Last Updated on April 24, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no.36743/10
LiliyaBorysivna LISYEYEVA
against Ukraine
The European Court of Human Rights (Fourth Section), sitting on 29 Janvier 2019 as a Committee composed of:
Georges Ravarani, President,
Marko Bošnjak,
PéterPaczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 22 June 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms LiliyaBorysivnaLisyeyeva, is a Ukrainian national, who was born in 1949 and lives in Kyiv. The applicant has been suffering from schizophrenia since 1979 (at the second-highest officially recognised degree of disability). She is represented before the Court by her daughter, Ms O. Lisyeyeva.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Sale of the applicant’s flat and the alleged intrusions therein
3. In August 2007 the applicant let C. register residence at and live in her flat.
4. On 24October 2007 C. took the applicant, allegedly while she was in a state of reduced mental capacity, to a notary where she concluded a contract for the sale of her flat with Z. Purportedly, the applicant did not receive the money due to her under the terms of the contract.
5. On 4 December 2007, while the applicant was undergoing inpatient medical treatment at a hospital, Z. and several other individuals allegedly broke into the flat and took away the applicant’s personal belongings, furniture, family photographs, documents, books and private correspondence. The applicant’s submissions before the Court contain no further details about or evidence of those objects.
6. Allegedly, on 3September 2010, while the applicant was undergoing inpatient medical treatment at a hospital, Z. committed the same action.
7. The applicant stated – without providing further details or evidence – that, as a result of the intrusions, damage was caused to the flat and its front door.
8. From the material submitted by the applicant, it transpires that at the time of both alleged intrusions the flat was under the control of Z.
9. In the meantime, in November 2007 the applicant’s daughter found out that there had been attempts to cancel the applicant’s official residence registration at the flat and later that the applicant’s flat had been sold to Z. Eventually, she helped the applicant to bring legal proceedings as regards the sale of the flat and the alleged intrusions therein.
B. Criminal applications regarding the alleged intrusions into the flat and the theft or removal of the applicant’s possessions
10. The applicant and her daughter lodged a number of applications with law-enforcement bodies seeking a criminal investigation into the alleged intrusions into the flat and the theft of the applicant’s possessions. In one of the applications, a copy of which the applicant provided to the Court, she listed “some of” the objects, including unspecified furniture, electrical appliances, clothes, jewellery and documents, and indicated a sum of money which allegedly had been stolen or removed from the flat on 4 December 2007 (see paragraph 5 above). In another application, a copy of which the applicant provided to the Court, it was stated that the intrusion of 3 September 2010 (see paragraph 6 above) had been witnessed by several neighbours.
11. The criminal complaints brought by the applicant and her daughter were re-examined by law-enforcement bodies and the courts on a number of occasions. While the former rejected the complaints as unsubstantiated, the courts repeatedly instructed them to re-examine the matter.
12. The applicant submitted copies of three court decisions delivered between 16 September 2011 and 27 January 2012. Those decisions, instructing the law-enforcement bodies to re-examine the matter, were based on the findings that the latter had failed to question Z. and to verify whether the applicant had actually lived in the flat in December 2007, whether she had been undergoing inpatient medical treatment at a hospital on 4 December 2007 and whether Z. had instituted any proceedings for the applicant’s eviction from the flat.
13. The applicant provided no copies of the decisions made by the law‑enforcement bodies and did not inform the Court of any further developments after 27January 2012 as regards the criminal complaints that she and her daughter had brought. In her submissions of 25February 2018, the applicant stated that no effective investigation had been conducted as regards the alleged intrusions into the flat and the theft or removal of her possessions, without providing any further details in that regard.
C. Civil proceedings regarding the title to the flat
14. In the meantime, in March 2008 the applicant, represented by her daughter, instituted civil proceedings before the Solomyanskyy District Court in Kyiv (“the SDC”), challenging the validity of the sales contract of 24 October 2007 (see paragraph 4 above).
15. On 24February 2009 the SDC, sitting in the presence of the applicant’s representative and a prosecutor who intervened in the proceedings on the applicant’s behalf, and having found that Z. had been duly informed of the hearing, decided to examine the case in default of Z.’s attendance. Accordingly, it delivered a default judgment allowing the applicant’s claim and invalidating the disputed sales contract. An appeal against that decision had to be lodged within twenty days.
