Last Updated on November 19, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 64661/11
Lyudmyla Stepanivna SHYNKARENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 15 October 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 6 October 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms LyudmylaStepanivnaShynkarenko, is a Ukrainian national, who was born in 1955 and lives in Kyiv. She was represented before the Court by Mr V. Koval, a lawyer practising in Kyiv.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background information
4. By a decision of 21 February 2007, the local town administration approved the applicant’s request for the preparation of a land management plan required for the transfer of the title to a certain plot of land to her.
5. On 16 June 2007 the State environmental inspector drew up an inspection report according to which the above plot was located in the sanitary zone belonging to “water resource land” (земля водного фонду) beside a canal. The report stated that the applicant had occupied the plot without permission and used it for construction and gardening purposes, storage of waste compost and construction materials, had dug a cesspit on it and had installed a fence blocking passage to and from the adjacent street. The inspector concluded that the applicant had breached Article 89 of the Water Code (see paragraph 14 below) and the provisions of the Land Code governing the emergence of a title to land, and required her to vacate the plot within a month. It appears that the applicant did not comply with the terms of that report, nor did she challenge it.
6. On an unspecified date the applicant prepared a land management plan and submitted it for the approval of several authorities. On 1 November 2007 and 17 April 2008 the local land resources authority approved the allocation of the plot of land to her and approved the technical documents that she had prepared for that allocation.
7. As a result, on 24 June 2008 the town administration decided to transfer the plot of land to the applicant for gardening purposes. On 20 July 2009 it also issued to her a land-ownership certificate in respect of that plot.
8. On 25 December 2009 the local prosecutor inspected the plot and recorded breaches of several provisions of the Water Code. On 26 February and 1 April 2010 he sent two complaints (протести) to the land resources authority, asking it to annul its decisions of 1 November 2007 and 17 April 2008. He stated, in particular, that the plot of land at issue constituted water resource land and could not be transferred into private ownership.
9. On 4 March and 29 April 2010 the land resources authority acceded to both complaints and annulled its decisions.
2. Proceedings for the annulment of the applicant’s land title
10. On 26 February 2010 the prosecutor, acting on behalf of the State, lodged a claim with the Boryspil Court against the applicant and the town administration, seeking the invalidation of the decisions of 21 February 2007 and 24 June 2008 and of the applicant’s land-ownership certificate. He argued that the plot transferred to the applicant constituted water resource land, which could not be transferred into private ownership, and that the transfer of the land to her had therefore been in breach of the law.
11. By a judgment of 10 November 2010, upheld on 14 March 2011 by the Kyiv Regional Court of Appeal, the Boryspil Court allowed the claim, invalidated the above-mentioned decisions and the applicant’s land-ownership certificate, and obliged the applicant to return the plot to the State. The courts found that the applicant’s plot was located within the water-protection zone around a drainage canal (at a distance of 15.65 to 20.54 metres from the canal), which was, inter alia, in breach of Article 89 of the Water Code. Under Article 85 of the Code, water resource lands could only be leased for certain purposes, and could not be transferred into private ownership for gardening purposes. The courts also held that the inspection report of 16 June 2007, which noted a breach of Article 89 of the Water Code on the part of the applicant, amounted to additional evidence of the breach of the domestic legislation by the town administration.
12. The applicant lodged a cassation appeal, stating that having applied to the town administration for the allocation of the plot of land to her, she had not and could not have had the opportunity to verify the validity of the decisions that it had taken in that connection. Even assuming that those decisions had been invalid, she could not be held responsible for the administration’s failure to comply with the procedure provided for by the law. Lastly, she argued that if the case were to be subsequently examined by this Court, the State would have to compensate her for the value of the plot.
13. On 12 April 2011 the Higher Specialised Court of Ukraine upheld the above-mentioned court decisions.
B. Relevant domestic law
14. Article 85 of the Water Code (1995) provides that lands located in water-protection zones may only be leased to legal and natural persons for haymaking, fishing, culture and health, recreational, sporting, touristic, and scientific and research purposes.
