Published on 3 April 2023

FIFTH SECTION

Application no. 27849/15 Mariya Petrivna DROZDYK against Ukraine and three other applications (see list appended) communicated on 17 March 2023

SUBJECT MATTER OF THE CASES

The applications concern the revocation of the applicants’ titles to the land plots which they acquired in good faith from the local authorities years before the revocation. They raise issues under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

Between 2002 and 2009, following decisions taken by local councils, each applicant acquired a title to a land plot. However, in 2013-2014 the Lviv Railways State company, controlled by the Ministry of Infrastructure, instituted court proceedings claiming that the land plots were fully or in part located in a zone for railways and thus belonged to a specially protected category and could not have been transferred to private property. The proceedings culminated in final judgments in which the courts concluded that the local councils had acted ultra vires when transferring the land plots into the applicants’ property. The relevant decisions of the local councils and the applicants’ titles were accordingly declared null and void by the courts. The details pertaining to each applicant are set out in Appendices I and II below.

The applicants complain that they were unlawfully and disproportionately deprived of the land they had obtained in good faith from the State. They argue that the claims regarding their property titles were time-barred and refer to the inconsistent case-law of the domestic courts in similar cases. Some applicants further allege that they were deprived of the whole land plot and not only the disputed part of it (applications nos. 33358/15 and 2704/16) and that they were put in a situation of uncertainty as regards the fate of their immovable property situated on the land plots (application no. 27849/15). They rely on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, as regards their complaint of the deprivation of their land plots?

2. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of legal certainty breached on account of the alleged disregard by the domestic courts of the limitation period applicable in the applicants’ case (see, for instance, Baroul Partner-A v. Moldova , no. 39815/07, § 51, 16 July 2009)?

3. Has there been an interference with the applicants’ peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1, on account of the annulment of the applicants’ titles to the land plots which they acquired and possessed in good faith? If so, was that interference in the public interest, in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of that provision? Did that interference impose an excessive individual burden on the applicants (see Bryg-A, TOV v. Ukraine [Committee], nos. 75237/10 and 75295/10, §§ 19 ‑ 25, 9 December 2021)?

APPENDIX I

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

27849/15

Drozdyk v. Ukraine

27/05/2015

Mariya Petrivna DROZDYK 1946 Chudey Ukrainian

Oleksiy Petrovych BERNYK

2.

33358/15

Mikula v. Ukraine

01/07/2015

Olga

Pavlivna MIKULA 1949 Bryukhovychi Ukrainian

Khrystyna Orestivna BILEVYCH

3.

2704/16

Kovtalyuk v. Ukraine

21/12/2015

Taras Teodoziyovych KOVTALYUK 1967 Deceased in 2021 Yaremche Ukrainian

4.

65686/17

Samanyuk v. Ukraine

23/08/2017

Yakiv Yakovych SAMANYUK 1957 Mykulychyn Ukrainian

List of heirs in the application 2704/16

Decedent

Heir

Taras Teodoziyovych KOVTALYUK

Deceased in 2021

Nadiya Mykolayivna KOVTALYUK

Born in 1968

APPENDIX II

Facts in respect of each application

No.

Application no.

Location of the land

Annulment of the applicants ’ title to the land

Acquisition of the land by the applicant

Proceedings before the court at first level of jurisdiction

Appeal proceedings

1.

27849/15

Chudey

On 7 December 2009 the Chudeysk Council decided to transfer to the applicant, free of charge, the title to two plots of land on which her household, built between 1968 and 1972, stood.

On 23 July 2010 the state authorities registered the above transfers of the title to the land plots.

In December 2013 the Lviv Railways lodged the claim.

On 3 April 2014 the Storozhynetskyy District Court declared void the decision of the Chudeys Council of 7 December 2009 in respect of a part of each land plot and annulled the applicant’s title to those parts of the land.

On 12 June 2014 the Chernivtsi Regional Court quashed the judgment of 3 April 2014 and dismissed the Lviv Railways’ claim as unfounded.

