CASE OF OBARANCHUK v. UKRAINE

FIFTH SECTION

CASE OF OBARANCHUK v. UKRAINE

(Application no. 41443/16)

JUDGMENT
 

STRASBOURG

3 April 2025

This judgment is final but it may be subject to editorial revision.

In the case of Obaranchuk v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 María Elósegui,
 Diana Sârcu, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 41443/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 July 2016 by a Ukrainian national, Ms Oksana Bogdanivna Obaranchuk (“the applicant”), who was born in 1971, lives in Ternopil and was represented by Mr R.O. Nebelskyy, a lawyer practising in Ternopil;

the decision to give notice of the complaints under Article 6 and Article 1 of Protocol No. 1 to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 13 March 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applicant alleges that the acceptance of an appeal against a final judgment in her favour from a party who had not participated in the initial proceedings, and the quashing of that judgment on appeal was contrary to the principle of legal certainty and entailed a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.

2.  The applicant’s late father, O., started the process for the privatisation of a plot of land (located in a village in the Kharkiv District, Kharkiv Region) in February 2007 but died in December 2007 without completing it. In 2009 the Kharkiv District State Administration (“the District Administration”) allocated the land to O., and the village council issued an ownership certificate in his name (“the 2009 decision”). There is no indication that any of those authorities were made aware of O.’s death. O.’s title to the land was never registered in the relevant property and land registers.

3.  The applicant asked a notary to recognise her as having inherited the land and to issue her with an ownership certificate but that request was refused, notably because she failed to produce the original of O.’s ownership certificate. She brought proceedings against the notary and the village council.

4.  In those proceedings, on 27 April 2012 the Ternopil Court declared that the applicant, as O.’s heir, was the owner of the land (“the 2012 judgment”)[1]. Since no appeal was lodged within the ten-day statutory time-limit, that judgment became final.

5.  On 27 June 2012 the applicant wrote to the District Administration, seeking clarification of how her right to the land could be registered under the 2012 judgment. She provided a copy of the judgment and of the ownership certificate in O.’s name.

6.  On 2 August 2012 the District Administration explained that for the applicant to be issued with a land-ownership certificate, she needed to apply to the local branch of the State Land Agency with responsibility for the area where the land was located.

7.  On 20 September 2012 the State Land Agency informed the applicant that it had no records in O.’s name of title deeds or survey records for the land in question.

8.  The applicant applied to the registration service of the Kharkiv District for registration of the land in her name, but this was refused. On 15 April 2013 the Ternopil Circuit Administrative Court ordered the registration service to register the land in the applicant’s name. On 30 March 2015 the Lviv Administrative Court of Appeal varied that judgment and ordered the registration service to duly examine the application for registration.

9.  In the meantime, on 14 June 2013 the District Administration had allocated the land in question to K. who had started the process of privatisation of the land on 7 November 2012.

10.  On 14 December 2013 K. sold the land to L.

11.  On 24 April 2015 L. appealed against the 2012 judgment submitting that he had learned of the 2012 judgment only through a prosecutor’s investigation in April 2015 (see paragraph 16 below).

12.  The applicant argued that to allow the appeal would be contrary to the principle of legal certainty. She pointed to the considerable time that had passed since the judgment. She also argued that domestic law did not allow L. to appeal because Article 292 of the Code of Civil Procedure of 2004 (as worded at the material time) provided that persons who did not participate in the proceedings could appeal against first-instance judgments only if they “determined” their rights and obligations. Since L. had acquired the land after the 2012 judgment, it could not be said that the judgment had determined his rights. The applicant relied on the Court’s findings in Diya 97 v. Ukraine (no. 19164/04, 21 October 2010).

13.  On 23 June 2015 the Ternopil Regional Court of Appeal allowed L.’s appeal holding that the applicant’s late father O. had not completed the process of privatisation of the land and that he had never acquired title to the land during his lifetime. An application for privatisation had been lodged in his name in December 2008, that is after his death, by unknown persons. The ownership certificate issued in the name of O. had not been duly registered. Accordingly, the applicant had not inherited the land, but merely the right to complete the process of privatisation[2]. Consequently, the land had been privatised by another person and sold to L. According to the appellate court, L. was entitled to appeal against the 2012 judgment since he had purchased the land in December 2013.

14.  The applicant lodged a cassation appeal, reiterating her previous arguments. She also submitted that the District Administration had interfered with her rights to the land and with the principle of legal certainty by granting the land to a third party in disregard of the 2012 judgment and had thus created the basis for L.’s own appeal. This was in breach of Article 1 of Protocol No. 1.

15.  On 20 January 2016 the Higher Specialised Civil and Criminal Court upheld the appellate court’s decision, finding that there was no indication of an error in it.

16.  On 20 April 2015 criminal proceedings were instituted on account of suspected forgery in the application for privatisation, which had been lodged posthumously in the name of the applicant’s late father. There is no information about the progress of those proceedings.