16. On 30April 2009 Z. lodged an appeal against that judgment with the Kyiv Court of Appeal (“the KCA”) and requested an extension of the time-limit for lodging his appeal. He stated that he had not been informed of the hearing of 24February 2009 (see paragraph 15 above) and that he had only learned of the judgment in question on 21Apri2009. Z also challenged that judgment on the merits.
17. By a decision of 24July 2009, the KCA admitted Z.’s appeal for examination on the merits.
18. On 6 October 2009 the KCA allowed Z’s appeal, having found that there was no evidence that he had been informed of the hearing of 24 February 2009 and that, accordingly, the first-instance court had had no grounds to decide on the case pursuant to the default procedure. The KCA quashed the judgment of 24February 2009 (see paragraph 15 above) and remitted the case to the SDC for fresh examination.
19. On 24December 2009 the Supreme Court rejected a cassation appeal lodged by the applicant against the decision of 6 October 2009 as unsubstantiated.
20. On 28September 2011 the SDC, having re-examined the case, found for the applicant and invalidated the sales contract. As it transpires from the case file, no appeal was lodged against that judgment.
21. In her submissions of 14 November 2013, the applicant stated that the judgment had not been enforced, but did not provide any documents or information as regards enforcement proceedings. Nor did she provide any documents or information in that regard in her submissions of 25February 2018 (see paragraph 13 above).
COMPLAINTS
22. The applicant complained under Article 3 of the Convention that she had been subjected to severe distress on account of her prolonged inability to recover her flat and personal possessions and the authorities’ alleged failure to protect her rights and interests.
23. She further complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of violations of the legal certainty principle and of her right of property, on account of the allegedly unjustified and unlawful quashing of the judgment of 24 February 2009 (see paragraph 15 above). The applicant also complained under the same provision that the Supreme Court’s examination of her cassation appeal on 24December 2009 (see paragraph 19 above) was not in accordance with the prescribed procedure.
24. The applicant complained under Article8 of the Convention of the authorities’ failure to investigate her criminal complaints regarding the purported intrusions into her flat and theft of her possessions.
25. The applicant complained under Article 13 of the Convention that she had no effective domestic remedy as regards her above complaints.
26. Finally, she complained, without relying on any provision of the Convention, that an unspecified police officer had tried to pressure her and her representative in connection with the present application.
THE LAW
27. The Court notes that one of the core issues raised by the applicant in the present case concerns the allegedly unjustified and unlawful quashing of the judgment in her favour dated 24February 2009 (see paragraph 15 above). However, she failed to provide any evidence or persuasive arguments that the KCA’s findings, set out in its decisions of 24July and 6 October 2009 (see paragraphs 17-18 above), that Z.’s appeal had been admissible and that it had not been proven that he had been informed of the hearing of 24February 2009, had been wrong or arbitrary. Thus, for the Court, there is no appearance of the proceedings having been unjustifiably reopened in the present case (see, mutatis mutandis, Kontsevych v.Ukraine, no. 9089/04, §§ 56-57, 16 February 2012). In any event, the applicant was eventually successful in the re-opened proceedings (see paragraph 20 above). Accordingly, the applicant’s related complaints under Article 6§1 of the Convention and Article1 of ProtocolNo.1 must be rejected as being either manifestly ill-founded or incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.
28. As to the applicant’s complaints relating to the alleged intrusions into the flat and the theft or removal of her possessions, the Court notes that the applicant has provided no evidence that there actually was an intrusion into the flat; no detailed account or evidence of the damage caused to the flat because of the alleged intrusions; no detailed account of the possessions she allegedly lost and no evidence that the listed objects had been in the flat or that they had been removed from it. Furthermore, she did not provide copies of any decisions of the law-enforcement bodies regarding her criminal complaints, despite her grievances being mainly directed at the handling of those complaints, and did not inform the Court of any relevant developments after 27January 2012, the date on which the law-enforcement bodies were instructed to re-examine her criminal applications (see paragraph 13 above). Nor did the applicant argue that she had been precluded from collecting and providing any such evidence in support of her allegations before the Court. Thus, even assuming that Article 8 of the Convention, on which the applicant relied in that regard, is applicable rationemateriae, this part of the applicant’s complaints must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast Novoseletskiy v. Ukraine, no. 47148/99, §§ 32, 35 and 77, 22 February 2005, in which somewhat similar allegations were supported by a number of different pieces of evidence, notably witness statements).
29. Finally, the Court has examined the applicant’s remaining complaints. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s jurisdiction, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 February 2019.
Andrea Tamietti Georges Ravarani
Deputy Registrar President
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