FIFTH SECTION

Application no. 43768/07 Volodymyr Oleksandrovych KRYVENKYY against Ukraine lodged on 26 September 2007

STATEMENT OF FACTS

The applicant, Mr Volodymyr Oleksandrovych Kryvenkyy, is a Ukrainian national, who was born in 1934 and lives in Velyki Gadomtsi.

A. The circumstances of the case

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

On 1 April 1996 V.G., a collective farm, obtained a State act of collective ownership of a land plot farmed by its members.

On 25 March 1997 the applicant, a member of the aforementioned collective farm, obtained a certificate ( сертифікат на право на земельну частку (пай)) attesting his entitlement to a nominal 3.61-hectare share in V.G. ’ s land without specification of the boundaries. According to the applicant, at the material time he was allocated a specific plot measuring 3.61 hectares, which he farmed and on which he paid land tax.

In September 1998 V.G. decided to merge with Kh., a neighbouring collective farming company, and to designate the latter as its successor. However, until 7 June 1999 V.G. remained registered as a separate legal entity in the State Company Register ( Єдиний державний реєстр підприємств і організацій України ). Following the merger, Kh. did not register itself as the new owner of the land, formerly allocated to V.G. Subsequently the two farms separated and on 31 March 2000 V.G. was registered in the State Company Register as an agricultural company with limited liability.

In the meantime, on 18 March 1999 the Parliament of Ukraine ordered expropriation of 150 hectares of Kh . ’ s land, to be transferred to the U.C.C. Closed Joint Stock Company for exploiting kaolin deposits. 14.7 hectares of the expropriated land were to be allocated to U.C.C. for permanent use and the remaining 135.3 hectares for a thirty-year temporary use. By the same decision, U.C.C. was obliged, in particular, to compensate the local council for the damage incurred by the agricultural producers in connection with the expropriation of the land and the local council was instructed to issue U.C.C. with a relevant State certificate of permanent land use and a contract for temporary land use.

On 10 June 1999 the Berdychiv District land authority prepared an Act designating the boundaries of the 150-hectare plot to be allocated to U.C.C. pursuant the Parliament ’ s decision on expropriation. This plot was de-facto located on the land, which had been allocated to V.G. in 1996. The Act mentioned, in particular, that U.C.C. had to obtain and register the State certificate of permanent land use and a contract for temporary land use before starting exploitation of the land .

According to the applicant, until 2004 U.C.C. took no action to register its land use rights and the plot designated for expropriation pursuant the Parliament ’ s decision of 18 March 1999 remained in use of the V.G. members. A 0.6021-hectare parcel of the above plot was farmed by the applicant.

On 17 January 2003 the Berdychiv District Administration approved a draft determining the boundaries of the land plots to be designated in kind to individual farmers from the lands allocated to V.G. and ordered production of the respective individual Land ownership acts. On the basis of this decision, on 4 June 2003 the applicant was issued with the Land ownership act for the aforementioned 0.6021-hectare plot. It is not clear from the case-file materials, whether the applicant also registered an entitlement to any other plot previously owned by V.G.

On 17 December 2004 U.C.C. notified owners of 234 Land ownership acts, including the applicant, that their land was within the boundaries of the plot expropriated by the Parliament for exploitation of the kaolin deposits. U.C.C. next proposed the owners to surrender the disputed plots voluntarily in exchange for a flat rate compensation of UAH 2,597 (hryvnias) [1] . By July 2005 191 owners of the land claimed by U.C.C. accepted the above proposal. The remaining owners, including the applicant, rejected it.

On 21 June 2005 U.C.C. requested the Prosecutor ’ s Office to investigate the lawfulness of the transfer of the land designated for exploitation of the kaolin deposits to individual farmers.

On 7 July 2005 the Berdychiv District Prosecutor addressed the Berdychiv District Administration objecting to its decision of 17 January 2003. The prosecutor maintained, in particular, that 150 hectares of land designated for exploitation of kaolin deposits had been allocated to individual farmers unlawfully.

On 22 July 2005 the Berdychiv District Administration accepted the prosecutor ’ s objection and annulled its decision of 17 January 2003 insofar as it related to the 150 hectares of land claimed by U.C.C.

On 31 August 2005 U.C.C. lodged a civil action against the applicant, the Berdychiv District Administration and the Sadky Village Council ’ s Executive Committee claiming the 0.6021-hectare plot of land allocated to the applicant and seeking annulment of the Land ownership act issued to him on 4 June 2003. It noted, in particular, that the Berdychiv District Administration had already annulled its own decision of 17 January 2003, which served as the basis for issuance of the Land ownership act to the applicant. This act had therefore been devoid of legal basis.

