I incorrectly predicted that there's no violation of human rights in YAKOBSON v. UKRAINE.
Information
- Judgment date: 2024-11-21
- Communication date: 2019-09-24
- Application number(s): 77736/12
- Country: UKR
- Relevant ECHR article(s): 6, 6-1, 8, 8-1, P1-1, P1-1-1
- Conclusion:
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.58819
- Prediction: No violation
Inconsistent
Legend
Communication text used for prediction
The present application is submitted by a family of four.
The first applicant, Mr Lev Lvovych Yakobson born in 1962, and the second applicant, Mrs Inna Fedorivna Yakobson born in 1963, are spouses.
The third applicant, Mr Yeveniy Lvovych Yakobson born in 1986 and the fourth applicant, Mr Artur Lvovych Yakobson born in 1993, are the sons of the first two applicants.
At the time of lodging of the application the applicants were Ukrainian nationals residing in Bratkivtsi, Ivano-Frankivsk Region, Ukraine.
In December 2016 the first applicant informed the Court that he had acquired Belorussian nationality and moved to Baranovychi, Belarus.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In March 2001 Mr P. issued a power of attorney to Mrs P., his wife, empowering her to manage, sell or otherwise dispose of his house in the Bratkivtsi village and perform various transactions in its respect, including pledging it as collateral for a loan.
In October 2001 Mrs P. took a loan of 1,500 dollars (USD)[1] from commercial bank “Privatbank” (“the Bank”) and pledged the aforementioned house as collateral.
In September 2003, Mrs P. having failed to repay the loan, the Bank obtained an executive writ from a private notary allowing it to start the foreclosure procedure.
In December 2003 the Ivano-Frankivsk State Bailiffs Service (“the Bailiffs”) commissioned State Company “Ukrspetsjust” to sell the house at a public auction.
On 18 December 2003 the applicants’ family sold their flat for 17,172 hryvnias (UAH)[2] and decided to participate in the public auction with a view to buying the house.
On 23 December 2003 the first applicant bought the aforementioned house at the public auction for UAH 15,700.
[3] Out of this amount UAH 11,646 was remitted to the Bank as the amount still payable on Mrs P.’s loan with interest.
The remaining sum of UAH 4,054 was retained by the Bailiffs as their fee.
On 14 January 2004 the first applicant registered his ownership of the house and soon afterwards the applicants’ family established their home in it.
On an unspecified date Mrs P. challenged the sale as unlawful.
On 11 November 2004 the Ivano-Frankivsk City Court left her claim without consideration in view of her repeated failures to attend the hearings.
Based on the case file, this decision was not appealed against.
On 30 May 2005 Mr P. instituted civil proceedings against Mrs P., the Bank, the notary, the Bailiffs, the “Ukrspetsjust” Company, and the applicants, seeking to reclaim his house and have the applicants’ family evicted.
In September 2006, following Mr P.’s death, his adult daughter, Ms M., replaced him in these proceedings as his heir.
On 2 December 2011, after several rounds of proceedings, the Tysmenytsky District Court rejected Ms M.’s claims.
It found that the first applicant had acquired the house lawfully and in good faith and noted that it was his family’s only home after the sale of their flat, and there were no grounds for evicting or dispossessing them.
On 31 January 2012 the Ivano-Frankivsk Court of Appeal allowed Ms M.’s appeal and reversed the aforementioned judgment.
It annulled the first applicant’s title to the house and ordered eviction of the applicants’ family.
By way of restitution, it ordered the Bank and the Bailiffs to reimburse the first applicant the sums received from him as the house purchase price, that is, UAH 11, 646 and UAH 4,054 respectively.
In its reasoning, the court referred to Articles 48 and 62 of the Civil Code of 1963, which had been in force at the time, when Mrs P. had pledged the house, and found that as Mr P.’s agent, she had been empowered to manage the house in the interests of Mr P. Accordingly, she had no right to secure her own loan with it and the collateral contract was therefore null and void.
The court further found that the notary had acted unlawfully in authorising the foreclosure, notably, because he had been provided with insufficient documentary proof that both, Mr and Mrs P. had been duly notified of the Bank’s intent to proceed with the foreclosure.
In addition, the sale of the house at the public auction had also been unlawful, in particular, because the organiser had not collected necessary information concerning the property status of the land on which it was located, and because the sale price was too low.
The applicants appealed on points of law.
They submitted that their family had acquired the disputed house lawfully and in good faith, having bought it from an entity administering the State functions.
