Communicated on 13 January 2021 Published on 1 February 2021

FIFTH SECTION

Application no. 57960/19 Dina Volodymyrivna ZASTAVSKA against Ukraine lodged on 28 October 2019

STATEMENT OF FACTS

The applicant, Ms Dina Volodymyrivna Zastavska , is a Ukrainian national, who was born in 1940 and lives in Kherson. She was represented before the Court by Mr O.V. Levytskyy , a lawyer practising in Kyiv.

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

By a judgment of 28 March 2017, the Kherson City Court (judge D.) allowed a claim lodged by Mr G. against Ms S.A., a sister of Ms S.V. who had rented a municipal flat since 1978 and who had died in 2015. The court established that Mr G. had lived with Ms S.V. as a family from 2007 to 2015 and recognised his title to that flat by way of inheritance.

Mr G. then registered his title to the flat based on the above judgment and on 27 April 2017 gifted it to Mr Y.

On 5 May 2017 the applicant sold her own flat and bought the flat from Mr Y. On the same day she registered her title to that flat in the public registry of real-property transactions. On 14 June 2017 the local authorities registered the applicant ’ s and her husband ’ s residence in the flat.

On 17 July 2017 the Kherson City Council (“the Council”) lodged a rei vindicatio claim against the applicant and her husband, seeking a recovery of the above flat, their eviction and deregistration. The Council submitted that it had not been aware of the judgment of 28 March 2017 and had not been involved as a defendant in the proceedings instituted by Mr G., even though the flat had belonged to the municipality and had not been privatised. According to the public registry of court decisions, Mr G. had repeatedly lodged a claim for the recognition of his title to the flat at issue and in his last claim of 14 December 2016 he had designated the Council as a defendant, which had in turn been informed thereof. On 13 February 2017 the City Court had returned that claim unexamined (upon Mr G. ’ s request). However, on 28 March 2017 the above court had allowed Mr G. ’ s similar new claim, this time lodged against Ms S.A., without the involvement of the Council. The Council lastly noted that Ms S.A. had died in 1995.

In parallel, the Council appealed against the judgment of 28 March 2017. On 21 September 2017 the Kherson Regional Court of Appeal (“the Court of Appeal”) allowed the appeal, quashed that judgment and discontinued the proceedings instituted by Mr G. It held that the disputed flat had belonged to the municipality; there was no proof that Ms S.V. had been its owner, as she had not privatised it; therefore, the flat could not have been inherited. Moreover, Ms S.A. had died in 1995 and she could not have been a defendant in the proceedings instituted by Mr G.

By a judgment of 20 March 2018, the City Court allowed the Council ’ s claim, annulled the applicant ’ s title to the flat, obliged her to return it to the Council and ordered her and her husband ’ s eviction. Referring to Article 388 of the Civil Code (which provides for a right of the owner of property to recover it from a bona fide purchaser if that property had left the former ’ s possession against his or her will), the court found that the disputed flat had left the Council ’ s possession against its will, that is to say, on the basis of the judgment of 28 March 2017 which had subsequently been quashed.

On 19 June 2018 and 17 July 2019, respectively, the Court of Appeal and the Supreme Court upheld the judgment of 20 March 2018. With reference to the domestic case law, the courts held that that the property which had left the owner ’ s possession pursuant to a court decision, which was subsequently quashed, was considered as property which left that owner ’ s possession against his or her will.

According to the applicant, the court decisions in part of the eviction had not been executed to date.

The applicant also lodged a complaint against judge D. with the Disciplinary Chamber of the Higher Council of Justice (“the HCJ”). On 27 March 2019 the Chamber found that in adopting the judgment of 28 March 2017 judge D. had been aware of Ms S.A. ’ s death in 1995, because in his earlier claim, also examined by that judge and returned unexamined on 13 February 2017 (see above), Mr G. had attached a copy of Ms S.A. ’ s death certificate. That fact had excluded the examination of Mr G. ’ s claim against Ms S.A. Furthermore, the above judgment had not contained a sufficient reasoning as regards the establishment of the fact that Mr G. had lived with Ms S.V. as a family and as regards the title to the flat. The Chamber thus decided to discipline judge D. by making a proposal with the HCJ to dismiss her.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 that she was deprived of the flat without compensation, as a result of the proceedings instituted against her by the Council.

QUESTION TO THE PARTIES

Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was it in accordance with the conditions provided for by law, did it pursue a legitimate aim in the public interest, and did it impose a disproportionate and excessive burden on the applicant?