Communicated on 7 December 2020 Published on 11 January 2021

FIFTH SECTION

Application no. 35442/13 Antonina Vasylivna BILKO and Others against Ukraine and 2 other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants is set out in the appended table.

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

By decisions adopted between 18 October, 2 November 2001 and 27 April 2004, the Gostomel Village Council decided to provide the applicants with plots of land. On 9 August and 22 December 2005 the applicants received State acts confirming their property titles to those plots.

In February 2012 the local prosecutor, acting in the interests of the local land authority, lodged a civil claim with the Irpin Town Court against the Council and the applicants for invalidation of the above decisions and acts. As it follows from the court decisions, he argued, inter alia, that the plots transferred to the applicants had been earlier transferred for permanent use to the agricultural company B.

On 28 May 2012 the court rejected the claim. It found , in particular, that the 2001-2004 decisions had not specified the disputed plots ’ location, so that there were no grounds to consider that they had been allocated to the applicants from company B. ’ s lands.

On 3 October 2012, following appeals by the prosecutor and company P. (allegedly company B. ’ s successor), the Kyiv Regional Court of Appeal quashed the above judgment and recognised company B. ’ s rights to the disputed plots. It held that the lower court ’ s finding that the 2001-2004 decisions had not specified the plots ’ location had been wrong: as confirmed by technical documents, the plots allocated to the applicants had belonged to the lands earlier transferred to company B., which on 10 May 2000 had received the State act confirming its right of their permanent use. That act had not been invalidated and there was no information that company B. ’ s right of permanent use of the plots had been terminated.

Following the appeals in cassation lodged by the first, second and fourth applicants (as specified in the appended table), on 21 November 2012 the Higher Specialised Civil and Criminal Court (“the HSCCC”) upheld the judgment of 3 October 2012.

On 4 June 2008 the Sumy City Council decided to provide the applicant with a plot of land for individual construction. On 17 September 2008 he received the State act certifying his property title to that plot.

On 29 February 2012 the local prosecutor lodged a claim against the Council and the applicant for invalidation of the above decision and act.

By a final ruling of 12 September 2013, the HSCCC upheld the lower courts ’ decisions, which allowed the claim, invalidated the above decision and act and obliged the applicant to return the plot to the local territorial community. The courts found that under domestic law lands in a populated community could be used in accordance with its general plan. However, according to the city ’ s general plan, the plot was partially located within the territory designated for construction of a street and blocks of flats and could not therefore have been transferred into private property for individual construction.

On 25 February 2009 the Berdyansk City Council (“the Council”) decided to provide the applicant with a plot of land for individual construction. On 14 April 2009 the applicant received the State act confirming her property title to that plot.

On an unspecified date the local prosecutor, acting in the interests of the State as represented by the State Property Fund (“the Fund”) and the Open Joint-Stock Company “Plant P.” (“the OJSC « Plant P. » ”), lodged a claim against the Council for invalidation of the decision of 25 February 2009. He argued that the disputed plot had been part of the land belonging to the OJSC “Plant P.”. The applicant joined the proceedings as a third party.

On 8 August 2012 the Zaporizhzhya Regional Commercial Court allowed the claim and annulled the decision of 25 February 2009. It found that pursuant to the State act of 25 February 1994, the State Plant P. had obtained the right of permanent use over the disputed plot. On 11 June 1998 the State Plant P. had been reorganised into the OJSC “Plant P.”, also a State company. The Council had not terminated the State Plant P. ’ s right of permanent use over the land and the State act of 25 February 1994 had not been annulled. Accordingly, the decision of 25 February 2009 had breached the rights of the OJSC “Plant P.”, as the disputed plot had been unlawfully transferred to the applicant without consent of the actual land user.

In October 2012 the prosecutor, acting in the interests of the State as represented by the Fund and OJSC “Plant P.”, lodged a claim against the applicant, seeking invalidation of the act of 14 April 2009 and the return of the disputed plot to the OJSC “Plant P.”.

By a final ruling of 1 July 2013, the HSCCC refused to grant leave to the applicant ’ s appeal in cassation against the lower courts ’ decisions which allowed the claim, invalidated the above act and obliged the applicant to return the plot to the OJSC “Plant P.”. The courts referred to the judgment of 8 August 2012, reiterating in essence its findings. They thus concluded that the Council had exceeded its powers in transferring to the applicant the disputed plot which had belonged to the State. They also referred to Article 388 § 3 of the Civil Code entitling a lawful owner of property to reclaim it from a bona fide purchaser who received it for free.

COMPLAINTS

The first, second and fourth applicants in application no. 35442/13 and the applicants in the remaining applications complain under Article 1 of Protocol No. 1 that they were deprived of their property as a result of the court proceedings instituted against them.

QUESTIONS TO THE PARTIES

Has there been an interference with the first, second and fourth applicants ’ (application no. 35442/13) and other applicants ’ (applications nos. 67790/13 and 70445/13) 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 applicants?

In respect of application no. 35442/13, the parties are requested to provide copies of the prosecutor ’ s claim and appeal.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence

Nationality

1.

35442/13

Bilko and Others v. Ukraine

20/05/2013

Antonina Vasylivna BILKO

1962Gostomel

Ukrainian

(“the first applicant”)

Oleksiy Pavlovych BOYKO

1938Gostomel

Ukrainian

(“the second applicant”)

Galyna Lukivna BOYKO

1943Gostomel

Ukrainian

(“the third applicant”)

Varvara Mykhaylivna KOZYRENKO

1931Gostomel

Ukrainian

(“the fourth applicant”)

2.

67790/13

Bratushka

v. Ukraine

22/10/2013

Yuriy Vasylyovych BRATUSHKA

1956Sumy

Ukrainian

3.

70445/13

Shmakova

v. Ukraine

29/10/2013

Svitlana Volodymyrivna SHMAKOVA

1963Berdyansk

Ukrainian