This application concerns, in the main, the allegedly unjustified interference with the applicant’s property rights under Article 1 of Protocol No. 1 and her related rights under Article 8 of the Convention. Allegedly, the domestic proceedings regarding those matters were conducted in an unfair manner and for an excessively lengthy period of time, in violation of Article 6 § 1 of the Convention.
CASE OF ZHURA v. UKRAINE
(Application no. 66191/10)
22 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Zhura v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ivana Jelić, President,
Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 66191/10) 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 Lidiya Volodymyrivna Zhura (“the applicant”), on 5 November 2010;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the parties’ observations;
the decision to reject the Government’s objection to the examination of the application by a Committee;
Having deliberated in private on 10 February 2022,
Delivers the following judgment, which was adopted on that date:
1. This application concerns, in the main, the allegedly unjustified interference with the applicant’s property rights under Article 1 of Protocol No. 1 and her related rights under Article 8 of the Convention. Allegedly, the domestic proceedings regarding those matters were conducted in an unfair manner and for an excessively lengthy period of time, in violation of Article 6 § 1 of the Convention.
2. The applicant was born in 1956 and lives in Kyiv. She was represented initially by Mr M. Shemiatkin and subsequently by Ms V. Zhura, lawyers practising in Kyiv.
3. The Government were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. In 1999 the Kyiv City Council and the Kyiv City Administration expropriated a land plot and a house which belonged to the applicant’s father, K., as a new line of the underground railways was to be constructed there. As compensation for the expropriated property, the municipal authorities, inter alia, provided him with a land plot and ordered their subordinate bodies to construct a new house for him.
6. The land plot previously belonging to K. was allocated to a municipal company Kyivskyy Metropoliten (“the KM”), which, in turn, contracted a joint stock company Kyivmetrobud (“the KMB”) for the construction of a new house for K. at the expense of the municipal budget.
7. In January 2001 the house was constructed. The local authorities officially approved that it could be used for living and gave K. an owner’s certificate.
8. In November 2001 K. initiated civil proceedings against the local authorities, the KM and the KMB. Relying on several expert reports, he submitted that the new house had been built with substantial breaches of the construction norms and standards and was not suitable for living. He, inter alia, asked the court to order the KM “to ensure that the construction was in accordance with the relevant standards” and sought compensation for non-pecuniary damage.
9. In May 2002 K. died. The applicant inherited his property, including the house at issue, and was granted leave to enter the proceedings as his legal successor. She partly changed the claims and sought compensation for pecuniary and non-pecuniary damage caused by the defected construction.
10. In February 2003 the KM brought a counterclaim against the applicant and two other members of her family, who were officially registered as living in the house at issue. The KM argued that the house was in an unsatisfactory condition, that living there was dangerous, that it had to be repaired by the KMB pursuant to the warranty clauses of the house’s “technical passport” (технічний паспорт), that the applicant and her family members had refused to allow the KMB to repair the house and had not wished to move to a temporary residence which the local authorities allocated for them in Kyiv – a flat of around 39 square meters of living space. The KM sought their temporary eviction from the house for the time which would be necessary to perform repair works.
11. On 1 June 2004 the Svyatoshynskyy District Court of Kyiv (“the Svyatoshynskyy Court”) allowed the applicant’s claim in part and dismissed the KM’s counterclaim. The court awarded the applicant various sums for pecuniary and non-pecuniary damage, as well as for procedural costs and expenses. The court found that the house had been constructed with serious defects and that its condition, which was in the state of emergency, was deteriorating. The court ruled that both the KM and the KMB had been responsible for those defects and ordered them to pay 30% and 70% of the awarded amounts respectively. The court relied on, inter alia, Articles 353‑355, 440, 440-1, 441, 451 and 453 of the Civil Code of 1963 and section 48 of the Property Act of 1991 (see paragraphs 29, 30 and 41 below).
12. On 26 August 2004 the Kyiv City Court of Appeal (“the Court of Appeal”) allowed the appeals of the KM and the KMB, quashed the aforementioned judgment and delivered a new judgment rejecting the applicant’s claims and allowing in part the KM’s counterclaim. It held that the construction had been flawed and that the house had to be repaired by the KM and the KMB. It also noted that those entities and the local authorities had offered temporary dwelling to those who had been residing in the house in order to conduct the necessary repair works, but the latter had refused that offer. The Court of Appeal therefore ordered the applicant not to hinder the works which the KM and the KMB had to perform in order to repair the house. It also noted that at the time no person was living in the house.
