Published on 12 July 2021

FIFTH SECTION

Application no. 41678/20 Roman Anatoliyovych FUTORNYAK against Ukraine lodged on 5 September 2020 c ommunicated on 23 June 2021

STATEMENT OF FACTS

1 . The applicant, Mr Roman Anatoliyovych Futornyak , is a Ukrainian national, who was born in 1981 and lives in Kharkiv .

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . On 24 January 2015 the applicant ’ s car was destroyed during a fire in a car park located in the town of Mariupol, Donetsk Region, which belonged to the territory controlled by the Ukrainian authorities. The next day a report was prepared by the local fire-fighting service stating that the fire was caused by an explosion during shellfire.

4 . The applicant filed numerous complaints with different State authorities to obtain compensation for his destroyed car. In reply he was in essence informed that while there existed the Law on the Fight against Terrorism (hereafter – the Antiterrorism Law) which provided for compensation by the State for damages caused by terrorist acts (see paragraph 11 below) no mechanism existed to implement those provisions. By a letter of 4 May 2016, the Mariupol Town Council informed the applicant that the respective events were under investigation by the law ‑ enforcement authorities as a terrorist act.

5 . In October 2016 the applicant filed a civil claim against the State, as represented by the Cabinet of Ministers of Ukraine and the State Treasury, claiming compensation for his destroyed car in the amount of 198,362 Ukrainian hryvnas (UAH) (at the material time around 6,800 euros (EUR)). This amount was based on a certificate of estimate for the value of the car before destruction. In his claim the applicant relied, inter alia , on the Antiterrorism Law and the Convention.

6 . On 23 May 2017 the Pecherskyy District Court of Kyiv granted the applicant ’ s claims in full. Based on the facts that i) an anti-terrorist operation had been ongoing in the Donetsk Region; ii) the applicant ’ s car was destroyed during shellfire; iii) a criminal case was pending to investigate a terrorist act; and that iv) the Antiterrorism Law clearly provided for the State ’ s responsibility to compensate damages caused to victims of terrorist acts irrespective of the existence of a final sentence against the perpetrator, the court found that the applicant was entitled to compensation.

7 . On 16 November 2017 the Kyiv City Court of Appeal, acting upon the respondents ’ appeals, quashed the above judgment. It reasoned that while it was the State ’ s responsibility to compensate damages caused to victims of terrorist acts, it was conditional upon further regress claims to the person responsible for those acts. As in the present case the criminal proceedings into the circumstances of the shellfire had still been pending and no sentence had been adopted, the applicant ’ s claims could not be granted.

8 . The applicant appealed in cassation, claiming that according to the wording of the respective provisions of the Antiterrorism Law the compensation for damages could not be deemed conditional upon the existence of a conviction. He also referred to the Court ’ s case law claiming that the State ’ s responsibility was of an absolute and objective nature and in case it was unable to ensure peace and security it had to bear the consequences, in particular as to compensation for damages.

9 . On 25 March 2020 the Supreme Court quashed the lower courts ’ judgments and adopted a new one. It found that the domestic legislation, in particular the Antiterroris m Law, provided for a right to obtain compensation, but did not set out a mechanism for its calculation and payment which had to be established by a special law. Based on that the court concluded that no proprietary interest could be inferred from the domestic legislation as it stood at the material time. At the same time, it awarded the applicant UAH 10,000 (around EUR 360) in compensation for his legitimate expectation that the State would protect his property. In this respect the Supreme Court referred to the State ’ s positive obligation to protect property as it could be inferred from the Convention and the Court ’ s case - law and that such a conclusion was necessary to fill in the lacunae that existed in domestic legislation. In ruling so the Supreme Court also relied on its earlier conclusions in similar cases.

10 . No information is available as to the enforcement of the above judgment.

11 . Article 19 of the Antiterrorism Law provides that the compensation for damage caused by terrorist acts shall be conducted at the expense of the State Budget according to the law and with further reimbursement of the amounts of compensation paid by the persons who had caused the damage, in order established by the law.

COMPLAINTS

The applicant complains under Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention about the State ’ s failure to ensure his right of peaceful enjoyment of possessions on account of the lack of a mechanism for compensation for damage caused by terrorist acts and the amount of the final award made by the Supreme Court.

QUESTIONS TO THE PARTIES

1. Does the applicant in the present case have a “possession” or “a legitimate expectation” in terms of Article 1 of Protocol No. 1 to the Convention?

2. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference:

(i) lawful?

(ii) necessary to control the use of property in accordance with the general interest? In particular, did that interference impose an excessive individual burden on the applicant?

3. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention? If so, the Government is invited to provide examples of the relevant domestic case-law or practice.