Communicated on 5 March 2018

FOURTH SECTION

Application no. 55353/09 Mariya Pavlivna SHEVCHENKO against Ukraine lodged on 9 October 2009

STATEMENT OF FACTS

The applicant, Mrs Mariya Pavlivna Shevchenko, is a Ukrainian national, who was born in 1942 and lives in Bila Tserkva .

A. The circumstances of the case

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

In 1996 the applicant became the owner of a house in the Fursy village constructed in 1918, having inherited it from her late mother.

On 21 April 2004 the applicant registered ownership of the land plot surrounding the house. This plot accommodated the house, dependent structures, adjacent yard and the garden.

According to the applicant, she and her husband live in the house from early spring to late autumn.

On 19 March 2007 the applicant asked the closed joint stock company “K.”, the local electricity provider, to relocate two pillars supporting the high-voltage (10 kilovolt) power line located on her land plot. She noted that the roof of her house had become obsolete and that urgent renovations were necessary. In the meantime, the cabling of the power line was so close to the roof, that it was not possible to perform any renovation works safely.

On 17 April 2007 the company “K.” informed the applicant that the power line at issue had been constructed in 1974 in conformity with the Rules on mounting electric installations . Notably, all the construction elements of the line were at least at a two-metre distance from the house. In the meantime, based on the applicant ’ s submissions, the house was located within the power-line ’ s designated security zone. The applicant was therefore required to provide documents certifying that a permit had been duly received for constructing the house at issue in order for “K.” to examine her request any further.

On 11 June 2007 a commission consisting of the Fursy village mayor, a land-planning official and several members of the Village Council inspected the applicant ’ s house and land at her request. The commission concluded that the distance between the roof of the house and the power-line ’ s cabling was only 1.5 metres. Along with the fact that two pillars supporting this line were located in close proximity to the house, the power line constituted danger for life and caused nuisance in tending to the land. Accordingly, the commission recommended to the executive committee of the Fursy Village Council to demand “K.” to relocate the support pillars from the applicant ’ s land.

There is no information in the case file whether any further steps were taken by the Council in this respect.

On 17 December 2007 the applicant instituted proceedings in the Bila Tserkva Court seeking to oblige “K.” to relocate the power line from her land. She noted, in particular, that location of the line on her land and in immediate proximity of her house was a source of excessive nuisance and inconvenience. Her house was located within the “security zone” of the power line, and so it was impossible for her to obtain permits for capital renovation of the house. She further submitted that such location of the line created danger to her and her husband ’ s life, limb and property in case of an accident, particularly during thunderstorms; and constituted interference with her ability to garden and use her land. The applicant also submitted that she suffered from hypertension and frequent headaches, which, in her view, could be connected to the influence of the electric field generated by the power line.

On 14 May 2008 the court rejected the applicant ’ s claim. The relevant part of the judgment read as follows:

“... Since 1974 and until today none of the house owners requested cessation of interference with the use of the land plot ... At the same time, according to the plan depicting the external boundaries of the land plot ... location of the electric line pillars and of the high-voltage line is not indicated. The court considers it therefore impossible to allow the present claim.”

The applicant appealed. She argued, in particular, that the power line was installed in breach of the statutory requirement to observe a ten-metre security distance from residential buildings. She further complained that, in spite of her motion to this effect, the court had not obliged the defendant to produce any documents certifying that the line had been properly installed in conformity with the necessary planning permissions in the first place. Likewise, the defendant had not produced any documents indicating that the land accommodating the line had been properly allocated to it for this purpose. In addition, the applicant submitted that the timing of the request to relocate the line was connected to the urgent need to perform capital renovation of the house. In her view, failure to raise any relevant complaints any earlier was irrelevant for the case, as the nuisance caused by the power line was continuous and incessant.

On 17 December 2008 the Kyiv Regional Court of Appeal rejected the applicant ’ s appeal against the aforementioned judgment. The relevant part of the decision read as follows:

“Mother of the claimant ... received property certificate for the house ... in 1990. ... Power line... was constructed in 1974 in accordance with the Rules on mounting electric installations with due regard to the [requirements concerning observance of a] security zone for the electric networks.

There is no information in the case file that former owners of the house, which the applicant had inherited after the death of her mother in 1996, had lodged any complaints concerning the installation of the power line or impossibility to use the land plot.

Regulations concerning protection of the population and its health from harmful influence of electric fields, which are created by electric networks and their elements, are approved by the Order of the Ministry of Health no. 239 of 1 August 1996 “On the approval of the State sanitary regulations and norms”.

