CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 janvier 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .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 } .sD6845F38 { font-family:Arial; color:#0072bc } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sBD1BE8CC { width:33.89pt; display:inline-block } .s827CB718 { width:157.45pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 67790/13 Yuriy Vasylyovych BRATUSHKA against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 26   January 2023 as a Committee composed of:   Mārtiņš Mits , President ,   María Elósegui,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   67790/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 October 2013 by a Ukrainian national, Mr Yuriy Vasylyovych Bratushka (“the applicant”), who was born in 1956 and lives in Sumy, and was represented by Ms Y. Moliboh, a lawyer practising in Sumy; the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their then acting Agent, Ms   O.   Davydchuk, of the Ministry of Justice; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s complaint that he was deprived of his property in contravention of Article 1 of Protocol No. 1 to the Convention. 2.     On 26 March 2006 the applicant became a member of the Sumy City Council (“the Council”). 3 .     On 30 May 2007 he was appointed to the Permanent Commission for Architecture, Construction, Land Regulation, Management of Natural Resources, and Ecology at the Council (“the Commission”), which had authority, inter alia , to carry out a preliminary examination of issues to do with the transfer, allocation, confiscation, sale and recovery of land. The conclusions and recommendations of the Commission were presented to the Council for examination. 4.     On 4 June 2008 the Council decided to provide the applicant and his aunt, Ms N., with two plots of land in Sumy for individual construction. 5.     On 30 July 2008 the applicant was elected Chairman of the Commission. 6.     On 17 September 2008 he received from the State a deed of title to his plot of land. 7.     On 26 June 2011 the head of the Council’s newly created Commission on the Prevention and Counteraction of Corruption in the Sphere of Land Transactions wrote to a local prosecutor asking him to investigate infringements in the work of the Commission headed by the applicant, who had repeatedly initiated the examination by the Council of issues relating to the allocation of plots of land to private individuals, including himself, in violation of Article 30 of the Rules of Council. During voting sessions, the applicant had used his position to invite deputies to vote for the proposals, referring to his knowledge of the issues. 8 .     The prosecutor lodged objections ( протести ) against two conclusions of the Department of Architecture and City Planning at the Council (the “Department of Architecture”), one of 3 July 2008, regarding technical documentation certifying the applicant’s title to the land, and another of 31   March 2008, regarding the allocation of the disputed land for individual construction; and also against a State expert report of Sumy’s Main Directorate of the State Committee for Land Resources (“the Main Directorate”) of 16 May 2008 on the subject of that allocation. As a result, all three documents were revoked on 30 June 2011, 17 and 22 February 2012 respectively by the authorities which had issued them. Civil case 9.     On 29 February 2012 the local prosecutor lodged a claim against the Council and the applicant seeking the setting aside of the decision of 4 June 2008 and the title deed granted on 17 September 2008. He argued, with reference to the conclusion of 24 February 2012 issued by the Main Directorate, that the allocation of the disputed land had been in breach of Sumy’s general land-use plan as it was partly located within an area designated for the construction of a street and blocks of flats. Moreover, the Main Directorate had revoked its conclusion of 16 May 2008 (see paragraph 8 above). 10 .     By a judgment of 24 May 2013, the Kovpakivskyy District Court of Sumy allowed the claim, set aside the decision of 4 June 2008 and the deed of 17 September 2008 and obliged the applicant to return the plot of land to the local territorial community. It found that the allocation of the disputed land had been in breach of Sumy’s general land-use plan in that the disputed land had been partly located within the “red lines” of the future Kutuzov Street and partly on the territory designated for the construction of the blocks of flats. Furthermore, no detailed plan based on Sumy’s general land-use plan and explaining how it would affect that particular location had been drawn up or approved as required by law. No changes to Sumy’s general land-use plan had been introduced. Lastly, the District Court referred to the decisions of the Department of Architecture revoking its conclusions (see paragraph   8   above). The applicant appealed, arguing, inter alia , that when deciding on the issue of the designation of the land, the courts should have taken into account the textual version of the Sumy’s general land-use plan. 11.     The Sumy Regional Court of Appeal and the Higher Specialised Court of Civil and Criminal Matters upheld the first-instance court’s decision on 19   June and 12 September 2013 respectively. Criminal case 12 .     