BRAYLOVSKA v. UKRAINE - 14031/09 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Fifth Section Committee) [2019] ECHR 428 (06 June 2019)

In the case of Braylovska v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Síofra O ' Leary, President,
Ganna Yudkivska ,
Lado Chanturia, judges,
and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 14 May 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 14031/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Ukrainian national, Ms Rayisa Mykhaylivna Braylovska ("the applicant"), on 17 February 2009.

2. The applicant was represented by Mr K. Terekhov , a lawyer practising in Moscow. The Ukrainian Government ("the Government") were represented by their Agent, Mr I. Lishchyna .

3. The applicant alleged, under Article 1 of Protocol No.1 to the Convention, that she had been unlawfully deprived of her property and, under Article 6 § 1 of the Convention, that the trial in her case had not been fair in that the domestic courts had failed to duly address important arguments raised by her concerning the lack of a legal basis for the property expropriation.

4. On 22 November 2017 notice of the application was given to the Government .

5. The Government objected to the examination of the application by a Committee, but provided no reasons. Having considered the Government ' s objection, the Court rejects it (see, in respect of a similar approach, Nedilenko and others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018; Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018; and Geletey v. Ukraine [Committee], no. 23040/07, § 4, 24 April 2018).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1938 and lives in Yalta, the Autonomous Republic of Crimea.

7. On 11 October 1997, following a purchase agreement, the applicant became owner of flat no. 2 at 1 Pushkinska Street in Yalta ("the Pushkinska flat") in a multi-dwelling building which had been built before 1917 ("the Pushkinska building") and was a municipal property. The flat had one room and measured 37.5 sq. m. According to the applicant, she did not reside in the flat and rented it out in the summer as it was located in the historic part of the city centre and next to the beach.

8 . At the beginning of 2005, all flats in the Pushkinska building - with the exception of two which belonged to the applicant and K.- had been bought by a private construction company, JSC Zodiak-tsentr (hereinafter "the Company").

9. On 22 September 2005 the Executive Committee of the Yalta City Council ("the Executive Committee") approved a report on the examination of the Pushkinska building issued by an interdepartmental commission set up by the Executive Committee. The report suggested that the building was in poor technical condition with its carrying walls unsafe. On the basis of the report, the Executive Committee classified the building as a dangerous structure and found that it was under a threat of collapse ("Decree 1349"). No copies of the report and Decree 1349 have been made available to the Court.

10. On 5 October 2005 Yalta City Council ("the Council") and the Executive Committee concluded an agreement with the Company which provided, inter alia , that the Company would purchase two flats to move the applicant and the owner of another apartment from the dangerous building in exchange for granting to the Company title over the applicant ' s and the other person ' s flats and then over the building as a whole ("the agreement"). The Council and the Executive Committee further undertook to take measures to evict the applicant from the dangerous building, to authorise the Company to demolish the Pushkinska building, and to grant a construction permit. The agreement was approved by the Council during its 19 October 2005 session. According to the applicant she was not aware of the agreement at the time.

11. On an unspecified date in 2006 the Council adopted the general city development plan which, according to the applicant, envisaged the renovation of the Pushkinska building ( підлягає реконструкціі ( відновленню ) ), with construction of an additional floor. No copy of the plan has been made available to the Court.

12. To comply with the agreement, the Company purchased flat no. 1 at 23 Sosnova Street ("the Sosnova flat") in Yalta as a replacement for the applicant. The flat measured 57.7 sq. m, had two rooms and was located away from Yalta city centre . The Council and the Executive Committee refused to take the apartment into municipal ownership. In this view, the Company instituted court proceedings against the Council and the Executive Committee for their failure to comply with the terms of the agreement. In judgments of 6 June 2006 and 10 October 2006 the Commercial Court of the Autonomous Republic of Crimea and the Sevastopol Commercial Court of Appeal respectively obliged the defendants to comply with their obligations under the agreement. On 22 March 2007 the Sosnova flat was transferred into municipal ownership.

13. On 31 May 2007 the Executive Committee passed a decision by which it, inter alia , offered the Sosnova flat to the applicant. No copy of the relevant decree has been made available to the Court.