13. On 7 December 2005 the Supreme Court quashed both judgments of the lower courts and remitted the case for a fresh examination to the first‑instance court. Relying on, inter alia, Article 46 of the Land Code of 1990 and the Resolution no. 13 of the Plenary Supreme Court of 25 December 1996 (see paragraphs 36 and 43 below), it held that the lower courts had not established the circumstances of the case in a comprehensive manner, had not defined the nature of the legal relations at issue, had not established who had caused the damage to the applicant and who should have borne the responsibility for the consequences. The Supreme Court also found that the Court of Appeal had disregarded the fact that the applicant had opted for receiving compensation for the cost of the necessary repair works, which she had wished to carry out herself.
14. On 18 May 2007 the applicant and the KM withdrew their claims against each other, and consequently the Svyatoshynskyy Court terminated the proceedings in that part.
15. On 6 December 2007 the applicant further amended her claims, mainly requesting the court to order the Kyiv City Council, the Kyiv City Administration and the KMB to pay her 1,266,636 Ukrainian hryvnias (UAH, the equivalent of around 169,000 euros (EUR) at the material time) as compensation for pecuniary damage and other sums for non-pecuniary damage and procedural costs and expenses.
16. The applicant’s amended claims were based on, inter alia, the expert reports of the Kyiv Scientific Research Institute of Forensic Expert Examinations of the Ministry of Justice (“the KSRI”) of 19 September 2006 and 20 November 2007, according to which the aforementioned sum corresponded to the cost of the required repairs of the house which was in the state of emergency and the “permanent safe living” in which was impossible. According to the KSRI, the origin of all the defects was in the flawed construction of the house in breach of various standards and norms. The KSRI also noted that the condition of the house had deteriorated since October 2001, which could have been prevented, had the necessary repair works been timely performed.
17. On 25 December 2007 the Svyatoshynskyy Court, relying on, inter alia, the aforementioned expert reports of 19 September 2006 and 20 November 2007 and invoking Articles 46 and 89 of the Land Code of 1990 and Articles 1210 and 1211 of the Civil Code of 2003 (see paragraphs 32 and 36 below), allowed the applicant’s claim in part and awarded her the requested sum of UAH 1,266,636 (the equivalent of around EUR 169,000 at the material time) as compensation for pecuniary damage and a sum for costs and expenses to be paid by the KMB, which was held to be solely responsible for the damage caused to her. The applicant’s claim for non-pecuniary damage was dismissed as unfounded.
18. The court noted that the KM was a communal company subordinate to the Kyiv City Administration which in 1999 had entrusted the former to construct a new house for the applicant’s father, even though its statutory activities had not included the designing and construction of residential houses. In 2000 the Kyiv City Administration had established a “city headquarters for the coordination of the activities related to the extension of the underground railways”. Subsequently, the mentioned “headquarters” had decided that the new house had had to be constructed by the KMB.
19. On 27 August 2008 the Court of Appeal quashed the judgment of 25 December 2007 and delivered a new judgment rejecting the applicant’s claims. In particular, it agreed with the argument of the KMB that the first‑instance court had erroneously relied on Articles 1210 and 1211 of the Civil Code of 2003 which concerned extra-contractual obligations, whereas there had been a contract for the house construction between the KMB and the KM. The ultimate liability for the damage to the house, as established by the expert reports of 19 September 2006 and 20 November 2007, therefore lied with the latter. However, the applicant had withdrawn her claims against the KM. The Court of Appeal relied on Articles 46 and 89 of the Land Code of 1990 and the Plenary Supreme Court’s Resolution no. 13 of 25 December 1996 (see paragraphs 36 and 43 below).
20. On 4 March 2009 the Supreme Court allowed the applicant’s cassation appeal, quashed the judgment of the Court of Appeal of 27 August 2008 and upheld the judgment of the Svyatoshynskyy Court of 25 December 2007. The Supreme Court agreed with the latter’s finding that the KMB had to compensate the pecuniary damage caused to the applicant pursuant to Articles 1210 and 1211 of the Civil Code of 2003 (see paragraph 32 below).
21. On 15 April 2009 the Bailiffs’ Service initiated enforcement proceedings in that regard.
22. On 22 April 2009 the KMB lodged with the Supreme Court an “appeal in the light of exceptional circumstances” under Article 354 of the Code of Civil Procedure of 2004 (see paragraph 38 below) against its decision of 4 March 2009, stating that it had led to a divergent application of Article 5 of the Civil Code of 2003 (see paragraph 31 below) concerning the temporal validity of civil legislation.