On 3 December 2014 the Higher Specialised Court for Civil and Criminal Matters reversed the judgment of 12 June 2014 and upheld the judgement of the first-instance court.

2.

33358/15

Bryukhovychi

On 20 July 2006 the Bryukhovychi Council decided to transfer to the applicant, free of charge, the title to the land which her family had been using since 1946.

On 14 December 2006 the state authorities registered the above transfer of the title to the land plot.

In April 2014 the Deputy prosecutor of Lviv Region lodged the claim, in the interest of the Lviv Railways and the Ministry of Infrastructure.

On 12 September 2014 the Shevchenkivskiy District Court of Lviv dismissed the claim as unfounded.

On 8 December 2014 the Lviv Regional Court of Appeal quashed the judgment of 12 September 2014 and invalidated the decision of the Bryukhovychi Council of 20 July 2006 and the applicant’s title to the land.

On 14 January 2015 the Higher Specialised Court for Civil and Criminal Matters refused to grant the applicant leave to bring a cassation appeal.

3.

2704/16

Yaremche

On 22 March 2002 the Yaremche Council adopted a decision to sell a land plot to the applicant.

On 27 May 2002 the Yaremche Council signed a sales agreement with the applicant in respect of the land plot.

In March 2014 the Lviv Railways lodged the claim.

On 29 May 2014 the Ivano-Frankivsk Regional Commercial Court dismissed the claim as unfounded.

On 31 July 2014 the Lviv Commercial Court of Appeal upheld the judgment of 29 May 2014 on appeal.

On 2 October 2014 the Higher Commercial Court of Ukraine upheld the judgments of the lower courts delivered in the applicant’s favour.

On 24 June 2015 the Supreme Court of Ukraine (“the SCU”), following an extraordinary review conducted at a request of the Lviv Railways, quashed the earlier judgments and invalidated the decision of the Yaremche Council of 22 March 2002 and the sales agreement of 27 May 2002.

4.

65686/17

Yaremche

On 22 March 2002 the Yaremche Council adopted a decision to sell a land plot to the applicant.

On 11 April 2002 the Yaremche Council signed a sales agreement with the applicant in respect of the land plot.

On 27 September 2004 the state authorities registered the applicant’s the title to the land plot

The applicant built a building on the land plot at issue, which he used as a café, and on 16 November 2009 the state authorities registered his title to that building.

In September 2014 the Lviv Railways lodged the claim.

On 2 December 2014 the Ivano-Frankivsk Regional Commercial Court dismissed the claim.

On 11 February 2015 the Lviv Commercial Court of Appeal upheld the judgment of 22 December 2014 on appeal.

On 16 April 20015 the Higher Commercial Court of Ukraine quashed the judgments of the lower courts and remitted the case to the first-instance court for a new examination.

On 23 May 2016 the Ivano-Frankivsk Regional Commercial Court dismissed the claim.

On 4 August 2016 the Lviv Commercial Court of Appeal quashed the judgment of 23 May 2016 on appeal and allowed the claim, having invalidated the decision of the Yaremche Council of 22 March 2002 as well as the title deed of 27 September 2004.

On 20 December 2016 the Higher Commercial Court of Ukraine quashed the judgment of 8 August 2016 as regards the land plot which had been sold to the applicant and remitted it for a new examination by the first-instance court.

During the new round of proceedings, the Lviv Railways amended the claim seeking also to invalidate the sales agreement of 11 April 2002.

On 1 March 2017 the Ivano-Frankivsk Regional Commercial Court allowed the claim and declared void the decision of the Yaremche Council of 22 March 2002, the sales agreement of 11 April 2002 and the title deed of 27 September 2004.

On 5 April 2017 the Lviv Commercial Court of Appeal upheld the judgment of 1 March 2017 on appeal.

On 24 October 2017 the Higher Commercial Court of Ukraine upheld the judgment of 5 April 2017.