Referring to Article 145 of the Civil Code of 1963, they argued that the house could be reclaimed from them, as good-faith acquirers, only if it were established that Mr P. had lost possession of it against his will.
In fact, quite to the contrary, Mr P. had directly authorised Mrs P. to conclude various transactions concerning the house, including pledging it as collateral.
More so, it could not be said that Mrs P. had abused Mr P.’s trust by pledging the house.
First of all, it was evident from the file that the disputed house had been acquired by Mr P. during his marriage to Mrs P. and so had, by default, been their common conjugal property, regardless that only Mr P. had been registered as its owner.
In addition, from the explanations given in court by Mrs P., it was evident that she had taken the impugned loan to finance the needs of the couple’s daughter, that is, in the interests of the family.
Consequently, the house, which had been owned by the P. spouses, had been pledged as collateral for a loan taken in the interests of the family by one of them and with implicit consent of the other, who had issued power of attorney to this effect.
Therefore, the good-faith acquirer protection should apply to the applicants’ situation.
The applicants also argued that the Appeal Court had erred in stating that there was no evidence that Mr and Mrs P. had been duly and timely informed by the Bank about the forthcoming foreclosure, as the relevant documents were in fact in the case file.
On 6 June 2012 the Higher Specialised Court in Civil and Criminal Cases rejected the applicants’ appeal on points of law, reiterating the reasoning of the Court of Appeal.
By January 2013 the applicants were evicted from the house.
On an unspecified date the first applicant received the sum of UAH 11,646 due to him from the Bank.
As regards the remaining sum of UAH 4,054 due from the Bailiffs, on 22 January 2013 they refused to institute the enforcement proceedings with a view to collecting it on the ground that the writ of execution issued by the court did not contain an identification number of the debtor.
On 1 October 2013 the Bailiffs again refused to institute the enforcement proceedings, having stated that according to applicable law, the demand had to be submitted to the State Treasury.
On 23 January 2014 the Ivano-Frankivsk Department of the State Treasury returned the writ of execution to the first applicant as unenforceable.
It appears that the UAH 4,054 payable to the first applicant from the Bailiffs remains outstanding.
On an unspecified date the first applicant instituted civil proceedings against Ms M., seeking UAH 169,258[4] in compensation for increase in the value of the house reclaimed from his family.
He submitted that this sum represented the difference between the expert valuation of the house at UAH 64,012[5] in 2003, when he had acquired it, and its valuation in 2013, when his family had been evicted, at UAH 233,870[6], minus the UAH 15,700 awarded to him by the courts in compensation for the purchase price.
On 18 October 2013 the Tysmenytskyy District Court awarded the first applicant UAH 33,107[7] in compensation for the renovation expenses, which were supported by documentary evidence.
The remainder of the first applicant’s claim was dismissed as unsubstantiated.
On 18 June 2014 the Higher Specialised Court in Civil and Criminal Cases reduced the compensation due to the first applicant from Ms M. by UAH 5,752[8], the price of metal grids, which had not been installed and could have been reclaimed in-kind.
On 23 October 2012 the first applicant instituted administrative proceedings against the Bailiffs and the State Treasury seeking compensation for selling him the house, in respect of which the sale had been annulled as unlawful.
On 16 January 2014 the Ivano-Frankivsk District Administrative Court found that the matter fell within jurisdiction of the civil courts.
In May 2015 the first applicant updated his statement of claim re-lodged in civil proceedings.
He submitted that the pecuniary damage suffered by him and his family in connection with the loss of the house was equal to this house’s value as of January 2013, which was UAH 233,870, according to expert assessment, as stated in his proceedings against Ms M. The domestic courts had already awarded him UAH 15,700 in purchase price and UAH 27,355 in renovation expenses.
Accordingly, as it had also been established by the courts that the house had been sold unlawfully under the authority of the State Bailiffs, the State Treasury was liable to compensate the difference between the value of the house and the sums awarded to the applicant, multiplied by 1,51 – the inflation index.
In addition, the first applicant claimed moral damages and submitted that following eviction from the house, his entire family had lost its only dwelling.
On 3 December 2015 the Ivano-Frankivsk Court rejected the first applicant’s claim.
It found that, while the first applicant’s family might have suffered non-pecuniary damage on account of having been deprived of their home, it had not been demonstrated that this damage had resulted from the Bailiffs’ faulty and unlawful acts.
The first applicant appealed.
He noted that the court had not resolved in any manner his claim for pecuniary damage.
He also noted that unlawfulness of the Bailiffs’ acts had already been established, notably, in the judgment of the Court of Appeal of 31 January 2012, and it was precisely on this ground that the results of the public auction had been invalidated.