23. On 16 June 2009 the Supreme Court ruled that the KMB’s appeal was admissible and that the enforcement proceedings had to be stayed.
24. On 24 June 2009 the Supreme Court sent that ruling together with copies of the KMB’s appeal to the parties, including the applicant.
25. According to the applicant, she submitted no comments in reply, because she had not been expressly invited to do so.
26. On 6 May 2010 the Supreme Court, sitting in camera without summoning the parties, allowed the KMB’s appeal. It quashed the decision of 4 March 2009 as erroneous and upheld the appellate court’s judgment of 27 August 2008. It held that the Civil Code of 1963 – in particular, its Article 440 on tort liability – had to be applied ratione temporis to the dispute in question. In that regard, the Supreme Court cited a number of its decisions delivered between 2005 and 2008.
27. The Supreme Court further stated that Article 1210 of the Civil Code of 2003, which had entered into force on 1 January 2004, applied to contractual relations, whereas no such relations existed between the applicant and the KMB.
28. According to the applicant’s submissions in November 2010 and August 2014, she and her family lived in the house in question. She provided colour photographs of the exterior and the interior of that house, which showed multiple cracks in the walls, some wide enough to see through. The floor in one of the rooms sunk in deeply.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. CIVIL CODE OF 1963 AND CIVIL CODE OF 2003
29. Articles 353-357 of the Civil Code of 1963 (repealed with the effect from January 2004) set out regulations applicable to relations between entities emerging from contracts for “capital construction” (капітальне будівництво). The entities which ordered construction works had to control and supervise the works, while the contractors were obliged to rectify at their cost any defects for which they were responsible.
30. Articles 440 and 440-1 stipulated that those who were responsible for pecuniary or non-pecuniary damage to a physical or legal person had to compensate it in full. Pursuant to Article 441, the entity, whose employees, while performing their duties, caused damage to third persons, bore the obligation to compensate it. Article 451 provided for solidary liability vis‑à‑vis the victim where several persons were responsible for the damage. Pursuant to Article 453, the courts had the power to decide whether in the circumstances of the case those responsible for the damage had to rectify the defects or to fully compensate the damage.
31. The Civil Code of 2003, which replaced the Civil Code of 1963, stipulates that it regulates civil relations emerging following its entry into force in January 2004. It further provides that it applies to “the rights and obligations emerging after its entry into force, even if the relevant civil relations existed prior to that” (Article 5 of the Code and paragraph 4 of its final and transitional provisions).
32. Articles 1209-1211, which are part of the provisions of the Civil Code of 2003 regulating “extra-contractual obligations” (позадоговірні зобов’язання), contain compensation guarantees applicable in case of damage caused by the functional, technological or other defects of goods or works (services). As worded at the material time, Articles 1209-1211 provided, inter alia, that the damage caused by the defected works (services) had to be compensated by those who performed the works (services), irrespective of whether or not the latter were responsible for the damage and whether or not they were bound by a contract vis-à-vis those to whom the damage was caused.
II. HOUSING CODE OF 1983
33. Article 50 of the Code stipulates that residential premises provided to citizens by, inter alia, the State must comply with the relevant sanitary and technical requirements.
34. Pursuant to Article 171, owners of the houses demolished following the withholding of the respective land plots for public needs shall be compensated the value of such houses or provided with other accommodation in accordance with the relevant standards.
35. These provisions have remained unchanged since 1993.
III. LAND CODE OF 1990 (REPEALED with THE effect from January 2002)
36. Article 46 of the Code set out the following conditions which had to be satisfied before a land plot belonging to a citizen could be withheld (bought out) for public needs: (i) the local council had to provide him or her with an equivalent land plot; (ii) the entity, to which the withheld land was allocated, had to build a new house instead of that withheld; and (iii) all other damages had to be compensated in full in accordance with Part IV of that Code.
37. Pursuant to Articles 88 and 89 (within Part IV), the damage caused to landowners because of the withholding of their land had to be compensated in full by the entities, to which the withheld land was allocated.
