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FIFTH
SECTION
CASE OF ANDRIY RUDENKO v. UKRAINE
(Application
no. 35041/05)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the
Convention. It may be subject to editorial
revision.
In the case of Andriy Rudenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna
Yudkivska,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35041/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Andriy Ivanovych
Rudenko (“the applicant”), on 12 September 2005.
- The
applicant was represented by Ms O. Chekotovska, a lawyer practising
in Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev, of the Ministry of
Justice.
- On
8 October 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Kyiv.
A. The proceedings concerning the applicant’s
title to part of a flat
- On
30 July 2003 the applicant instituted proceedings in the
Shevchenkivskyy District Court of Kyiv against his former wife and
mother-in-law, Ms R. and Ms I., seeking division of their jointly
owned property, a three-room flat. In particular, the applicant
requested the court to rule that one room be separated from the flat
and to grant him title to that room. He submitted that the defendants
did not allow him to enter the flat and that he had been forced to
reside elsewhere.
- The
defendants lodged a counterclaim, asking the court to grant them
joint title to the applicant’s part of the flat and to fix the
amount of compensation they would have to pay the applicant. They
argued that, due to personal conflicts with the applicant, they could
not all live together in one flat.
- On
28 May 2004 the court ruled in favour of the defendants. It found,
relying on an expert’s report, that it was not technically
possible to separate a single room from the flat. Relying on Article
115 of the Civil Code of 1963, the court granted the defendants title
to the entire flat and ordered them to pay the applicant 121,747.60
Ukrainian hryvnias (UAH) in compensation.
- The
applicant appealed, stating in particular that he had been deprived
of his property against his will and in violation of the law, and
that the defendants had failed to transfer the money to the deposit
account of the court in order to prove their ability to pay the
amount awarded to him in compensation.
- On
14 September 2004 the Kyiv City Court of Appeal partially changed the
judgment of the first-instance court. It ruled that the latter court
had wrongly relied on Article 115 of the Civil Code of 1963, instead
of Articles 364 and 365 of the Civil Code of 2003, which were
applicable in the case. The Court of Appeal rejected the applicant’s
appeal, holding, inter alia, that the defendants’
ability to pay the award had been confirmed by a bank statement,
according to which the applicant’s former wife had a balance of
23,000
United States dollars (USD) on her deposit account.
- The
applicant appealed in cassation, alleging that the lower courts had
misinterpreted the law. According to him, the courts had failed to
take into account the fact that he had not given his consent for
compensation pursuant to Article 364 of the Civil Code of 2003 and
that they had failed to ensure that the requirement laid down in
paragraph 2 of Article 365 of the Civil Code of 2003 had been
fulfilled by the defendants.
- On
16 June 2005 a panel of three judges of the Supreme Court dismissed
the applicant’s appeal, finding no grounds on which to transfer
the case for consideration by the chamber of the Supreme Court.
- The
applicant did not institute enforcement proceedings in order to
recover the sum awarded to him by the courts. According to the
applicant, he did not receive the compensation awarded in the
judgment of 28 May 2004 because the debtors refused to pay it as they
did not have sufficient funds.
B. The proceedings concerning the applicant’s
registration at the flat
- By
a judgment of 11 July 2006, the Shevchenkivskyy District Court ruled
to discontinue the applicant’s registration at the flat. On 23
August 2006 an appeal by the applicant against that judgment was
rejected as lodged out of time. The applicant did not appeal in
cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine of 28 June 1996
- Relevant
extracts from the Constitution read as follows:
Article 41
“Everyone has the right to own, use and dispose of
his property ...
No one shall be unlawfully deprived
of the right of property. The right of
private property is inviolable.
The expropriation of objects of the
right of private property may be applied only as an exception for
reasons of public necessity, on the grounds and through the procedure
established by law, and on the condition of advance and full
compensation of their value. The expropriation with subsequent full
compensation of their value is permitted
only in the conditions of martial law or a state of emergency.
...”
B. Civil Code of 2003 (entered into force on 1 January
2004)
- The
relevant provisions of the Civil Code of 2003 read as follows:
Article 364. Separation of a part of a jointly owned
property with determined shares [of each co-owner]
“1. An individual co-owner is entitled
to the physical separation of a part of a jointly owned property with
determined shares [of each co-owner].
2. If [such] a separation ... is not
permitted by the law or is impossible (paragraph 2 of
Article 183 of this Code), the individual co-owner ... is
entitled to receive monetary or other pecuniary compensation for his
part from the other co-owners.