15. Article 88 establishes that the width of water-protection zones around various water sources ranges from 25 to 100 metres (for small and large water sources respectively).
16. Article 89 prohibits digging up the soil in such zones, using them for horticultural, gardening and construction purposes, and making landfill and compost pits in them.
COMPLAINT
17. The applicant complained under Article 1 of Protocol No. 1 of a breach of her property rights on account of the outcome of the proceedings instituted against her and the town administration by the prosecutor in relation to the land-ownership certificate issued by the latter.
THE LAW
18. The applicant alleged a breach of 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.”
1. The parties’ submissions
(a) The Government
19. The Government admitted that the judgment of 10 November 2010 had constituted an interference with the applicant’s property rights. However, that interference had been provided for by law, the courts having based their decisions on various provisions of domestic legislation. It had been in the public interest, namely the preservation of the water‑protection zone and the environment. Lastly, it had been proportionate, as the applicant had received the land free of charge and had not claimed compensation for the interference. Moreover, prior to receiving the land-ownership certificate, she had occupied the land without permission. Even admitting that the local administration had made a mistake in issuing that certificate to her, in view of the inspection report of 16 June 2007 she could not have reasonably expected that she might use that plot for gardening purposes. Contrary to Kryvenkyy v. Ukraine (no. 43768/07, 16 February 2017), in which the applicant acquired and owned a plot of land, paid land tax and farmed on it for a long time, the applicant could not claim to have obtained the plot at issue in good faith, because she had already known about the restrictions associated with the designated use of the land on which the plot was located and that the plot could not be transferred into private ownership. In other words, she was or should have been aware that her land-ownership certificate might be annulled. The Government also referred to Romankevič v. Lithuania (no. 25747/07, 2 December 2014), in which the Court had not considered a period of two years for the correction of a mistake by the authorities to be unacceptable for the purposes of Article 1 of Protocol No. 1. Further, if the applicant had considered that her rights had been breached, she could have claimed compensation under Article 386 of the Civil Code, under which an owner whose rights had been breached was entitled to claim damages. She had not done so, nor had she applied to the town administration for the allocation of another plot to her. In any event, the lack of compensation provided in the present case had not been disproportionate having regard to the domestic law governing the protection of water resource lands, the applicant’s conduct and the fact that she must have been aware that the plot concerned had been situated near a drainage canal built long before she had occupied that plot.
(b) The applicant
20. In her initial submissions the applicant stated that she had received the land from the town administration lawfully and in good faith, and that even if the administration had made a mistake in transferring the land to her, she should not have been held responsible for that mistake. In her observations on the merits the applicant added that she had used the plot since 1991, when the authorities had allegedly allocated it to her. Therefore, she had not occupied it without permission, as claimed by the Government, but had been its long-term user who had subsequently privatised it in accordance with the law. However, her neighbour had asked her to sell that plot to him and, when she had refused, he had requested the head of the local cooperative to complain to the prosecutor, who in turn had instituted court proceedings against her. As a result of those proceedings, she had been deprived of the plot. The prosecutor and the courts had therefore acted in the interests of one individual, rather than in the public interest as claimed by the Government. That was confirmed by the fact that only she had been deprived of her plot, whereas her other neighbours, who she alleged had also been allocated plots of land near the canal, had not been deprived of those plots. According to her, her neighbour had eventually taken possession of her plot. Lastly, as regards compensation, the applicant suggested that Article 386 of the Civil Code, as relied on by the Government, was general and not applicable in her case. She also believed that the Government had invited her to claim damages from the prosecutor. However, under the domestic law, compensation for damage caused by law‑enforcement authorities could only be claimed in the event of unlawful actions on their part, and in her case the domestic courts had not considered the prosecutor’s actions unlawful.
