CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 septembre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sDB6B63EE { width:176.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 37863/05 by Oksana Omelyanivna BILOZIR and Vira Omelyanivna RIZOVA against Ukraine The European Court of Human Rights (Fifth Section), sitting on 28   September 2010 as a Chamber composed of:   Peer Lorenzen, President,   Renate Jaeger,   Karel Jungwiert,   Mark Villiger,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva,   Ganna Yudkivska, judges, and Claudia Westerdiek, Section Registrar, Having regard to the above application lodged on 3 October 2005, Having regard to the observations submitted by the parties, Having deliberated, decides as follows: THE FACTS The applicants, Ms Oksana Omelyanivna Bilozir and Ms Vira Omelyanivna Rizova, are Ukrainian nationals who were born in 1936 and 1934 respectively and live in Chervonograd. They are represented before the Court by Mr M. Y. Bordyuk, a lawyer practising in Chervonograd. The Ukrainian Government (“the Government”) were represented by their Agent, Mr   Y.   Zaytsev. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background events Following rehabilitation of the applicants' mother as a victim of political repression, on 10   July 1992 the Radekhiv Town Council restored her title to a house which had been confiscated in the 1950s. At that time in the ownership of the local authorities, the house had been occupied since 1981 by two families of tenants, S. and B. On 16 July 1993 the Town Council awarded the applicants' mother compensation for the confiscated property according to a list held at the local archives. In 1994 the Town Mayor informed her that the tenants would be provided with other social housing. In 1994 S. instituted proceedings in the Radekhiv Town Court (“the Radekhiv Court”) challenging the entitlement of the applicants' mother to the house. On   30   March   1995 the court discontinued the proceedings owing to the claimant's repeated failure to appear at hearings. In 1996 the applicants' mother died. On 4 July 2000 the first applicant received 487.5 Ukrainian hryvnias (UAH) on the enforcement of the 16 July 1993 decision. 2.     The applicants' entitlement to the disputed property On 20 March 1997 the applicants obtained inheritance certificates for the house in equal shares, and on 26 June 1997 the Town Housing Inventory Office registered them as its owners. In August 2000 the Radekhiv State Administration, referring to the 10   July 1992 decision, ruled that the tenants should be provided with social housing accommodation as a matter of priority. However, that appeared to be impossible given the lack of funds for the construction of new accommodation and the absence of any vacant state-owned property. In   2003 the Town Council and State Administration, which the applicants had requested to ensure the vacation of the house, repeatedly informed them that the house was their private property and that they could seek judicial eviction of the tenants. Apparently in the same year, the applicants sent a written request to the tenants to vacate the house. 3.     Civil proceedings resulting in the annulment of the applicants' title to the property On 24 October 2003 the family of B. instituted civil proceedings in the Radekhiv Court against the local authorities and the applicants, seeking the annulment of the 1992 decision and an order requiring the applicants not to impede their use of the flat in that house. They argued that the Council had taken the impugned decision without having regard to whether the house was occupied at that time by others. They further alleged that they had only found out about the decision in 2003, when they were told by the applicants to vacate the flat. Objecting to B.'s claim, the applicants referred to the 1994 court proceedings, arguing that B. ought to have been aware of those, since they lived in the same house as S., but had failed to lodge a claim within the three-year limitation period. On 17 February 2005 the court ruled to extend the deadline for B. to lodge the claim − having found that, firstly, it had no evidence to prove that B. had been aware either of the 1992 decision or of the 1994 court proceedings; and secondly, that as B. had continued to live in the house all the time, the limitation period had not been interrupted. The court also allowed the claim of B. in substance and annulled ab initio the 1992 decision, the ownership certificate issued to the applicants' mother, her will concerning the house in question, and the applicants' inheritance and ownership certificates for it – insofar as all those concerned the flat occupied by B. (with the exception of the 1992   decision which was annulled in its entirety). The court based its judgment on the finding that the authorities had unlawfully disregarded the rights of the legitimate tenants of the building before transferring the title to it to the applicants' mother. The applicants appealed, arguing, inter alia , that the court had not considered the alternative option of awarding them compensation for the house's value. On 16 May 2005 the Lviv Regional Court of Appeal upheld the judgment in general. It however modified the part concerning the annulment of the 1992 decision, limiting it to the flat occupied by B. As for compensation, the court noted that the applicants had not submitted a claim for this and therefore there had been no reason to address that issue. On   16   October   2007 the Khmelnytskyy Regional Court of Appeal, sitting as a court of cassation, rejected the applicants' cassation appeal as unsubstantiated. B.     