Compensation may only be provided with his consent ...”
Article 365. Termination of title to a part of a
jointly owned property upon a request from other co-owners
“1. The right to a part of a jointly
owned property may cease to exist pursuant to a court decision
[taken] further to a claim by other co-owners, if:
1) the part is minor and cannot be physically
detached;
2) the object is indivisible;
3) joint possession and use of the property
is impossible;
4) the cessation of the
right will not cause substantial damage to the interests of the
co-owner or members of his or her family.
2. The
court shall take a decision terminating a person’s title to a
part of a joint property on the condition that the claimant makes an
advance payment of the cost of that part to the court’s deposit
account.”
C. Judicial practice of the Supreme Court in cases
concerning the application of paragraph 2 of Article 365 of the Civil
Code of 2003
- By
decision of 23 May 2007, the Supreme Court quashed the judgment of
the lower court in a dispute between private persons concerning
division of their jointly owned flat and remitted the case for fresh
consideration for the following reasons:
“...
The Court of Appeal terminating the right of [a party]
to part of the flat did not comply with the condition set in
paragraph 2 of Article 365 of the Civil Code which led to the
incorrect determination [of the dispute].
[The opposing party] was not present at the hearing
before the Appeal Court and that court did not check the conditions
of payment of compensation...
Given the above breach of the law, the judgment of the
Court of Appeal concerning the division of the flat shall be quashed
...”
- The
Supreme Court’s decision of 17 February 2010, by which it
quashed the lower courts’ decisions in a dispute concerning
division of the property jointly owned by private individuals, was
inter alia based on the similar ground. In particular, the
relevant parts of the Supreme Court’s decision read as follows:
“...
By the decision of the Court of Appeal, [a party’s]
title to part of joint property was terminated, though in the case
material there is no information concerning advance payment by [the
opposing party] of the cost of that part into the court’s
deposit account.
In such circumstances the challenged
court decisions do not comply with the requirements of lawfulness and
reasonableness ... and must be quashed with
the referral of the case for new consideration...”
- In
that decision the Supreme Court also noted that:
“...
The legal nature of the provisions [of Articles 364 and
365] of the Civil Code of Ukraine differs; each of the provisions is
a separate ground for lodging a claim; the first provides for the
right of a owner, who withdraws [from joint ownership], to a part of
a joint property, whereas the second provides for the possibility of
terminating the right of a person to a part of a joint property upon
a claim of other co-owners.
In this context, monetary or other type of pecuniary
compensation under Article 364 of the Civil Code of Ukraine may be
paid to a co-owner, who withdraws [from joint ownership], only with
his consent. Whereas, under Article 365 of the Civil Code of Ukraine
no consent to obtain compensation ... by a person whose right to a
part of a joint property is being terminated is necessary (the
claimant is only required to pay the cost of the
part of property, the right to which is being terminated, to the
court’s deposit account).
... [Articles 364 and 365 of the Civil Code] are
mutually exclusive and cannot be applied at the same time ...”
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the application to the
respondent Government, the applicant relying on Article 6 § 1 of
the Convention alleged that the courts had not been impartial and
that they had not respected the principle of equality of arms.
- The
applicant further raised complaints of an infringement of the right
to vote and the right to free medical assistance of an adequate
standard on account of his inability to be registered at the flat in
which he used to live.
- In
the Court’s view, the new complaints are not an elaboration of
the applicant’s original complaint under Article 1 of Protocol
No. 1, on which the parties have commented. The Court considers,
therefore, that it is not appropriate now to take the matter up
separately (see, mutatis mutandis,
Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
It will be dealt with in a separate application.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that he had been deprived of his property, part
of a flat, in a manner which was not in accordance with the domestic
law. He relied on Article 1 of Protocol No. 1, which reads as
follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
1. Alleged abuse of the right of petition
- The
Government submitted that the applicant had failed to submit itemised
particulars of his claims for just satisfaction together with any
supporting documents. Stating that the claims should not serve a
basis for unjustified enrichment, the Government requested the Court
to strike the application out of its list of cases on the ground that
the applicant had abused the right of petition.
- At
the outset, the Court notes that a question of substantiation of a
claim for just satisfaction normally falls to be examined under
Article 41 of the Convention – not in the context of the
substance of an application.
- In
any event, regard being had to the parties’ submissions and
other material in the Court’s possession, it does not find that
the right of petition was abused in the present case, within the
meaning of Article 35 § 3 (a) of the Convention (see, for
instance, Varbanov v. Bulgaria, no. 31365/96, § 36,
ECHR 2000-X). The Government’s objection is wholly
unsubstantiated and must be dismissed.
