Communicated on 14 September 2020 Published on 5 October 2020

FIFTH SECTION

Application no. 35549/10 Yerina Yefimovna OLKHOVSKAYA against Ukraine lodged on 12 June 2010

SUBJECT MATTER OF THE CASE

The application concerns a property-related dispute between private parties.

On 2 November 2006 the Yevpatoriya Court declared valid a sale contract between the applicant and a private company K. and recognised the applicant ’ s ownership in respect of a flat and other premises, which had had been the subject-matter of the contract and constituted 55/1000 of a household in which the flat and premises were located. Owners of remaining shares in the household, who had refused to exercise their pre-emptive right of acquisition, and the Town Council were involved to the proceedings as third parties. The judgment was not appealed against and became final. The applicant ’ s property rights over her share were registered by the State.

On 13 March 2007, upon the applicant ’ s request, the Yevpatoriya court allotted the applicant ’ s property in kind, giving it a new address. This decision became final and the applicant obtained the relevant title deeds.

By a decision of the Town Council of 27 March 2009 the applicant was granted a plot of land bordering with the flat which she had bought from the K. company . On 17 August 2007 the applicant obtained title deeds to that land plot and started building a house.

On 16 December 2009 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”), upon request of P., a third party to the 2006 proceedings, renewed her time-limit for the appeal against the judgment of 2 November 2006. In doing so, it found, in particular, that there was no evidence in the case-file that P. had been present at the delivery of the judgment by the first-instance court or that the copy of that judgment had ever been sent to her.

On 17 February 2010, in the absence of the applicant and her lawyer, the Court of Appeal quashed the judgement of 2 November 2006 and rejected the applicant ’ s claim finding that the first-instance court had misapplied the relevant material law. In particular, relying on instructions of the Supreme Court issued in 2009 it noted that deals which were subjected to both notary certification and state registration, such as the one between the applicant and the K. company , could not be validated in court.

According to the applicant, neither she as the claimant nor the K. company as the defendant were notified of the appeal proceedings. Once aware of the judgment by chance, the applicant appealed against it to the Supreme Court complaining, inter alia , that she had not been informed of the appeal proceedings. On 25 March 2010 the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation with a general ruling without addressing her arguments.

The quashing of the judgement of 2 November 2006 served as a ground for the subsequent annulment (upon P. ’ s claim) of the Yevpatoriya Court ’ s decision of 13 March 2007, the Town Council ’ s decision of 27 March 2009 granting the applicant the neighbouring plot of land and the respective title deeds. Furthermore, in 2015, the Yevpatoriya Court ordered the applicant to demolish the unfinished house she had erected on the land plot at issue noting that the applicant had no title to the land.

The applicant complains under Articles 6 § 1 and 13 of the Convention about the unfairness of the proceedings regarding her property rights. In particular, she was not informed of the appeal proceedings initiated by P. concerning the sale contract and therefore, not given an opportunity to present her position to the Court of Appeal. She also submits, relying on Article 1 of Protocol No. 1 to the Convention, that the refusal of the Court of Appeal to acknowledge her ownership resulting from the 2006 proceedings, and the subsequent deprivation of her ex lege acquired ownership of the plot of land had violated her property rights.

QUESTIONS TO THE PARTIES

1. Was the principle of equality of arms, as required by Article 6 § 1 of the Convention, respected during the proceedings in the applicant ’ s case? In particular, was the applicant duly informed of the appeal proceedings initiated in 2009 by P., including the time-limit extension ruling and the judgment of 17 February 2010?

2. Did the refusal of the Court of Appeal to acknowledge the applicant ’ s ownership resulting from the 2006 proceedings and the subsequent annulment by courts of the applicant ’ s title to the neighbouring plot of land constitute an interference with the applicant ’ s right to the peaceful enjoyment of her possessions under Article 1 of Protocol No. 1? If so, was the interference lawful for the purposes of that Article, did it pursue a legitimate aim in the general interest and did it strike a fair balance between the demands of the general interest and the requirements of the protection of the applicant ’ s rights guaranteed by this Article?