14. On 16 June 2007, in a letter, the Executive Committee invited the applicant to appear, by 1 July 2007 at the latest, before the relevant body and obtain the title deeds ( ордер ) to the Sosnova flat. The applicant did not respond to the offer as she believed the authorities ' demand had no legal basis.

15. On 17 July 2007 the Executive Committee applied to the Yalta City Court to have the applicant evicted and her title to the Pushkinska flat terminated, her moved to the Sosnova flat and her property rights over the latter flat established. It relied on Articles 109, 110 and 112 of the Housing Code and Articles 321 § 2 of the Civil Code as the legal grounds for the claim (see paragraphs 31 and 32 below). The Executive Committee noted, in particular, that the Pushkinska building was under the threat of collapse and that, as the body responsible for observance of the technical condition of buildings and rehousing of residents from dangerous ones, it did not wish to be answerable for any grave consequences which the dangerousness of the Pushkinska building might cause.

16. On 4 October 2007 the Yalta City Court allowed the Executive Committee ' s application.

17. On an unspecified date the Court of Appeal of the Autonomous Republic of Crimea ("the Court of Appeal") remitted the case for fresh consideration to the first-instance court, noting that the Council, as the owner of the Sosnova flat, had not been involved in the proceedings.

18. On 4 April 2008 the Council joined the proceedings as a co-plaintiff and supported the Executive Committee ' s claims.

19 . On 9 April 2008 the Yalta City Court found against the applicant. It annulled the applicant ' s title to the Pushkinska flat, ordered her eviction and rehousing in the Sosnova flat and vested her with the title to the latter flat. The court made the following findings: (a) it was not in dispute between the parties that the Pushkinska building was a municipal property and was maintained by a municipal company, and that it was the Executive Committee ' s task under the relevant laws to exercise control over the safety of buildings irrespective of their form of ownership; (b) in carrying out this obligation, the Executive Committee found that the building had been under the threat of collapse and these findings had been valid and had not been appealed against by any interested person. The agreement and the Council ' s decision of 19 October 2005 approving it were likewise valid; (c) pursuant to Article 112 of the Housing Code the Executive Committee had been obliged to provide the applicant with a replacement dwelling, which it had done, but the applicant had refused to move on a voluntary basis without providing any reasons; and (d) pursuant to the agreement, which had been approved by the Council, the Pushkinska building was to be demolished, and not renovated, as claimed by the applicant, which made her return to the property impossible; she thus had to be evicted from that flat and moved to another apartment with her title to the Pushkinska flat annulled by the court, which would be in compliance with Article 346 § 2 of the Civil Code.

20. The Yalta City Court further found that the Sosnova flat constituted adequate compensation for the applicant in respect of the Pushkinska flat. It had more rooms and space than the Pushkinska flat and was in an appropriate condition and in the same city. The court also noted that the market value of the Sosnova flat, according to a sale agreement dated 2005, was higher than the starting price for the whole Pushkinska building. It thus concluded that the applicant ' s interests had been protected in full.

21 . The applicant appealed, stating, inter alia , that the deprivation of her property was unlawful. In particular, the Pushkinska flat was her private property and not that of the State and thus the provisions of the Housing Code, cited by the trial court, had been inapplicable to her situation and could not have served a basis for annulment of her title to the property. Article 346 § 2 of the Civil Code was a reference provision which specified that a property right could be terminated in "other cases provided for by the law" but the court had failed to specify any legal provision providing for this "other case". She further argued that there had been no public need behind deprivation of her flat but only private business interests, given that the title to the Pushkinska flat after her rehousing was to be given to the Company. Even assuming that the building was in poor structural condition, no proper decision existed suggesting that it would be subject to demolition. The applicant referred in that connection to Governmental Decree no. 189 of 26 April 1984, in accordance with which as it was within the Regional Council ' s ambit to decide, on the basis of a proposal by a city council, whether a building should be demolished or restored and stated that the Council had thus acted ultra vires when it had allowed the Company to demolish the building in the agreement. She also relied on the general city development plan, which had been adopted a year after the agreement, pursuant to which the Pushkinska building was to be renovated, with an additional floor constructed, but not demolished. She argued that her property thus would remain extant.