On 10 February 2016 the Ivano-Frankivsk Regional Court of Appeal gave the first applicant a time-limit for rectifying the shortcomings of his appeal, namely, for the payment of a court fee of UAH 4,175[9].
The first applicant refused to pay the fee, referring to Section 3-2-13 of the Court Fee Act, in accordance to which no court fee was payable for claiming compensation of damage caused by unlawful acts of the bodies of State power or municipal authorities.
On 19 February 2016 the Ivano-Frankivsk Regional Court of Appeal refused to initiate the appeal proceedings and returned the appeal to the first applicant, having found as follows: “... [the first applicant] challenges the acts of the Department of the State Bailiff Service of the Ivano-Frankivsk City Department of Justice ... which is neither the body of the State power nor that of municipal self-governance ...
The defendant ... is ... a body of the executive power ...” The first applicant appealed on points of law, arguing, in particular, that the court’s position excluding the State Bailiffs from the list of bodies of “State power” was totally frivolous and arbitrary.
On 18 March 2016 the Higher Specialised Court in Civil and Criminal Cases rejected the first applicant’s request for leave to appeal on points of law as unsubstantiated.
Article 6 of the Constitution reads as follows: “State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.
Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine.” Relevant provisions of the Code, as worded at the material time, read as follows: Article 48.
Invalidity of a transaction, which is not in accordance with the requirements of the law “Invalid shall be a transaction, which is not in accordance with the requirements of the law.
...” Article 62.
Agency “... An agent may not conclude transactions on behalf of the person, whom he/she represents, either concerning himself/herself personally, or in respect of another person, whose agent he/she simultaneously is.” Article 145.
Reclamation of property by the owner from a bona fide acquirer “If an item is acquired against payment from a person, who had no right to alienate it, [and] the acquirer did not know and had no reason to know about this (a bona fide acquirer), then the owner shall be entitled to reclaim the item from the acquirer only if it was lost by him/her or by a person, to whom he/she entrusted its possession, or was stolen from one or the other, or otherwise left their possession against their will.
...” Section 3 of the Act, insofar as relevant, reads as follows: Items to which court fees are applicable “... 2.
Exempt from a court fee shall be the submission: ... 13) of a claim for compensation of damage caused to a person by unlawful decisions, acts or inaction of a body of the State power, body of ... local self-governance, their official or agent ...” Relevant provisions of the Act, as worded in the material time, read as follows: Section 1.
Mission of the State Bailiffs Service “State bailiffs service is part of the system of bodies of the Ministry of Justice of Ukraine ...” Section 4.
State Bailiffs “... A State bailiff is an officer of the State (представник влади) ...” COMPLAINTS The applicants complain that they were unlawfully and unfairly evicted from their home and deprived of their property.
They invoke Articles 6 § 1, 8 and 13 of the Convention and Article 1 of Protocol No.
1 in this respect.
They also complain under Article 6 of the Convention that the length of the reclamation proceedings against them was excessive.
The first applicant additionally complains under Article 6 § 1 of the Convention that he was deprived of access to the appeal court in his proceedings against the Bailiffs in view of his refusal to pay an unlawfully imposed court fee.
