FIFTH SECTION

CASE OF BORISOV v. UKRAINE

( Application no. 2371/11 )

JUDGMENT

STRASBOURG

4 March 2021

This judgment is final but it may be subject to editorial revision.

In the case of Borisov v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Stéphanie Mourou-Vikström, President, Ganna Yudkivska, Lado Chanturia, judges, and Martina Keller , Deputy Section Registrar ,

Having regard to:

the application (no. 2371/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Ukrainian national, Mr Vyacheslav Petrovich Borisov (“the applicant”), on 24 December 2010;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the parties ’ observations;

Having deliberated in private on 4 February 2021 ,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1 . The case primarily concerns the complaint under Article 1 of Protocol No. 1 to the Convention about demolition of the applicant ’ s immovable property on the basis of a valid court decision which was subsequently quashed as unlawful. It also concerns Article 6 § 1 as regards the length of the relevant civil proceedings.

THE FACTS

2 . The applicant was born in 1957 and lives in Odessa. The applicant, who had been granted legal aid, was represented by Ms O.V. Yenakiyeva, a lawyer practising in Dnipro.

3 . The Government were represented by their Agent, Mr I. Lishchyna.

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

5 . In 2001 the applicant purchased a garage in Odessa. Subsequently, he converted the garage into a shop for automobile equipment.

6 . On 27 March 2003 two neighbours instituted civil proceedings contesting the applicant ’ s ownership of the garage and seeking to have the converted garage demolished, given that the conversion had allegedly been unlawful and that it had caused a deterioration in their living conditions in that the shop was located too close to their premises, and that it had reduced the field of view from their windows; moreover, the operation of the shop produced chemical waste and odours. They therefore argued that their property rights had been violated.

7 . On 14 March 2005 the Prymorskyy District Court of Odessa declared invalid the agreement concluded by the applicant in 2001 for the purchase of the garage. The court then found that the applicant had not obtained the appropriate authorisations for the conversion of the garage. On those grounds the court ordered the demolition of the converted garage.

8 . On 7 June 2005 the Odessa Court of Appeal upheld the court decision of 14 March 2005, whereupon the demolition order came into effect ( see paragraph 22 below) and became enforceable.

9 . On 29 June 2005 the applicant appealed on points of law to the Supreme Court. He asked it to suspend the enforcement of the demolition order for the period of consideration of his appeal on points of law ( see paragraph 23 below).

10 . On 30 June 2005 the applicant lodged a complaint against the bailiffs and asked them to postpone the enforcement proceedings, arguing that he had been undergoing inpatient treatment in a hospital and that he had not been properly notified of their decision to commence the enforcement proceedings. The applicant enclosed a medical certificate concerning his inpatient treatment.

11 . On 4 July 2005 the bailiffs completed the demolition of the converted garage and closed the enforcement proceedings.

12 . On 26 October 2005 the Supreme Court decided to suspend the enforcement of the demolition order.

13 . On 27 September 2006 the Supreme Court allowed the applicant ’ s appeal on points of law, quashed the decisions of the lower courts as unfounded and remitted the case to the first-instance court for fresh consideration. The Supreme Court stated that the lower courts had failed to establish the standing of the neighbours to challenge the applicant ’ s purchase agreement; that they had not taken into account the statute of limitations in relation to that part of the claim; and that they had come to the unfounded conclusion that the garage had been converted without all the relevant authorisations.

14 . On 2 August 2007 the applicant lodged a claim against the two neighbours, seeking damages for the losses he had sustained as a result of the demolition of his property. The claim was joined to the ongoing proceedings instituted by the neighbours.

15 . On 24 December 2009 the Prymorskyy District Court of Odessa, in joint proceedings, dismissed the neighbours ’ claims as well as that of the applicant. The court found that the neighbours had had no standing to challenge the validity of the applicant ’ s title to the garage and, moreover, that that part of the claim had been time-barred. The court then found that the applicant had converted the garage in accordance with the legal requirements and on the basis of all the necessary administrative authorisations. As regards the applicant ’ s claim for damages, the court found that there were no grounds to make any award because the neighbours could not be held liable for lawfully exercising their right of access to a court.

16 . On 21 June 2010 that decision was upheld by the court of appeal.

17 . On 30 August 2010 the Supreme Court dismissed the applicant ’ s subsequent appeal on points of law.