22 . The applicant further alleged that she, as the owner of the Pushkinska flat, had not been involved in any way in choosing the form of the compensation for her flat. She had not been a party to the agreement and at the time had not been informed at all of any intentions to void her property rights over the Pushkinska flat and to evict her. Then she was just presented with the fact that she had to move to an apartment chosen for her by the company, without her consent. The offered flat had not been of the same value as the Pushkinska flat and had not compensated her in full for her losses. She referred to the location of the Sosnova flat, the impossibility to profit from renting it out, and its poor general condition. In support, she provided an expert report, which stated that the building at no. 23 Sosnova Street was situated in a zone of active ground subsidence and that urgent and expensive construction work was necessary to prevent further damage. The applicant also disputed the fairness of the calculations used by the first-instance court, referring to the fact that, just before the Pushkinska building had been declared dangerous, the Company had bought several flats from the applicant ' s neighbours, which had been in poor condition, for very high prices - much higher than the building price referred to by the Council. Lastly, she argued that she could not have property rights over the Sosnova flat imposed on her against her will.

23. On 17 June 2008 the Court of Appeal upheld the judgment of 9 April 2008. It reiterated that it had been correctly established by the first-instance court that the Pushkinska building had been under the threat of collapse and that in this situation, pursuant to Article 112 of the Housing Code, the applicant must be evicted and provided by the Executive Committee with another dwelling. It noted that the Executive Committee had complied with its obligation and by its Decision of 31 May 2007 had assigned a replacement dwelling to the applicant.

24 . The Court of Appeal then rejected as unsubstantiated the applicant ' s argument that the Executive Committee ' s demands had breached her property rights. It pointed out in that connection that Article 41 of the Constitution allowed deprivation of property in exceptional cases of public necessity , on the grounds of and by the procedure established by law, and - the court emphasised - on the condition of advance and complete compensation of its value. It noted that the Sosnova flat had complied with the requirements of Article 113 of the Housing Code and was more spacious than the Pushkinska flat. The applicant ' s rehousing in that flat was thus not in breach of her rights but in her own interests and her arguments to the contrary were unsubstantiated.

25. On 18 August 2008 the Supreme Court of Ukraine rejected an application for leave to appeal on points of law from the applicant.

26. The applicant was unsuccessful in her attempts to reopen the proceedings under newly discovered and exceptional circumstances.

27. On 26 August 2008 the applicant and her son were evicted from the Pushkinska flat and the documents confirming their property right over the Sosnova flat were served.

28. On 9 July 2009 the Executive Committee granted the title to the Pushkinska flat to the Company.

29. In 2018, in her comments on the Government ' s observations, the applicant informed the Court that the building at 1 Pushkinska Street had not been demolished but renovated, with an additional floor added on top, and had been converted into a privately owned hotel.

II. RELEVANT DOMESTIC LAW

A . Constitution of Ukraine

30. Article 41 of the Constitution provides, inter alia , that nobody can unlawfully be deprived of his or her possessions. The compulsory alienation of objects of private property may be possible only as an exception for reasons of public necessity, on the grounds of and by the procedure established by law, and on the condition of advance and complete compensation of their value.

B . Civil Code of Ukraine of 2003

31 . The relevant provisions of the Civil Code provide as follows:

Article 321. Inviolability of Property Rights

"1. Property rights are inviolable. No one can be illegally deprived of these rights or restricted in their implementation.

2. A person can be deprived of his or her property rights or restricted in their use of those rights only in cases and in accordance with the procedure established by law.

3. Forced alienation of the property may be applied only as an exception for the reasons of public necessity on the grounds and in accordance with the procedure established by law and on the condition of advance and full compensation for its value ..."

