CASE OF ANDRIY RUDENKO v. UKRAINE
Violation of P1-1
Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant was born in 1941 and lives in Kyiv. 5. On 30 July 2003 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against his former wife and mother-in-law, Ms R. and Ms I., seeking division of their jointly owned property, a three-room flat. In particular, the applicant requested the court to rule that one room be separated from the flat and to grant him title to that room. He submitted that the defendants did not allow him to enter the flat and that he had been forced to reside elsewhere. 6. The defendants lodged a counterclaim, asking the court to grant them joint title to the applicant's part of the flat and to fix the amount of compensation they would have to pay the applicant. They argued that, due to personal conflicts with the applicant, they could not all live together in one flat. 7. On 28 May 2004 the court ruled in favour of the defendants. It found, relying on an expert's report, that it was not technically possible to separate a single room from the flat. Relying on Article 115 of the Civil Code of 1963, the court granted the defendants title to the entire flat and ordered them to pay the applicant 121,747.60 Ukrainian hryvnias (UAH) in compensation. 8. The applicant appealed, stating in particular that he had been deprived of his property against his will and in violation of the law, and that the defendants had failed to transfer the money to the deposit account of the court in order to prove their ability to pay the amount awarded to him in compensation. 9. On 14 September 2004 the Kyiv City Court of Appeal partially changed the judgment of the first-instance court. It ruled that the latter court had wrongly relied on Article 115 of the Civil Code of 1963, instead of Articles 364 and 365 of the Civil Code of 2003, which were applicable in the case. The Court of Appeal rejected the applicant's appeal, holding, inter alia, that the defendants' ability to pay the award had been confirmed by a bank statement, according to which the applicant's former wife had a balance of 23,000 United States dollars (USD) on her deposit account. 10. The applicant appealed in cassation, alleging that the lower courts had misinterpreted the law. According to him, the courts had failed to take into account the fact that he had not given his consent for compensation pursuant to Article 364 of the Civil Code of 2003 and that they had failed to ensure that the requirement laid down in paragraph 2 of Article 365 of the Civil Code of 2003 had been fulfilled by the defendants. 11. On 16 June 2005 a panel of three judges of the Supreme Court dismissed the applicant's appeal, finding no grounds on which to transfer the case for consideration by the chamber of the Supreme Court. 12. The applicant did not institute enforcement proceedings in order to recover the sum awarded to him by the courts. According to the applicant, he did not receive the compensation awarded in the judgment of 28 May 2004 because the debtors refused to pay it as they did not have sufficient funds. 13. By a judgment of 11 July 2006, the Shevchenkivskyy District Court ruled to discontinue the applicant's registration at the flat. On 23 August 2006 an appeal by the applicant against that judgment was rejected as lodged out of time. The applicant did not appeal in cassation. 14. Relevant extracts from the Constitution read as follows: “Everyone has the right to own, use and dispose of his property ... No one shall be unlawfully deprived of the right of property. The right of private property is inviolable. The expropriation of objects of the right of private property may be applied only as an exception for reasons of public necessity, on the grounds and through the procedure established by law, and on the condition of advance and full compensation of their value. The expropriation with subsequent full compensation of their value is permitted only in the conditions of martial law or a state of emergency. ...” 15. The relevant provisions of the Civil Code of 2003 read as follows: “1. An individual co-owner is entitled to the physical separation of a part of a jointly owned property with determined shares [of each co-owner]. 2. If [such] a separation ... is not permitted by the law or is impossible (paragraph 2 of Article 183 of this Code), the individual co-owner ... is entitled to receive monetary or other pecuniary compensation for his part from the other co-owners. Compensation may only be provided with his consent ...” “1. The right to a part of a jointly owned property may cease to exist pursuant to a court decision [taken] further to a claim by other co-owners, if: 1) the part is minor and cannot be physically detached; 2) the object is indivisible; 3) joint possession and use of the property is impossible; 4) the cessation of the right will not cause substantial damage to the interests of the co-owner or members of his or her family. 2. The court shall take a decision terminating a person's title to a part of a joint property on the condition that the claimant makes an advance payment of the cost of that part to the court's deposit account.” 16. By decision of 23 May 2007, the Supreme Court quashed the judgment of the lower court in a dispute between private persons concerning division of their jointly owned flat and remitted the case for fresh consideration for the following reasons: “... The Court of Appeal terminating the right of [a party] to part of the flat did not comply with the condition set in paragraph 2 of Article 365 of the Civil Code which led to the incorrect determination [of the dispute]. [The opposing party] was not present at the hearing before the Appeal Court and that court did not check the conditions of payment of compensation... Given the above breach of the law, the judgment of the Court of Appeal concerning the division of the flat shall be quashed ...” 17. The Supreme Court's decision of 17 February 2010, by which it quashed the lower courts' decisions in a dispute concerning division of the property jointly owned by private individuals, was inter alia based on the similar ground. In particular, the relevant parts of the Supreme Court's decision read as follows: “... By the decision of the Court of Appeal, [a party's] title to part of joint property was terminated, though in the case material there is no information concerning advance payment by [the opposing party] of the cost of that part into the court's deposit account. In such circumstances the challenged court decisions do not comply with the requirements of lawfulness and reasonableness ... and must be quashed with the referral of the case for new consideration...” 18. In that decision the Supreme Court also noted that: “... The legal nature of the provisions [of Articles 364 and 365] of the Civil Code of Ukraine differs; each of the provisions is a separate ground for lodging a claim; the first provides for the right of a owner, who withdraws [from joint ownership], to a part of a joint property, whereas the second provides for the possibility of terminating the right of a person to a part of a joint property upon a claim of other co-owners. In this context, monetary or other type of pecuniary compensation under Article 364 of the Civil Code of Ukraine may be paid to a co-owner, who withdraws [from joint ownership], only with his consent. Whereas, under Article 365 of the Civil Code of Ukraine no consent to obtain compensation ... by a person whose right to a part of a joint property is being terminated is necessary (the claimant is only required to pay the cost of the part of property, the right to which is being terminated, to the court's deposit account). ... [Articles 364 and 365 of the Civil Code] are mutually exclusive and cannot be applied at the same time ...”