On 7 August 2014, following a fresh examination, the Sumy Court convicted the applicant of accepting a bribe from Mr K. in return for his assistance with the allocation of two plots of land and acquitted him of other charges of fraud and forgery of documents in relation to the allocation of the plots of land to him and to his aunt, Ms N. In relation to the latter charges, the Sumy Court found that there was no conclusive evidence that the applicant had had any intention of obtaining the title to the plot of land owned by Ms N. in the future. The Sumy Court found that the territories on which the plots of land had been located had been designated for the construction of private housing interspersed with high density zones and concluded that they had potentially been eligible for transfer to individuals for private construction. On 16 October 2014 the Sumy Regional Court of Appeal quashed the part of the above judgment relating to the applicant’s conviction and remitted it for fresh examination. On 28 August 2018, following an application by the prosecutor, the criminal case was returned to him for further investigation, which is pending. The part relating to the applicant’s acquittal remained unchanged. 13.     The applicant complained under Article   1 of Protocol   No. 1 that he had been deprived of the land without being awarded compensation. THE COURT’S ASSESSMENT 14.     The Government raised an objection alleging an abuse of the right of individual application, arguing that the applicant had failed to inform the Court about the criminal proceedings initiated against him concerning the legality of the allotment of the plots of land, including the plot in question. 15.     The applicant replied that he had not informed the Court about the criminal proceedings because he had been acquitted of the charges against him. 16.     The Court does not consider it necessary to address the Government’s objection, as the applicant’s complaint is in any event inadmissible for the following reasons. 17.     The general principles concerning deprivation of property have been summarized in Kryvenkyy v.   Ukraine (no.   43768/07, §§ 41, 42 and 45, 16   February 2017). 18.     The parties have agreed that the judgement of 24 May 2013 (see paragraph 10 above) constituted an interference with the applicant’s right to peaceful enjoyment of his possessions. The Court will consider whether that interference was lawful, pursued a legitimate aim and was proportionate. 19.     The national courts set aside the decision of 4 June 2008 and the deed of 17 September 2008 and obliged the applicant to return the disputed plot of land because its allocation was in breach of Sumy’s general land-use plan. This reasoning does not seem to be arbitrary. The Court will next consider whether it was proportionate. 20.     The Court reiterates that in the context of revoking title deeds that were granted in error, the “good governance” principle may impose on the authorities an obligation to act promptly in correcting their mistake, as well as necessitating the payment of adequate compensation or another type of appropriate reparation to the former bona fide owners (see Rysovskyy v.   Ukraine , no. 29979/04, § 71, 20 October 2011). A bona fide owner should not have to bear the adverse consequences of a mistake committed by a State body without compensation or any other type of reparation (see Tomina and Others v. Russia , nos. 20578/08 and 19 others, § 39, 1 December 2016). 21.     In the present case, the applicant was a member and then head of the Commission, a body which dealt with the issue of the allocation of plots of land, and whose conclusions and recommendation had been examined by the Council (see paragraph 3 above). Having acted in that capacity, the applicant had had necessary knowledge about the procedure, requirements and documents necessary for the allocation of the land plots. The Court, therefore, has no doubt that the applicant had been aware that the allocation of the disputed plot of land might raise an issue in the future and that he could have foreseen the future revocation of his title. Indeed, before the appellate court he presented a detailed statement about the structure of the general land-use plan and referred to its textual part in support of his position (see paragraph 10 above). Therefore, it cannot be said that he faced a disproportionate burden when the national courts concluded that the allocation of the disputed plot of land had not been lawful. 22.     In addition, the Court observes that the national courts’ decisions in the civil case were well-reasoned and not arbitrary. The Court reiterates that it has only limited powers to deal with alleged errors of fact or law committed by national courts (see, for instance, Čadek and Others v. the Czech Republic , nos. 31933/08 and 9 others, § 52, 22 November 2012). The conclusion of the criminal court about the designation of the land (see paragraph 12 above) does not affect the Court’s conclusion as to the well-foundedness of the civil courts’ decisions, because those decisions became final before the criminal court’s decision on that issue. 23.     Consequently, the Court considers that nothing in the case file discloses an infringement of Article 1 of Protocol No. 1 to the Convention in the present case. The application is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article   35 § 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 16 February 2023.     Martina Keller   Mārtiņš Mits   Deputy Registrar   President