FIFTH SECTIONCASE OF TVERDOKHLEBOVA v. UKRAINE(Application no. 15830/16) JUDGMENTArt 1 P1 • Deprivation of property • Annulment of the applicant’s title to plot of land, bought from a private person who had acquired it from the State, as a result of the prosecutor’s action to have that land returned to the State • Applicant successfully claimed compensation from the seller • Case distinguished from those where the Court found a requirement to bring separate compensation proceedings against former owners to be too formalistic and an excessive burden or the compensation mechanism to be devoid of effectiveness • Despite reasons underlying title invalidation being attributable to the State authorities, in case-circumstances fair balance struck between competing interestsArt 6 § 1 (civil) • Fair hearing • Domestic courts’ failure to ensure the applicant was notified of the proceedings • Applicant deprived of the opportunity to present her arguments before the lower courts • Failure not remedied during cassation proceedings Prepared by the Registry. Does not bind the Court. STRASBOURG16 January 2025 FINAL 16/04/2025 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Tverdokhlebova v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mattias Guyomar, President, María Elósegui, Gilberto Felici, Andreas Zünd, Diana Sârcu, Kateřina Šimáčková, Mykola Gnatovskyy, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the application (no. 15830/16) 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, Ms Roza Borisovna Tverdokhlebova (“the applicant”), on 12 March 2016;the decision to give notice to the Ukrainian Government (“the Government”) of the applicant’s complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention;the parties’ observations;Having deliberated in private on 26 November 2024,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The application concerns the applicant’s deprivation of her title to a plot of land as a result of the prosecutor’s action to have that land returned to the State, and the alleged unfairness of the relevant proceedings on account of the applicant’s not having been informed of those proceedings. The applicant referred to Article 6 of the Convention and Article 1 of Protocol No.1 to the Convention.THE FACTS2. The applicant was born in 1965 and lives in Kyiv.3. The Government were represented by their Agent, Ms M. Sokorenko.4. The facts of the case may be summarised as follows.5. In 2011 the Brovary District State Administration allocated to D. a plot of land measuring 1.8 ha for individual farming. D. subsequently divided the land into two parts (of 1.62 ha and 0.18 ha) and changed its purpose to “gardening”.6. In November 2013 the applicant bought the smaller of the two plots of land from D. According to the sales contract, the value of the land was “147,600 Ukrainian hryvnias [UAH, equal to] 18,000 United States dollars [USD] on the day the contract was signed, the amount having been received [in the latter currency] by [D.]”.7. In June 2014 a local prosecutor applied to the local court seeking the invalidation of the decision allocating the disputed land to D. and his title to it, as well as of the contract between D. and the applicant and the applicant’s title. The prosecutor argued that the land at issue was located within Bohdanivka village and so could not have been disposed of by the Brovary District State Administration.8. The prosecutor’s claims were rejected by the local court but were granted on appeal by a judgment of the Kyiv Region Court of Appeal of 14 May 2015. The appellate court referred to another set of proceedings regarding the initial big plot of land (but between different parties) in which it had been established, based on – among other things – the conclusions of a forensic technical expert assessment, that the land at issue was located within the boundaries of Bohdanivka village. The court invalidated the applicant’s title and restored the land to the village’s ownership.9. According to the applicant, she had not been informed of the proceedings by either the local court or the court of appeal. In particular, she submitted that all of the relevant summonses had been sent by the courts to an allegedly non-existent address at 6 Krasovskyy Street in the city of Brovary, when she in fact resided at an address in Kyiv. The applicant stated that she had found out about the proceedings in May 2015, after the appellate court had given judgment. It had been at that point that her representative had familiarised himself with the case file. The applicant had then submitted a cassation appeal in which she had raised her complaints, stating that the courts’ failure to notify her of the proceedings had been a gross violation of procedural law. In her cassation appeal she had pointed out that in the sales contract of 2013, which had been available to, and relied upon by the prosecutor, it was indicated that her address was in Kyiv. The applicant had also listed the letters and summonses available in the case file – all of which had been sent to