18 . The applicant lodged complaints with the domestic authorities, seeking to have criminal and disciplinary proceedings instituted against the judge of the Prymorskyy District Court of Odessa who had adopted the decision of 14 March 2005 and ordered the demolition of his property. The complaints were dismissed.

RELEVANT LEGAL FRAMEWORK

19 . Article 1173 of the Civil Code provides that damage caused to a natural or legal person by an unlawful decision, action or omission of a public authority in the exercise of its functions is to be compensated for by that authority regardless of whether or not its liability has been established.

20 . Article 1174 of the Civil Code provides that damage caused to a natural or legal person by an unlawful decision, action or omission of an official of a public authority in the exercise of his or her functions is to be compensated for by the State or the relevant authority regardless of whether or not the liability of the official has been established.

21 . Article 1176 § 5 provides that damage caused to a natural or legal person by an unlawful court decision in a civil case must be fully compensated for by the State in the event that a final court judgment has established that the judge or judges responsible for the adoption of the unlawful decision had committed a crime.

22 . The decision of the court shall enter into force after the expiry of the time-limit for appeal (if no appeal is lodged). In the event of appeal, the decision, if it has not been revoked, takes effect after consideration of the case by the appellate court (Article 223).

23 . An appeal on points of law should be submitted directly to the cassation court, which has to decide, within ten days from the date of receiving it, whether or not cassation proceedings should be opened; that court also has to decide whether enforcement proceedings should be suspended, if such a request has been made in the appeal on points of law (Article 327).

24 . If a court decision has been quashed after its enforcement and the case has been remitted for a new hearing, following which the claim has been dismissed, allowed in a lesser amount or rejected without consideration on the merits, or the case has been closed, then the court must oblige the claimant to return to the defendant the property that has been taken from the defendant as a result of the court decision that has been quashed (Article 380 § 2). In the event the property cannot be returned, the court should award pecuniary compensation equal to the amount of money received from the sale of the property (Article 380 § 3). If the question of reversal of enforcement as described above has not been determined by the courts in the course of the new hearing, the defendant is entitled to lodge an application to that effect with the court dealing with the case (Article 381 § 1).

25 . In accordance with the Enforcement Proceedings Act, bailiffs could suspend enforcement proceedings if, among other grounds, the debtor had been undergoing inpatient treatment at a hospital or if a complaint against the bailiffs had been lodged (section 35).

THE LAW

26 . The applicant complained that his immovable property had been demolished by the State authorities groundlessly. He relied on Article 1 of Protocol No. 1, which reads 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.”

27 . The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint under Article 1 of Protocol No. 1, referring to two remedies. Firstly, the applicant could have lodged a claim under Articles 1173 and 1174 of the Civil Code, seeking damages for the demolition of his property. In support of the practical availability of that remedy, the Government referred to a decision of 26 February 2014 adopted by a first-instance court in Crimea in which damages had been awarded for the demolition of immovable property in 2011 by bailiffs who had proceeded with the enforcement despite the indication of the local prosecutor that the enforcement had to be suspended.

28 . Secondly, according to the Government, the applicant could have sought compensation under the procedure for reversal of enforcement provided for in Articles 380 and 381 of the Code of Civil Procedure. The Government referred to four decisions of the domestic courts where the money or property had been returned to the defendants in accordance with that procedure.

29 . The applicant maintained that the remedies were not effective and he had therefore not been obliged to exhaust them.

30 . The Court reiterates first of all that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and that are capable of redressing the alleged violation. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied ( see Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 52, 20 January 2020, with further references).

31 . As to the claim for compensation under Articles 1173 and 1174 of the Civil Code, the Court notes that the applicant ’ s complaint stemmed from the damage allegedly sustained as a result of the unlawful court decision. In this context it does not appear that these provisions of the Civil Code were designed to address this type of damage in view of the lex specialis provided by Article 1176 § 5 of the same Code specifically dealing with such claims and providing a special condition for the right to compensation: there should be a criminal conviction of the judge who has adopted the unlawful court decision ( see paragraph 21 above). Such a condition was not met in the present case meaning that this remedy was not available to the applicant. When referring to the general provisions of Articles 1173 and 1174 of the Civil Code, the Government cited only one decision of a domestic court. However, one example is usually not sufficient to show that the remedy was certain in practice ( see Beinarovič and Others v. Lithuania , nos. 70520/10 and 2 others, § 112, 12 June 2018). Moreover, the example cited concerned the unlawful actions of bailiffs, rather than of the courts. It is also noteworthy that that decision was adopted much later than the facts complained of in the present case, and cannot therefore be relied on to support the contention that the remedy had been available in practice at the relevant time. In conclusion, this remedy was not effective for the purpose of the Convention and the applicant was not obliged to avail himself of it.