2. The applicant’s victim status
- The
Government submitted that applicant could not claim to be a victim of
a violation of Article 1 of Protocol No. 1, as he
had not been deprived of his property and the interference with his
right had been based on the law. On that ground, they invited
the Court to declare the application incompatible ratione personae
with the provisions of the Convention.
- The
applicant disagreed.
- The
Court considers that, in so far as they concern the questions of
existence and lawfulness of the interference, the Government’s
submissions fall to be dealt with in the context of the merits of the
case.
- In
so far as the Government’s objection can be understood as based
on the fact that the opposing party was ordered by the courts to pay
compensation to the applicant, the Court considers that the award of
compensation did not deprive the applicant of victim status. Although
this measure was undeniably favourable to the applicant, it was not
directly related to his complaint regarding the lawfulness of the
interference with his right to property. Moreover, the national
authorities have not acknowledged, either expressly or in substance,
the breach of Article 1 of Protocol No. 1 (Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 180, ECHR 2006 V).
Accordingly, the Government’s objection as to the applicant’s
victim status must be dismissed.
3. Conclusion as to the admissibility of the
application
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions of the parties
- The
applicant complained of unlawful deprivation of his property. He
submitted that the domestic courts had not accurately established the
facts and subject-matter of the case, that they had misapplied the
substantive law, that they had not examined the possibility of
separating his share of the flat, and that they had disregarded the
fact that the defendants had failed to transfer the money to the
deposit account of the first-instance court, as required by paragraph
2 of Article 365 of the Civil Code of 2003.
- The
Government stated that the case had not concerned a deprivation of
the applicant’s property. Rather, it was a matter of the
“transformation of the applicant’s possessions from one
form [a share in] the flat [into] another form – [the] money.”
- The
Government submitted that, in any event, there had been no violation
of Article 1 of Protocol No. 1, as the courts had accurately assessed
the evidence, correctly applied the law, and balanced the interests
of all the persons involved in the dispute. According to the
Government, despite the fact that the amount of compensation had not
been transferred by the defendants to the first-instance court’s
bank account, the courts had decided that the defendants were able to
pay the sum required to enforce the judgment. The Government further
submitted that the amount of compensation for the applicant’s
property was adequate and based on an expert’s report.
- They
also argued that, as the applicant had raised the matter before the
domestic courts and had not complained of a violation of Article 6 of
the Convention, he had confirmed that the dispute had been settled in
accordance with the law.
2. The Court’s assessment
(a) Whether there was an interference with
the right of property
- Having
regard to the principles established in its case-law (see, for
instance, Jahn and Others v. Germany [GC], nos. 46720/99,
72203/01 and 72552/01, § 78, ECHR 2005 VI), the Court
notes that there was an interference with the applicant’s right
of property. According to the Government, it did not however
constitute a “deprivation” of the applicant’s
possessions.
- The
Court observes that pursuant to the decisions of the domestic courts
in the context of a dispute between private parties the applicant
lost his title to part of a flat. The fact that by the same decisions
he was awarded compensation for that loss does not have a bearing on
the question of the existence of a particular type of interference.
Compensation terms are however material to the assessment of whether
the contested measure respects the requisite fair balance under
Article 1 of Protocol No. 1 (see, for instance, Ukraine-Tyumen v.
Ukraine, no. 22603/02, § 57, 22 November 2007).
- Accordingly,
the Court finds that the interference in the applicant’s case
amounted to a “deprivation” of possessions within the
meaning of the second sentence of the first paragraph of Article 1 of
Protocol No. 1. The Court must therefore examine whether the
interference was justified under that provision.
(b) Whether the interference was justified
- The
Court reiterates that to be compatible with Article 1 of Protocol No.
1 any interference with the peaceful enjoyment of possessions should
be lawful and not arbitrary (see Iatridis
v. Greece [GC], no. 31107/96, §
58, ECHR 1999-II). In particular, the second sentence of the first
paragraph authorises a deprivation of possessions only “subject
to the conditions provided for by law” and the second paragraph
recognises that the States have the right to control the use of
property by enforcing “laws” (see Ukraine-Tyumen,
cited above, § 49).
- The
Court notes that its jurisdiction to verify compliance with the
domestic law is limited and that it is not its task to take the place
of the domestic courts (see Sovtransavto Holding v. Ukraine,
no. 48553/99, § 95, ECHR 2002 VII).