Article 346. Grounds for the Termination of Property Rights

"1. Property rights shall be terminated in the event of: (a) alienation of the property by its owner; (b) refusal of the property rights by the owner; (c) termination of the property rights if in accordance with the law the property cannot be owned by this person; (d) destruction of the property; (e) compulsory purchase of historical and cultural monuments; (f) compulsory purchase of a parcel of land for public needs; (g) compulsory purchase of the real estate related to the compulsory purchase of the parcel of land on which this real estate is located for public need; (h) seizure of the property upon the owner ' s obligations; ( i ) requisition; (j) confiscation; and (k) termination of a legal person or death of the owner.

2. P roperty rights can be terminated in other cases specified by law."

Article 349. Termination of Property Rights as a Result of the Property ' s Destruction

"1. The ownership rights to the property shall be terminated in the event of the property ' s destruction.

2. In the event of the destruction of property to which ownership rights are subject to State registration, these rights shall be terminated as of the moment of the introduction of changes to the State register following an application by the owner."

C . Housing Code of the Ukrainian Soviet Socialist Republic [SSR] of 1983

32 . The provisions of the Housing Code pertinent to the case read as follows:

CHAPTER I. GENERAL PROVISIONS
Article 4. Housing stock

"Apartment buildings, and also units in other buildings which are in the territory of the Ukrainian SSR form the housing stock.

The housing stock includes: apartment buildings and units in other buildings which belong to the State (the State housing stock); apartments and units in other buildings which belong to kolkhozes and other cooperative organisations , their associations, trade unions and other public organisations (public housing stock); apartment buildings which belong to housing cooperatives (fund of housing cooperatives); apartment buildings (parts of buildings), apartments which belong to citizens on the right of private property (private housing stock); apartments in apartment buildings, farmsteads ..., and also units in other buildings of all patterns of ownership provided to citizens who according to the law need social protection (housing stock of social appointment). ..."

Article 5. State housing stock

"The State housing stock consists under the authority of local councils of people ' s deputies (housing stock of local councils) and under the authority of the ministries, the State committees and departments (departmental housing stock)."

Article 50. Requirements in respect of residential units

"Residential units provided to citizens must be well-adapted to ' the town conditions ' [ має бути благоустроєним стосовно до умов даного населеного пункту ] and meet sanitary and technical standards. ..."

CHAPTER II. USE OF RESIDENTIAL UNITS IN THE BUILDINGS OF THE STATE AND PUBLIC HOUSING STOCK
Article 109. Eviction from residential accommodation

"Eviction from residential accommodation is only permitted on grounds established by law. Eviction from residential units is carried out voluntarily or through court action. ...

Evicted citizens must be offered alternative permanent well-furnished accommodation. ..."

Article 110. Eviction with provision of other residential accommodation to citizens

"Citizens shall be evicted from buildings of the State or public housing stock if:

the building containing the residential unit is to be demolished;

the building (residential unit) is under the threat of collapse;

the building (residential unit) is to be converted into a non-residential one. ..."

Article 112. Provision with residential accommodation in case of eviction from buildings which are under the threat of collapse

"If a building (residential unit) is under the threat of collapse, the executive committee of the local council or the state, cooperative or public organisation to which the building belongs shall provide the evicted citizens with other well-furnished residences. If provision by the mentioned entities is not possible, a residential unit must be provided by the executive committee of the local council."

Article 113. Requirements in respect of accommodation provided following eviction

"Well-furnished accommodation which is provided to citizens following their eviction must be in the same town and in compliance with the requirements of Article 50 of this Code. ...

Citizens that have been residing in a separate flat before eviction must be provided with a separate flat as well. ..."

CHAPTER VI. USE OF RESIDENTIAL UNITS IN BUILDINGS (BLOCKS) OF THE PRIVATE HOUSING STOCK
Article 154. Control over maintenance of buildings (blocks) which belong to citizens

"Executive Committees of local councils of people ' s deputies shall exercise control over maintenance of buildings (blocks) which belong to citizens."

Article 155. Guaranties to citizens who have a house or an apartment in private property

"Houses (buildings) which are owned by citizens cannot be expropriated from them, and the owner cannot be deprived of the right to use the house (apartment), unless in the cases provided for by the legislation of the Union of Soviet Socialist Republics [USSR] or the Ukrainian SSR."