32 . As to the second remedy mentioned by the Government, the procedure for reversal of enforcement under Article 380 of the Code of Civil Procedure was limited in its application to cases where the property could be returned to the defendant or where the money could be returned after the sale of the property ( see paragraph 24 above). The examples provided by the Government only confirm this limited scope, which does not cover cases of demolition of property. It is relevant to note that the domestic courts did not order reversal of enforcement in the applicant ’ s case, even though it was their duty to make such an order of their own motion had that procedure been applicable to the applicant ’ s case. Accordingly, this remedy, being limited in its application, could not address the substance of the applicant ’ s complaint and it was not therefore effective for the purpose of the Convention.

33 . In view of the above, the Government ’ s objection based on the rule of exhaustion of domestic remedies must be dismissed.

34 . The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

35 . The applicant accepted that the demolition of his property had had a legal basis but insisted that it had amounted to a disproportionate interference with his property rights.

36 . The Government submitted that there had been no violation of Article 1 of Protocol No 1.

(a) Existence of an interference

37 . In the present case the applicant ’ s immovable property, a garage that had been converted into a shop, was demolished by State bailiffs in enforcement of a court decision. It is common ground that this measure constituted interference by the State with the applicant ’ s possessions.

(b) Applicable rule

38 . As the Court has stated on many occasions, Article 1 of Protocol No. 1 comprises three rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers the deprivation of property and subjects it to conditions; the third rule, stated in the second paragraph, recognises that States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, must be read in the light of the general principle laid down in the first rule ( see Lekić v. Slovenia [GC], no. 36480/07, § 92, 11 December 2018).

39 . The demolition of the applicant ’ s property was based on the finding that the applicant had not obtained all the authorisations necessary for the conversion of his garage into a shop ( see paragraph 7 above). The demolition therefore pursued the purpose of securing the rule of law and compliance with the building regulations. It therefore amounted to a “control [of] the use of property” ( see Ivanova and Cherkezov v. Bulgaria , no. 46577/15, § 69, 21 April 2016, and contrast Svitlana Ilchenko v. Ukraine , no. 47166/09, § 60, 4 July 2019). The interference thus falls under the third rule laid down in the second paragraph of Article 1 of Protocol No. 1.

(c) Lawfulness of the interference

40 . The parties did not dispute that the demolition of the applicant ’ s property had been lawful in domestic terms. The Court notes that the property was demolished according to the valid court order which was enforceable at the relevant time. The Court accepts that the impugned measure had a basis in domestic law.

(d) Aim of the interference

41 . The Court has found that the interference, which sought to ensure compliance with the building regulations, thereby re-establishing the rule of law, was “in accordance with the general interest” ( see Saliba v. Malta , no. 4251/02, § 44, 8 November 2005). In the present case the demolition was ordered by the courts because they considered that the applicant had not obtained all the necessary authorisations from the relevant authorities ( see paragraph 7 above). This measure was therefore taken “in the general interest”.

(e) Whether the interference was justified

42 . The question remains whether the interference struck a fair balance between the applicant ’ s interest in keeping his possessions intact and the general interest in ensuring the effective implementation of the building regulations.

43 . The Court has on many occasions emphasised the particular importance of the principle of “good governance”. It requires that where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, the public authorities must act in good time and in an appropriate and above all consistent manner ( see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000 ‑ I).

44 . The “good governance” principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence ( see Moskal v. Poland , no. 10373/05, § 73, 15 September 2009). However, the risk of any mistake made by the State authority must be borne by the State itself and the errors must not be remedied at the expense of the individuals concerned ( see Rysovskyy v. Ukraine , no. 29979/04, § 71, 20 October 2011, with further references).

45 . In the context of a measure controlling the use of property, the lack of compensation is a factor to be taken into consideration in determining whether a fair balance has been achieved but is not of itself sufficient to constitute a violation of Article 1 of Protocol No. 1 ( see Depalle v. France [GC], no. 34044/02, § 91, ECHR 2010).

