CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 janvier 2024

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UKRAINE (Application no. 70445/13)             JUDGMENT   STRASBOURG 11 January 2024   This judgment is final but it may be subject to editorial revision. In the case of Shmakova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President ,   Mattias Guyomar,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   70445/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 October 2013 by a Ukrainian national, Ms Svitlana Volodymyrivna Shmakova, who was born in 1963 and lives in Berdyansk (“the applicant”), and who was represented by Mr   M.I.   Bezukh, a lawyer practising in Berdyansk; the decision to give notice of the complaint under Article 1 of Protocol No.   1 to the Convention to the Ukrainian Government (“the Government”), represented by their Agent, most recently, Ms M. Sokorenko, and to declare the remainder of the application inadmissible; the Government’s observations; Having deliberated in private on 30 November 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the deprivation of the applicant’s title to a plot of land following the proceedings brought by a prosecutor to have that land returned to a State-owned plant, allegedly in breach of Article 1 of Protocol   No. 1 to the Convention. 2.     On 25 February 2009 the Berdyansk City Council (“the City Council”) allocated to the applicant, free of charge, a plot of land for individual construction. This was done in accordance with Article 40 of the Land Code which provides for the procedure of allocation of free land within the territory of a municipality for individual construction. On 14 April 2009 the applicant obtained from the State the deed of title to her plot of land. She started the construction of a house on the land which was finished by the end of 2012. 3.     On an unspecified date in mid-2011, a local prosecutor, acting in the interests of the State, lodged a claim against the City Council seeking the invalidation of the decision of 25 February 2009. He argued that the disputed plot had been part of the land allocated for permanent use to the local State ‑ owned industrial plant “Prylyv” (“the plant”) for the construction of a school and a nursery, and could not thus be transferred to other persons. In parallel, one of the Council’s officials, a member of the land commission, was prosecuted and convicted for abuse of power in the allocation of land; he was eventually discharged under an amnesty. 4.     In the first round of examination, the lower courts ruled against the prosecutor. They found that as the plant had been reorganised in 1998 into an open joint-stock company (while remaining State-owned), it could not be considered to have retained its predecessor company’s right to use of the land, and that it should have re-applied for those rights. The courts also noted that the land at issue had not been used by the plant in any way. 5 .     On 8 August 2012, following a reconsideration ordered by the High Commercial Court to verify the circumstances and legal consequences of the plant’s reorganisation, the Zaporizhzhya Region Commercial Court allowed the prosecutor’s claim and quashed the Council’s decision of 25 February 2009. It found that the plant had been “reorganised” and not “wound up”, and had thus retained the rights belonging to its predecessor, including the right to permanent use of the disputed plot of land. The court also noted that the State Act of 1994 establishing the plant’s right to permanent use of the land had not been annulled and remained valid. Accordingly, the allocation of land to the applicant had breached the plant’s rights. 6.     Based on the above-mentioned facts, the prosecutor lodged a claim against the applicant, seeking invalidation of her title and the return of the disputed plot to the plant. 7 .     On 1 July 2013 the High Specialised Court on Civil and Criminal Cases dismissed the applicant’s appeal in cassation against the lower courts’ decisions which had allowed the prosecutor’s claim. Referring to the judgment of 8 August 2012, the courts concluded that the Council had exceeded its powers when allocating the applicant the disputed plot of land. They also referred to section 3 of Article 388 of the Civil Code entitling a lawful owner of property to reclaim it from an owner who had received it good faith, free of charge. 8 .     Before the Court, the applicant argued that at the time of the relevant events the plant had already been inoperative for a long time and that there was no chance that it would use the disputed land for any purpose, let alone for the construction of a school and a nursery. According to a copy of a letter from the local tax inspection dated 20 March 2012 and provided to the Court by the applicant, the plant had failed to pay its land tax for years. The applicant also provided a copy of a decision adopted by the City Council on 30 May 2012, “in reply to a collective motion from the town’s inhabitants”, invalidating the plant’s right to permanent use of the land at stake based on its failure to pay the required land tax. It was also noted in the decision that the plant’s State Act of 1994 should be considered “terminated”. It is, however, unclear whether that information was submitted to the domestic courts by the applicant or any other party to the proceedings. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 9.     The applicant complained that she had been unlawfully deprived of her property, in that after its reorganisation the plant could not have retained its title to the permanent use of the land granted to its predecessor and that this deprivation did not pursue any legitimate aim and was disproportionate. 10.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 11.     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 and that the revocation of the applicant’s title to it thus constituted a deprivation of a possession within the meaning of that provision. 12.     Seeing no reason to rule otherwise and referring to the general principles concerning the deprivation of possessions (see, for example, Kryvenkyy v. Ukraine , no. 43768/07, §§ 41-2 and § 45, 16 February 2017), the Court will now consider whether that deprivation was lawful, pursued a legitimate aim and was proportionate. 13.     The Court is ready to accept that the deprivation of the plot of land from the applicant was lawful. The domestic courts gave a detailed analysis of the plant’s reorganisation and the succession rights, as well as references to specific legal provisions in their decisions, which do not appear manifestly unreasonable (see paragraphs 5 and 7 above). 14.     As regards the legitimate aim, the Government claimed that the revocation of the applicant’s title pursued the aim of protecting the public interest in that it was aimed at returning to the State the land granted for the construction of a school and a nursery. Such an aim could, in principle, be considered legitimate for the purpose of Article 1 of Protocol No. 1 (compare, Kryvenkyy , cited above, § 44, and Nadtochiy v. Ukraine [Committee], no.   32899/13, § 10, 20 September 2022). 