D . Resolution of the Council of Ministers of the USSR of 26 April 1984, no. 189

33. Articles 11 and 12 of the Resolution provide that when it has been established that a building (residential unit) does not meet sanitary and technical requirements and is not suitable for living, the local (city) council must submit to the regional council its proposal as to whether the building should be used for non-residential purposes or demolished. On the basis of the documents submitted by the local council, the regional council shall decide the fate of the building.

E . Obsolete Housing Stock (Comprehensive Reconstruction of Blocks (micro-districts)) Act of 2007 ("the Obsolete-Housing Act")

34 . The present Act sets legal, economic, social and procedural grounds for carrying out comprehensive reconstruction of housing blocks (micro - districts) of obsolete housing stock. This includes, inter alia , a definition of "public need" in the relevant context, the possibility of property expropriation and the laying-down of the respective compensation procedure.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

35. The applicant complained that the expropriation of her flat had had no basis in law and had served no public interest, and that no adequate compensation had been provided to her. She referred to Article 1 of Protocol No. 1 to the Convention, which provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

A. Admissibility

36. The Government submitted that the applicant had failed to exhaust the available domestic remedies. In particular, she could have sought the invalidation of Decree 1349 and the agreement before a court, or lodged a counterclaim in the court proceedings concerning her property, seeking to have the referred documents declared invalid. They submitted copies of court decisions in two cases with similar facts in which persons in the applicant ' s situation had successfully challenged before the courts decisions of the local authorities on demolition of a building and on approval of a report on poor technical condition of a building.

37. The applicant submitted that she had sufficiently raised all relevant arguments in the proceedings which had directly concerned her title to the Pushkinska flat. She believed this had been the appropriate forum and she had thus complied with the exhaustion rule.

38. The Court observes that the applicant ' s primary contention was that she had been unlawfully deprived of her possessions. The deprivation was ordered by a court decision following the proceedings instituted against the applicant by the Council. The applicant actively participated in the proceedings and presented her arguments before courts of all instances.

39. In the light of this and taking into account that the decisions referred to by the Government did not deprive the applicant of her possessions - which is the essence of her complaint before the Court - she cannot be reproached for not using the avenues referred to by the Government.

40. The Court therefore dismisses the Government ' s objection concerning the exhaustion of domestic remedies.

41. The Court further notes that this complaint is not manifestly ill - founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ' submissions

42. The applicant complained that by ordering her eviction and the annulment of her title to the Pushkinska flat the domestic courts had violated her property rights. She relied on the same arguments that she had advanced before the domestic courts (see paragraphs 21 and 22 above).

43 . The Government admitted that the annulment of the applicant ' s title to the Pushkinska flat and her eviction had constituted an interference with her right to peaceful enjoyment of her possessions but argued that the interference had been in compliance with Article 1 of Protocol No. 1 to the Convention.

44. Firstly, as a matter of principle, the authorities enjoyed a wide margin of appreciation in public safety and town planning.

45. Secondly, the applicant ' s eviction from the dangerous building, which had been a municipal property, had been provided for by the provisions of the Housing Code referred to by the domestic courts and by the Obsolete-Housing Act . The fact that the building had been dangerous had in its turn been established in Decree 1349 which, as well as other pieces of domestic legislation, had been accessible to the public. The applicant thus should have been aware of the fact that she would be evicted as Decree 1349 and the follow-up agreement had been issued as far back as 2005. There was no indication that the national courts had applied the relevant legislation arbitrarily.

46. Thirdly, the eviction had served the public interest of safety, because the Pushkinska building had been under the threat of collapse. It had been established by the courts that the building had been subject to demolition in accordance with the agreement, and not reconstruction, and, thus that the applicant ' s return to the Pushkinska flat would not have been possible. Her title to that flat had therefore been annulled. The discrepancies between the decision of the local council, taken in 2005, to demolish the building and the general city development plan of 2006, referred to by the applicant, could be explained by the lack of coordination between the Council and the Committee and did not disclose any bad faith on the part of the State.