Judgment
FIFTH SECTIONCASE OF YAKOBSON v. UKRAINE
(Application no. 77736/12)
JUDGMENT
STRASBOURG
21 November 2024
This judgment is final but it may be subject to editorial revision. In the case of Yakobson v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lado Chanturia, President, Mykola Gnatovskyy, Úna Ní Raifeartaigh, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 77736/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 November 2012 by a family of four, who, at the time of lodging their application, were Ukrainian nationals, and whose relevant details are listed in the appended table, (“the applicants”) and who, having been granted legal aid, were represented by Mr R.V. Kotyk, residing in Kotykivka;
the decision to give notice of the complaints listed in paragraph 1 below to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 24 October 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the fairness and necessity of the annulment of the first applicant’s title to a house and the applicants’ eviction from it. The applicants also raised complaints concerning the fairness and length of civil proceedings and access to an appellate court. They relied on Articles 6, 8 and 13 of the Convention and on Article 1 of Protocol No. 1. 2. In June 2005 P.P., the former owner of a house acquired by the first applicant in 2003 at a public auction administered by the State Bailiffs, instituted proceedings seeking to reclaim it as having been unlawfully sold. An eviction claim against the applicants was subsequently added to the proceedings. 3. On 2 December 2011, after two rounds of proceedings at three levels of jurisdiction, the Tysmenytsky District Court dismissed P.P.’s claims, which were pursued following his death by his daughter, S.M. It noted that the first applicant had bought the house in question in 2003 for a total fee of 15,700 Ukrainian hryvnias (UAH)[1]. The house had been put up for sale at a public auction as M.P., P.P.’s wife, who had pledged it to private bank P. as collateral for her loan, had defaulted on repayment. The court held that the pledge agreement had been lawful as M.P. had had a power of attorney from P.P. authorising her to undertake any transactions relating to the house. The bailiffs had advertised the house at a price agreed upon by the parties to the pledge agreement and, as such, the sale had also been lawful. The first applicant had financed the purchase of the house through the sale of his family’s previous residence for UAH 17,172[2]. He had purchased it in good faith and his family had settled there. In the court’s view, the defendants could not be forced to give up possession of the house or be evicted. 4. On 31 January 2012 the Ivano-Frankivsk Court of Appeal allowed an appeal by S.M. It found, in particular, that M.P. had not had the authority to secure her personal loan against P.P.’s house; that the bank had breached the foreclosure procedure as it had not shown that P.P. had received notification of its intention to foreclose; that the notary had breached the rules for validating the foreclosure as P.P.’s notification status had not been checked; and that the bailiffs had set an unfairly low sale price and had not collected full information as to the ownership status of the property. In view of the various defects, the pledge, foreclosure and sale of the house had to be declared void; the first applicant’s title had to be annulled; and his family had to be evicted as they had lost their right to occupy the house. The court further ordered the bank to reimburse the first applicant the UAH 11,646 obtained from the sale and ordered the bailiffs to compensate him the UAH 4,054 retained as commission. 5. The applicants appealed on points of law, alleging that the Court of Appeal had erred in reversing the District Court’s judgment, which in their view had been fair. They submitted, in particular, that the bona fide purchaser protection clause[3] meant that their family could only be forced to give up possession if it were established that P.P. had lost possession against his will. The house in question had been the de facto marital property of M.P. and P.P. M.P., who had taken out the loan to pay for medical treatment for S.M. (the couple’s daughter), had had a power of attorney confirming P.P.’s consent for her to pledge it as collateral. The applicants further argued that depriving them of possession of their only home and evicting them from it would place them in a precarious situation. 6. On 6 June 2012 the applicants’ appeal was rejected by the Higher Specialised Civil and Criminal Court, which upheld the Court of Appeal’s reasoning, and by January 2013 the applicants had been evicted. 7. In 2014 the State Treasury returned the enforcement writ against the bailiffs without enforcement. 8. The applicants subsequently brought proceedings against S.M. and the bailiffs for the difference between the compensation awarded by the courts and the 2012 market value of the house. They obtained an expert report assessing the 2012 market value at UAH 233,870[4]. Those proceedings culminated in an award of UAH 27,355[5] against S.M. for the part of the renovation costs which had been supported by receipts of payment. The claim against the bailiffs was dismissed as unfounded at first instance. An appeal by the applicants was not examined because the first applicant refused to pay the required court fee of UAH 4,175. [6]
9. Subsequently, three of the applicants relocated to Belarus and the first applicant obtained Belarusian nationality. THE COURT’S ASSESSMENT