In particular, paragraph 2.4 of the Regulations provides for measures to be taken concerning protection from influence of the electric fields and [establishes] requirements concerning works in the vicinity of the electric power lines.

According to paragraph 2.4.14 of the Regulations, there is no need to take [special] measures for the protection of the population from influence of the electric fields ... with power of 220 kV and less, which [are installed] in conformity to the requirements of the Rules on mounting electric installations .

Considering the above, the panel agrees with the conclusion of the [first-instance] court regarding absence of the grounds for allowing the claimant ’ s demands.”

The applicant lodged an appeal in cassation. She reiterated that the power line was constructed in breach of applicable regulations and that the opposite conclusion reached by the Court of Appeal in that respect was manifestly arbitrary and not supported by evidence. “K.” had failed to submit any documents indicating that the power line had been constructed in conformity with necessary permits or that the disputed land plot was duly allocated for this purpose. In addition, she reiterated her arguments concerning unjustified nuisance, danger and inconvenience suffered by her in connection with the line ’ s location.

On 16 July 2009 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation against the previous rulings, having found that the applicant ’ s arguments were manifestly ill-founded and that there was no need to open the cassation proceedings for reviewing her claims.

B. Relevant domestic law

1. Land Code of 2001 (in force since 1 January 2002)

The relevant provisions of the Land Code, as in force at the material time, read as follows:

Article 65. Definition of lands designated for industrial, transportation, communication, energetics, defence and other purposes

“ 1. Lands designated for industrial, ... energetics ... and other purposes shall denote land plots allocated, according to the established procedure, to enterprises, institutions or organisations for performing respective activities. ...”

Article 76. Lands of the energetics system

“ 1. Lands of the energetics system shall denote lands allocated [for accommodating] installations generating electric power ..., [and] installations transporting electric energy to the user.

2. Lands of the energetics system may be in State, municipal and private ownership.

3. Along the aerial and underground cable lines of electric transmission security zones shall be established.”

Article 112. Security zones

“ 1. Security zones shall be created:

...

b ) along the lines of communication, electric transmissions ... for ensuring normal conditions of their exploitation, prevention of [their] damage, as well as mitigating their negative influence on humans, the environment, adjacent lands and other natural objects. ...”

Article 114. Sanitary protection zones

“ 1. Sanitary protection zones shall be created around objects , which are sources of emission of polluting substances , odours , increased levels of noise, vibration, ultrasound and electromagnetic waves, electric fields, ionising radiation, etc., with a view to separating such objects from territories of residential construction.

2. Within the boundaries of the sanitary protection zones construction of residential housing, installations of social infrastructure and other objects connected to permanent accommodation of humans shall be prohibited. ...”

Article 125. Emergence of right of ownership and right of usage of a land plot

“ 1. Right of ownership and right of permanent usage of a land plot shall emerge upon issuance to the title-holder or the user of a document certifying the right of ownership or the right of permanent usage of the land plot and its State registration.

...

3. It shall be prohibited to use a land plot before its boundaries are delimited in-kind [and] the document certifying right to it is received and registered with the State.”

Article 126 . Documents, which certify rights to a land plot

“ 1. Right of ownership to a land plot and right of permanent usage of a land plot shall be certified by State certificates. ...”

Article 152. Ways to protect rights concerning land plots

“...

2. Owner of a land plot or land user may demand cessation of any interference with his rights regarding the land, even if this interference is not connected to the deprivation of possession of the land plot, and compensation of damages suffered.

3. Protection of rights of citizens and legal entities concerning land plots shall be realised by way of:

а) recognising their rights;

b ) restitution of the state of the land plot , which existed before the rights were breached and prevention of performance of acts , which breach rights or create danger of breach of rights;

...

c ) annulment of decisions of the bodies of executive power or bodies of local self-governance ;

d ) compensation of damages suffered;

e ) implementation of other measures envisaged by the law.”

2. State sanitary rules and regulations concerning protection of the population from influence of electromagnetic radiation approved by Order of the Ministry of Health of Ukraine no. 239 of 1 August 1996

The relevant provisions of the above act, as in force at the material time, read as follows:

“ 2.4.1. With a view to protecting the population from influence of electromagnetic fields, sanitary protection zones shall be created.

Sanitary protection zone shall cover the area , on which intensity of the electromagnetic field exceeds one kV per metre .

Sanitary protection zone for an aerial power line shall comprise a land plot , boundaries of which shall be established on both sides of it within the following distances from the projection of the extreme current-carrying cables , in the direction, perpendicular to that of the power line cabling : 20 metres for power lines with intensity of 300 kV; ...; 55 metres for power lines with intensity of 1 150 k V .