47. The very fact that the title to the Pushkinska flat had been given to the Company did not in itself suggest that there had been no public interests at stake. The Company had undertaken to buy, at its own cost, the apartment for the applicant and to demolish the dangerous building which had allowed a saving in public costs and had improved the city ' s appearance.

48. Lastly, the interference with the applicant ' s possession had been proportionate because she had received adequate compensation. The replacement flat had been located within the same administrative district of Yalta, had met sanitary requirements, and had been fit for living. It had been larger than the Pushkinska flat. Besides, t he applicant had never instituted proceedings before a court against the Council or the Company with a view to gaining compensation for any pecuniary damage she had sustained in connection with the loss of the Pushkinska flat.

49. The applicant maintained her complaint. Firstly, her eviction from the Pushkinska flat and the annulment of her title to the property to it had been unlawful as it had not been based on any legal provisions providing for such an expropriation. Articles 110 and 112 of the Housing Code cited by the domestic courts concerned eviction from State-owned buildings and provided the method of the latter, whereas the Pushkinska flat had been her private property. Article 346 § 2 of the Civil Code was a reference rule but neither the Yalta authorities nor the courts had cited any relevant law which would have provided for a deprivation of property in her situation. There was a legislative gap in that connection.

50. Secondly, there had been no genuine public interest of safety but the deprivation of her property had been effected for no other reason than to confer a private benefit on a private party, the Company. If the concern for safety had been genuine, the residents would have been allowed to move back in after the repairs. In the end the building had not been demolished for safety reasons but renovated in the way provided for by the general city development plan, to which she had referred during the proceedings in her case, and transformed into a modern residence hotel.

51. The Yalta authorities should not have dealt with the problem of the lack of funds and the old housing stock, if such a problem had in fact existed, by way of an unlawful interference with her property rights.

52. Lastly, she, as the owner of the Pushkinska flat, had not given her consent to the exchange of properties and the authorities had unlawfully imposed the Sosnova flat on her and registered it as her property. Apart from it not being the place of her choosing, the replacement flat had also put an excessive burden on her because she had had to pay more charges for the maintenance of the new flat and had not been able to profit from renting the new flat out. Its condition was inadequate and not equivalent to the Pushkinska flat. It was located away from Yalta city centre and its historical heritage landmarks and the beach. The new environment was close to an industrial area. No other flats had been offered to her as a replacement and she had not been involved in this process at all. Her relevant argument, including the inadequacy of the data concerning the value of the Pushkinska flat and the calculation methods used, had been ignored by the domestic courts. The applicant provided the Court with photographs of the Sosnova building showing that the building had been in poor condition, with cracked walls.

2. The Court ' s assessment

53. It was contested neither in domestic proceedings nor before the Court (see paragraph 43 above) that the Pushkinska flat was private property of the applicant located in what was a municipal building (see paragraphs 19 and 43 above). By a court decision, the applicant was evicted from her private property, as the building containing her flat was under the threat of collapse. The applicant ' s title to her flat was annulled by the court and she was committed to ownership over a replacement apartment bought for her, without her consent or participation, by a private construction company which owned the remaining flats in the building. Subsequently, that company acquired ownership of the flat expropriated from the applicant and the building as a whole.

54. It is not in dispute between the parties that there has been a "deprivation of possessions" within the meaning of the second sentence of Article 1 of Protocol No. 1. The Court must therefore ascertain whether the impugned deprivation was justified under that provision.

55. The Court reiterates that to be compatible with Article 1 of Protocol No. 1, an expropriation measure must fulfil three conditions: it must be carried out "subject to the conditions provided for by law", which rules out any arbitrary action on the part of the national authorities, must be "in the public interest", and must strike a fair balance between the owner ' s rights and the interests of the community (see, among other authorities, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 94, 25 October 2012).

"Subject to the conditions provided for by law"

56. The first requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see, for example, Beyeler v. Italy [GC], no. 33202/96 , § 108, ECHR 2000 - I). This means, in the first place, compliance with the requirements of national law (see Iatridis v. Greece [GC], no. 31107/96 , §§ 58-62, ECHR 1999 - II). It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned, precise and foreseeable in its application (see Beleyer , cited above, § 109).