10. The applicants complained that they had been unlawfully and unfairly deprived of their house. 11. The Court takes note of the Government’s objection concerning incompatibility of the second, third and fourth applicants’ complaints ratione materiae with that provision. While recognising that all four applicants might have had some vested pecuniary interest in continuing to live in the house at issue (see Tuleshov and Others v. Russia, no. 32718/02, § 40, 24 May 2007) the Court notes that according to its current settled case-law the right to live in a particular property which one does not own, does not, as a general rule, constitute a “possession” (see, among other authorities, Ponyayeva and Others v. Russia, no. 63508/11, § 36, 17 November 2016). It notes that the domestic judgment regarding annulment of the title to the disputed house concerned the first applicant only. It does not find it warranted in the present case to act as a first-instance court in respect of analysing any proprietary interests of the other applicants, whose complaints concerning the loss of occupancy will be best addressed under Article 8 of the Convention. 12. The Court therefore finds the present complaint admissible in respect of the first applicant and dismisses it in respect of the other applicants as incompatible ratione materiae with Article 1 of Protocol No. 1 (see Ponyayeva and Others, cited above, §§ 32-37). 13. The relevant general principles are set out, in particular, in Beyeler v. Italy ([GC], no. 33202/96, §§ 107-11 and 114, ECHR 2000-I); Maksymenko and Gerasymenko v. Ukraine (no. 49317/07, §§ 49-56 and 60‐64, 16 May 2013); Pyrantienė v. Lithuania (no. 45092/07, §§ 49-73, 12 November 2013); and, more recently, Kryvenkyy v. Ukraine (no. 43768/07, §§ 42-43 and 45, 16 February 2017). 14. In the light of those principles, the Court concludes that the annulment of the first applicant’s title amounted to a “deprivation of possessions”. It accepts that this deprivation had a basis in the provisions of domestic law cited by the Court of Appeal and pursued a legitimate aim, in particular the protection of S.M.’s property rights. 15. In determining whether the measure complained of also struck a fair balance between the competing interests, the Court notes that the first applicant was deprived of his title to the house because the courts found that the private and State actors involved in a combination of transactions culminating in its sale had committed a series of wrongful acts and omissions. It appears that the first applicant had bought the house in good faith and was not responsible for those defects. It follows that the amount of compensation for his loss should have correlated with the actual value of the house at the time of the deprivation (see Pyrantienė, cited above, § 67). 16. While the first applicant was awarded a sum equal to the purchase price of the house, the Court notes, firstly, that nearly one‐third of that award, due from the bailiffs, has not been paid since 2012. This fact alone justifies a finding that the fair balance has been upset (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 54, 15 October 2009). 17. The Court further notes that the aforementioned sum was awarded nearly ten years after the date on which that amount had been paid to purchase the house in question. It does not appear that the restitution mechanism applied by the national courts allowed for any meaningful examination of arguments related to possible losses due to inflation, fluctuating property market prices or other time-sensitive factors. The Court notes that the applicants’ family succeeded, in separate proceedings, in recovering part of their renovation costs from S.M. Nevertheless, it appears that the total award, in addition to having been paid only in part, constituted, at the material time, only about one-fifth of the market value of the house, as estimated by a property expert, whose conclusions the Government did not dispute. 18. In so far as the Government argued that the first applicant had acquired the house at a discounted price, the file contains no conclusive evidence in that regard. The first applicant was the highest bidder at a public auction administered by State officials and cannot therefore be held responsible for the conditions of sale (compare Pyrantienė, cited above, §§ 54 and 59). It is also apparent from the file that in 2003 the first applicant sold the family’s flat for approximately the same price as that invested in buying the house. It has not been shown that in 2013 he could likewise have funded the acquisition of new housing out of the compensation award. The Government’s argument that the applicants could obtain a further award by pursuing proceedings against the bailiffs is unconvincing, as the relevant claim was dismissed at first instance and no evidence has been presented that any settled case-law gave them reasonable prospects of success on appeal. 19. Overall, it appears that, as a result of the decisions made by the domestic courts with a view to protecting the rights of S.M., the former owner’s heir, the expense of correcting the wrongs attributed to third parties, including S.M.’s mother and the State bailiffs, was passed on to the first applicant, who was not responsible for those wrongs. 20. These findings, together with the findings concerning the non‐payment of the court award due from the State bailiffs, show that the first applicant has suffered an individual and excessive burden on account of the deprivation. 21. There has accordingly been a violation of Article 1 of Protocol No. 1. 22. The Court further finds that the applicants’ complaints under Article 8 of the Convention concerning their eviction are admissible and disclose a violation of that provision in the light of the principles developed in its well‐established case-law (see, among other authorities, Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, §§ 51-52, 2 December 2010). 