FIFTH SECTION

DECISION

Application no. 39973/09 Igor Ivanovych RUBAN against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 4 February 2021 as a Committee composed of:

Stéphanie Mourou-Vikström , President, Ganna Yudkivska , Lado Chanturia , judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 16 July 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by Ms S. (paragraph 40 below) to whom the President had given leave to intervene in the written procedure as a third party (Article 36 § 2 of the Convention and Rule 44 § 3),

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Igor Ivanovych Ruban , is a Ukrainian national who was born in 1976 and lives in Bucha . He was represented before the Court by Ms E. Razumovych , residing in Kyiv.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 27 November 1999 the applicant married Ms S. On 14 November 2000 their daughter was born.

5 . On 16 August 2005 Ms S. took out a bank loan to invest in the construction of a three-room flat. The loan was to be repaid over twenty years. According to the applicant, he contributed 12,000 United States dollars (USD) to the first instalment made by Ms S.

6 . On 28 August 2006, after the construction was completed, the Kyiv Main Housing Department issued Ms S. with a certificate stating that the flat in question was her private property.

7 . On 19 December 2006 Ms S. filed for divorce. According to the applicant, he discovered from the case file that the domicile of Ms S. and their daughter was registered as the aforementioned flat .

8 . On 6 February 2007 the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court”) dissolved the marriage.

9 . On 17 May 2007 the applicant lodged a claim with the Golosiyivskyy Court for recognition of his title to a 50% share of the flat, defining that share in kind and allowing him to live there. He submitted that the flat had been acquired when he and Ms S. had been married and that he had contributed financially to its maintenance, to repayment of the bank loan and payment for communal services.

10 . On 13 July 2007 the applicant lodged an application with the Golosiyivskyy Court for interim measures, seeking an injunction to prevent the sale or disposal of the flat.

11 . On 16 August 2007 Ms S. founded a limited liability company, E., (“the company”) and transferred the flat to the company ’ s statutory fund. She was the sole founder of the company, and the value of the flat constituted 100% of the company ’ s statutory fund. Ms S. appointed her mother, Ms S.M., as director of the company.

12 . On 5 September 2007 Ms S. resigned from the company and conceded the stock capital to her mother, Ms S.M.

13 . On 6 September 2007 the Golosiyivskyy Court granted the interim measure requested by the applicant and placed an injunction on the sale of the flat.

14 . On 9 October 2007 the company joined the proceedings brought by the applicant, having lodged a counterclaim seeking recognition of its property rights to the flat. It attached, among other items, its articles of association and a letter from the Ministry of Justice, interpreting the domestic legislation on company property in its favour. The applicant did not lodge a reply to the counterclaim, nor did he amend his initial claim.

15 . On 27 February 2008 the Golosiyivskyy Court rejected the applicant ’ s claim and found the company to be the legitimate owner of the flat. Having examined whether the foundation of the company and the subsequent operations in respect of its stock capital had complied with the law and the company ’ s statute, the court found them to be lawful.

16 . The applicant appealed. He submitted that Ms S. had unlawfully disposed of the flat after he had initiated judicial proceedings. He also argued that the first-instance court had failed to consider his argument that his entitlement to a share in the flat had existed long before that of the company. He referred to the undisputed fact that the flat had been acquired when he and Ms S. had been married. Accordingly, he insisted that he had the right to a share in that flat.

17 . On 7 July 2008 the Kyiv City Court of Appeal dismissed the applicant ’ s appeal, upholding the reasoning of the Golosiyivskyy Court. As to the allegation that Ms S. had transferred the flat unlawfully, the appellate court held that that issue fell outside the scope of the case, since the applicant had not raised it before the first-instance court. When the first ‑ instance court had delivered its judgment, the disputed property had belonged to the company, and the applicant had not challenged the latter ’ s property rights.

18 . The applicant appealed on points of law, reiterating his earlier arguments.

19 . On 12 January 2009 the Supreme Court upheld the lower courts ’ decisions.

20 . On 17 January 2009 that ruling was sent to the applicant.

21 . On 4 November 2008 a general assembly of the company approved the withdrawal of Ms S.M. from the company and the transfer of her share to her.

22 . On 11 September 2009 Ms S.M. lodged a claim against the company, seeking to establish that she was the owner of the disputed flat and its transfer to her, as the company failed to transfer the flat.

23 . On 20 October 2009 the Golosiyivskyy Court allowed the above ‑ mentioned claim.

24 . On 6 June 2012 Ms S.M. granted the disputed flat to Ms S. by a deed of gift.

The relevant provision of the Family Code of 2002 (as worded at the material time) read as follows:

Article 60

Grounds for spouses to acquire the right to joint matrimonial property

“1. Property acquired by spouses during marriage is their joint matrimonial property, irrespective of whether one of them had no earnings (income) for valid reasons (such as education, keeping the household, caring for children or illness).

2. It is to be understood that all items acquired during the marriage, except articles for personal use, are the spouses ’ joint matrimonial property.”

The relevant provision of the Code of Civil Procedure ( “ the CCP ” ) of 18 March 2004 , as worded at the material time , read as follows:

Article 11. The non-mandatory nature of civil proceedings

“1. The court shall consider civil cases only upon application from a physical or legal person, lodged in accordance with [ the provisions of] this Code, within the scope of the claim and on the basis of evidence of the parties and other persons involved in the cas e...”.

Article 303. Scope of review of the case by the court of appeal

“ 1. During the review of the case in appeal proceedings, the court of appeal shall verify the legality and reasonableness of the first-instance court judgment within the scope of the appeal and [within the ambit of the] claim which was lodged with the first-instance court ...”.

