Published on 20 November 2023

FIFTH SECTION

Application no. 14424/19 Yaroslav Anatoliyovych OSADCHYY against Ukraine lodged on 7 March 2019 communicated on 30 October 2023

SUBJECT MATTER OF THE CASE

The applicant, who had invested into the construction of a flat by a private company, had his entitlement to that flat withdrawn by the housing trust fund for the sole reason that he had failed to sign the acceptance certificate with the construction company within the established time-limit, even though neither the commissioning date nor the address of the company in question had allegedly been communicated to him in accordance with the rules.

Although on 12 July 2017 the Higher Specialised Court for Civil and Criminal Matters delivered a final ruling in the applicant’s favour, on 3 October 2018 the Supreme Court quashed that ruling and found against the applicant, in allowing the appeal on points of law by the new owner of the flat, which, according to the applicant, had been belated and had repeated the arguments of the already rejected appeal on points of law earlier lodged by the housing trust fund. The Supreme Court held that the applicable legal provisions obliged housing construction investors to sign the acceptance certificate within two months of the date of the building commissioning regardless of the form, contents or timing of their notification about such commissioning. The applicant’s arguments about his consistent enquiries with the housing trust fund about the construction progress and his willingness to sign the acceptance certificate had allegedly remained without any assessment.

The applicant complains that there has been a violation of his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, as required by Article 6 § 1 of the Convention? In particular, were the principles of the rule of law and legal certainty respected as regards the quashing of the final ruling of the Higher Specialised Court for Civil and Criminal Matters of 12 July 2017 (see, for example, Ponomaryov v. Ukraine , no. 3236/03, §§ 40-42, 3 April 2008, and Tığrak v. Turkey , no. 70306/10, §§ 48-64, 6 July 2021)? Did the Supreme Court provide sufficient reasons for its ruling of 3 October 2018 (see, for example, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015, and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 185, 6 November 2018, with further references)?

2. Has there been a violation of Article 1 of Protocol No. 1? In particular, did the respondent State comply with its positive obligation to ensure in its domestic legal system that the applicant’s property rights were sufficiently protected (see, for example, Sovtransavto Holding v. Ukraine , no. 48553/99, §§ 94-98, ECHR 2002 ‑ VII; Kotov v. Russia [GC], no. 54522/00, §§ 112-15, 3 April 2012; and J.L. v. Croatia , no. 13712/11, §§ 57-90, 7 May 2015)?