23. Regard being had to the above findings, the Court considers that it has addressed the main legal questions in the present case, and that it is not necessary to address further complaints raised under Article 6 § 1 and Article 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. The first two applicants claimed 20,010 euros (EUR) in respect of pecuniary damage. They submitted that that sum corresponded to the 2012 market value of the first applicant’s house, which was, by implication, their conjugal property, excluding the sums awarded by the domestic courts against S.M. and the bank and multiplied by the official property valuation index. Each of the four applicants further claimed EUR 12,000 in respect of non-pecuniary damage. They also claimed jointly EUR 980 for costs and expenses incurred before the domestic courts. 25. The Government argued that the first applicant had been awarded fair compensation at domestic level and that all the other claims were unsubstantiated and irrelevant. 26. Ruling on an equitable basis (see Kryvenkyy, cited above, §§ 52-53), the Court finds it appropriate to award the applicants jointly EUR 26,000 under all heads, plus any tax that may be chargeable on that amount. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants jointly, within three months, an aggregate sum of EUR 26,000 (twenty-six thousand euros), to be converted, if necessary, 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 that amount;
(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 21 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Lado Chanturia Deputy Registrar President
APPENDIX
List of applicants:
Application no. 77736/12
No. Applicant’s Name and Year of birth
Relationship to other applicants
Nationality
Place of residence
1. Lev Lvovych YAKOBSON
1962 (first applicant)
Spouse of the second applicant and father of the third and fourth applicants
Ukrainian on the date of lodging the application; subsequently changed to Belarusian
Baranovichi, Belarus
2. Inna Fedorivna
YAKOBSON
1963 (second applicant)
Spouse of the first applicant and mother of the third and fourth applicants
Ukrainian on the date of lodging the application
Baranovichi, Belarus
3. Yevgeniy Lvovych YAKOBSON
1986 (third applicant)
Son of the first and second applicants and brother of the fourth applicant
Ukrainian on the date of lodging the application
Baranovichi, Belarus
4. Artur Lvovych YAKOBSON
1993 (fourth applicant)
Son of the first and second applicants and brother of the third applicant
Ukrainian on the date of lodging the application
Ukraine,
no permanent residence currently registered
[1] This payment, which amounted to approximately 2,300 euros (EUR) at the material time, comprised UAH 11,646 in unpaid debt claimed by the bank and UAH 4,054 retained by bailiffs as commission. [2] Around EUR 2,500 at the material time. [3] Article 145 of the Civil Code of 1963, in force at the time of the disputed transaction. [4] Approximately EUR 22,000 in January 2013. [5] Approximately EUR 1,700 in June 2014, when the award was made. [6] Approximately EUR 150 at the material time. FIFTH SECTION
CASE OF YAKOBSON v. UKRAINE
(Application no. 77736/12)
JUDGMENT
STRASBOURG
21 November 2024
This judgment is final but it may be subject to editorial revision. In the case of Yakobson v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lado Chanturia, President, Mykola Gnatovskyy, Úna Ní Raifeartaigh, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 77736/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 November 2012 by a family of four, who, at the time of lodging their application, were Ukrainian nationals, and whose relevant details are listed in the appended table, (“the applicants”) and who, having been granted legal aid, were represented by Mr R.V. Kotyk, residing in Kotykivka;
the decision to give notice of the complaints listed in paragraph 1 below to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 24 October 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the fairness and necessity of the annulment of the first applicant’s title to a house and the applicants’ eviction from it. The applicants also raised complaints concerning the fairness and length of civil proceedings and access to an appellate court. They relied on Articles 6, 8 and 13 of the Convention and on Article 1 of Protocol No. 1. 2. In June 2005 P.P., the former owner of a house acquired by the first applicant in 2003 at a public auction administered by the State Bailiffs, instituted proceedings seeking to reclaim it as having been unlawfully sold. An eviction claim against the applicants was subsequently added to the proceedings. 3. On 2 December 2011, after two rounds of proceedings at three levels of jurisdiction, the Tysmenytsky District Court dismissed P.P.’s claims, which were pursued following his death by his daughter, S.M. It noted that the first applicant had bought the house in question in 2003 for a total fee of 15,700 Ukrainian hryvnias (UAH)[1]. The house had been put up for sale at a public auction as M.P., P.P.’s wife, who had pledged it to private bank P. as collateral for her loan, had defaulted on repayment. The court held that the pledge agreement had been lawful as M.P. had had a power of attorney from P.P. authorising her to undertake any transactions relating to the house. The bailiffs had advertised the house at a price agreed upon by the parties to the pledge agreement and, as such, the sale had also been lawful. The first applicant had financed the purchase of the house through the sale of his family’s previous residence for UAH 17,172[2]. He had purchased it in good faith and his family had settled there. In the court’s view, the defendants could not be forced to give up possession of the house or be evicted. 