IV. CODE OF CIVIL PROCEDURE OF 2004
38. The Code of Civil Procedure of 2004, as worded at the material time, guaranteed to the parties to the proceedings that had already terminated in a cassation decision “the right to challenge before the Supreme Court … judicial decisions in civil cases in the light of exceptional circumstances” (Article 353). By virtue of Article 354 § 1, “divergent application of the law by the cassation court (or courts)” was one of the two grounds on which could be brought such an exceptional appeal. Article 357 further defined “examination of a case in the light of exceptional circumstances” as being “a kind of cassation procedure”, with the exceptional appeal being subject to the same procedure as in cassation appeals – the parties were not summoned, but could submit comments on the exceptional appeal, a copy of which had to be sent to them once it was declared admissible (Articles 328, 355 and 356).
39. The Supreme Court’s powers of disposal of an exceptional appeal were likewise comparable to those it possessed in cassation appeals. The exceptional-appeal proceedings could result in one of the different types of decisions set out in Article 358 of the Code, including in a decision “to quash [the contested] decision of the court of appeal or of the court of cassation and to uphold a decision which was wrongly quashed”.
40. Further details regarding the relevant regulations can be found in Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, § 24, ECHR 2015).
V. PROPERTY ACT OF 1991 (repealed with THE effect from JUNE 2007)
41. According to sections 48 and 52 of the Property Act of 1991, the property rights to a house could be terminated in connection with the withholding of the land plot on which it was situated only in the cases and under the procedure established by the legislation of Ukraine and subject to prior compensation for the damage “in full [amount] corresponding to the actual value of the property at the time of the termination of the property rights”.
VI. RESOLUTIONS OF THE PLENARY SUPREME COURT, As WORDED AT THE MATERIAL TIME
42. In its resolution no. 7 of 4 October 1991 on the judicial practice of application of the legislation relating to the right of private ownership of houses, the Plenary Supreme Court explained that, pursuant to Article 171 of the Housing Code of 1983, Article 46 of the Land Code of 1990 and section 52 of the Property Act of 1991, those whose ownership rights to a house were terminated in connection with the withholding of the land plot on which it was situated had the right to choose the type of compensation for the related loss (section 16).
43. In its resolution no. 13 of 25 December 1996 on the judicial practice of application of the land legislation in civil cases (repealed with effect from April 2004), the Plenary Supreme Court underlined that, pursuant to Articles 88 and 89 of the Land Code of 1990, the damage caused to landowners because of the withholding of their land had to be compensated in full by the entities, to which the withheld land was allocated.
I. ALLEGED VIOLATION OF ARTICLE 1 of PROTOCOL NO. 1
44. The applicant complained that the authorities had failed to build the house, as part of the compensation arrangement regarding the property which had been expropriated from her father, in accordance with the relevant norms and standards; that consequently she had not been able to use that house; that the court decisions awarding her compensation in that regard had been unjustly and unlawfully annulled; and that the relevant domestic law had been unclear and unforeseeable. She relied on Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
45. The Government objected to the admissibility of those complaints. According to them, the applicant had no victim status regarding the expropriation of her late father’s property and thus could not complain about the adequacy of the related compensation. She had abused the right of individual application to the Court, since she had refused to allow the necessary repair works to be carried out in the house which had led to the deterioration of its condition and consequently to higher costs of the required works. Also, the applicant had failed to exhaust domestic remedies, because she had withdrawn her claims against the KM and had failed to appeal against the Svyatoshynskyy Court’s decision of 18 May 2007 terminating the proceedings in that part.
46. The applicant contested those objections.
47. The Court considers that the Government’s objections are closely linked to the substance of the applicant’s complaints under Article 1 of Protocol No. 1 and, accordingly, joins those objections to the merits.
48. The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
49. The concept of “possession” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision, as well as claims in respect of which an applicant has at least a legitimate expectation of obtaining effective enjoyment of a property right (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II; Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I; Maurice v. France [GC], no. 11810/03, § 63, ECHR 2005‑IX; and Parrillo v. Italy [GC], no. 46470/11, § 211, ECHR 2015).
50. In the present case, pursuant to the relevant provisions of the domestic law the applicant’s father was entitled to “full” compensation for the property which had been expropriated by the local authorities in the public interests (see paragraphs 5, 36, 41 and 43 above). As part of the guaranteed compensation, a new house was constructed for him on the orders and at the expense of the local authorities. However, the house was constructed not in accordance with the relevant standards and norms, contrary to what was required by the relevant law (see paragraphs 16 and 33 above), and consequently the applicant’s father brought an action in damages. Following his death, the applicant inherited his property, including the house at issue, and was allowed by the domestic courts to pursue that action as her father’s “legal successor” (see paragraph 9 above).