57. Turning to the present case, it is not disputed by the parties that the domestic courts referred to Article 41 of the Constitution, Articles 109, 110, 112 and 113 of the Housing Code and Article 346 § 2 of the Civil Code as the legal basis for the interference with the applicant ' s property rights. The applicant argued that these provisions could not have been the legal basis because they had not provided for a property deprivation in her situation.

58. Although it is primarily for the national authorities to interpret and apply domestic law, the Court is required to verify whether the way in which domestic law is interpreted and applied produces consequences consistent with the principles of the Convention, as interpreted in the light of the Court ' s case - law (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 190 and 191, ECHR 2006 - V.)

59. The referenced provisions of the Housing Code - which is a heritage of the Soviet era which still remain applicable in Ukraine - formed a part of the Chapter which governed the use of residential units in the buildings of the State and public housing stock and concerned, in particular, eviction of tenants from such premises with provision of ano ther dwelling (see paragraph 32 above).

60. On the facts, the Court finds it questionable whether these provisions were sufficiently clear to be understood as applicable to a building containing private flats such as in the applicant ' s case (see paragraph 8 above). It does not however consider it necessary to decide on the matter as, in any event, it does not appear that any of these provisions provided for termination of title to the property in the event of eviction from a building under the threat of collapse, which is the essence of the applicant ' s complaint.

61. Article 346 of the Civil Code concerns grounds for termination of property rights. Its first part lists the cases in which property rights must be terminated. A threat of a building ' s collapse is not listed. The second part, which was referred to by the Yalta City Court, is a reference rule which allows termination of property rights in other cases specified in law. However, it is not clear from the first-instance court ' s judgment what this law was in the applicant ' s situation. As mentioned in the preceding paragraph, nothing in the provisions of the Housing Code, referred to by the court, provided for the annulment of title to the property in the event of eviction. No other legislative provisions were referred to by the court in this context.

62. As regards Article 41 of the Constitution, referred to by the Court of Appeal when dismissing the applicant ' s complaint concerning the lack of legal bases for the property deprivation (see paragraph 24 above), the Court observes that this provision allows expropriation of property in exceptional cases for public needs. However, like Article 346 § 2 of the Civil Code, it requires that the instances in which it is done as well as the procedure governing such expropriation be defined in law. The Court of Appeal did not elaborate on the matter and did not explain how this provision was applicable to the circumstances of the applicant ' s case, including what the relevant law that had justified the expropriation of the applicant ' s flat had been.

63. The Court observes that similar observations of the applicant - a central element of her complaint during all stages of proceedings - were left outside the scope of judicial scrutiny and were not duly addressed by the courts.

64. That said , the Court finds no evidence before it to conclude that the interference with the applicant ' s property rights, in the form of the judgment of 9 April 2008, as upheld by the Court of Appeal of the Autonomous Republic of Crimea on 17 June 2008, had a basis in law.

65. The Obsolete-Housing Act, referred to by the Government in this context, was not invoked by the domestic courts and, in any event, is irrelevant to the present case because nothing in the case file suggests that the expropriation of the Pushkinska flat took place in the context of a comprehensive district reconstruction project that would let this Law come into play (see paragraph 34 above). At the same time, the Court finds this Law to be a good example of a case when a possibility of an interference with property rights in particular circumstances, and its framework, is established in accordance with the requirement of domestic legislation, in contrast to the situation in the applicant ' s case.

66 . Apart from the above mentioned, the Court has strong doubts that there was any genuine public interest behind the deprivation of the applicant ' s property and as regards the way the compensation to the applicant was made. It believes that in the particular circumstances of this case these elements must be seen as pertaining to the legality of the expropriation. However, it does not find it necessary to elaborate on this matter as the foregoing finding that the expropriation had no basis in law is sufficient to enable the Court to conclude that the interference contravened Article 1 of Protocol No. 1 to the Convention. This finding makes it also unnecessary to examine whether the remaining requirements of the first paragraph of Article 1 of Protocol No. 1 were fulfilled (see, for instance, Guță Tudor Teodorescu v. Romania , no. 33751/05, § 50, 5 April 2016 ) .