2. The Court’s assessment
21. The Government did not contest that the plot of land in question constituted a “possession” for the purposes of Article 1 of Protocol No. 1 (see, for instance, Kryvenkyy, cited above, § 40). The Court observes that in July 2009 the town administration had issued the applicant with a land‑ownership certificate in respect of the above plot. It further notes that the Government recognised that the judgment of 10 November 2010 constituted an “interference” with that possession. The Court will proceed on the assumption that the plot constituted a possession of which the applicant was deprived, as a finding in relation to this question is unnecessary by the Court. It will ascertain whether the impugned deprivation was lawful, effected in the public interest and whether it pursued a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, for instance, BatkivskaTurbota Foundation v. Ukraine, no. 5876/15, § 55, 9 October 2018).
22. The Court observes that, in nullifying the applicant’s title to the disputed plot, the domestic courts based their decisions on relevant provisions of the domestic law and concluded that the plot was located in a water-protection zone around the drainage canal and that it could not, therefore, be legitimately transferred into private ownership. In its view, the application and interpretation of the domestic law by the courts was neither arbitrary nor manifestly unreasonable. Accordingly, the annulment of the applicant’s title to the land by way of a contentious court procedure with a view to correcting a mistake in the allocation of such title to her had a basis in domestic law.
23. As to the public interest in the deprivation, the Court notes that the parties disagree on this issue. The Government submitted that the deprivation had been in the public interest, namely the preservation of the water-protection zone and of the environment. However, the applicant contended that the prosecutor and the courts had acted in the interests of one individual (her neighbour), rather than in the interests of the community. As to the applicant’s submissions, the Court notes that they are not supported by any evidence or established facts, such as, for instance, information that the applicant’s neighbour had registered in his name the title to the plot she had been deprived of or that her other neighbours – who allegedly have plots in the water-protection zone around the canal – hold title to those plots. The Court cannot, therefore, speculate on those submissions. It further notes that, as it follows from the domestic courts’ decisions, the applicant’s title to the plot was annulled because it was located in the water-protection zone. Therefore, it agrees with the Government that the protection of that zone – and, more generally, of the environment – was in the public interest (see Depalle v. France [GC], no. 34044/02, §§ 81 and 84, ECHR 2010; Matczyński v. Poland, no. 32794/07, §§ 101-02 and 106, 15 December 2015; and Kristiana Ltd. v. Lithuania, no. 36184/13, § 107, 6 February 2018). The Court thus concludes that the deprivation at issue pursued a legitimate aim and was in the public interest.
24. It remains to be assessed whether the deprivation was proportionate to the aim pursued. In this respect the Court observes that although the “good governance” principle should not prevent public authorities from correcting their mistakes, it cannot prevail in a situation where the individual concerned is required to bear an excessive burden. There must always be a reasonable relationship of proportionality between the means employed and the aim pursued. Ascertaining whether such a balance existed requires an overall examination of the various interests at stake, which may call for an analysis of such elements as the requirement for the authorities to act in good time, the conduct of the parties to the dispute and the terms of compensation (see, for instance, Osipkovs and Others v. Latvia, no. 39210/07, § 80, 4 May 2017).
25. The Court notes that the prosecutor noticed a possible mistake in granting the applicant the title to the land fairly promptly. Within five months after she had been issued the land-ownership certificate he inspected the land, noting breaches of the domestic water legislation and he then instituted court proceedings against her and the town administration (see, mutatis mutandis, Gaina v. Lithuania, no. 42910/08, § 63, 11 October 2016, and compare with Moskal v. Poland, no. 10373/05, § 69, 15 September 2009, and Rysovskyy v. Ukraine, no. 29979/04, §§ 18 and 75, 20 October 2011).
