SHABLYA v. UKRAINE (European Court of Human Rights)

FOURTH SECTION

DECISION

Application no.28712/09
Olga Pavlivna SHABLYA
against Ukraine

The European Court of Human Rights (Fourth Section), sitting on 8 January 2019 as a Committee composed of:

Paulo Pinto de Albuquerque, President,
EgidijusKūris,
Iulia AntoanellaMotoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 21 May 2009,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Ms Olga PavlivnaShablya, is a Ukrainian national, who was born in 1960 and lives in Zaporizhzhya.

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

A.  Background of the case

3.  Since 1988 S.Y., the applicant’s mother, has been living in a State‑owned flat in Zaporizhzhya. S.V., the applicant’s brother, was officially registered as a co-tenant in that flat.

4.  The material submitted by the applicant shows that she has been living in a different flat in the same town.

5.  In October 1998 S.Y. instituted civil proceedings against S.V., asking the Ordzhonikidzivskyy District Court in Zaporizhzhya (“the ODC”) to declare that he had lost his right to reside in the flat. She stated that he had not actually resided there.

6.  Having heard the case in the absence of S.V., by a judgment of 11 January 1999 the ODC allowed S.Y.’s claim. It found that S.V. had not lived in the flat since 1988 and had therefore lost his right to reside there. Consequently, the registration of the flat as S.V.’s residence was revoked.

7.  In February 1999 S.Y. acquired the flat through a privatisation scheme.

8.  By a contract of 25December 2002, she gifted the title to the flat to the applicant.

9.  In December 2008 the applicant officially registered the flat as her residence.

B.  Review of the judgment of 11 January 1999

10.  On 26 May 2008 S.V. lodged an appeal with the Zaporizhzhya Court of Appeal (“the ZCA”) against the judgment of 11January 1999 (see paragraph 6 above), stating that he had only found out about it on 20 May 2008.

11.  By a decision of 11June 2008, the ZCA declared S.V.’s appeal admissible and started the appeal proceedings.

12.  On 13June 2008 S.Y. lodged an application with the ZCA seeking to withdraw her original claim.

13.  On 19June 2008 the ZCA quashed the judgment of 11 January 1999 (see paragraph 6 above) and terminated the proceedings on the basis of S.Y.’s application of 13June 2008 (see paragraph 12 above).

14.  On 15November 2008, when studying case material pertaining to the second set of proceedings (see paragraph 18 below), the applicant found out about the decision of 19June 2008.

15.  On 28November 2008 she lodged a cassation appeal with the Supreme Court against the decision of 19 June 2008 (see paragraph 13 above), stating that the proceedings had concerned her as the rightful owner of the flat and that S.V. had had no right to live there.

16.  On 12 December 2008 the Supreme Court declared the applicant’s cassation appeal inadmissible as she had not been a party to the proceedings and they had not involved any determination of her rights or obligations.

17.  On 31 March 2009 the Supreme Court rejected a further cassation appeal lodged by the applicant as out of time.

C.  Second set of proceedings

18.  In August 2008 S.V. instituted civil proceedings before the ODC against the applicant and S.Y., among others, challenging the validity of the privatisation of the flat in February 1999 (see paragraph 7 above) and the subsequent transfer to the applicant in December 2002 (see paragraph 8 above).

19.  By a default judgment of 1July 2009, the ODC found for S.V. Relying on the decision of the ZCA of 19 June 2008 (see paragraph 13 above), it held that the registration of his residence at the flat had been revoked unlawfully, and that he had only become aware of that in May 2008. Consequently, as he had not been able to take part in the privatisation of the flat in February 1999, the ODC invalidated it and consequently also invalidated the transfer of the flat to the applicant in December 2002.

20.  On 24March 2010 theZCA dismissed an appeal lodged by the applicant against the judgment of 1 July 2009, holding that the ODC had correctly established and assessed the relevant facts and that there had been no irregularities in the way in which the ODC had assessed the applicant’s submissions and different procedural applications. The ZCA also noted that the applicant had failed to attend hearings before the ODC on a number of occasions between 10December 2008 and 1 July 2009, for which she had provided no acceptable justification.