51. Thus, it appears that the applicant was regarded by the domestic courts as having acquired the pecuniary rights and interests emanating from the abovementioned compensation arrangement to the extent it concerned the construction of a new house, including the right or at least a legitimate expectation that the construction had to be done in accordance with the relevant standards and norms. The Court finds no reason to deviate from that position of the domestic courts and considers that the dispute concerned the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Kopankovi v. Bulgaria, no. 48929/12, § 38, 6 September 2018).
52. The Court further notes that the domestic courts unambiguously established, at all stages of the relevant proceedings, that the right at issue had not been respected and that the flawed construction had resulted in substantial damage to the house (see paragraphs 17, 19, 20 and 26 above). However, the applicant’s action aimed at obtaining compensation for that damage was dismissed mainly for the reason that it had been directed against those who had not been responsible for it.
53. Having regard to its well-established case law, the Court finds that consequently there has been an interference with the peaceful enjoyment of the applicant’s “possessions” and that it falls to be examined whether that interference was justified (see, among many other authorities, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, §§ 34, 36, 37 and 38, Series A no. 332; Maurice, cited above, § 80; Lelas v. Croatia, no. 55555/08, §§ 61-62, 20 May 2010; and Kopankovi, cited above, § 44, with further references). In the circumstances, there is no need to determine whether the interference constituted deprivation of property under the first paragraph of Article 1 of Protocol No. 1 or control on the use of property under the second paragraph of that provision (see, among many other authorities, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015). The principles governing the question of justification are substantially the same, involving as they do the need for the interference to be lawful and in the public or general interest, and to strike a fair balance between the demands of the public or general interest and the applicant’s rights (see, among other authorities, Ünsped Paket Servisi SaN. Ve TiC. A.Ş. v. Bulgaria, no. 3503/08, § 40, 13 October 2015).
54. In so far as the applicant complained that the interference had been unlawful, the Court reiterates that it has limited jurisdiction regarding the assessment of evidence and interpretation of the domestic law by the domestic courts (see, among other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 149-150, 20 March 2018). It discerns no sufficiently strong indications in the present case that the contested dismissal of the applicant’s action was not based on or manifestly contradicted the relevant law or that it was arbitrary.
55. Nor does it find a reason to question the Supreme Court’s findings, in its decision of 6 May 2010, that the judicial decisions of 25 December 2007 and of 4 March 2009 had led to the divergent application of the relevant domestic law and that therefore it was justified to review the case and to annul them on that ground (see paragraph 26 above). The Court also notes that the “exceptional review” proceedings were launched shortly – within around three months – after the termination of the main set of proceedings and the applicant was given an opportunity to comment on the issue of divergency, but failed to do so without providing an acceptable justification (see paragraphs 22, 24 and 25 above).
56. The Court has due regard to the applicant’s arguments relating to the quality of the domestic legal framework in question, but considers it more appropriate to address them in the context of the assessment of the proportionality of the interference below. Thus, in the circumstances, the Court finds it reasonable to proceed on the assumption that the interference at issue had a basis in domestic law.
57. The Court is also prepared to assume that the interference at issue might have pursued legitimate aims in the public or general interest, namely ensuring the harmonised and consistent application of the domestic law and/or the proper functioning of the relevant compensation framework in the cases of expropriation of private property by the State.
58. At the same time, the Court considers that the interference at issue was disproportionate to any legitimate aim which it might have pursued.
59. In particular, as the Court has already noted above, in the course of the domestic proceedings it was established clearly that the compensation arrangement, to the extent it concerned the construction of a new house in accordance with the relevant standards and norms, had not been respected and consequently the applicant had suffered pecuniary damage which was well-established and quantified (see paragraphs 17, 19, 20 and 26 above). However, it was decided that it could not be compensated because the applicant had withdrawn her claim against the municipal company, the KM, which was liable for that damage (see paragraphs 19 and 26 above).
60. That decision appears to be overly formalistic, viewing that essentially it was for the municipal authorities, which remained co-defendants in the proceedings and had full control of that company, to ensure that the compensation arrangement at issue was duly implemented (see paragraphs 5, 6, 15, 36, 41 and 43 above). Moreover, the case was reconsidered on several occasions since the courts of different levels of jurisdiction disagreed as to which of the respondent entities had been responsible for the damage and it cannot be excluded that that disagreement had relation to the alleged ambiguity of the relevant domestic regulations (see paragraphs 11, 12, 13, 17, 19, 20 and 26 above). Thus, the applicant should not be reproached for having withdrawn her claims against the municipal company.
