Communicated on 4 June 2015
FIFTH SECTION
Application no. 5876/15
VSEUKRAYINSKYY GROMADSKYY BLAGODIYNYY FOND BATKIVSKA TURBOTA
against Ukraine
lodged on 23 January 2015
STATEMENT OF FACTS
The applicant, Vseukrayinskyy Gromadskyy Blagodiynyy Fond “Batkivska Turbota”, is a Ukrainian charity foundation, created in 1999. It is represented before the Court by Mr N.S. Kulchytskyy, a lawyer practising in Kyiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2000 the applicant founded the Social Rehabilitation Centre “K.”. The Centre’s activity includes “social protection, social-pedagogical and psychological rehabilitation of children 6 - 18 years old, who are in difficult life circumstances; assistance in provision of complex social, psychological, pedagogical, medical, legal and other types of individual and family assistance”.
In August 2002 the applicant and K. bought eight buildings (dormitory blocks, cafeteria, library, medical block and laboratory – 2,732.2 square meters in total) of a sanatorium from the joint stock company P. Since that time K. has been using those buildings for its activities and is situated there.
Nine years later, in August 2011, a prosecutor instituted proceedings in the Kyiv City Commercial Court on behalf of the State challenging that sales contract. The prosecutor argued that the buildings in question were the property of the State and the prosecutor’s office had learned about the above sales contract in July 2011 only.
On 19 September 2011 the court found for the prosecutor. The court held that in 1960 various premises of sanatoriums and recreational facilities had been given to trade unions, including the premises in question. In 1990 the premises in question were used by the Federation of the Independent Trade Unions of Ukraine. In 1991 the Federation founded the joint stock company P., which received the premises in question. In 2000 P. received an ownership certificate for this property. In 2002 the premises were sold to the applicant and to K. for UAH 1,915,200 (at the material time around 353,000 euros). Referring to numerous legal acts and decisions taken between 1960 and 2002, the court concluded that the premises in question always belonged to the State as the property title to them had been never transferred to the trade unions and that it had been unlawful to sell those premises. The sales contract of 2002 was thus null and void.
The applicant appealed stating that P. had had a property rights certificate for the premises in question. Even assuming that P. had had no right to sell the premises, the applicant should be considered as bona fide purchaser. The applicant spent around UAH 5 million in the renovation of the premises. Moreover, the State bodies were aware of this transaction well before 2011.
On 1 April 2014 the Kyiv Commercial Court of Appeal quashed the decision of the first instance court and found for the applicant stating that there were no legal grounds to conclude that the premises in question belonged to the State.
On 4 June 2014 the Higher Commercial Court of Ukraine returned the prosecutor’s appeal in cassation as submitted too late.
However, on 10 July 2014 the same court renewed the time-limit for lodging such an appeal and set 24 July 2014 as a hearing date.
On the latter date the Higher Commercial Court of Ukraine quashed the decision of 1 April 2014 and upheld the first instance court decision. The court held that there were no legal grounds to conclude that the property rights for the premises in question had been ever transferred by the State to the trade unions. The court referred, inter alia, to various similar court decisions rendered by the Supreme Court and the Higher Commercial Court between 2007 and 2014.
According to the applicant, there were other court decisions on a similar matter adopted in 1997 and in 2008-2013, and by which prosecutor’s claims had been rejected.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 that the application of national law, given the previous court decisions on the same matter, cannot be considered as predictable, and that the interference with its property rights is not proportionate and necessary in a democratic state.
QUESTIONS TO THE PARTIES
1. Has the applicant been deprived of its possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
2. In particular, did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
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