Relevant domestic law and practice Article 5 of Law of Ukraine No.   962-XII “On   Rehabilitation of Victims of Political Repression in Ukraine” of 17   April 1991 provided for restitution in kind of confiscated buildings and other property wherever possible (if the house was not occupied and the property was still standing). By its Resolution No.   3812-XII on interpretation of the aforementioned law, the Ukrainian parliament clarified the position as follows. Decisions on whether it was possible to return a house or its part to a rehabilitated person in kind should be taken after consideration of the specific circumstances of the case: whether the house was legitimately occupied by other persons, whether there had been a reconstruction adding greatly to the original value of the building, or whether there was a need to continue its usage for social purposes (as a childcare institution, a hospital, etc.). It was the prerogative of the Cabinet of Ministers to establish the amounts of pecuniary compensation awarded where in-kind restitution was not possible. Regulation of the Cabinet of Ministers No. 112 “On the Procedure for Payment of Financial Compensation, Return of Property or Reimbursement of its Value to Rehabilitated Citizens or Their Heirs” of 18   February 1993 further specified that the total amount of the compensation could not exceed sixty-five times the minimum Ukraine salary regardless of the value of the confiscated buildings and other property. Pursuant to Resolution of the Cabinet of Ministers No. 429 “On the Procedure of Settlements with Rehabilitated Citizens” of 18   April   1996, the calculation unit for determining the compensation was set at fifty per cent of the minimum salary (UAH 7.5 instead of 15). COMPLAINTS The applicants complained under Article 1 of Protocol No. 1 about the ab initio and uncompensated nullification of their title to the property, following the return of their previously confiscated house. They also complained, relying on Articles 6 § 1 and 13 of the Convention and Article 2 of Protocol No.   7, that the outcome of the respective civil proceedings had been unfair and contrary to law. THE LAW 1.     The applicants complained that the State had deprived them of their possessions in breach of Article 1 of Protocol No. 1, which read 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.” The Government objected to admissibility of this complaint on several grounds: the inapplicability of Article 1 of Protocol No. 1 to the applicants' situation, the applicants' lack of victim status, and the complaint being manifestly ill-founded on the whole. Firstly, they submitted that the applicants had no possessions to be protected as their title to the property in question had been declared null and void by legitimate courts, in compliance with national legislation and by fair judicial proceedings. Secondly, the Government noted that on 4 July 2000 the first applicant received the maximum pecuniary compensation envisaged by domestic legislation for property unlawfully confiscated during the Soviet times. Lastly, they emphasised that the restitution undertaken by the State − as a good-will gesture − was necessarily limited in scope. The applicants maintained their complaint without having submitted any observations in response to those of the Government. The Court notes that the applicants were officially recognised as owners of the disputed property in June 1997, had their title confirmed by the authorities on several occasions and then had it nullified by a final judicial decision in October   2007. Even though their title existed only on paper and was eventually nullified ab   initio , the Court finds the fact that they were considered the property owners for all legal purposes for over ten years sufficient to conclude that they had “possessions” within the meaning of Article 1 of Protocol No. 1 (see Maslenkovi v. Bulgaria , no.   50954/99, § 31, 8 November 2007, and Gashi v. Croatia , no.   32457/05, §   22, 13   December 2007). It follows that Article 1 of Protocol No. 1 is applicable to this case. The Court also considers that the applicants could claim to be victims of the alleged violation, having been personally and directly affected by the domestic courts' decision, which nullified their title to a part of the house. As regards the payment to the first applicant referred to by the Government, the Court notes, regardless of the lack of clarity as to the actual purpose of that payment, that it had taken place some seven years before the impugned nullification and was therefore irrelevant for the purpose of both applicants in seeking, before this Court, the reversal of the nullification and the restoration of their titles to the property (for reference to the principles in application see Gayduk and Others v. Ukraine (dec.), nos. 45526/99 et seq., ECHR 2002 ‑ VI (extracts)).   