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

67. The applicant also complained that the proceedings before the domestic courts had been unfair, in that they had failed to address important arguments raised by her concerning the legal basis for the interference and the adequacy of the compensation for the expropriated flat. She relied on Article 6 § 1 of the Convention.

68. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

69. However, having regard to its findi ngs under Article 1 of Protocol No. 1 (see paragraph 66 above), the Court considers that the main issue at the heart of the applicant ' s complaint, specifically the lawfulness of the interference with her property rights, has been addressed by the Court and that the applicant ' s complaint under Article 6 does not require a separate examination (see, mutatis mutandis , Płaczkowska v. Poland , no. 15435/04, §§ 71 to 73, 2 October 2012) .

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

70. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

71. The applicant wished to have her Pushkinska flat returned. However, given the current political context in the Crimean peninsula and the objective impossibility for Ukraine to restore her title over the flat , she claimed just satisfaction and costs.

A. Damage

72. The applicant claimed the market value of the Pushkinska flat as a pecuniary damage, which she estimated as 2,305,861.26 Ukrainian hryvnias (UAH - equivalent to 208,835.87 euros (EUR) at the rate applicable on 31 December 2013). She based her calculation on the price of the neighbouring apartment in the Pushkinska building, which the Company had allegedly bought in 2005 for EUR 103,657.94, and applied the inflation rate to latter. The neighbouring apartment measured 43.2 sq. m, that is to say 5 sq. m more than the applicant ' s one, but, unlike the applicant ' s flat, it had no toilet and bathroom. The relevant sale contract had been allegedly presented by the Company during the proceedings in domestic courts. The applicant also claimed EUR 120,750 as loss of earnings caused by impossibility of renting the Pushkinska flat out.

73. The applicant further claimed non-pecuniary damage in the amount of EUR 10,000 for the stress caused by the unlawful expropriation of her property.

74. The Government contested these claims as unsubstantiated and unsupported by evidence. They submitted, inter alia , that no property evaluation showing that the market value of the Sosnova flat had been cheaper than that of the Pushkinska flat had been provided by the applicant.

75. The Court notes that the applicant ' s foremost wish is to receive the expropriated flat back, and that the parties dispute the valuation of the properties. It is further mindful of the current lack of de facto control by the Ukrainian authorities over the Crimean peninsula and of the objective difficulties the Ukrainian authorities may thus experience in connection with execution of the present judgment. In these circumstances, the Court considers that the question of pecuniary and non-pecuniary damage is not yet ready for decision. It should therefore be reserved to enable the parties to reach an agreement (Rule 75 §§ 1 and 4 of the Rules of Court).

B. Costs and expenses

76. The applicant also claimed EUR 4,800 for the costs and expenses incurred before the Court. According to the applicant, her lawyer spent forty-eight hours in total preparing her case with his hourly rate being EUR 100. No service contract or invoice has been provided to the Court by the applicant in that connection.

77. The Government contested that claim as unsubstantiated.

78. It is the Court ' s practice to reimburse costs and expenses only if it has been established that they were actually and necessarily incurred and are reasonable as to quantum. Having regard to the above criteria and given the fact that no documents have been provided by the applicant to support her claim under this head, the Court cannot but reject the claim.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. Holds that there is no need to examine separately the complaint under Article 6 of the Convention;

4. Holds that, as regards pecuniary and non-pecuniary damage resulting from the violation found, the question of just satisfaction is not ready for decision and accordingly:

(a) reserves this question in whole;

(b) invites the Government and the applicant to submit, within three months from the date of notification of this judgment, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach;

5. Dismisses the applicant ' s claim for costs and expenses.

Done in English, and notified in writing on 6 June 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Síofra O ' Leary
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BRAYLOVSKA v. UKRAINE - 14031/09 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Fifth Section Committee) [2019] ECHR 428 (06 June 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/428.html Cite as: ECLI:CE:ECHR:2019:0606JUD001403109, CE:ECHR:2019:0606JUD001403109, [2019] ECHR 428