FIFTH SECTION

Application no. 45526/08 Olga Vasilyevna ZHURAVLEVA against Ukraine lodged on 9 September 2008

STATEMENT OF FACTS

The applicant, Ms Olga Vasilyevna Zhuravleva, is a Ukrainian national, who was born in 1958 and lives in Donetsk.

A. The circumstances of the case

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

1. Sale of the half of the applicant ’ s residence and her purported harassment by buyer

In 1996 the applicant and A.Z., her son, privatised a two-room a flat of 49 square meters, in which they resided. Both co-owners had equal rights to use all the flat ’ s amenitie s.

On 24 September 2002 A.Z. was sentenced to thirteen years ’ imprisonment and all his personal property was subject to confiscation.

On 4 September 2004 the sentence in respect of A.Z. became final.

On 18 May 2004 A.Z. ’ s share in the flat was included in the list of items to be confiscated.

On 18 April and 13 June 2005 the State Company “ Ukrspets ’ just ” conducted public auctions to sell A.Z. ’ s share in the flat, however no bids were received.

On 4 August 2005 “ Ukrspets ’ just ” put A.Z. ’ s share in the flat at an auction for the third time, having reduced the starting price. According to the applicant, she was not allowed to bid at the auction, although she had informed the bailiffs ’ service that she was interested. The flat was then sold to A.N., a private entrepreneur in the real estate business.

According to the applicant, immediately after having acquired the title to A.Z. ’ s share in the flat, A.N. and his associates started harassing the applicant to force her sell the remaining share in the flat at an uncompetitive price, which transaction would have rendered her homeless. On numerous occasions A.N. approached her with verbal insults and threats of physical violence and promised to make her daily life in the flat intolerable by settling homeless alcoholics and drug addicts in it. On several occasions A.N. promised to kill the applicant if she persisted in being disagreeable. Scared of A.N. ’ s threats, the applicant refused to give him a set of keys until some time in mid-September 2005 A.N. came with the police, who forced her to hand him the keys.

At about 10 p.m. on 21 September 2005 A. N. arrived in the flat with his acquaintance, V. Sh., and announced that the latter would be living there. In response to the applicant ’ s protests, they promised to throw her over the balcony.

On 22 September 2005 the applicant left the flat and sought shelter with acquaintances, a s she was afraid for her life.

In October 2005 the applicant visited the flat and found that it was occupied by several strangers. The door and some other amenities were damaged and some of the applicant ’ s belongings, including a TV -set and an iron, were missing.

The applicant left the flat again, afraid to stay there. She continued to pay the totality of the monthly charges for it and sometimes visited the flat escorted by the police. During her visits the applicant found that the flat was lived in by up to eight strangers, whose composition frequently changed.

Subsequently the applicant found out that A.N. and his associates held shares in more than sixty flats in prestigious districts of Donetsk, which they were subletting to various strangers for short periods of time.

2. Police investigation into the applicant ’ s harassment complaints

Starting from mid-September 2005 the applicant lodged numerous complaints with various authorities, including the local police, prosecutor ’ s office and organised crime police, alleging that A.N. and his associates were harassing her with a view to extort her share in the flat; that various belongings had been stolen or damaged and that A.N. was letting numerous strangers live in her flat. She requested to be provided with recording equipment and an officer to assist her in collecting evidence.

On various dates the applicant ’ s complaints were rejected with reference to insignificant value of the objects purportedly stolen or damaged and want of evidence that she had been ill-treated. The authorities also noted that A.N., as a joint owner of the flat, had right to invite any persons he liked to stay in the flat and if she had any conflicts with him concerning the use of the common property, she should resolve them in civil proceedings.

On 18 July 2006 the Ministry of Interior informed the applicant that they would no longer treat her complaints about A.N. ’ s conduct, as they were largely repeating each other.

On the same date the Donetsk City Police informed the applicant that they had received a number of complaints, similar to those raised by the applicant, from various flat owners, in the flats of which A.N. and his associates had acquired a share. However, there was no basis for bringing charges against them at the material time. The police also acknowledged that they had visited the applicant ’ s flat, which was inhabited by four men. There was no reason to expel them from the flat, since they had settled with A.N. ’ s permission

On 27 September 2007 criminal proceedings were instituted against A.N. and his acquaintances V.Sh. and A.L. on suspicion of extortion and other crimes.

The applicant and more than ten other individuals were admitted to the proceedings as injured parties.

