Communicated on 16 April 2018

FOURTH SECTION

Application no. 6137/08 Yuliya Volodymyrivna PANASHCHENKO against Ukraine lodged on 20 January 2008

STATEMENT OF FACTS

The applicant, Ms Yuliya Volodymyrivna Panashchenko , is a Ukrainian national who was born in Yavoriv and lives in Mykolayiv , the Lviv Region.

A. The circumstances of the case

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

In 1950 the applicant and her family (her parents and brother) were subjected to political repression. Pursuant to a decision of 27 May 1950, they were deported from Yavoriv , the Lviv Region, to Birobidzhan , Russia. Their property, including a house, was confiscated and transferred to the State.

The Yavoriv Town Council (“the Town Council”) then rented out the above-mentioned house to private individuals, D. and her family (“the tenants”), who, it appears from the case file, have occupied it since 1956.

By a decision of 9 August 1988, the Supreme Court of the Ukrainian Soviet Socialist Republic rehabilitated the applicant ’ s family and ordered that either the confiscated property be returned to them or they be paid compensation for its value. By the time the above decision was issued, the applicant ’ s parents had died. Her brother refused to inherit the parents ’ property, so she became the sole heir.

In executing the above decision, on 20 April 1989 the Town Council decided to return the confiscated house to the applicant and provide her with compensation for the value of other confiscated items. On 13 June 1989 it issued the applicant with a certificate of title to the house.

The applicant did not move into that house thereafter, and the tenants still reside in it. She has not sought their eviction from the house.

In 2006 D. instituted court proceedings against the Town Council and the applicant, seeking that the applicant ’ s title to the house be annulled.

On 5 June 2006 the Yavoriv Town Court allowed D. ’ s claim and annulled the applicant ’ s title to the house. On 4 September 2006 the Lviv Regional Court of Appeal upheld the above judgment. By a final decision of 20 December 2007, the Khmelnytskyy Regional Court of Appeal, acting as a court of cassation, upheld the above decisions.

The courts found that, pursuant to the Resolution of Soviet Ministers of the Ukrainian Soviet Socialist Republic of 28 April 1980, transfers of houses belonging to town councils were to be made by regional councils. Besides, at the moment the title had been transferred to the applicant, the tenants had been lawfully residing in it and had had no other housing. The courts also referred to Article 420 of the 1963 Code of Civil Procedure (“the 1963 Code”, applicable at the time the 1988 and 1989 decisions had been issued), which set out that if the return of a property was not possible following the annulment of a decision to confiscate it from a person, that person was to be provided with compensation for its value from the proceeds obtained from its sale. The Court of Appeal also referred to similar provisions of the 2004 Code of Civil Procedure and the 1960 Code of Criminal Procedure. The courts dealing with D. ’ s claim further held that, despite the 1988 decision, which contained two alternatives – the return of the house or compensation for its value – the Town Council had not examined the question of providing the applicant with compensation for the value of the house. Lastly, reference was made to the 1991 Law of Ukraine on the Rehabilitation of Victims of Political Repression in Ukraine (“the 1991 Law”). Although the Town Court stated that that Law was not applicable in the applicant ’ s case, because the decision to return the house to her had been made in 1989, that is, prior to the adoption of that Law, the Court of Appeal, in addition to the above procedural Codes, also referred to the 1991 Law, stating that it had concretised the disputed legal relations. Thus, the Court of Appeal stated that, pursuant to section 5 of the 1991 Law, a confiscated house was to be returned to rehabilitated persons or their heirs, provided that the house was not occupied; if its return was not possible, such persons were to be compensated for its value. The court also referred to a by-law adopted in the implementation of the 1991 Law. In sum, the courts concluded that in transferring the title to the house to the applicant, the Town Council had exceeded its powers and breached the tenants ’ legitimate rights.

It is not apparent from the court decisions that the applicant sought compensation for the annulment of her title to the house; nor did the courts examine this issue proprio motu . It is not apparent either that, following the annulment of her property title, the applicant sought compensation by requesting this from the Town Council or by lodging a civil claim for compensation; nor is it apparent that the Town Council examined this issue proprio motu following the annulment of the applicant ’ s title to the house.

While the proceedings were still ongoing , on 17 November 2006 the Town Council issued yet another decision to return the house in issue to the applicant. That decision made the return of the house to the applicant conditional upon the tenants being provided with another house. The decision was not executed, apparently in view of the subsequent court decisions annulling the applicant ’ s title to the house.

In a letter to the Court of 16 December 2017 the applicant also stated, without providing further details, that in 1997 the local authorities had provided her with a plot of land for construction, but in 2014 they had taken it away from her and transferred it to a local organisation of flat owners.

B. Relevant domestic law

Section 5(2) of the Law of Ukraine o n the Rehabilitation of Victims of Political Repression in Ukraine , which was adopted on 17 April 1991 and which entered into force on 8 May 1991, provides that confiscated houses and other property (if the houses are not occupied and the property has remained intact) are, as far as possible, to be returned to a rehabilitated person or to his or her heir. In the absence of such a possibility, such a person is to be compensated for their value.

Section 5(4) also states that claims for compensation and for the return of property are to be made no later than three years from the moment of the 1991 Law entering into force or from the date a person receives a document confirming his or her rehabilitation under the Law.

Section 6(9) of the Law sets out that certain provisions of the Law (including section 5) are also applicable in respect of victims of political repression rehabilitated prior to the adoption of the Law.

The relevant provisions of by-laws adopted in the implementation of the above Law are summarised in the case of Bilozir and Rizova v. Ukraine ( dec. ), no. 37863/05, 28 September 2010.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention about the annulment of her title to the house in the absence of any compensation.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant ’ s peaceful enjoyment of her possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so:

( a) Was that interference in accordance with the conditions provided for by law? In particular, what was the exact legal basis for the interference (the 1963 Code, the 1991 Law, both of them and/or any other legal act)?

( b) Did that interference pursue a legitimate aim in the public interest?

( c) Did that interference impose a disproportionate and excessive burden on the applicant? In particular, did she have a possibility, after the annulment of her title to the house by the domestic courts, to claim compensation under the above or any other legal acts?

The parties are requested to provide the Court with copies of the claim lodged by D. against the applicant and copies of the applicant ’ s appeals.

The parties are also requested to cite the domestic courts ’ practice, if any, addressing situations similar to that in the applicant ’ s case.