ECHR judgment of May 22, 2018 in the case of Zelenchuk and Tsitsyura (Zelenchuk and Tsytsyura) v. Ukraine (applications No. 846/16 and 1075/16).
In 2016, complainants were assisted in preparing application. Subsequently, the applications were merged and communicated to Ukraine.
The case successfully reviewed the complaints of the applicants on the ban on the alienation of agricultural land, on the ban on the use of agricultural land for other purposes. The case has violated the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In the 1990s, during the land reform, the former Soviet state collective farms were liquidated, and their members received the right to receive separate land plots from the total area of collective farm land, expressed in hectares, but without indicating their actual location on the ground or determining the boundaries. Subsequently, from 2000 onwards, the right to abstract plots was transformed into the right to physical plots of land (allocated on the ground), and certificates of ownership of specific plots of land were issued. In 2001, a ban was introduced, known as a "moratorium on land", on any form of alienation of agricultural land, with the exception of inheritance, exchange and withdrawal for state needs, before the adoption of legislation necessary to create a normally functioning market for land turnover. Although the prohibition was originally established until 2005, it was extended several times, and it is still in effect. Currently, it is also prohibited any use of agricultural land for other purposes.
Both applicants inherited plots of agricultural land in 2000 and 2004, respectively, and received certificates of ownership of specific plots in 2007 and 2008, respectively. Both sites, according to the above ban, were leased to commercial firms.
QUESTIONS OF LAW
The complained situation concerning the operation of the law was an interference with the applicants' property rights and control over the use of their property. The moratorium and its extension were based on the norms of domestic legislation and were aimed at avoiding the deterioration of the financial situation of rural residents, excessive concentration of land in the hands of individual wealthy citizens or hostile people and to prevent the agricultural land from being phased out. The decision of the domestic authorities that the preservation of the moratorium on the sale of land served these purposes was "clearly devoid of reasonable justification".
The task of the European Court was not in principle to decide whether the state should or should not have decided to transfer the land previously owned by the state to private property, allow new owners to sell land and under what conditions. Given the principle of subsidiarity, the European Court could only assess the situation affecting the applicants in the light of the goal of creating a land market, which the authorities of the respondent state have repeatedly said. For such an assessment, the following factors are significant.
(a) Legislative uncertainty. The grounds for the establishment of a moratorium on the sale and purchase of land for its extension, the limits of its operation and the date of its completion changed over time. Almost all changes in the conditions of the moratorium after its initial adoption were actually aimed at tightening, and not at a gradual lifting of restrictions. Moratorium de facto became indefinite, and the conditions for its cancellation became uncertain. The reasons for such changes were not given, and this situation contradicted the stated goal of gradually creating a land turnover market.
(b) The reasons given as justification for the introduction and extension of the moratorium. No specific reasons were given to explain why the authorities of the respondent state decided that a temporary ban on the sale of land was the only appropriate measure to achieve the social and economic goals set by the authorities, whether the authorities assessed the possibility of using other means of achieving these goals, or whether they evaluated the proportionality of the introduction of a general ban. Moreover, after the extension of the moratorium, no explanation was given to why the legislative framework continued to be absent and again less restrictive measures were not considered. The availability of alternative measures has been repeatedly recognized by the highest authorities of the respondent state.
Concern about the deterioration of the material condition of the rural population and farmers did not relate to a situation similar to that of applicants who lived in cities and did not receive income from farming. The legislator acknowledged that an absolute ban on the sale of land was not needed as such to achieve the objective in question, but was rather to provide time for the development of the necessary legislation to ensure the existence of a normally functioning land turnover market. With regard to preventing excessive concentration of land in the property of one owner and the withdrawal of agricultural land from targeted treatment, domestic legislation already contained provisions aimed at achieving the same result. It is also important that in none of the Council of Europe member states, including those that went through a shift from a planned economy to a market economy and carried out land reforms, there were no general restrictions on the sale of agricultural land.
(c) The burden imposed on applicants. Both applicants received land as a result of land reform, which was not completed at the time of the applicants' ownership. They inherited the land and did not acquire it as a result of a commercial transaction. Moreover, given the proclaimed goal of the reform in the form of creating a market for agricultural land, the applicants could not expect the ban to be established indefinitely. Therefore, it cannot be said that the applicants should have known that they would take possession of the encumbered property, which will remain so, except for the possibility of making some uncertain changes in the future.
Regarding the financial aspect of the burden imposed on applicants, applicants were free to lease their land at market prices, and the respondent Government sought to help landowners by setting a minimum rent. At the same time, the applicants' lands were leased by commercial firms, and the respondent authorities did not demonstrate that the moratorium on the sale and purchase of land served to protect vulnerable groups of the population. However, the applicants received the land in the usual inheritance, and for them it was not a gratuitous, unforeseen acquisition.
The European Court also acknowledged the pertinent duration of existence of the restriction in question, its extensive limits and general nature, which allowed virtually no exceptions. Restrictions have personally affected applicants for more than 12 and 10 years, respectively. The ban prevented applicants from alienating the land in almost any acceptable form and using it for any other purpose than agricultural. The situation of the applicants was not considered individually, and no exceptions were applied to them, which led to the fact that the proportionality of the impact measure was not investigated on the merits either at the legislative or individual levels. In conclusion, the state of uncertainty created by repeated extensions of the moratorium in itself increased the burden placed on the applicants. The implementation of one of the key components of the right of ownership, the right to dispose of property, was governed by legislation of indefinite content, the adoption of which was postponed in a manner that turned out to be unpredictable and not clearly explained. In practice, the applicants ownership became unstable and in need of protection.
As a result, the applicants were forced to bear the burden of the mistake committed by the authorities when the authorities failed to achieve the goals set by themselves and comply with the deadlines set by them. Due to the weakness of the arguments put forward to justify the choice of the most restrictive measure available to the authorities, compared with less stringent measures, the burden imposed on the applicants was excessive. At the same time, a fair balance was not reached between the general interests of the society and the property rights of the applicants.
The case was a violation of Article 1 of Protocol No. 1 to the Convention (adopted unanimously).
Regarding compliance with Article 46 of the Convention. The authorities of the respondent state should take appropriate legislative and / or other measures of a general nature to ensure an equitable balance between the interests of the owners of agricultural land, on the one hand, and the general interests of society, on the other hand, in accordance with the principles of protection of property rights under the Convention. The Court should not determine how exactly these interests should be balanced. The ruling of the European Court should not be understood as meaning that the authorities of Ukraine should immediately form an agricultural land turnover market without any restrictions.
In application of Article 41 of the Convention. The applicants did not submit any claims for pecuniary damage. The finding of a violation of the Convention in itself was a fair enough compensation for any non-pecuniary damage. In making this decision, the European Court took into account the nature of the burden imposed on the applicants, the demand on the authorities of the respondent state to take general measures and the fact that the moratorium affected an extremely large number of people. If the authorities of the respondent state unreasonably delay the adoption of necessary measures of a general nature, over time this may lead to a situation where the award of compensation in accordance with Article 41 of the Convention will be justified, at least for a certain category of owners of agricultural land.