On an unspecified date A.N., V.Sh. and A.L. were committed to stand trial before the Kyivskyy District Court of Donetsk. All three of them were charged with several episodes of extortion and theft in an organised group. A.N. was additionally charged with hooliganism. According to the prosecution, the defendants had organised a criminal association for the purpose of acquiring shares in flats, which, in connection with various personal circumstances of their owners, were made available at prices below market value. Having lawfully obtained these shares, the defendants had proceeded to extort the remaining share from other co-owners by harassing them verbally and sometimes physically and by subletting the flats for short-term periods to various strangers, who damaged and stole the co-owners ’ belongings and spoiled the flats ’ amenities.

On 24 May 2011 the Kyivskyy District Court of Donetsk discontinued the proceedings against A.N. on charges of hooliganism as time-barred, and acquitted all three defendants of the remaining charges, having found that the accusations were non-specific and based on assumptions. The court concluded, in particular, that:

“ ... the basis for the criminal proceedings at issue is a civil-law dispute between the defendants and the injured parties concerning the use of joint property, which the injured parties demand to have examined within the criminal-law framework because the relationships between the defendants and the injured parties are extremely antagonistic”.

The court found, in particular, that the prosecution had failed to establish beyond a reasonable doubt that the defendants had acted illegally either when acquiring the shares in the flats, or when proposing to the injured parties that they sell the remainder ones. The allegations that the defendants had offered unfair prices were speculative: the market value of a share in a co-owned inhabited flat was hard to assess and could not be compared to that of a share in an empty flat sold as a whole. In any event, a dispute between the co-owners concerning the price of their property was not a matter to be assessed in criminal proceedings.

Likewise, the prosecution had failed to establish beyond a reasonable doubt that the defendants had ill-treated the injured parties to force them sell their shares. These allegations were largely based on the testimonies of the injured parties, which were often insufficiently specific and changed over time. In view of the lapse of time from the incriminated episodes and the domestic nature of the conflicts, it appeared not feasible to attempt collecting additional evidence. Further, it appeared that the injured parties had opposed the very fact of sharing the flats with the defendants and had repeatedly interfered with their ability to use the flats. The applicant, for instance, had provided the keys to A.N. only after the police had interfered. In view of the injured parties ’ bias, their statements had to be assessed critically and due deference had to be given to the arguments of the defence that the injured parties themselves had provoked the conflicts. Finally, the fact that the defendants had been subletting their flat shares was not illegal and could not serve as evidence of extortion or ill-treatment. Likewise, the defendants were not criminally answerable for their tenants ’ conduct and for the conflicts between them and other flat residents.

The court also dismissed the applicant ’ s civil claim lodged within the framework of the criminal proceedings.

On 27 February 2012 the Donetsk Regional Court of Appeal quashed the above judgment and remitted the case for a fresh examination.

3. Civil action challenging the validity of the public auction

On 3 July 2006 the applicant lodged a civil claim challenging the validity of the auction results and seeking to annul the sale of A.Z. ’ s share to A.N. She alleged, in particular, that it was unlawful to sell a share in a flat, which had not been allocated in kind, and that she, as a co-owner, had to be given an opportunity to exercise her right of pre-emption. She further alleged that the auction was a corrupt set-up, which enabled A.N. to buy a share in her residence at a price well below the market value. In particular, only two buyers (A.N. and his acquaintance) took part in the auction, no notice of which had been given to the public. The applicant herself was not provided with an opportunity to bid, notwithstanding that she had duly informed the bailiffs that she was interested in acquiring A.Z. ’ s share. Furthermore, it was unlawful in the first place to organise the third auction, as applicable regulations allowed a property to be offered for sale at a public auction only twice.

On 23 March 2007 the Kyivskyy District Court of Donetsk ruled against the applicant. It found that her allegations concerning corruption were unsubstantiated and that legal provisions concerning co-owners ’ pre-emption rights were not applicable to the sale of real estate at a public auction. It also noted that it was not necessary to allocate a share in-kind before auctioning a joint property.

The applicant appealed, insisting that the auction had been a set-up. She maintained, in particular, that the trial court had unfairly rejected her request to require the defendant to provide a copy of the public notice about the third auction. She further reiterated her arguments concerning non-allocation of the share in kind, non-observance of her pre-emption right and impossibility for her to bid at the auction.

On 30 October 2007 the Donetsk Regional Court of Appeal rejected the applicant ’ s appeal. It found that there was no evidence of any corrupt actions on behalf of the authorities who had organised the auction and confirmed the trial court ’ s conclusion that provisions concerning co-owners ’ pre-emption rights did not apply in the case at issue.