4. On 31 January 2012 the Ivano-Frankivsk Court of Appeal allowed an appeal by S.M. It found, in particular, that M.P. had not had the authority to secure her personal loan against P.P.’s house; that the bank had breached the foreclosure procedure as it had not shown that P.P. had received notification of its intention to foreclose; that the notary had breached the rules for validating the foreclosure as P.P.’s notification status had not been checked; and that the bailiffs had set an unfairly low sale price and had not collected full information as to the ownership status of the property. In view of the various defects, the pledge, foreclosure and sale of the house had to be declared void; the first applicant’s title had to be annulled; and his family had to be evicted as they had lost their right to occupy the house. The court further ordered the bank to reimburse the first applicant the UAH 11,646 obtained from the sale and ordered the bailiffs to compensate him the UAH 4,054 retained as commission. 5. The applicants appealed on points of law, alleging that the Court of Appeal had erred in reversing the District Court’s judgment, which in their view had been fair. They submitted, in particular, that the bona fide purchaser protection clause[3] meant that their family could only be forced to give up possession if it were established that P.P. had lost possession against his will. The house in question had been the de facto marital property of M.P. and P.P. M.P., who had taken out the loan to pay for medical treatment for S.M. (the couple’s daughter), had had a power of attorney confirming P.P.’s consent for her to pledge it as collateral. The applicants further argued that depriving them of possession of their only home and evicting them from it would place them in a precarious situation. 6. On 6 June 2012 the applicants’ appeal was rejected by the Higher Specialised Civil and Criminal Court, which upheld the Court of Appeal’s reasoning, and by January 2013 the applicants had been evicted. 7. In 2014 the State Treasury returned the enforcement writ against the bailiffs without enforcement. 8. The applicants subsequently brought proceedings against S.M. and the bailiffs for the difference between the compensation awarded by the courts and the 2012 market value of the house. They obtained an expert report assessing the 2012 market value at UAH 233,870[4]. Those proceedings culminated in an award of UAH 27,355[5] against S.M. for the part of the renovation costs which had been supported by receipts of payment. The claim against the bailiffs was dismissed as unfounded at first instance. An appeal by the applicants was not examined because the first applicant refused to pay the required court fee of UAH 4,175. [6]
9. Subsequently, three of the applicants relocated to Belarus and the first applicant obtained Belarusian nationality. THE COURT’S ASSESSMENT
10. The applicants complained that they had been unlawfully and unfairly deprived of their house. 11. The Court takes note of the Government’s objection concerning incompatibility of the second, third and fourth applicants’ complaints ratione materiae with that provision. While recognising that all four applicants might have had some vested pecuniary interest in continuing to live in the house at issue (see Tuleshov and Others v. Russia, no. 32718/02, § 40, 24 May 2007) the Court notes that according to its current settled case-law the right to live in a particular property which one does not own, does not, as a general rule, constitute a “possession” (see, among other authorities, Ponyayeva and Others v. Russia, no. 63508/11, § 36, 17 November 2016). It notes that the domestic judgment regarding annulment of the title to the disputed house concerned the first applicant only. It does not find it warranted in the present case to act as a first-instance court in respect of analysing any proprietary interests of the other applicants, whose complaints concerning the loss of occupancy will be best addressed under Article 8 of the Convention. 12. The Court therefore finds the present complaint admissible in respect of the first applicant and dismisses it in respect of the other applicants as incompatible ratione materiae with Article 1 of Protocol No. 1 (see Ponyayeva and Others, cited above, §§ 32-37). 13. The relevant general principles are set out, in particular, in Beyeler v. Italy ([GC], no. 33202/96, §§ 107-11 and 114, ECHR 2000-I); Maksymenko and Gerasymenko v. Ukraine (no. 49317/07, §§ 49-56 and 60‐64, 16 May 2013); Pyrantienė v. Lithuania (no. 45092/07, §§ 49-73, 12 November 2013); and, more recently, Kryvenkyy v. Ukraine (no. 43768/07, §§ 42-43 and 45, 16 February 2017). 14. In the light of those principles, the Court concludes that the annulment of the first applicant’s title amounted to a “deprivation of possessions”. It accepts that this deprivation had a basis in the provisions of domestic law cited by the Court of Appeal and pursued a legitimate aim, in particular the protection of S.M.’s property rights. 15. In determining whether the measure complained of also struck a fair balance between the competing interests, the Court notes that the first applicant was deprived of his title to the house because the courts found that the private and State actors involved in a combination of transactions culminating in its sale had committed a series of wrongful acts and omissions. It appears that the first applicant had bought the house in good faith and was not responsible for those defects. It follows that the amount of compensation for his loss should have correlated with the actual value of the house at the time of the deprivation (see Pyrantienė, cited above, § 67). 16. While the first applicant was awarded a sum equal to the purchase price of the house, the Court notes, firstly, that nearly one‐third of that award, due from the bailiffs, has not been paid since 2012. This fact alone justifies a finding that the fair balance has been upset (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 54, 15 October 2009). 