61. In these circumstances, the Court finds that the dismissal of her claim on that ground, after it had been pending before the courts for around eight years, essentially made the applicant bear an individual and excessive burden arising out of the failure to duly implement the compensation arrangement and the uncertainty as to which of the entities involved had to remedy the consequences of that failure.
62. It is true that, had the applicant allowed the defendants to repair the house, this might have helped to resolve, at least in part, the issue in the present case. However, this was not the reason why her action was ultimately dismissed (see paragraphs 19 and 26 above) and it was not demonstrated that she had been obliged to concede to any repair works instead of the compensation she had claimed. Nor was it demonstrated that her refusal to concede to repair works had led to the damage which the applicant had claimed in the domestic proceedings or any part of it.
63. In the light of the foregoing, the Court finds that the interference at issue was disproportionate and that there has been a violation of Article 1 of Protocol No. 1 on that account. Accordingly, the Government’s objections in that regard, previously joined to the merits (see paragraphs 45 and 47 above), should be dismissed.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
64. The applicant complained under Article 6 § 1 of the Convention that the quashing of the final judicial decision in her favour had been contrary to the re judicata principle, that the Supreme Court had examined the case in the framework of the “exceptional review” procedure in breach of the principle of equality of arms, and that it had advanced deficient reasoning for its decision of 6 May 2010. She also complained under the same provision about the length of the proceedings.
65. The applicant further complained under Article 8 of the Convention that she and her family had been forced to live in dangerous and uncomfortable conditions in the dilapidating house, which they had not been able to fully use as their home.
66. Lastly, the applicant complained under Article 13 of the Convention that she had had no effective domestic remedies in respect of her grievances in the present case.
67. Having regard to its findings under Article 1 of Protocol No. 1 (see paragraph 63 above), the Court considers that it has examined the main legal questions raised in the present case, and that there is no need to give a separate ruling on the admissibility and merits of the applicant’s other complaints (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
68. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Damage, costs and expenses
69. As regards pecuniary damage, the applicant claimed 2,363,321 Ukrainian hryvnias ((UAH), the equivalent of about 140,000 euros (EUR) at the material time) for the cost of the necessary repair works in the house at issue and submitted a report of the KSRI of 9 August 2014 estimating that cost at UAH 2,360,321 (the equivalent of about EUR 138,000); UAH 285,703 (the equivalent of around EUR 43,000 at the material time) for the lost income which, according to the KSRI’s report of 19 September 2006, she would have obtained if she had been able to lease the house during the period between November 2002 and February 2006; and UAH 82,950 (the equivalent of around EUR 12,300 at the material time) for the rent charges regarding a house of around 50 square meters in which the applicant had lived between September 2003 and March 2004 according to a certificate dated 21 March 2004.
70. The applicant also claimed UAH 701,568 (the equivalent of around EUR 41,000 at the time of submission of the applicant’s claims in August 2014) and EUR 12,000 for non-pecuniary damage.
71. The applicant finally claimed UAH 40,874.44 and UAH 46,193.32 (the equivalent of around EUR 2,400 and EUR 2,700 respectively at the time of submission of the applicant’s claims in August 2014) in respect of costs and expenses in the domestic proceedings and those before this Court respectively.
72. The Government, referring mainly to their objections regarding the admissibility of the application (see paragraph 47 above), stated that the applicant’s claims regarding pecuniary and non-pecuniary damage were unsubstantiated or excessive. They also stated that most of her claims for costs and expenses either should not be awarded at all or were also excessive.
73. The Court considers that, in the circumstances of the present case, the question of the application of Article 41 of the Convention is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government’s objections as to the applicant’s victim status, enjoyment of the right of individual application and exhaustion of the domestic remedies regarding her complaints under Article 1 of Protocol No. 1 and dismisses those objections;
2. Declares the applicant’s complaints under Article 1 of Protocol No. 1 admissible;
3. Holds that there has been a violation of Article 1 of Protocol No. 1;
4. Holds that there is no need to examine the applicant’s other complaints;
5. Holds that the question of the application of Article 41 of the Convention is not ready for decision and, accordingly,
(a) reserves the said question in whole;
(b) invites the Government and the applicant to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; and
(c) reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be.
Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Ivana Jelić
Deputy Registrar President