the wrong address. Moreover, the letters that had been sent by registered post had been returned to the courts as undelivered. Lastly, the applicant had argued that the lower courts had applied the relevant land legislation erroneously and disregarded certain pieces of evidence related to the factual basis of the case. D. also submitted a cassation appeal.10. On 16 September 2015 the Higher Specialized Court for Civil and Criminal Cases upheld the findings of the appellate court. It noted that the appellate court had comprehensively established the facts of the case based on the evidence before it and duly applied domestic law. It also stated that the “other [arguments presented in the] cassation appeal [had] not been borne out by the case file materials”.11. In their observations the Government informed the Court that the applicant had initiated proceedings against D. to have the money she had paid him for the land returned to her. By a judgment of the Brovary Local Court of Kyiv Region of 10 December 2019 her claims had been upheld based on the provisions of Article 216 of the Civil Code of Ukraine (Legal consequences of an invalid deed), which provides, inter alia, that if a deed is found to be invalid each party is obliged to return in kind everything that was received for the execution of that deed to the other party. The applicant had been awarded UAH 426,393.20 (USD 18,000 at the exchange rate when the judgment was given), as well as damages in the amount of UAH 4,037 (approximately 154 euros (EUR) at the time) covering the notary fees for concluding the sales contract and land tax. On 4 June 2020 that judgment was upheld on appeal and became final and enforceable.12. As can be seen from the documents submitted by the applicant, enforcement proceedings were initiated against D. in July 2022. The applicant alleged that the judgment had remained unenforced but did not provide any details about the reasons why the judgment could not be enforced or state whether she had ever challenged the bailiffs’ actions in the framework of those enforcement proceedings.13. Lastly, as is apparent from the documents provided by the applicant, in 2021 she obtained permission from the local authorities to prepare technical documentation to obtain a plot of land of 0.18 ha for individual farming in the village of Bohdanivka. The applicant did not, however, provide any information as to whether that procedure had been finalised and whether she had obtained the title to that plot of land.RELEVANT LEGAL FRAMEWORKCivil code (2003)14. The relevant provisions of the Civil Code of Ukraine as regards property disputes are summarised in, for example, Kanevska v. Ukraine, no. 73944/11, §§ 27-29, 17 November 2020.15. Furthermore, Article 661 of the Code provides that if goods that have been sold are seized from the buyer in favour of a third party upon a court decision on grounds that arose before the sale of the goods, the buyer is entitled to receive compensation for damage from the seller, provided that the buyer did not know or could not have known about the existence of those grounds.Code of civil Procedure (2004)16. Article 74 of the Code of Civil Procedure, as in force at the material time, set out the rules for the notification of parties to proceedings. In particular, it provided that court summons (together with copies of the relevant documents, where applicable) should be sent by registered post or by a courier service to the address specified by the party or other person participating in the case. If the parties to the proceedings did not provide their addresses, court summons should be sent to their registered place of residence (for private persons). In that case the summons is considered to have been duly served on them, whether or not they were actually living at that address.The parties to the proceedings could be notified of proceedings or summoned to court by sending a telegram, a fax or by other means of communication that ensure the recording of the message. If the person concerned did not reside at the address notified to the court, the summons could be sent to his or her place of work.Lastly, a defendant whose registered place of residence or place of work was unknown should be summoned to the court by means of the publication of an announcement in the media.17. Under Article 324 of the Code the grounds for a cassation appeal include the incorrect application of substantive or procedural law. In the framework of a cassation review the court should verify, within the scope of the cassation appeal, the correctness of the application of the provisions of substantive or procedural law by the court of first or appellate instance and cannot establish or consider as established any circumstances that had not been established by the lower courts or that had been rejected by them; nor can it resolve an issue of the reliability or unreliability of a particular piece of evidence or the relative reliability of one piece of evidence vis-à-vis the others (Article 335).

Outcome for Article P1-1: no_violation