17. The Court further notes that the aforementioned sum was awarded nearly ten years after the date on which that amount had been paid to purchase the house in question. It does not appear that the restitution mechanism applied by the national courts allowed for any meaningful examination of arguments related to possible losses due to inflation, fluctuating property market prices or other time-sensitive factors. The Court notes that the applicants’ family succeeded, in separate proceedings, in recovering part of their renovation costs from S.M. Nevertheless, it appears that the total award, in addition to having been paid only in part, constituted, at the material time, only about one-fifth of the market value of the house, as estimated by a property expert, whose conclusions the Government did not dispute. 18. In so far as the Government argued that the first applicant had acquired the house at a discounted price, the file contains no conclusive evidence in that regard. The first applicant was the highest bidder at a public auction administered by State officials and cannot therefore be held responsible for the conditions of sale (compare Pyrantienė, cited above, §§ 54 and 59). It is also apparent from the file that in 2003 the first applicant sold the family’s flat for approximately the same price as that invested in buying the house. It has not been shown that in 2013 he could likewise have funded the acquisition of new housing out of the compensation award. The Government’s argument that the applicants could obtain a further award by pursuing proceedings against the bailiffs is unconvincing, as the relevant claim was dismissed at first instance and no evidence has been presented that any settled case-law gave them reasonable prospects of success on appeal. 19. Overall, it appears that, as a result of the decisions made by the domestic courts with a view to protecting the rights of S.M., the former owner’s heir, the expense of correcting the wrongs attributed to third parties, including S.M.’s mother and the State bailiffs, was passed on to the first applicant, who was not responsible for those wrongs. 20. These findings, together with the findings concerning the non‐payment of the court award due from the State bailiffs, show that the first applicant has suffered an individual and excessive burden on account of the deprivation. 21. There has accordingly been a violation of Article 1 of Protocol No. 1. 22. The Court further finds that the applicants’ complaints under Article 8 of the Convention concerning their eviction are admissible and disclose a violation of that provision in the light of the principles developed in its well‐established case-law (see, among other authorities, Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, §§ 51-52, 2 December 2010). 23. Regard being had to the above findings, the Court considers that it has addressed the main legal questions in the present case, and that it is not necessary to address further complaints raised under Article 6 § 1 and Article 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. The first two applicants claimed 20,010 euros (EUR) in respect of pecuniary damage. They submitted that that sum corresponded to the 2012 market value of the first applicant’s house, which was, by implication, their conjugal property, excluding the sums awarded by the domestic courts against S.M. and the bank and multiplied by the official property valuation index. Each of the four applicants further claimed EUR 12,000 in respect of non-pecuniary damage. They also claimed jointly EUR 980 for costs and expenses incurred before the domestic courts. 25. The Government argued that the first applicant had been awarded fair compensation at domestic level and that all the other claims were unsubstantiated and irrelevant. 26. Ruling on an equitable basis (see Kryvenkyy, cited above, §§ 52-53), the Court finds it appropriate to award the applicants jointly EUR 26,000 under all heads, plus any tax that may be chargeable on that amount. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants jointly, within three months, an aggregate sum of EUR 26,000 (twenty-six thousand euros), to be converted, if necessary, 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 that amount;
(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 21 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Lado Chanturia Deputy Registrar President
APPENDIX
List of applicants:
Application no. 77736/12
No. Applicant’s Name and Year of birth
Relationship to other applicants
Nationality
Place of residence
1. Lev Lvovych YAKOBSON
1962 (first applicant)
Spouse of the second applicant and father of the third and fourth applicants
Ukrainian on the date of lodging the application; subsequently changed to Belarusian
Baranovichi, Belarus
2. Inna Fedorivna
YAKOBSON
1963 (second applicant)
Spouse of the first applicant and mother of the third and fourth applicants
Ukrainian on the date of lodging the application
Baranovichi, Belarus
3. Yevgeniy Lvovych YAKOBSON
1986 (third applicant)
Son of the first and second applicants and brother of the fourth applicant
Ukrainian on the date of lodging the application
Baranovichi, Belarus
4. Artur Lvovych YAKOBSON
1993 (fourth applicant)
Son of the first and second applicants and brother of the third applicant
Ukrainian on the date of lodging the application
Ukraine,
no permanent residence currently registered
[1] This payment, which amounted to approximately 2,300 euros (EUR) at the material time, comprised UAH 11,646 in unpaid debt claimed by the bank and UAH 4,054 retained by bailiffs as commission. [2] Around EUR 2,500 at the material time. [3] Article 145 of the Civil Code of 1963, in force at the time of the disputed transaction. [4] Approximately EUR 22,000 in January 2013. [5] Approximately EUR 1,700 in June 2014, when the award was made. [6] Approximately EUR 150 at the material time.