Last Updated on May 24, 2019 by LawEuro
Communicated on 6 September 2018
FOURTH SECTION
Application no. 5820/11
Valeriy Oleksandrovych DENYSENKO
against Ukraine
lodged on 12 January 2011
STATEMENT OF FACTS
The applicant, Mr Valeriy Oleksandrovych Denysenko, is a Ukrainian national who was born in 1950 and lives in Velykyy Burluk. He is represented before the Court by Mr V. Sarnyak, a lawyer practising in Ploske. The facts of the case, as submitted by the applicant, may be summarised as follows.
By a decision of 24 December 1993 the executive committee of a local village council (“the committee”) transferred for free, via a privatisation process, a plot of land measuring 0.5 ha into the applicant’s ownership. The decision also stated that it would serve as a title document until a land-ownership certificate was issued (Державний акт на право приватної власності на землю).
By a decision of 8 July 1997 the committee issued a similar decision, stating that the plot of land actually measured 0.61 ha. The decision also stated that the applicant was entitled to receive the land-ownership certificate. On 4 August 1997 the applicant received that certificate.
As it appears from the case file, subsequently the applicant built a house on part of that plot of land and in December 2006 sold that house to B.
On 20 March 2008 a local prosecutor sent a “protest” to the village council, demanding that it annul the decision of 8 July 1997. He stated that it had been prepared and issued by K., a secretary of the village council, rather than by the committee. K. had thus acted beyond her legal authority. Later on K., again acting beyond her legal authority, had prepared and signed the land-ownership certificate.
On 21 March 2008 the committee examined the protest and decided to annul its decision of 8 July 1997.
By a final judgment of 12 November 2008 the Velykyy Burluk Court (“the local court”) found P., the head of the village council, guilty of an administrative offence on the grounds that he had deliberately failed to inform the village council’s deputies, who had approved the preparation for B. of the technical documents in respect of the plot of land at issue necessary for issuing title documents, that the plot of land had already been transferred to the applicant’s ownership.
On an unspecified date the village council lodged a claim with the local court against the applicant, seeking the annulment of the land-ownership certificate. By a judgment of 9 June 2009, which was upheld on 13 October 2009 by the Kharkiv Regional Court of Appeal (“the Court of Appeal”) and became final, the court rejected the claim. It stated that the local authorities had decided to transfer the plot to the applicant’s ownership in 1993, that their decision had not been annulled and that this decision had been a title document until the issuing to the applicant of a land-ownership certificate. The court further stated that the minutes of the committee’s meeting of 8 July 1997 had confirmed that in that meeting the committee had examined the question of issuing the land-ownership certificate to the applicant and that the claimant had failed to prove that K. had not been entitled to sign that certificate; nor had the prosecutor’s protest upon which the claimant had relied contained any arguments as to why K. had not been entitled to sign the certificate. The court thus concluded that the applicant had been the lawful owner of the plot of land transferred to him by the committee.
In April 2009 B. lodged a claim with the local court against the applicant, seeking the annulment of the latter’s land-ownership certificate. She stated that the 2006 contract, under which she had bought the house from the applicant, had provided that the house had been built on a plot of land belonging to the village council and that it had not belonged to the applicant; however, later she learned that in 1997 the applicant had received the title document to it. In turn, the applicant stated that he had sold the house to B. through an estate agency, which he had informed that he had had the title to the plot. By a judgment of 26 August 2009 the court rejected the claim. On 4 November 2009 the Court of Appeal upheld the above judgment. The courts found that the 2006 contract had not been the reason for the annulment of the land-ownership certificate issued to the applicant in 1997. They further held that under the 2006 contract the applicant had sold to B. only the house and not any other property, including the plot of land. The courts also found that the claimant had not proved that she had had any rights to the plot of land on which the house she had bought had been located. Lastly, the courts held that the fact that the 2006 contract had stated that the plot on which the house had been located had not belonged to the applicant did not affect his title to that plot issued to him long before the conclusion of the contract. The judgment of 26 August 2009 was not appealed against on points of law in a cassation court and thus became final.
On an unspecified date the applicant lodged a claim with the local court against the village council, seeking the invalidation of its decision of 21 March 2008. By a judgment of 14 June 2010 the court allowed the claim. It stated that the applicant had received the plot of land by virtue of the 1993 decision, while the 1997 decision had de facto clarified the former decision in terms of the plot’s size; therefore, the decision of 21 March 2008 annulling the decision of 8 July 1997 had been adopted in breach of the law and had been invalid.
On 13 September 2010, following an appeal lodged by B., who alleged that the above judgment had breached her rights, the Court of Appeal quashed that judgment. It held that the local court had established that the decision of 8 July 1997 had been prepared by K. without it having been submitted to the committee for examination. It further held that the lower court had come to the correct conclusion that the applicant had received the plot of land in breach of the law, since K. had acted beyond her legal authority and the relevant decision had not been adopted by the committee. The Court of Appeal thus concluded that the village council had been correct in allowing the prosecutor’s protest. It also referred to the 2006 contract and stated that, pursuant to Article 377 of the 2003 Civil Code, a person who bought a house also received a title to the plot of land on which that house had been built in the size determined by a contract; if the contract did not determine the size, a buyer received the part of the plot of land on which the house was built and the necessary area for using the house. It further held that the relevant provision of the 2001 Land Code (Article 120) did not entail an automatic transfer of title to a plot of land on which a house was located – it concerned only those parts of a plot of land which were occupied by the house and which were necessary for using such a dwelling. Accordingly, the Court of Appeal concluded that the judgment of 14 June 2010 invalidating the decision of 21 March 2008 had breached the rights of B. as the owner of the house located on the disputed plot of land.
The applicant appealed on points of law to the Supreme Court against the judgment of 13 September 2010. He stated that the circumstances examined by the Court of Appeal had already been established, inter alia, in the final judgments of 9 June and 26 August 2009, which it had not taken into account. He further stated that the Court of Appeal had manifestly erred in holding that the local court had come to the correct conclusion that he had received the plot of land in breach of the law, since K. had acted beyond her legal authority. He thus stated that the above judgment had breached his constitutional rights and interests and asked the Supreme Court to quash it.
By a summary ruling of 12 October 2010 the Supreme Court refused to grant the applicant leave to appeal on points of law.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention about the unfavourable outcome of the proceedings against the village council. He states, in particular, that in its judgement of 13 September 2010 the Court of Appeal did not take into account that all circumstances had already been examined in the earlier final judgments, and that it referred to findings which had not been made by the local court.
2. The applicant also complains, under Article 1 of Protocol No. 1 to the Convention, of a breach of his property rights on account of the outcome of the above proceedings.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing for the purposes of Article 6 § 1 of the Convention in the proceedings instituted by him against the village council for the invalidation of its decision of 21 March 2008? In particular:
(a) Having regard to the content of the local court’s judgments of 9 June and 26 August 2009, was the principle of legal certainty breached by the Court of Appeal’s judgment of 13 September 2010, confirmed by the Supreme Court on 12 October 2010 (see, mutatis mutandis, Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, §§ 59-70, 12 January 2006)?
(b) In so far as it considered that the local court had concluded to the unlawfulness of the transfer of the plot of land claimed by the applicant, was the reasoning of the Court of Appeal’s judgment of 13 September 2010 in compliance with the “fair trial” requirement of Article 6 § 1 (see, for instance, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 60-65, ECHR 2015)?
2. Has there been an interference with the applicant’s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention, in view of the judgment of 13 September 2010? If so, was the interference in compliance with the requirements of that provision?
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