Published on 3 July 2023

FIFTH SECTION

Application no. 67127/16 Sergiy Grygorovych GOROPASHYN against Ukraine lodged on 10 November 2016 communicated on 15 June 2023

SUBJECT MATTER OF THE CASE

The application concerns the invalidation of the applicant’s title to a land plot 20 years after its allocation.

In 1990 a redistribution of lands had taken place between the city of Zhytomyr and the neighbouring Ivaniv village. In 1995 the applicant obtained a title to a land plot for individual construction allocated to him, free of charge, by the Executive Committee of the Zhytomyr City Council. In 2013 the applicant found out that the same plot had been allocated by the Ivaniv Village Council to O., who later sold it to H. The latter had obtained a title to it and started the construction of a house. The applicant initiated 3 sets of proceedings.

In the first set of proceedings the applicant’s claims against the decisions of the Ivaniv Village Council to allocate the land to O. were granted by the local and appellate courts on 19 January and 1 April 2015 respectively. The courts found that the Village Council had no right to dispose of the land plot at issue as it belonged to the city. However, on 14 July 2015 the above judgments were quashed in cassation and the proceedings were terminated as such type of issues should have been examined in civil and not administrative proceedings.

In the second set of proceedings the applicant’s claims to have O.’s title invalidated were granted by the local court on 19 May 2015 (final). Its findings were based on the judgments adopted in the first set of proceedings above.

In the third set of proceedings the applicant sued H. before the civil courts seeking to have the sales contract between her and O. declared null and void. H. submitted a counterclaim to have the applicant’s title invalidated. By the judgment of 11 November 2015, the local court granted H.’s claims and invalidated the applicant’s title. It found that the redistribution of lands between the city of Zhytomyr and the Ivaniv village, if any, had never been duly formalised and their territories had never changed. Furthermore, an executive committee of a city council was not entitled to decide on the allocation of land plots. The court also stated that it could not take into account the judgments delivered in the first set of proceedings because, being adopted in administrative proceedings, they did not establish prejudicial facts. This judgment was upheld on appeal and in cassation (final judgment of 11 May 2016).

The applicant complains under Article 1 of Protocol No. 1 that he was deprived of his property arbitrarily and not in the public interest, and that he was not offered any compensation. He also complains, as to the third set of proceedings, under Article 6 of the Convention, that the courts disregarded his arguments, in particular his reference to the judgments adopted in the first set of proceedings, and applied the law erroneously. Under Article 13 he complains as to the lack of effective remedy against the arbitrary deprivation of property on account of the facts of the case.

QUESTIONS TO THE PARTIES

1. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 1 of Protocol No. 1? In particular, did he have a possibility to claim or otherwise obtain a compensation for the losses suffered?

If yes, has the applicant exhausted all effective domestic remedies for his complaint under Article 1 of Protocol No. 1, as required by Article 35 § 1 of the Convention?

If no, has there been a violation of Article 13 of the Convention read in conjunction with Article 1 of Protocol No. 1?

2. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

3. Was the interference in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? Did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V?