46 . In the present case the interference with the applicant ’ s possessions consisted in the demolition of his immovable property on the basis of a court decision finding that the applicant had not complied with the building regulations. It is notable that the control measure in issue was serious and harsh as it entirely extinguished the applicant ’ s right in rem .

47 . As regards the conduct of the domestic authorities, the Court notes that even though the Supreme Court suspended the enforcement of the disputed demolition, its decision was belated, as by that time the property had already been demolished by the bailiffs ( see paragraphs 11 - 12 above). It was even later that the demolition order was quashed as unlawful and unsubstantiated ( see paragraph 13 above).

48 . This delayed reaction on the part of the higher judicial authority contrasts markedly with the exemplary promptness of the bailiffs in the enforcement of the demolition order, even though they must have realised the irreversible nature of their actions and they had discretion to suspend the enforcement on various grounds including those expressly invoked by the applicant ( see paragraphs 10 and 25 above; compare OAO Neftyanaya Kompaniya Yukos v. Russia , no. 14902/04, § 654, 20 September 2011). These circumstances show that, despite the harshness of the control measure, the authorities did not act in good time and in an appropriate and consistent manner.

49 . Moreover, the applicant, who was eventually found not to have been in breach of any legal rule regarding the matter (compare Tre Traktörer AB v. Sweden , 7 July 1989, § 61, Series A no. 159), was not offered any compensation on account of the erroneous demolition of his property. Although it is true that the interference with the applicant ’ s possessions was a “control of use” rather than a “deprivation of possessions”, with the result that the case-law on compensation for deprivations is not directly applicable, a disproportionate and arbitrary control measure without the subsequent possibility of seeking compensation will disclose an issue under Article 1 of Protocol No. 1 ( see Vékony v. Hungary , no. 65681/13, § 35, 13 January 2015).

50 . Having lost his property as a result of wrong judicial decision, it was essential, in order to strike a fair balance, that the applicant had a legal avenue of obtaining redress. The Court considers that the judicial mistake resulting in the demolition of the applicant ’ s property could not be remedied solely at his expense. However, as examined above, the Government have failed to show any effective remedy that the applicant could have used to claim such compensation ( see paragraphs 31 and 33 above).

51 . Having regard to the above circumstances, the Court finds that a fair balance has not been struck between the protection of the applicant ’ s property and the requirements of the general interest. There has accordingly been a violation of Article 1 of Protocol No. 1.

52 . The applicant complained that he did not have an effective remedy in respect of his complaint concerning the unjustified demolition of his immovable property. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

53 . The Court observes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

54 . Having regard to its finding under Article 1 of Protocol No. 1, the Court finds that it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention.

55 . The applicant complained that the length of the civil proceedings in his case had been incompatible with the “reasonable time” requirement. He relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

56 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute ( see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

57 . In the leading case of Krasnoshapka v. Ukraine (no. 23786/02, 30 November 2006), the Court already found a violation in respect of issues similar to those in the present case.

58 . Having examined all the material submitted to it, the Court finds no fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. Having regard to its case-law on the subject, the Court observes that in the instant case the length of the proceedings exceeded seven years and five months at three levels of jurisdiction and there were no substantial delays on the part of the applicant. On the contrary, the Government have not provided any reasonable explanation for the excessive length of the civil proceedings. The Court finds that the “reasonable time” requirement has not been met in the present case.

59 . This complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention.

60 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

61 . The applicant claimed 2,588,700 Ukrainian hryvnias (UAH) in respect of pecuniary damage, representing compensation in the amount of the market value of the property he had lost, and UAH 7,731,200 in respect of lost income. The applicant further claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

62 . The Government submitted that the applicant ’ s claims in respect of damage were unsubstantiated.

63 . The Court considers that, in the circumstances of the present case, the question of pecuniary damage is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).

64 . As regards non-pecuniary damage, the Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 3,300 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.

65 . The applicant also claimed EUR 4,860 and UAH 7,500 for the costs and expenses incurred before the Court.

66 . The Government submitted that the claim was unfounded.

67 . Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award, in addition to the legal aid granted, the sum of EUR 700, covering costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to the applicant. This amount is to be paid directly into the bank account of the applicant ’ s representative, Ms O. Yenakiyeva, as requested by the applicant (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

68 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) reserves this question;

(b) invites the Government and the applicant to submit, within three months from the date of notification of this judgment, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be;

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of Ms O. Yenakiyeva;

(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;

Done in English, and notified in writing on 4 March 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President