- In
the present case the Court is not entitled to call into question the
decisions reached by the Ukrainian courts. Its role is instead to
verify whether the consequences of their interpretation and
application of the domestic law were compatible with the principles
laid down in the Convention.
- The
Court observes that in the decision terminating the applicant’s
title to a part of the flat the Court of Appeal relied on Articles
364 and 365 of the Civil Code of 2003 (see paragraph 9 above).
However, as confirmed by the interpretation given by the Supreme
Court, these provisions may not be applied together in the same
circumstances as they concern different legal matters (see paragraph
18 above). In particular, the possibility of terminating one’s
title to a part of a joint property without consent is envisaged in
Article 365 of the Code, whereas Article 364 deals with the situation
when a co-owner wishes to withdraw from joint ownership and is not
against obtaining compensation for his part of a joint property.
- Even
assuming that, despite the above ambiguity in the decision of the
Court of Appeal, Article 365 of the Code was the legal provision
applicable in the applicant’s case and that the conditions set
out in its first paragraph were met, the Court observes that under
paragraph 2 of Article 365 the opposing party had to make an
advance payment of the cost of the applicant’s part of the flat
into the first-instance court’s deposit account. This was, and
remains, a precondition for a court decision on termination of title
to a part of a jointly owned property (see paragraph 15 above). In
the applicant’s case, the opposing party failed to make such a
payment. The applicant’s specific and pertinent submissions
concerning the opposing party’s failure to make the requisite
payment remained unaddressed by the domestic courts.
- In
this context, the Court notes that the impugned provision of the
Civil Code of 2003 is sufficiently precise and does not give grounds
for diverging interpretations. Furthermore, this provision reflects
the constitutional guarantee of prior compensation for any
deprivation of property, except in the conditions
of martial law or a state of emergency (see paragraph 14 above). As
it appears from the relevant domestic judicial practice, though
subsequent to the events at issue, the requirement of advance payment
is not a mere technical element in the procedure of taking of
property established by law. It is the core condition on which a
court decision depriving a person of property, without his or her
consent, should be based (see paragraphs 16 and 17 above).
- In
the present case, the Court of Appeal merely stated that the opposing
party had the money to pay for the applicant’s part of the
flat. Having regard to the significance of the prior compensation
requirement in the national legal system, the
Court considers that the domestic courts’
decisions
lacked a legal basis because the courts deviated from
the written law in an arbitrary manner without giving reasons.
- In
the light of the foregoing, the Court concludes that the requirements
of the second sentence
of
the first paragraph of Article 1 of Protocol No. 1
were not satisfied in relation to the contested deprivation of
possessions suffered by the applicant.
- Accordingly,
there has been a violation of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed USD 23,000 for the value of the property he had
lost and 3,700 euros (EUR) for loss of income for the period during
which he had not been able to use the property, calculated on the
basis of an average monthly rate for renting a dwelling of a similar
size in the same area.
- The
Government contended that the claims were unsubstantiated. They also
argued that the applicant had failed to take all reasonable steps to
obtain the compensation awarded to him by the courts.
- The
Court notes that the applicant’s claims for pecuniary damage
stem from the unlawful deprivation of property found to be in breach
of Article 1 of Protocol No. 1 (see paragraphs 45 and 47 above). In
determining compensation for pecuniary damage in such cases the Court
would normally adopt an approach based on the total elimination of
the consequences of the impugned interference, taking account of the
current value and potential of the lost property (see Scordino
(no. 1), cited above, §§ 250-254).
- However,
the Court considers that a different approach has to be taken in this
case, given its particular circumstances. The Court observes that the
applicant’s claim in respect of the value of the part of the
flat of which he had been deprived is fully covered by the amount of
compensation awarded to him by the domestic courts (see paragraph 7
above). While it is true that as a result of the proceedings the
applicant has a claim for compensation instead of a pre-deposited
amount, which may entail some negative economic consequences for the
applicant, he failed to specify damage on their account and it is not
for the Court to speculate in that respect. Furthermore, the
applicant did not do everything feasible in the circumstances to
avoid such damage or at least to limit it to the minimum, in
particular by instituting enforcement proceedings in respect of the
claim. As regards the applicant’s claim for loss of income for
the period during which he had not been able to use the property, the
Court notes that he did not submit any documents in its support. On
these grounds, the Court rejects the applicant’s claim for just
satisfaction as unsubstantiated.
B. Costs and expenses
- The
applicant made no claim as to costs and expenses. Therefore, the
Court makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
