was dismissed as unfounded.
On 5 February 2008 the Supreme Court dismissed the applicant’s cassation appeal, having held that the decision of 19 September 2007 had been taken in accordance with the procedural regulations and substantive law provisions.
B. Application no. 62006/09 lodged on 15 November 2009
On 23 September 2002 the applicant concluded a contract with a private individual, pursuant to which the applicant bought a house.
In January 2003 that individual instituted civil proceedings before the Obolonskyy District Court in Kyiv, challenging the validity of that contract.
In March 2003 the applicant lodged a counterclaim with the same court, essentially claiming his title to the disputed house.
Subsequently, several other individuals joined the proceedings.
Following several reconsiderations of the case, on 22 January 2007 the Obolonskyy District Court found in part for the applicant, having acknowledged his title to the house together with its outbuildings and associated constructions.
On 29 March 2007 Kyiv Court of Appeal quashed that judgment and found against the applicant.
On 7 November 2007 the Supreme Court overturned the appellate court’s judgment of 29 March 2007 and upheld the first-instance court’s judgment of 22 January 2007. Accordingly, the latter judgment became binding and enforceable on that date.
In April 2009 one of the applicant’s opponents, M, lodged with the Obolonskyy District Court an application for reconsideration of its judgment of 22 January 2007 in the light of newly discovered circumstances. M alleged that, while the impugned court proceedings had been pending, she had not been aware that the house had been renovated to the extent that it could no longer be considered as the object of the disputed sale contract.
The applicant challenged that application, arguing that during the proceedings the house had been in the possession and under the control of M who, consequently, must have been aware of the renovation. Furthermore, her application for extraordinary review of the judgment of 22 January 2007 was lodged out of time.
On 20 May 2009 the Obolonskyy District Court allowed M’s application, quashed the judgment of 22 January 2007 and reopened the proceedings on the merits. The court held that “having examined the material of the case and having heard the parties, it considered that the application could be allowed”. The court provided no further explanation in that regard.
The reopened proceedings involved several reconsiderations on the merits and, eventually, were terminated by the final decision of the Higher Specialised Court in Civil and Criminal Matters of 27 April 2016, by which the applicant’s claims were partly allowed. Notably, his title to the house was acknowledged, whereas no such acknowledgment was made as regards the adjacent and associated constructions and any improvements to the entire estate after 23 September 2002. Also, his opponents were ordered not to hinder the exercise of his ownership right over the house.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention about the quashing of the binding and enforceable judgments in their favour.
The applicant in application no. 62006/09 also complains that the quashing of the binding and enforceable judgment of the Obolonskyy District Court of 22 January 2007, by which his title to a house was acknowledged, entailed a violation of Article 1 of Protocol No. 1.
QUESTIONS
COMMON QUESTION FOR BOTH APPLICATIONS
1. Was there a violation of Article 6 § 1 of the Convention on account of the reopening of the proceedings in the cases at issue and the quashing of the binding and enforceable judgments favourable to the applicants (see Pravednaya v. Russia, no. 69529/01, §§ 32-34, 18 November 2004, and Lizanets v. Ukraine, no. 6725/03, §§ 33-35, 31 May 2007)?
ADDITIONAL QUESTION FOR APPLICATION nO. 62006/09
2. Was there an interference with the peaceful enjoyment of the applicant’s possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention, on account of the reopening of the proceedings in his case and the quashing of the binding and enforceable judgment favourable to him? If so, was that interference in compliance with the requirements of Article 1 of Protocol No. 1 (see Pravednaya, cited above, §§ 39-42)?
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