FIFTH SECTION
DECISION
Application no. 64351/14
Filipp Andre Sadi VITSE
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 21 November 2024 as a Committee composed of:
María Elósegui, President,
Gilberto Felici,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 64351/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 September 2014 by a French national, Mr Filipp Andre Sadi Vitse (“the applicant”), who was born in 1955, lives in Costa de Caparica, Portugal, and was represented by Mr V.Y. Polatay, a lawyer practising in Kharkiv;
the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, and to declare the remainder of the application inadmissible;
the decision of the French Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The present case concerns the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention about the invalidation of his title to a plot of land and the transfer of that land back to State ownership.
2. In 1995 the Tsyrkuny Village Council of the Kharkiv Region allocated a 0.15 hectare plot of land to S., under the privatisation procedure, for the construction and maintenance of a house. S. obtained the ownership certificate to that land on 20 June 2006; it stated that the plot of land was located at 16 Ostrivna Street in the village of Tsyrkuny.
3. The same day, on 20 June 2006, S. sold this plot of land to the applicant for 136,350 Ukrainian hryvnias (UAH; approximately 2,140 euros (EUR) at the relevant time). The applicant registered his title to the land in March 2007.
4. As appears from the documents available in the case file, on 27 June 2006 a prosecutor brought an action against S. before the Kharkiv District Court of the Kharkiv Region (“the District Court”), seeking to invalidate his title to that plot of land, on account of a violation of the privatisation procedure, specifically that in 1995 S. had obtained two plots of land through privatisation, which was prohibited by law. From the documents available, it also appears that on 29 June 2006 the District Court ordered that the land be seized while the proceedings were still ongoing. By a judgment of 17 July 2006, the District Court granted the prosecutor’s claim and invalidated S.’s title to the above-mentioned plot of land.
5. In April 2012 a local prosecutor brought an action against the applicant, seeking invalidation of the contract of sale between him and S. The prosecutor referred to the above-mentioned invalidation of S.’s title and the fact that, in accordance with Article 81 § 2 of the Land Code, foreign citizens could acquire ownership rights to non-agricultural land only within the boundaries of settlements; with regard to non-agricultural land located outside settlements, they could acquire only the land underlying real estate that belonged to them by right of ownership. In consequence, the prosecutor requested that the contract of sale between the applicant and S. be invalidated as being in breach of public order.
6. The case was examined in two rounds of proceedings. When sending the case back to the local court for fresh examination, the Higher Specialised Civil and Criminal Court noted that, essentially, the case concerned not the contractual relationship, but rather the rei vindicatio claim. On 11 October 2013 the District Court ruled that the contract between the applicant and S. was null and void, given that the applicant, as a foreigner, could not have lawfully acquired the land in question.
7. The above judgment of the District Court also mentioned that the registration of the applicant’s title to the plot of land in question had been invalidated in December 2008, following two court judgments of July and August 2008. Once those judgments had been adopted, the plot of land in question was no longer registered in the applicant’s name. The District Court further noted that no evidence of actual possession or use of the disputed plot of land had been presented to it. The parties to the present case have not provided any comments or documents relating to that issue.
8. On 24 December 2013 the Kharkiv Regional Court of Appeal reversed the District Court’s judgment. It noted, first, that the disputed plot of land had been allocated to S. erroneously. Furthermore, as Ostrivna Street was not located within the boundaries of Tsyrkuny village as defined in 1993, the village council had not been entitled to dispose of the plot of land in question and the land had left the possession of its owner – the State – against the latter’s will. Under Article 388 of the Civil Code, in such situations the owner was entitled to recover their property by way of rei vindicatio proceedings, even from a bona fide purchaser. The Court of Appeal therefore ruled that the land was to be restored to the State.
9. On 19 March 2014 the Court of Appeal’s judgment was upheld by the Higher Specialised Civil and Criminal Court.
THE COURT’S ASSESSMENT
10. The Government argued that the applicant had had the opportunity to claim non-pecuniary damage from the village council, to file a claim against S. for the return of the money he had paid for the land, or to claim compensation for the cost of maintaining the land. They further stated that although there had been an interference with the applicant’s property rights, it had been lawful, based as it was on Article 388 of the Civil Code, had pursued the legitimate aim of protecting the property rights of the community as a whole, and had been proportionate. They concluded that the application was inadmissible. The applicant disagreed with those arguments.
11. The Court does not consider it necessary to rule separately on the admissibility issues raised by the Government, given that the applicant’s complaint is in any case manifestly ill‑founded for the reasons set out below.
12. The general principles regarding interference with the peaceful enjoyment of possessions have been summarised in, for example, Kryvenkyy v. Ukraine (no. 43768/07, § 42, 16 February 2017) and Kanevska v. Ukraine (no. 73944/11, § 45, 17 November 2020). In particular, the Court must assess whether the interference was lawful, done in the public interest, and whether it pursued a legitimate aim by means reasonably proportionate to the aim sought to be realised.
13. In the present case the applicant was deprived of property in favour of the State. The key reasons for returning the land to the State were that it had initially been allocated unlawfully to S. in the course of the privatisation procedure and that, in any event, the village council did not have power to dispose of it. In this connection, the Court notes that the irregularities surrounding the privatisation of the land by S. were discovered in the context of the 2006 proceedings initiated by the prosecutor with a view to invalidating S.’s unlawfully obtained title. In that connection the Court cannot but note that S. sold the land to the applicant the same day he obtained ownership documents to it and seven days before the prosecutor filed his action against S. with the court. Those circumstances might raise reasonable doubts as to whether S. was acting in good faith. Without speculating on that issue or on whether the applicant displayed the necessary diligence when entering into the contract of sale with S., the Court nevertheless notes that after having discovered that the land was being reclaimed from him as a result of S.’s actions, the applicant had the option of bringing compensation proceedings against S. to have the money he had paid S. for the land returned to him. The Court has already accepted in similar situations that such an option was, in principle, available to the applicants (see Kanevska, cited above, § 49; Zastavska v. Ukraine (dec.), no. 57960/19, § 26, 23 March 2023; Vasylevska v. Ukraine (dec.), no. 37919/15, § 21, 4 July 2024). The applicant provided no explanation as to why he did not avail himself of that option (or why it might have been impossible for him to do so), and the Court therefore has no grounds to doubt the availability of that option.
14. Furthermore and most importantly, it appears from the judgment of the District Court of 11 October 2013 that the applicant was not registered as the owner of the plot of land in question already in 2008, and there was no information indicating that he had been in actual possession of the land. This means that when the final judgment of 19 March 2014 – on account of which the applicant complained to the Court – was adopted, he had not been the registered owner of the disputed plot of land for years. The Court finds these circumstances ambiguous, especially in the absence of any explanation on the part of the applicant in this connection (see Vasylevska, cited above, § 22). Moreover, neither in his application form nor in his further submissions to the Court did the applicant provide any information about the way he had used the land, if at all.
15. In the light of the foregoing and in view of the particular circumstances of this case, the Court considers that the present application is manifestly ill-founded and must be rejected in accordance with Article 35§§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 December 2024.
Martina Keller María Elósegui
Deputy Registrar President