On 17 August 2006 the Berdychiv Court allowed the aforementioned claim. It noted that the disputed plot had been allocated to the applicant pursuant the decision of 17 January 2003 mistakenly, without due regard to the fact that in 1999 this very plot had already been expropriated in favour of U.C.C.

On 12 December 2006 the Zhytomyr Regional Court of Appeal upheld this judgment.

The applicant appealed in cassation before the Supreme Court of Ukraine. He noted, in particular, that he had obtained the disputed land lawfully and in good faith. He could therefore not be deprived of it, unless a fair compensation would be paid.

He also maintained that U.C.C. had never had a lawful entitlement to the disputed land in the first place. In particular, the Parliament ’ s expropriation decision had concerned the land of Kh. On the date when that decision had been taken, the disputed 0.6021-hectare plot had been owned by V.G., a separate legal entity, and had been farmed by the applicant since the issuance to him of a shareholder ’ s certificate in 1997. Moreover, U.C.C. had failed to register its rights to use the disputed land. Pursuant to the provisions of the Land Code then in force, it therefore had never become the proper land user and, after the lapse of a two-year period from the Parliament ’ s decision, had automatically lost any right to claim the disputed land.

Concurrently with the aforementioned proceedings, several individuals, apparently the land owners, whose land was also being claimed by U.C.C., filed administrative proceedings against the Berdychiv District Administration. They sought, in particul ar, to annul its decision of 22 July 2005 and restore in force the decision of 17 January 2003, pursuant which their land acts had been issued.

On 12 February 2007 the Zhytomyr Regional Court of Appeal allowed their claim. It noted, in particular, that the Parliament had ordered expropriation of Kh . ’ s land, while the land, whose boundaries were in dispute, had belonged to V.G., which had been a separate legal entity on the date of the decision at issue.

On 27 February 2007 the applicant added to his cassation appeal, informing the Supreme Court of Ukraine that on 12 February 2007 the Regional Court had restored in force the decision of 17 January 2003, on the basis of which he had obtained his Land ownership act.

On 4 April 2007 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

On an unspecified date the applicant along with several other individuals instituted proceedings against the Berdychiv District Prosecutor, seeking to declare his objection against the decision of 17 January 2003 unlawful.

On 23 May 2007 the Berdychiv Court allowed this claim. This decision was not appealed against and became final on 1 June 2007.

B. Relevant domestic law

1. Constitution of Ukraine

Article 41

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

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

No one shall be unlawfully deprived of the right to property. The right to private property shall be inviolable.

The expropriation of private property objects may be applied only as an exception for the reasons of social necessity, on the grounds of, and in the order established by law, and on terms of advance and complete compensation of the value of such objects. The expropriation of such objects with subsequent complete compensation of their value shall be permitted only under conditions of martial law or a state of emergency ... ”

2. Land Code of Ukraine of 1990 (repealed with the effect of 1 January 2002)

Article 22. Origination of the right of ownership and the right of use of a land plot

“The right of ownership of land or the right of use of a given land plot shall originate upon establishment by the land-development organisations of the boundaries of the land plot in-kind and receipt of the document, which certifies this right.

It shall be prohibited to begin using a land plot, including on the terms of lease, before the establishment of the boundaries of this plot in-kind and receipt of the document, which certifies the right of ownership or the right of use of the land.”

Article 23. Documents that certify the right to a land plot

“The right of ownership or the right of permanent use of the land shall be certified by the State acts, which shall be issued and registered by the ... councils of people ’ s deputies.

A State act of collective ownership of the land shall be issued to a collective farm ... with the indication of the size of the land that is owned ... jointly by the citizens. A list of these citizens shall be annexed to the State act ... ”

Article 27. Termination of the land use right

“The right to use a land plot or its part shall be terminated in the event of:

...

8) failure to use [the plot] during ... two years [for the lands allocated] for non-agricultural purposes ... ”

Other relevant provisions of domestic law can be found in the Court ’ s judgment in the case of Rysovskyy v. Ukraine, no. 29979/04 , §§ 33-42, 20 October 2011.

COMPLAINTS

The applicant complains that by virtue of incorrect determination of U.C.C. ’ s claim he was deprived of a plot of land without compensation. The applicant refers to Article 6 § 1 of the Convention and Article 1 of Protocol no. 1 in respect of the above complaints.

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QUESTION TO THE PARTIES

Has the applicant been deprived of his land plot in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?

Was the deprivation necessary in a democratic society? In particular, given that the applicant had no compensation for the land at issue, did the deprivation impose on him an excessive individual burden (see e.g. Rysovskyy v. Ukraine, no. 29979/04 , §§ 70-71, 20 October 2011) ?

[1] . Around EUR 360 at the material time.