The ECHR judgment of July 4, 2019 in the case of Svitlana Ilchenko v. Ukraine (application No. 47166/09).
In 2009, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Ukraine.
In the case, the application was successfully examined for the lack of compensation for a private garage located on a state-owned land plot and demolished for the construction of commercial housing. 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.
Circumstances of the case
The applicant had been using the garage in the courtyard of her house since 1980. In 1995, she registered ownership of him. In 2003, the city council provided the land on which the garage was located for the implementation of a new housing project by a private developer. The city authorities invited the applicant to pay monetary compensation, but she did not respond to the negotiations. Her garage was demolished after the courts of Ukraine issued decisions which established, inter alia, that the applicant had never had a properly executed right to the land on which the garage was located.
QUESTIONS OF LAW
Regarding compliance with Article 1 of Protocol No. 1 to the Convention. The situation of the applicant, in which the deprivation of property took place, should be distinguished from the situations:
- concerning unauthorized construction, since the applicant had a properly registered garage right, which was not recognized as invalid or contested for the 20 years that preceded the planning of a new building;
- in which each decision that allowed the house to remain on the state owned coastal area indicated that the permit was temporary and could be canceled at any time without compensation (see the judgment of the Grand Chamber of the European Court of case of Depalle v. France of March 29, 2010, complaint No. 34044/02).
The applicant’s alleged “unauthorized” use of the land plot in the present case did not result from any violation of the law during the construction of the garage, but mainly from the development of Ukrainian legislation in the process of transition from the Soviet legal system, which did not recognize private land ownership and rights rent on it in the classical sense, to a system based on property rights and leases that are inherent in the legislation of Ukraine in the modern period.
In the present case, the issue of “public interest” in the intervention was closely related to the question of the proportionality of the intervention, therefore, both of them had to be considered simultaneously.
Despite the fact that the acceptable limits for the discretion of states in regulating human rights in determining urban planning policies are wide, in the present case there was no indication of what specific considerations of such policies were guided by the municipal authorities in authorizing and supporting the placement of the housing project, and the Ukrainian authorities did not clarify this question.
In this context, regardless of whether the interference could be considered to be in the public interest, it should be noted that no such interest was so strong as to justify the deprivation of property without compensation. In particular, there was no indication that the decisions of the Ukrainian authorities were caused by such important interests of society as environmental protection, the need to ensure the rule of law and the prohibition of illegal buildings or considerations of social justice.
Since the applicant was only seen as a squatter, she not only did not have the right to compensation, but she was obliged, in principle, to compensate the city authorities for the demolition of the garage. The peculiarity of her situation was not taken into account.
It did not matter that the applicant did not respond to the proposal by the city authorities to negotiate compensation. Considering how the Ukrainian courts interpreted and applied domestic law, any offer of compensation could only be ex gratia, and the only way for the applicant to have the right to any statutory compensation was to prove her right to the land plot, which She tried to make the courts of the respondent state.
In addition, there was no procedural basis for conducting such negotiations and providing her with the information necessary to make an informed decision regarding any possible compensation proposal. Thus, her apparent lack of reaction to the proposal by the city authorities to negotiate an ex gratia settlement could not be regarded as a waiver of her rights. The law did not provide for any compensation and there were no established procedures for providing any guarantees during this process. In such circumstances, the applicant’s lack of reaction to the city’s proposal for negotiations was not sufficient to conclude that there had been no violation of her rights. Consequently, the applicant was denied any right to compensation.
In a situation where the implementation of the housing project was aimed primarily at making commercial profit by private individuals, despite the fact that the Ukrainian authorities decided that it was in the public interest, since it contributed to the increase and updating of the housing stock, only compensation, the amount of which was determined within the framework of the procedure that provided a general assessment of the consequences of expropriation, including the award of such an amount of compensation that corresponded to the market value of the expropriated property, can t meet the requirements of Article 1 of Protocol N 1 of the Convention.
In the present case, the applicant was not offered such compensation in conjunction with the guarantees in force.
RESOLUTION
In the case there was a violation of the requirements of Article 1 of Protocol No. 1 to the Convention (adopted unanimously).
COMPENSATION
In application of Article 41 of the Convention. The Court awarded the applicant EUR 8,000 in respect of non-pecuniary and pecuniary damage.