21.  On 13September 2010 the Supreme Court rejected a cassation appeal lodged by the applicant as unsubstantiated.

22.  On 5 November 2010 that court refused the applicant’s application for a refund amounting to approximately 17 euros that she had paid in court fees for her cassation appeal, as it had no basis in law.

23.  The applicant provided no copies of her procedural applications, appeals or any other submissions regarding this set of proceedings. Nor did she provide copies of any such documents regarding the ensuing proceedings (see paragraphs 24-27 below).

D.  Third set of proceedings

24.  In January 2010 the applicant instituted civil proceedings before the ODC, asking it to order S.Y. and S.V. to give her access to the flat. The applicant’s claim was eventually examined in the framework of the fourth set of proceedings (see paragraph 27 below), while this set of proceedings continued on the basis of a counterclaim lodged by S.Y. and S.V. asking the court to declare that the applicant had no right to reside in the flat.

25.  By a default judgment of 4 April 2011 the ODC found for S.Y. and S.V. Relying on various pieces of evidence, including the testimony of some of the neighbours, the ODC found that the applicant had never lived in the flat, had not brought any personal belongings there, had not paid any communal charges and had only been formally registered there in December 2008 (see paragraph 8 above) on the basis of the contract of 25December 2002 (see paragraph 9 above).

26.  The applicant did not challenge the ODC’s judgment of 4 April 2011 on appeal.

E.  Fourth set of proceedings

27.  On 13December 2011 the ODC dismissed the applicant’s claim for access to the flat as unfounded, essentially on the same grounds as set out in the judgment of 4April 2011 (see paragraph 25 above). By decisions of 18 April and 20August 2012, the judgment of 13December 2011 was upheld by the ZCA and the Higher Specialised Court respectively.

F.  Related developments and proceedings

28.  In the meantime, the applicant complained to law-enforcement bodies that she had been unable to gain access to the flat and that the ZCA had shown bias in its examination of her cases. Her complaints were dismissed; however, no copies of those decisions or of the complaints in question were provided to the Court.

29.  On an unspecified date a municipal company instituted proceedings before the ODC against the applicant, S.V. and S.Y. for the recovery of monies owed for communal services for the flat in question. By a judgment of 18March 2011, the ODC allowed the municipal company’s claim and ordered the applicant to pay part of the debt. From the applicant’s submissions, it appears that no appeal was lodged against that judgment.

30.  In October 2012 the applicant’s official registration in the flat was revoked. Allegedly, she had no other dwelling to register as her residence. Consequently, in November 2012 she officially registered at the address of a local authority responsible for keeping a register of persons without a residence.

COMPLAINTS

31.  In her initial submissions of 21 May and 4July 2009, the applicant complained under Articles6§1 and 13 of the Convention about the refusal of the Supreme Court to examine her cassation appeals against the decision of the ZCA of 19June 2008 (see paragraph 13 above).She also complained thatthat decision had had the effect of actually reinstating S.V.’s right to reside in the flat, which at the time had formally belonged to the applicant and that this had thus constituted a violation of her property rights under Article 1 of Protocol No.1 to the Convention.

32.  In her submissions of 10April 2010 the applicant complained of a violation of Articles6§1 and 13 of the Convention and of Article 1 of Protocol No.1 on account of the fact that her civil claim brought in January 2010 (see paragraph 24 above) had not been examined in the framework of the third set of proceedings.

33.  In her submissions of 8 November 2010 the applicant complained of a violation of the same provisions on account of the outcome of the second set of proceedings and the Supreme Court’s refusal to refund the court fees (see paragraphs 20-22 above).She also complained of a failure on the part of the law-enforcement bodies to protect her right of access to the disputed flat.