On 25 April 2008 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

B. Relevant domestic law

1. Civil Code of Ukraine of 2003

Article 358. Exercise of the right of joint divided ownership

“1. The right of joint divided ownership shall be exercised by the co-owners on consensual basis.

2. The co-owners may enter into an agreement regarding the rules on possession and the use of their property held in joint divided ownership.

3. Every co-owner shall have the right to be provided in kind with a share of the co-owned object corresponding to his/her share in the right of joint divided ownership. Where this is impossible, he/she may demand relevant pecuniary compensation from other co-owners, who possess and use the co-owned object.”

Article 362. Right of pre-emption in buying a share in the right of joint divided ownership

“1. Where a share of joint divided ownership is to be sold, a co-owner shall have the right of pre-emption at the price announced for the sale, and on other equal conditions, except where the sale is effected via a pubic auction ... ”

Article 386. Basic provisions concerning protecting the right of ownership

“1. A State shall ensure equal protection of all subjects of the right of ownership.

2. An owner who reasonably foresees a possibility of a breach of his/her right by another person, may apply to court to obtain an injunction against actions, which may breach his/her right, or to obtain execution of certain actions for the prevention of such a breach.

An owner whose rights have been breached, shall be entitled to reimbursement of the pecuniary and moral damage sustained by him/her.”

Article 391. Protection of the right of ownership from breaches other than deprivation of possession

“1. The owner of property shall have the right to demand cessation of interference with exercising his/her rights of use and disposal of his/her own property.”

2. Order of the Ministry of Justice of Ukraine no. 68/5 of 27 October 1999 “On approval of the Temporary regulation concerning the procedure for carrying out the public auctions for selling arrested real estate”

“ ...

2.3. A participant at a public auction shall mean a physical or a legal person, who has paid the registration and security deposits and may be a buyer according to the legislation of Ukraine.

...

3.5. A specialised organisation, which organises a public auction, shall publish in the printed media in the locality, where the real estate subject to sale is situated, an information notice about the real estate offered for sale no later than fifteen days before the day of the public auction. This information notice may also be publicly announced in other media.

...

4.6. A second public auction shall be organised no earlier than one month from the time of the first public auction.

...

7.3. If public auctions did not succeed twice, the property shall be removed from the auction, which fact should be communicated by the specialized organization to the State bailiff within a three-day term.”

COMPLAINTS

The applicant complains that half of her home was unlawfully and unfairly sold at a public auction and that the domestic courts arbitrarily rejected her relevant allegations. She invokes Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol no. 1 in this respect.

She also complains that the State authorities have failed to protect her from harassment and undue pressure by the co-owner of her residence and his acquaintances with a view to acquiring the remaining half of her flat. She refers to Article 8 of the Convention in this respect.

Finally, the applicant complains that the co-owner of her flat did not pay charges on it, installed tenants in the flat without her authorisation, and that her property located in the flat was regularly stolen and damaged. ITMarkFactsComplaintsEND

QUESTIONS TO THE PARTIES

1. Did the granting by the State to a third party of an entitlement to live in the flat of which the applicant was a joint owner constitute an interference with the applicant ’ s right to respect for her private life and her home, within the meaning of Article 8 of the Convention?

2. Assuming the existence of an interference with the applicant ’ s Article 8 rights:

(a) Was the applicant prevented from bidding at the third auction, as she claims?

(b) Was that interference “in accordance with the law” given the applicant ’ s claim that no public notice was given of the auction at which her son ’ s joint share was sold, and her claim that the share was sold at a third public auction, even though the law provides for a maximum of two public auctions, and

(c) In any event, was that interference “necessary in a democratic society” given that the result of the sale was that a complete stranger became entitled to share her home?

3. As regards the behaviour of the purchaser of the applicant ’ s son ’ s share of the flat, did Article 8 of the Convention impose on the State a positive obligation to protect the applicant (see, in a slightly different context, Đorđević v. Croatia , no. 41526/10 , ECHR 2012)? How, if at all, did the State meet any such obligation?

4. Did the granting by the State to a third party of an entitlement to live in the flat of which the applicant was a joint owner interfere with her right to peaceful enjoyment of her possessions? If so, was such interference compatible with Article 1 of Protocol no. 1 to the Convention?

5. Did the domestic courts provide sufficient reasoning for their dismissal of the applicant ’ s claims that in the absence of public notice the auction had been unlawful, that she had not been allowed to bid and that a third auction was not permissible under domestic law, as required by Article 6 of the Convention?