2.4.14. Protection of population from influence of electromagnetic field of aerial power lines with intensity of 220 kV and less , which conform to the requirements of the Rules on mounting electric installations and the Rules concerning the protection of electric networks , is not required.”

3. Rules concerning the protection of electric networks approved by the Regulation of the Cabinet of Minister s of Ukraine no. 209 of 4 March 1997

The relevant provisions of the above act, as in force at the material time, read as follows:

“ 5. Electric networks security zones shall be established:

Along the aerial lines of electric transmission – as a land plot and aerial space delimited by vertical planes, which are located at a distance, from both sides of the line, namely, its extreme cables in their non-deviated positions, as follows:

For aerial lines with intensity:

Up to 1 kV – 2 metres;

Up to 20 kV – 10 metres;

Up to 35 kV – 15 metres;

....

8. It shall be prohibited within the security zones of the aerial ... lines ... to perform any actions, which may interfere with the normal operation of the electric networks, cause their damaging or accidental injuries, in particular:

...

To construct residential, public buildings or recreational houses;

...

To stock fertilisers , forage , turf , straw , firewood , other materials ;

To make fires;

...

To plant trees and other perennial plants , with the exception of creating Christmas tree plantations ;

...

9. Within the boundaries of the security zones of aerial ... lines, ... without written permission by the power providing companies managing those networks, as well as in absence of their representative, it shall be prohibited to:

- construct, reconstruct, perform capital renovation, [or] demolish buildings and constructions;

- perform all kinds of mining , loading - unloading , ... irrigation ... works , tree felling ,

- ... install animal corrals , wire fences , trellis for vineyards and gardens, as well as water agricultural plants;

...

10 . ...

Enterprises, which perform works in security zones, shall compensate to the electricity providing companies the costs associated with issuance of the permits, organisation of the [work] monitoring, and other costs.

11. Electricity providers shall issue written permits for usage of security zones to enterprises and individuals, which perform:

...

Construction, capital renovation, reconstruction of buildings and installations near electric networks – on condition of indicating measures concerning protection of electric networks in the documents defining the scope of the works;

12. Electricity providers, in order to ensure safekeeping of the electric networks, shall:

...

Transfer materials indicating the actual location of the electric networks, which are prepared according to the established procedure, to the competent district [and] regional authorities in order for them to be reflected in the land-planning documents;

...

Perform works connected to the repair of the electric networks.

...”

4. Rules on mounting electric installations developed by the Ministry of Energetics of the U.S.S.R. in 1985 and amended by the orders of the Ministry of Energetics of Ukraine ( as read in the material time )

The relevant provisions of the Rules , as in force at the material time, read as follows:

“2.5.175. ... Locating .... residential buildings .... within the security zones of [the aerial power lines] shall be prohibited.

It shall be allowed, as an exception, on the plots accommodating aerial lines with intensity of 6 kV and 10 kV crossing the areas of dense construction, to accept horizontal distance between the extreme aerial cables in the state of their maximal deviation and the nearest protruding parts of the residential ... buildings to be no less than two metres on condition of using [specially isolated cabling].”

COMPLAINTS

1. The applicant complains that an obligation to tolerate the power line on her land and in the immediate proximity of her house constitutes an unlawful and disproportionate interference with her property rights.

2. The applicant also complains under Article 6 of the Convention that her request to oblige the defendant to produce documents justifying the installation of the power line on her land was ignored and, as a corollary to this, her essential argument that the power line had been installed and operated in breach of the applicable rules, was left without proper consideration.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of her possessions or a control of the use of her land and house, within the meaning of Article 1 of Protocol No. 1?

2. If so, did that interference or control of use comply with the requirements of Article 1 of Protocol No. 1?

3. In particular, did it have sufficient legal basis and such as not to impose an excessive individual burden on the applicant (see, mutatis mutandis, Hutten- Czapska v. Poland [GC], no. 35014/97, § 157 , ECHR 2006 ‑ VIII; Barcza and Others v. Hungary , no. 50811/10, 11 October 2016 and Petar Matas v. Croatia , no. 40581/12, 4 October 2016)?

4. Did the applicant have a fair hearing in the determination of her civil rights in accordance with Article 6 § 1 of the Convention? In particular, did the judicial authorities provide adequate response to her argument that location of the power line on her land had been irregular under domestic law (see, for example, Surikov v. Ukraine , no. 42788/06, §§ 101-103, 26 January 2017) ?