17.  In April 2015 L. lodged a claim, seeking to have the 2009 decision to grant the land to the applicant’s late father declared unlawful. By a final decision of 6 March 2017, the Higher Specialised Civil and Criminal Court upheld a decision of a lower court in which L.’s claim was dismissed on the grounds that (i) to allow the claim would prejudice the applicant’s right, to which she was entitled in law, to complete the process of privatisation following the death of her father, and (ii) the contested 2009 decision had not breached L.’s rights, since it was only in 2013 that he had acquired the land.

THE COURT’S ASSESSMENT

18.  The applicant complained that the decision to accept the appeal against the 2012 judgment had been in breach of the principle of legal certainty.

19.  The Government contested that argument.

20.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

21.  The relevant general principles have been summarised in Diya 97 (cited above, §§ 46-47) and Industrial Financial Consortium Investment Metallurgical Union v. Ukraine (no. 10640/05, §§ 146-47, 26 June 2018).

22.  The applicant submitted that, on a literal reading of the relevant provision of the domestic law, L. had no standing to appeal since the first-instance court had not determined his rights and obligations with respect to the land because such rights had not existed when the judgment had been delivered in 2012 and had only arisen later in 2013 when L. had purchased the land (see paragraph 12 above).

23.  The Court finds that that argument was not frivolous and, under the circumstances, required a response. The domestic courts did not respond to that argument and adopted an extensive interpretation of the relevant legislative provision to the effect that the 2012 judgment could be retrospectively seen as affecting the rights acquired subsequently (see paragraph 13 above). They reached a seemingly contradictory finding in another set of proceedings (see paragraph 17 above).

24.  While it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, it falls ultimately to the Court to determine whether the way in which that law is interpreted and applied produces consequences that are consistent with the principles of the Convention (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 250, 1 December 2020).

25.  Moreover, the Court has further held that procedural rules are designed to ensure the proper administration of justice and compliance with the principle of legal certainty, and that litigants must be entitled to expect those rules to be applied. This principle applies both ways, not only in respect of litigants but also in respect of the national courts (see Diya 97, cited above, § 47, with further references).

26.  In principle, it may be legitimate to allow third parties affected by a judgment to appeal against it once they learn of it (ibid., § 51, and see Protsenko v. Russia, no. 13151/04, §§ 30-34, 31 July 2008).

27.  However, in the present case the very fact that L. became affected by the judgment was attributable to omissions on the part of the authorities after the 2012 judgment had been delivered. The applicant informed all authorities in charge of the allocation of land and the registration of relevant transactions of the 2012 judgment a considerable time before the land was granted to K. and transferred to L. (see paragraphs 5 to 8 above). The Court is particularly struck by the fact that the District Administration explained to the applicant how she could have the land registered in her name but then proceeded to grant the same land to a third party (see paragraphs 6 and 9 above).

28.  The domestic courts did not address the applicant’s argument that it was contrary to the principle of legal certainty to reopen proceedings because of the situation created by the District Administration and quash a judgment that had been given in her favour (see paragraphs 12 to 15 above).

29.  Having regard to the above, the Court finds that the domestic courts did not provide any reasons which would have demonstrated that there had been circumstances of a substantial and compelling character which would have justified a reopening of the applicant’s case.

30.  These considerations are sufficient for the Court to conclude that the decision to open proceedings following L.’s appeal against the 2012 judgment infringed the principle of legal certainty.

31.  There has accordingly been a violation of Article 6 § 1 of the Convention.

32.  The applicant complained under Article 1 of Protocol No. 1 that the 2012 judgment had been quashed for no acceptable reason and that her claim to the land had been unlawfully dismissed.

33.  The Government contested that argument.

34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

35.  Having regard to its findings relating to the complaint under Article 6 § 1 above, the Court considers that the quashing of the final judgment in a manner which was incompatible with the principle of legal certainty frustrated the applicant’s reliance on a binding judicial decision and deprived her – without acceptable justification being provided and without any compensation – of the right to the land that had been established by that judgment. This placed an excessive burden on her (see Brumărescu v. Romania [GC], no. 28342/95, §§ 77-80, ECHR 1999‑VII; Macovei and Others v. Moldova, nos. 19253/03 and 5 others, §§ 49-50, 25 April 2006; and, for examples of a similar approach, Mitsopoulos v. Ukraine [Committee], no. 62006/09, 9 December 2021, and Vyelyev v. Ukraine [Committee], no. 57211/13, 20 January 2022).

36.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

37.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

38.  The Government contested that claim, arguing that it was exorbitant and unsubstantiated.

39.  The Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 3 April 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President

[1] On 25 July 2014 the Ternopil City and District Court rectified a clerical error by adding to the operative provisions of the 2012 judgment the number in the land register for the land.

[2] On 9 June 2020 the Kharkiv District Court dismissed the applicant’s claim seeking to be allowed to complete the process of privatisation of the land that had been commenced by O., on the grounds that since 2013 the land had belonged to L.