Information Note on the Court’s case-law 231

July 2019

Svitlana Ilchenko v. Ukraine - 47166/09

Judgment 4.7.2019 [Section V]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

Public interest

Lack of compensation for private garage located on public land and demolished for commercial housing development: violation

Facts – The applicant had used a garage in the courtyard of her house since 1980. In 1995 the garage was registered as her private property. In 2003 the city council allocated the land where the garage was located for a new housing project to be constructed by a private developer. The city proposed monetary compensati on to the applicant; however, she failed to follow up on the offers to negotiate. The garage was demolished following the domestic courts’ decisions finding, inter alia , that the applicant had never properly obtained the right to use the plot of land on wh ich it was situated.

Law – Article 1 of Protocol No. 1: The applicant’s situation, which qualified as a deprivation of property, should be distinguished from:

– cases concerning illegal construction, as the applicant had had a regular registered title to the garage, which had never been invalidated or questioned for the twenty years previous to the new high-value development being planned;

– cases where every decision authorising continued situation of a house on coastal public property specified that it was temporary and subject to revocation at will without compensation ( Depalle v. France [GC], 34044/02, 29 March 2010, Information Note 128 ).

The allegedly “unauthorised” nature of the applicant’s use of land in the present case resulted not from any breach of the law at the time her garage had been built but primarily from the evolution of Ukrainian law, within the framework of the transition f rom Soviet law, which did not recognise any private ownership of land and tenancy in the classical sense, to a system based on ownership and tenancy which characterised Ukrainian land law at present.

In the instant case, the issue of “public interest” in the interference was inextricably linked to the matter of proportionality; both should thus be examined together.

While the States’ margin of appreciation in town-planning policy was wide, in the pres ent case there was no indication, and the Government had not demonstrated, what particular policy consideration had driven the municipal authority’s endorsement and support for the location of the housing project.

In that context, regardless of whether th e interference could be considered to have been in the public interest, any such public interest was not strong enough to justify the taking of property without compensation. In particular, there was no indication that such particularly strong interests as protection of the environment, the need to uphold the rule of law and prohibition on illegal construction or considerations of social justice had driven the authorities’ decisions.

As the applicant had been treated as a mere squatter, she had not only had no right to any compensation but, in principle, had been under an obligation to reimburse the city for the costs incurred in the demolition of her garage. No account had been taken of the specificity of her situation.

It was immaterial that the applicant had failed to follow up on the city’s offer to negotiate compensation. Indeed, given how the domestic courts had interpreted and applied domestic law, any offer of compensation could only be ex gratia ; the only way for the applicant to have been entitled t o any legally guaranteed compensation would have been to have it established that she had had a right to the land, which she had attempted to do before the domestic courts.

Moreover, there was no procedural framework for such negotiations and for furnishi ng her with the information necessary to make an informed decision on any eventual offer. Therefore, her apparent failure to follow up on the city’s offer to negotiate an ex gratia settlement could not be interpreted as a waiver of her rights. Indeed, no c ompensation was due by law and no established procedure was in place to provide any essential safeguards in that process. In such circumstances the applicant’s failure to follow up on the city’s offer to negotiate was not sufficient to find that there had been no violation of her rights. The applicant had therefore been denied any right to compensation.

Where the development project was primarily to develop housing for private commercial gain, even though the domestic authorities also judged it in the publi c interest because it contributed to the increase and renovation of the available housing stock, only compensation determined through a procedure ensuring an overall assessment of the consequences of the expropriation, including the award of an amount of c ompensation in line with the market value of the taken property, could satisfy the requirements of Article 1 of Protocol No. 1.

No such compensation, accompanied by appropriate safeguards, had been offered to the applicant in the present case.

Conclusion : violation (unanimously).

Article 41: EUR 8,000 in respect of pecuniary and non-pecuniary damage.

(See also Volchkova and Mironov v. Russia , 45668/05 and 2292/06 , 28 March 2017)

© Council of Europ e/European Court of Human Rights This summary by the Registry does not bind the Court.

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