COMPLAINTS

25 . The applicant complained that the national courts had failed to respond to an important argument in his civil case that he and his former wife had bought the disputed flat during their marriage and that it therefore constituted their joint matrimonial property under national law, which had resulted in a violation of Article 6 § 1 of the Convention.

26 . He also complained, under Article 5 of Protocol No. 7 to the Convention, that the domestic courts had violated the principle of equality between spouses.

THE LAW

27 . The Court notes that, after the Government had been notified of the case, the applicant lodged a new complaint under Article 6 § 1 of the Convention about the failure of the Golosiyivskyy Court to consider his application of 13 July 2007 for interim measures on the day of its receipt, in violation of the procedural law.

28 . In the Court ’ s view, this new complaint is not an elaboration of the original complaints on which the parties have commented. It is therefore inappropriate to take this matter up separately (see, mutatis mutandis , see Piryanik v. Ukraine , no. 75788/01, § 20, 19 April 2005).

29 . The applicant complained under Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

30 . The Government pleaded non-exhaustion of available remedies. Firstly, the applicant had not submitted an application for interim measures together with his notice of claim, and, secondly, he had not lodged a separate claim against the company seeking to invalidate the transfer of property to it from Ms S. The national courts had established that the applicant ’ s wife was the sole owner of the flat, which she had legally transferred to the company. There was no indication that the proceedings had been unfair.

31 . The applicant disagreed. He argued that the procedural law provided that an application for an interim measure could be lodged at any time during the proceedings. He also contested the argument that he should have lodged a separate claim against the company, as his right to a share in the flat had existed before that of the company. The burden had been on the national courts to determine whether the company had lawfully received the ownership rights to the disputed flat.

32 . The Court considers that it is not necessary to examine the question of exhaustion of domestic remedies, as this complaint is in any event inadmissible for the following reasons.

33 . The Court reiterates that, under its long-standing and established case-law, it should not act as a court of fourth instance. It will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 61, ECHR 2015 , with further references).

34 . The Court also reiterates that, if Article 6 § 1 obliges the domestic courts to give reasons for their judgments, this duty cannot be understood as requiring a detailed answer to every argument and the question of compliance with that duty can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303 ‑ A, and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I). These principles have been applied in a number of Ukrainian cases (see, for example, Pronina v. Ukraine , no. 63566/00, § 25, 18 July 2006; Benderskiy v. Ukraine , no. 22750/02, §§ 42 ‑ 47, 15 November 2007 , and Bogatova v. Ukraine , no. 5231/04, §§ 18 and 19, 7 October 2010).

35 . In the present case, the applicant brought a claim seeking legal recognition of his right to a part of the flat on the grounds that it had been acquired during his marriage with Ms S. and therefore constituted their joint matrimonial property. The company lodged a counterclaim, arguing that it was the owner of the disputed flat. It attached relevant evidence supporting its position. The applicant does not allege, nor did he provide documents demonstrating, that he had sent a reply to that counterclaim or that he had amended his initial claim or indeed lodged a separate claim, asserting his alleged property right vis-à-vis the company. Thus, the first-instance court established that the disputed property had been lawfully transferred to the company by Ms S., who appeared in the available documents as its sole owner. As the Government pointed out, under Article 303 of the CCP the court had been unable to examine the existence of the applicant ’ s property rights vis-à-vis the company in the absence of an explicit claim lodged by the applicant. This being so, the first-instance court rejected his initial claim as unsubstantiated, concluding that the company was the legitimate owner of the flat. In his notice of appeal, the applicant complained that the first ‑ instance court had failed to examine not only the unlawful transfer of the disputed flat from Ms S. to the company, but also the issue of matrimonial property. The appellate court held that as the applicant had not complained about the said transfer before the first-instance court, that complaint fell outside the scope of the case. The Supreme Court upheld the decisions of the lower courts.

36 . Given that the appellate court replied to the applicant ’ s complaints, explaining his omissions and thus providing indications for his possible actions, the Court cannot find that the domestic courts ’ decisions were arbitrary or manifestly unreasonable, or that the main argument raised by the applicant had remained unanswered.

37 . It follows that the applicant ’ s complaint under Article 6 § 1 is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

38 . The applicant complained, under Article 5 of Protocol No. 7 to the Convention, that the national courts had violated his right to equal treatment of spouses by refusing to allow his claim on the flat. Article 5 reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them ... as to marriage, during marriage and in the event of its dissolution.”

39 . The Government argued that the applicant had failed to substantiate before the national courts his allegation that he had contributed to the purchase of the disputed flat with money he had borrowed from his parents (see paragraph 5 above). They requested the Court to dismiss this complaint as manifestly ill-founded.

40 . The third party also asked the Court to dismiss this complaint as manifestly ill-founded.

41 . The Explanatory Report on Protocol No. 7 states that “equality must be ensured solely in the relations between the spouses themselves, in regard to their person or their property and in their relations with their children”.

42 . The Court has previously explained that Article 5 of Protocol No. 7 essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning, for instance, such matters as their relations with their children (see Leonov v. Russia , no. 77180/11 , § 94, 10 April 2018, and Iosub Caras v. Romania , no. 7198/04, § 56, 27 July 2006, with further references). It is not concerned with the way in which the national courts apply it (see Leonov, cited above, ibidem ).

43 . In the present case, assuming that the same positive obligation is imposed on States with regard to the issue of matrimonial property, the Court notes that the applicant ’ s criticism only concerns the way in which the national courts applied the legislative framework, not the legislative framework as such. Furthermore, it finds no indication that the legal provisions in question violate the equality clause provided for in Article 5 of Protocol No. 7 (see, notably, Leonov, § 95, and Iosub Caras , § 57, both cited above; also see Monory v. Hungary and Romania ( dec. ), no. 71099/01, 17 February 2004).

44 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with 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 4 March 2021 .

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Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President