Information Note on the Court’s case-law 222

October 2018

Zhidov and Others v. Russia - 54490/10, 1153/14, 2680/14 et al.

Judgment 16.10.2018 [Section III]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Order to demolish unlawfully constructed buildings located near gas or oil pipelines, without payment of compensation: no violation, violation

Facts – All of the applicants were owners of various buildings located near gas or oil pipelines. Any construction is forbidden in those zones without the written agreement of the entity operating the dangerous installations. Following requests by the companies operating th e gas and oil pipelines, the domestic courts ordered that the buildings in question be demolished at the applicants’ expense, without compensation, as “illegal constructions”.

Law – Article 1 of Protocol No. 1: The orders to demolish the applicants’ buildi ngs on the grounds that they were illegal constructions amounted to interference by the authorities in the applicants’ right to the peaceful enjoyment of their possessions, and pursued several legitimate aims such as the protection of human life and public health, the safety of the operation of dangerous installations and ensuring an uninterrupted gas supply to the population. They were measures controlling the use of property, imposed in the conditions provided for by law.

The property registration author ity could not verify whether the applicants’ plots of land or their buildings were located inside the protected zones or within the minimal distances permitted between gas pipelines and dwellings and, in consequence, could not refuse to enter the applicant s as owners in the land register. Thus, the fact that the applicants’ property titles were registered did not as such constitute a failing by the authorities to comply with their duty to act in good time and in a consistent manner.

(a) With regard to the first application (no. 54490/10) – The applicant had begun construction of his house without first applying for the necessary permits and without submitting his plot of land to a survey. In 1993, before the building work had been completed, he had learned that he was building on a plot of land which was not the plot that had been allocated to him, and that his partially-built house was in the immediate vicinity of the gas pipeline, the location of which was already signposted at the time. The applicant, ha ving been asked by the authorities to cease construction work and been refused authorisation to connect the house to the water, electricity and gas distribution networks, nonetheless continued the construction work at his own risk, and moved into the house in 1994.

This house thus had all the characteristics of an illegal construction within the meaning of the Civil Code, in that it had been constructed on land that was not allocated for that purpose, without the necessary permits and in flagrant violation of urban-planning and building standards.

The authorities, who had been aware of the situation, had admittedly contributed to the continuation of a situation which presented a risk to public safety and health. However, this tolerance on the part of the authorities was not such as to give the appli cant the impression that proceedings would not be brought against him. Firstly, his house could not be rendered compliant for the purposes of the Civil Code and, even assuming that the applicant were to allege the contrary, he had never brought any such co mpliance proceedings before the courts. Secondly, there was no time restriction for bringing an action against this type of construction.

It followed that the applicant had not suffered disproportionate interference with his property rights.

Conclusion : no violation (unanimously).

(b) With regard to the second and third applications (nos. 1153/14 and 2680/14) – The authorities had allocated the plots of constructible land to the previous owners in 1994 and 1999. In 2002 the presence of the gas pipeline had been shown on the land survey for the district, but in 2003 the authorities had nonetheless issued building permits to the previous owners.

Furthermore, with regard to the third application, in 2004 the authorities had also issued an official receipt on completion of the construction work on the first house and in 2005 a second house had been erected on this same parcel of constructible land.

In view of these permits and agreements, the Court considered that the applicants could legitimately have considered themselves to be legally secure with regard to the lawfulness of the construction of their houses. The applicants had thus been obliged to demolish their homes on account of the authorities’ negligence, without their good faith and lack of liability being granted the least credit in the domestic proceedings.

The applicants had not sought compensation for the loss of their property before the courts, and had not attempted to bring a claim against the other party. However, it was the authorities who had been at the origin of the interference with the applicants’ right to the peaceful enjoyment of their possessions, and not the previous owners, w ho had obtained all the necessary permits for construction and whose good faith had never been called into question by the domestic courts. Lastly, any judicial proceedings brought by the applicants were likely to be declared inadmissible on account of the three-year limitation period for filing a claim. In those circumstances, it would be excessive to require the applicants to bring fresh judicial proceedings against the other party, given the total uncertainty as to whether there was any reasonable prospe ct of success and without the Government having shown that such proceedings were effective.

It followed that the authorities had failed to strike a fair balance between the demands of the public interest and the need to protect the applicants’ right of pr operty.

Conclusion : violation (unanimously).

(c) With regard to the fourth application (no. 31636/14) – At the point of purchasing the land and when filing her request for registration of title to the property, the applicant could have consulted the gener al land-use plan, which was available to her, and she ought in consequence to have realised that the plot of land in issue was located near oil pipelines. She had never alleged that she was unable to consult the land-use plan in question. Equally, the appl icant could not have been unaware of the physical presence of the embankment protecting the pipelines, situated in the immediate vicinity of the plot of land that she was in the process of buying. She ought at the least to have queried the purpose of the e mbankment and sought information from the president of the cooperative association or from the local authorities.

Thus, the demolition order in respect of the shed and auxiliary premises, issued on the grounds that they were illegal constructions, had not placed a disproportionately heavy burden on the applicant.

Conclusion : no violation (unanimously).

Article 41: reserved.

(See also N.A. and Others v. Turkey , 37451/97, 11 October 2005, Information N ote 79 ; Saliba v. Malta , 4251/02, 8 November 2005, Information Note 80 ; Hamer v. Belgium , 21861/03, 27 November 2007, Information Note 102 ; Su d Fondi srl and Others v. Italy , 75909/01, 20 January 2009, Information Note 115 ; Gladysheva v. Russia , 7097/10, 16 December 2011, Information Note 147 ; and S.C. Service Benz Com S.R.L. v. Romania , 58045/11, 4 July 2017, Information Note 209 )

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

Click here for the Case-Law Information Notes