26. As to the applicant’s own conduct, the Court reiterates that in the balancing exercise, consideration must be given in particular to the question of whether the applicant, on acquiring the property, knew – or should reasonably have known – about the restrictions on the property, the existence of legitimate expectations with respect to the use of the property or acceptance of the risk on purchase, the extent to which the restriction prevented use of the property and the possibility of challenging the need for the restriction (see Matczyński, § 106 with further references, and Kristiana Ltd., § 108, both cited above). It notes that the case file does not contain any evidence or documentation to confirm the applicant’s allegation that the plot of land had been allocated to her in 1991. It notes, however, that the parties agree that she did use that plot prior to obtaining title to it in 2009, the applicant considering herself to have been its “long-term user” and the Government arguing that she had occupied it without permission.
27. In this connection, the Court notes that since at least June 2007 the domestic authorities took steps to correct the situation caused by the applicant’s stance that she could use the plot of land for gardening purposes and then obtain title to it. The inspection report of 16 June 2007 stated that the plot was located in the sanitary zone belonging to water resource land, that the applicant had occupied it without permission and had used it for construction and gardening purposes, storage of waste compost and construction materials, had dug a cesspit on it and had put in a fence blocking passage to and from the street, thereby breaching Article 89 of the Water Code. Although that report required her to vacate the plot within a month, she neither complied with it nor challenged it, instead continuing to take steps aimed at obtaining title to the plot. Moreover, the Court notes that as early as 1995 the Water Code established water-protection zones around various water sources, with their minimum width being 25 metres (see paragraph 15 above), and that, as established by the domestic courts, the plot of land in question was located from 15.65 to 20.54 metres from the drainage canal (see paragraph 11 above), that is, clearly within the water‑protection zone around it.
28. The Court thus considers that both in virtue of the domestic law, which had set water-protection zones around water resources long before the issuance of the land-ownership certificate, and in view of the report of 16 June 2007, containing statements which were eventually confirmed by the domestic courts (see paragraph 11 above), at the moment when the applicant obtained the above title she was or should have been aware that the plot was located in such a zone and that there was a possibility that her title would be annulled (see, mutatis mutandis, Depalle, § 86; Matczyński, § 109; Osipkovs and Others, § 84; Kristiana Ltd., § 110, all cited above;and Malliakou and Others v. Greece, no. 78005/11, §§ 60 and 63, 8 November 2018).
29. Lastly, as far as the compensation issue is concerned, the Court reiterates that a lack of compensation is a factor to be taken into consideration in determining whether a fair balance has been achieved but is not of itself sufficient to constitute a breach of Article 1 of Protocol No. 1 (see, mutatis mutandis, Malliakou and Others, cited above, § 64). In the present case it notes that the applicant indirectly raised the compensation issue in her cassation appeal (see paragraph 12 above). Even though the courts did not address that issue, it does not appear from the domestic law, and the parties did not claim otherwise (apart from the general civil law provision mentioned by the Government which governs the protection of owner’s rights), that there was a possibility for the applicant to claim compensation in the specific circumstances where a land-ownership certificate to a plot of land located in a water-protection zone was annulled on the grounds that it had been granted by mistake. Having regard to the rules governing water resource lands as public property, the promptness with which the authorities corrected their mistake in granting title to the applicant, her awareness, before receiving it that there was a possibility it would be revoked, and the fact that she had had a reasonable opportunity to present her case before the domestic courts, the Court considers that the lack of compensation cannot be regarded as a disproportionate interference with any property rights which she might have had (see, mutatis mutandis, Depalle, § 91; Kristiana Ltd., §§ 110-12; and Malliakou and Others, § 64, all cited above). In reaching this conclusion, the Court also takes into consideration the fact that the applicant was granted the land-ownership certificate free of charge (compare and contrast, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 121, 25 October 2012, and Zelenchuk and Tsytsyura v. Ukraine, nos. 846/16 and 1075/16, § 142, 22 May 2018) and that she did not claim that she had made any investment in the land after receiving that certificate.
30. The Court thus considers that the applicant did not bear an individual and excessive burden as a result of the revocation without compensation of the land-ownership certificate which had been mistakenly granted to her. Accordingly, her complaint is manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 November 2019.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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