Communicated on 10 September 2018

FOURTH SECTION

Application no. 64661/11 Lyudmyla Stepanivna SHYNKARENKO against Ukraine lodged on 6 October 2011

STATEMENT OF FACTS

The applicant, Ms Lyudmyla Stepanivna Shynkarenko , is a Ukrainian national who was born in 1955 and lives in Kyiv. The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Background information

By a decision of 21 February 2007, the local town administration approved a request lodged by the applicant for the preparation of a land management plan, which was required for the subsequent allocation of a certain plot of land to her.

Pursuant to that decision, the applicant prepared a plan and submitted it for the approval of several authorities. In particular, on 1 November 2007 and 17 April 2008, respectively, the local land resources authority approved the allocation of the plot of land to her and gave her a positive evaluation of the technical documents necessary for that allocation.

As a result, on 24 June 2008 the town administration decided to transfer to the applicant a plot of land of 0.12 ha for gardening purposes. On 20 July 2009 it also issued to her a land-ownership certificate ( державний акт на право власності на земельну ділянку ) in respect of that plot.

On 26 February 2010 the Kyiv City Council approved the classification of certain areas in Kyiv as water-protection zones. Inter alia , that decision assigned a 25-metre-wide water-protection zone around a drainage canal near which the applicant ’ s plot was located.

On 26 February and 1 April 2010, after examining the lawfulness of the transfer of the plot of land to the applicant, the local prosecutor sent two “protests” to the land resources authority, asking it to annul its decisions of 1 November 2007 and 17 April 2008. The prosecutor stated, in particular, that the plot of land in issue constituted “water resource land” ( земля водного фонду ) and could not be transferred to a private ownership.

On 4 March and 29 April 2010, respectively, the land resources authority complied with the protests and annulled its decisions.

B. Proceedings concerning the annulment of the applicant ’ s land title

On 26 February 2010 the local prosecutor, acting on behalf of the State, lodged a claim with the Boryspil Court against the applicant and the town administration, seeking the invalidation of the decisions of 21 February 2007 and 24 June 2008 and of the applicant ’ s land-ownership certificate. The prosecutor argued that the plot transferred to the applicant constituted water resource land, which could not be transferred to private ownership; the transfer of land to her had therefore been in breach of the law.

By a judgment of 10 November 2010, upheld on 14 March 2011 by the Kyiv Regional Court of Appeal, the Boryspil Court allowed the claim, invalidated the above-mentioned decisions and the applicant ’ s land certificate, and ruled that the applicant was obliged to return the plot to the State. The court found that the plot was located in the water-protection zone around the drainage canal. Under domestic law, that zone constituted water resource land; it could therefore only be leased for certain purposes, but not transferred to private ownership. No compensation was awarded to the applicant.

The applicant lodged a cassation appeal, stating that having applied to the town administration for the allocation of the plot of land to her, she had not and could not have had the possibility of verifying the validity of the decisions that it had taken in this respect; even assuming that those decisions were invalid, she could not be held responsible for the administration ’ s failure to comply with the procedure provided for by the law. Lastly, she argued that if the case were to be subsequently examined by the European Court of Human Rights, the State would have to compensate her for the value of the plot of land.

On 12 April 2011 the Higher Specialised Court of Ukraine upheld the above decisions.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 of a breach of her property rights on account of the outcome of the proceedings instituted against her by the local prosecutor. She states, in particular, that she received the land from the town administration lawfully and in good faith, and that even if the administration – in transferring the land to her – made a mistake, she should not have been held responsible for that mistake.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant ’ s peaceful enjoyment of her possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference in accordance with the conditions provided for by law, did it pursue a legitimate aim in the public interest and did it impose a disproportionate and excessive burden on the applicant?