Communicated on 15 May 2017

FOURTH SECTION

Application no. 26646/07 Vira Grygorivna DOVZHENKO against Ukraine lodged on 13 June 2007

STATEMENT OF FACTS

The applicant, Ms Vira Grygorivna Dovzhenko , is a Ukrainian national, who was born in 1934 and lives in Bogdany .

A. The circumstances of the case

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

On 26 January 2004 the applicant obtained a State act of an ownership of a land plot (an official Land Registry Title) based on a decree of the local administration of 22 December 2003. From that point forward the applicant ’ s property rights to the land plot have been officially registered under domestic procedure. At that time the applicant had not established the boundaries of this plot in-kind and had not used it.

On 26 July 2004 the local administration concluded a land rental agreement with the private company Bogdan, according to which this company would rent the applicant ’ s land plot and pay the rent to the local administration. The applicant was not informed about this agreement. She got to learn about the lease agreement only in September 2004, after the private company “Bogdan” had seeded the land plot.

In July 2005 the company took the crop from the applicant ’ s land plot. In the same month the boundaries of the applicant ’ s land plot were established by the local department on land resources. On 25 July 2005 amendments were introduced to the rental agreement of 26 July 2004 that excluded the applicant ’ s land plot from the list of leased lands. From then the applicant ’ s land ceased to be a leased property, and the “Bogdan” has not used it anymore.

On 20 January 2006 the applicant lodged a claim with the domestic courts against the local administration and the Bogdan company , seeking compensation for the use of the land by that company. On 2 June 2006 the Varva Local Court of Chernigiv Region allowed the applicant ’ s claim. In particular, the court found that once the applicant had received a title to the plot of land in question, the local administration should not have concluded any agreement as to this land with other parties. The court concluded that the lease agreement of 26 July 2004 had violated the applicant ’ s property rights and was to be declared invalid. The court also held that under domestic law the applicant was entitled to compensation for the use of her property in the amount of th e crop taken from her land (UAH 29210; EUR 4493 at the material time). The compensation, in the court ’ s view, should have been paid to the applicant both by the local administration and by the private company “Bogdan” as they were solidary liable for unauthorised use of the applicant ’ s land.

The local administration appealed. On 12 September 2006 the Chernigiv Regional Court of Appeal quashed the above judgment. The court noted that the use of the applicant ’ s land had been lawful since it had been based on the lease agreement. The court further underlined that under Article 125 of the Land Code of Ukraine, the right to use a land plot arose only once its boundaries had been established and after receipt by the owner of the document that certified this right. The appellate court concluded that the applicant was not entitled to compensation as the boundaries of her land plot had been established only on 25 July 2005, and as she could not have used the land before this date; thus, she could not claim an interest for the harvested crop.

The applicant appealed in cassation. On 4 January 2007 the Supreme Court of Ukraine refused to examine the merits of the applicant ’ s appeal in cassation, having considered it frivolous.

B. Relevant domestic law

1. Constitution of Ukraine

Article 41

“Everyone shall have the right to own, use, or dispose of his property and of the results of his/her intellectual or creative activities.

The right to private property shall be acquired in compliance with the procedure established by law...”

2. Civil Code of Ukraine of 16 January 2003

Article 373. Land (land plot) as a property

... “3. The right of ownership of a land extends on a surface layer (soil) within the boundaries of this land plot, on water objects, perennial plantings ....”

3. Land Code of Ukraine (version applicable at the time of the circumstances of the case)

Article 125. Origination of the right of ownership and the right of use of a land plot

“1. The right of ownership of a land or the right of its permanent use arises after receipt by the owner or by the user of the document that certifies this right, and after its official registration.

...

2. It shall be prohibited to begin using a land plot before the establishment of the boundaries of this plot in-kind and receipt by the owner of the document that certifies the right for it, and before its official registration.”

Article 212. Return of arbitrarily appropriated land plots

“1. Land plots appropriated in an unauthorized way shall be returned to their owners or users without compensation of expenditure incurred during their unlawful use .”

4. Resolution of the Plenum of the Supreme Court of Ukraine of 14 April 2004 on judicial practice on application of the land legislation in civil cases

“...the land plots appropriated in an unauthorized way shall be returned to their owners or users along with transferring to them any unharvested crop, without compensation of expenditure incurred during their unlawful use.”

COMPLAINT

The applicant complains that an unauthorised one year ’ s letting of the land plot owned by her, with further impossibility to receive a compensation for this, constituted an unlawful and disproportionate interference with her rights guaranteed by Article 1 of Protocol no. 1 to the Convention.

QUESTIONS TO THE PARTIES

Was the letting of the applicant ’ s land plot without her consent and without compensation in compliance w ith the requirements of Article 1 of Protocol No. 1? In particular, did it impose on the applicant a disproportional burden contrary to her right to peaceful enjoyment of her possessions?