The Court therefore rejects this argument of the Government also. It remains to be established whether the applicants' complaint is adequately founded. In order to answer this question, the Court will look into the substance of the matter and examine, in line with its well-established case-law, whether there was an interference with the applicants' property rights and if so, whether it was based on law and pursued a legitimate aim, and whether there was a reasonable relation of proportionality between the means employed and the aim pursued. Having regard to its findings above concerning the applicant's having had “possessions” in this case and their victim status, the Court considers that the nullification of their property title amounted to an interference with their rights under Article   1 of Protocol No. 1. The Court observes that the applicants' title was annulled by the national courts under Ukrainian legislation governing the procedure for the return of property to victims of the political repression of the communist period. The applicants have not alleged − and the Court sees no reason to consider − that these domestic provisions which served as a basis for the interference were insufficiently accessible, precise and foreseeable (see Beyeler v. Italy [GC], no. 33202/96, §   109, ECHR 2000 ‑ I). Bearing in mind this consideration regarding the quality of the law in question, noting that the Court has limited power to review compliance with domestic law and observing that there is no indication that the Ukrainian authorities applied the provisions in question manifestly in error, the Court considers that the contested interference was lawful (see, for example, The Synod College of the Evangelical Reformed Church of Lithuania against Lithuania (dec.), no.   44548/98, 5 December 2002). The   Court further notes that the nullification complained of was aimed at restoring justice to other individuals, whose legitimate rights had wrongly been neglected. It therefore pursued a legitimate aim. It remains to be examined whether the proportionality requirement was respected in the present case. The Court notes that the domestic authorities annulled the applicants' property title, which the State had granted to them by mistake. The title in question derived from the decision of the Radekhiv Town Council of 10   July   1992 to make restitution in kind to their mother of the house unlawfully confiscated from her in the 1950s. Before restoring the property title of the applicants' mother, the authorities failed to verify whether all the legal conditions had been complied with. Thus, according to the Ukrainian legislation, the bona fide tenancy of property is one of the impediments for it to be restored in kind to the pre-confiscation owners. In that case, an insignificant pecuniary compensation not related to the property's actual value is paid. The domestic courts reviewed the lawfulness of the aforementioned decision in its effect upon the action of the family of B., who continued to occupy a part of that house as social tenants. As a result, it was found that the restitution had been made in disregard of the interests of B. as legitimate tenants and thus in breach of the law. The Court emphasises that, in the context of property rights, particular importance is attached to the principle of good governance. As a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. However, if a mistake has been caused by the authorities themselves, without any fault of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive (see Moskal v. Poland , no. 10373/05, §§ 72 and 73, 15 September 2009). Turning to the present case, the Court notes that the applicants were deprived of their title to the property, which they had never in fact occupied. Thus, they never lived in the house in question after it had been restored to their mother and did not hurry to occupy the property. Such behaviour from their side was not only a gesture of tolerance towards the tenants, but also an indication of their having no accommodation-related problems or considerable financial hardships (see and compare with Pincová and Pinc v.   the Czech Republic , no. 36548/97, §   62, ECHR   2002 ‑ VIII, and Moskal , cited above, § 74). Furthermore, the Court does not lose sight of the authorities' attempts, albeit failed for the lack of funding, to re-house the family of B. in seeking resolution of the conflict of the two private interests triggered by the mistaken restitution of the property in kind to the applicants' mother. As regards the lack of any compensation to the applicants, the Court notes that if the local authorities had been aware the flat was occupied, the applicants would have received a relatively small sum by way of compensation (see the Relevant domestic law and practice, above, and Melnyk (II) v. Ukraine (dec.) no. 38162/04)). In the event, they never claimed any compensation before the domestic courts, be it in respect of the confiscated house or the authorities' faults related to its restitution. All the foregoing considerations allow the Court to conclude that, under the circumstances of the present case, the applicants cannot be regarded as having had an individual and excessive burden imposed on them contrary to the proportionality principle. This part of the application must therefore be rejected as manifestly ill-founded within the meaning of Article   35   §   3 of the Convention. 2.     The applicants also complained under Articles 6 § 1 and 13 of the Convention and Article 2 of Protocol No.   7 that the civil proceedings resulting in nullification of their property title had been unfair. The Court considers that these complaints fall to be examined under Articles 6 § 1 and 13 of the Convention only and should also be rejected as manifestly ill-founded, given that no unfairness can be detected in the conduct of the proceedings and the decisions reached by the domestic courts are neither arbitrary nor otherwise manifestly unreasonable. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Peer Lorenzen   Registrar   President