34.  In her submissions of 1November 2012 and 29December 2016 the applicant complained of a violation of Article 3 of the Convention on account of the fact that she had nowhere to officially register as her residence (see paragraph 30 above). She also complained under Articles 6, 13 and 17 of the Convention and Article 1of ProtocolNo.1 that, by the judgment of the ODC of 18March 2011 (seeparagraph 29 above), she had been ordered to pay part of the debt for the communal services for the flat in question, even though she had lost title to it. Relying on Article 3of ProtocolNo.1, she further complained that she had not been able to cast her vote in the parliamentary elections, without providing any further details in that regard.

35.  In her various submissions before the Court, the applicant also complained that the judges of the ZCA dealing with her cases had been biased, as one of their colleagues had been S.V.’s wife.

THE LAW

36.  The Court notes that the applicant’s complaints, in the first place, concern the allegedly unfair manner in which the courts dealt with the cases concerning the title to the flat. The Court considers that those complaints are unsubstantiated or, in any event, raise no issue under Article6§1 of the Convention.

37.  In particular, in so far as the applicant alleged that the refusal of the Supreme Court to examine her cassation appeals against the decision of the ZCA of 19June 2008 (see paragraphs 16 and 17 above) had been unlawful and unjustified, the Court considers that,even assuming that those proceedings involved the determination of the applicant’s civil rights and/or obligations, they cannot be considered in isolation. The question of whether S.V. had had the right to reside in the flat at the time of its privatisation was not finally determined in those proceedings, but formed part of the courts’ examination in the second set of proceedings (see paragraphs 18-21 above). While in the second set of proceedings the courts relied, almost exclusively, on the decision of the ZCA of 19 June 2008 (see paragraph 13 above) in finding that S.V. did have the right to reside in the flat, the applicant submitted no evidence to suggest that she had raised a substantiated and persuasive argument to disprove those findings or that she had been precluded from doing so (see paragraph 23 above).

38.  Nor did the applicant provide any evidence to show that she had raised her allegation of bias on the part of the ZCA judges (see paragraph 35 above) in the domestic proceedings.

39.  The Court also observes that her claim as lodged with the domestic courts in January 2010 was eventually examined on its merits in the framework of the fourth set of proceedings (see paragraphs 24 and 27above).

40.  Further, the applicant’s complaint of unlawfulness in respect of the Supreme Court’s decision of 5November 2010 refusing to refund the court fees that she had paid (see paragraph 22 above) is not supported by any persuasive or substantiated argument.

41.  On the whole, the Court finds no indication that the requirements of fairness under Article 6 § 1 of the Convention were not complied with in the court proceedings of which the applicant complained. Nor is there any evidence that the impugned court decisions were arbitrary or manifestly unreasonable. It follows that the applicant’s complaints under that provision are manifestly ill-founded and must be rejected in accordance with Article 35§§ 3 (a) and4 of the Convention.

42.  As to the applicant’s related complaints of a violation of Article1 of ProtocolNo.1 on account of the allegedly unfair and defective judicial decisions ultimately leading to the deprivation of her title to the flat, the Court reiterates that when the State, through its judicial system, provides a forum for the determination of the applicant’s rights and obligations, this does not automatically engage its responsibility under Article 1 of Protocol No. 1. Although the Court has also stated that the State could be held responsible for the losses caused by such determinations if the court decisions amounted to an arbitrary and disproportionate interference with possessions (see Breierova and others v. the Czech Republic (dec.), no. 57321/00, 8 October 2002), this is not the case here. Having examined the relevant domestic decisions, the Court has already found that in the present case the national courts did not come to conclusions which could be regarded as arbitrary or manifestly unreasonable (see paragraphs 37 and 41above). Those findings are equally pertinent to the applicant’s complaints under Article1 of ProtocolNo.1. Furthermore, she provided no evidence or persuasive argument in support of the allegation that the deprivation of her title to the flat had been unlawful or disproportionate. Accordingly, the Court rejects those complaints as being manifestly ill‑founded pursuant to Article35§§3 (a) and 4 of the Convention.

43.  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 31 January 2019.

Andrea Tamietti                                        Paulo Pinto de Albuquerque
Deputy Registrar                                                      President

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