Last Updated on April 24, 2019 by LawEuro
Communicated on 3 January 2019
FOURTH SECTION
Application no.56903/10
BUDIVELNO INVESTYTSIYNA GRUPA 1
against Ukraine
lodged on 30 September 2010
STATEMENT OF FACTS
The applicant company, BudivelnoInvestytsiynaGrupa 1, is a subsidiary company registered in Ukraine in 2003 with its office in Kyiv. It is represented before the Court by Ms I. Moroz, residing in Kyiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 June 2004 the Kyiv City Council decided to lease, for a five-year term, a land plot to the applicant company for constructing a residential building with underground parking.
On 27 October 2004 the Kyiv City Council concluded with the applicant company a lease agreement specifying that the land plot was leased for the purpose of constructing a residential building with underground parking.
On 10 September 2007 the applicant company obtained a building permit. The applicant company contracted a foreign company to invest in the construction project.
On 26 June 2008 the Kyiv City Mayor, having considered that the applicant company had violated the building construction rules, ordered that the local authorities take measures that the building permit issued to the applicant company be revoked.
On 17 July 2008 the Kyiv City Council cancelled its decision of 24 June 2004 granting a lease to the applicant company and invited the latter to dissolve the lease agreement. By the same decision, the Kyiv City Council decided that the land plot at issue should be developed as a public garden zone according to the Kyiv green area development programme.
The applicant company instituted court proceedings against the Kyiv City Council, seeking damages for having withdrawn the lease decision and for having designated the land plot as having a recreational purpose which de facto prevented the applicant company from pursing its construction works and caused substantial losses.
On 7 July 2009 the Kyiv City Commercial Court dismissed the applicant company’s claim as unsubstantiated. The court found that, despite the decisions of the Kyiv City Council and the city mayor, the lease agreement had not been terminated, the building permit had been valid, and there had been no evidence that the Kyiv City Council had neglected its duties under the lease agreement.
The applicant company appealed before upper courts, arguing, among other things, that it had not been possible to use the land plot for construction purposes after the Kyiv City Council changed the status of the land plot as being for recreational purposes. The courts dismissed the applicant company’s appeals finding that the decision of the first-instance court was lawful and substantiated. The final decision was taken by the Supreme Court on 18 March 2010.
COMPLAINTS
1. The applicant company complains under Article 1 of Protocol No. 1 to the Convention that its property rights, arising from the land plot lease agreement and building permit, were infringed by the local authorities when they had withdrawn their earlier decision to lease the land plot to the applicant company and had designated the land plot as being for recreational purposes.
2. The applicant company complains under Article 6 § 1 of the Convention that in refusing the claim for damages, the domestic courts failed to give reasons to their decisions and did not deal with the applicant company’s pertinent and important arguments.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, did that interference impose an excessive individual burden on the applicant?
2. Were the proceedings in the present case fair for the purposes of Article 6 § 1 of the Convention? Did the domestic courts comply with their obligation under that provision of the Convention to give reasons for their decisions and to reply to specific, pertinent and important arguments by the parties?
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