15.     In the present case however, according to documents and the information provided by the applicant, which the Government have not contested, the plant has been inoperative for many years (see paragraph 8 above). The Court notes further that, during the initial examination of the prosecutor’s action, the domestic courts underlined that the land at issue had never been used by the plant and that there were no constructions belonging to the plant on it (see paragraph 4 above). It also notes that the Government did not explain, if there was a pressing social need in having that land allocated for the construction of a school and a nursery, why that land should have remained unused for so many years, and whether that need still existed. 16.     Such a situation raises an issue under Article 1 of Protocol No. 1 in respect of the public interest requirement (see Vassallo v. Malta , no.   57862/09, § 43, 11 October 2011). That said, the Court will also look at the proportionality of the measure. 17.     The Court reiterates that the taking of property without payment of an amount reasonably related to its value will normally fail to respect the requisite fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights and will constitute a disproportionate burden on the applicant. In the context of revoking property title 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 good-faith holders (see, for instance, Kryvenkyy , cited above, § 45, with further references). 18.     In the present case, the applicant acquired the land in good faith, without suspecting that the City Council might have overstepped its powers in approving the allocation. She later obtained all the necessary documents and permits and, eventually, a title deed in respect of the house she had built on that land issued by the same authority, the City Council, that had approved the first allocation of land to the plant in 1994 as well as the second, in 2009, to the applicant. In the latter context, the Court notes that while the Government referred to the conviction of one of the members of the City Council’s land commission for abuse of power in land allocation matters, they did not claim that that had any relation to the applicant’s situation or that the applicant was somehow involved. In any case, this argument does not affect the City Council’s responsibility as a body of power. 19.     In addition, the Court notes that the plant’s title to the permanent use of the land was invalidated by the City Council’s decision of 30 May 2012 (a copy of which was submitted by the applicant, see paragraph 8 above) on the ground that the plant had failed to pay the land tax. In the absence of copies of the parties’ submissions to the domestic courts, the Court cannot establish whether that decision, which is not mentioned in the domestic courts’ judgments, was made known to them so that they knowingly took the decision to invalidate the applicant’s title. This might have potentially been, however, an important factor for them in reaching their conclusions, and the City Council, being a party to the proceedings, should have informed the courts thereof. 20.     In so far as the Government argued that no compensation was necessary in the applicant’s case since she had acquired the land free of charge, the Court reiterates that this does not rule out a finding of a violation of Article 1 of Protocol No. 1 (see, for example, cited above, Kryvenkyy , §   46). Furthermore, while the Government claimed that despite the revocation of the title to the land the applicant still owns the house, the Court is not convinced that she would not face any problems in enjoying her possession rights over it in the future. 21.     The above considerations are enough for the Court to find that, in the circumstances of the case, the applicant’s deprivation of title to her land, without any form of compensation or reparation, failed to strike a fair balance between the demands of the public interest, if any, on the one hand, and the applicant’s right to peaceful enjoyment of her possessions, on the other. 22.     There has accordingly been a violation of Article   1 of Protocol No. 1 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.     In respect of pecuniary damage, the applicant claimed 9,250   US   dollars (USD) or, according to her calculations, 8,198 euros (EUR), being the value of the plot of land at issue. In support of her claim, she provided a translation into English of a one-page expert report dated 23   November 2021 without submitting the original report itself. The applicant further claimed 4,720 USD (or EUR 4,183, according to her calculations) as the cost of the house she had built on the disputed land. The applicant also claimed EUR 20,000 for non-pecuniary damage and EUR   1,000 in respect of costs and expenses incurred before the domestic courts and the Court, as well as for translation, but with no supporting documents attached. 24.     The Government contested those claims. As regards the value of the land, they emphasised that the applicant had received it free of charge and in breach of the law as a consequence of the local authorities’ error, so she was not entitled to any compensation for the impugned interference. Regarding the cost of the house the Government claimed that following the annulment of her title, the applicant had not applied to the domestic courts to seek compensation for the value of the house or to have any possible obstacles to its use removed. They underlined in this context that the applicant remained the owner of the house and there was nothing to show that she had ever experienced any problem using it. As to her claim for non-pecuniary damage, the Government re-stated their position that there had been no violation of the applicant’s rights, therefore no award could be made to the applicant under that head. At the same time, they claimed that the amount requested by the applicant was exorbitant and unfounded. With respect to the claims for costs and expenses, the Government stated that they were not supported by any documents. 25.     Considering the specific circumstances of the present case as well as the fact that the applicant resides in territory currently outside the control of the Ukrainian Government, the Court, ruling on equitable basis, judges it appropriate to award her EUR 11,000 for pecuniary and non-pecuniary damage together. As to the claim in respect of costs and expenses, the Court rejects it in the absence of any supporting documentation. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 11,000 (eleven thousand euros) in respect of pecuniary and non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 January 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President