FIFTH SECTION
CASE OF SAKHANENKO v. UKRAINE
(Application no. 9749/11)
JUDGMENT
STRASBOURG
10 December 2020
This judgment is final but it may be subject to editorial revision.
In the case of Sakhanenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 9749/11) 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 Olena Sakhanenko (“the applicant”), on 15 January 2011;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 12 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns compensation for the alleged demolition of the applicant’s house, and the excessive length of the domestic proceedings.
THE FACTS
1. The applicant was born in 1968 and lives in Odessa. She was represented by Ms K. Rovynska, a lawyer practising in Odessa.
2. The Government were represented by their Agent, Mr I. Lishchyna.
3. The facts of the case, as submitted by the parties, may be summarised as follows.Chronology regarding the applicant’s family’s house and its exchange for a new flat
4. In 1986 the local authorities authorised the applicant’s family to occupy a house located in the city of Odessa.
5. In 1994 the authorities included that property on a list of dilapidated houses. The plot of land on which the house was situated was being used by the Odessa State Academy of Construction and Architecture (“the OSACA”). Part of the plot of land used by the OSACA was subsequently leased to a construction company for the purpose of constructing multi-storey buildings.
6. In July 2001 the applicant’s family privatised the house.
7. In 2008 the OSACA registered several immovable properties as belonging to it, allegedly including the applicant’s family’s house, located on the plot of land in issue.
8. On 6 March 2014 the applicant’s family, in the course of a court dispute with the construction company, concluded a settlement agreement by which the family gave the ownership of the house to the construction company and received a flat in a newly constructed building in return. That agreement further included a general condition to the effect that the applicant’s family waived any claims in relation to the alleged violation of their property rights in that connection. The agreement was approved by the court and the proceedings were closed. The applicant did not appeal against that ruling.Civil and administrative proceedings
9. On 14 August 2001 the applicant’s family instituted civil proceedings, arguing that the OSACA had prevented them from having access to their house.
10. On 25 March 2002 the OSACA instituted administrative proceedings against the Odessa municipal authorities and the applicant’s family, arguing, among other things, that the applicant’s family had no right to the house. On 29 April 2002 the Tsentralnyy District Court of Odessa delivered a preliminary ruling, issuing an attachment order in respect of the house. The civil proceedings instituted by the applicant’s family had been suspended pending the outcome of the administrative case. On 13 May 2008 the Prymorskyy District Court of Odessa dismissed the OSACA’s administrative claim as unfounded. On 25 February 2009 the Odessa Administrative Court of Appeal quashed that judgment and terminated the proceedings on the grounds that the dispute was outside the jurisdiction of the administrative courts. On 7 May 2009 the attachment order was lifted. On 9 December 2010 the Higher Administrative Court upheld the Administrative Court of Appeal’s finding that the case had to be closed for lack of jurisdiction.
11. In the resumed civil proceedings the applicant’s family updated their claims, arguing that, in addition to being prevented physically from having access to their property, the OSACA had groundlessly sought an attachment order in respect of the house, had registered the house as its own property in 2008 and had allegedly caused damage the house in the course of the construction works carried out on the plot of land. The applicant’s family claimed damages on that account.
12. On 6 July 2012 the Prymorskyy District Court of Odessa partly allowed the applicant’s family’s claims: (i) it ordered the OSACA not to prevent the applicant’s family from having “access to their house”, and (ii) it invalidated the OSACA’s ownership certificate of 2008 in respect of the house in dispute (see paragraph 7 above). The court then dismissed the claims for damages as unsubstantiated.
13. On 14 November 2012 the Odessa Regional Court of Appeal reviewed the case and found that all the claims by the applicant’s family had been unsubstantiated. As regards the OSACA’s obligation not to prevent the applicant from having access to the house, the Court of Appeal found that the applicant’s family had not been using the house because it was not “inhabitable”. The Court of Appeal further dismissed as unsubstantiated the claim for invalidation of the OSACA’s ownership certificate as that certificate had not in fact included the applicant’s family’s house.
14. On 17 April 2013 the Higher Specialised Court of Ukraine on Civil and Criminal Matters upheld the Court of Appeal’s decision of 14 November 2012.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF Protocol no. 1
15. In her initial application the applicant complained that she had been prevented from having access to her house by the OSACA, a State legal entity, for a considerable period of time, during which the house had allegedly been demolished. The applicant relied on Article 1 of Protocol No. 1, which reads as follows:
“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.”
16. The Government submitted that the applicant’s family’s house had been dilapidated and classified as not fit for dwelling. They stressed that in 2014 the applicant had been a party to the settlement agreement under which she had been granted a much larger flat in a newly constructed building. In these circumstances, any alleged interference with her property rights had been “more than generously compensated”.
17. The applicant contended that even though she had been given the new flat, this had happened belatedly and the delay had been caused by the excessive length of the court proceedings, notably the administrative proceedings initiated by the OSACA.
18. The Court considers that, for the reasons set out below, there is no objective justification for continuing to examine this complaint and that it is thus appropriate to apply Article 37 § 1 of the Convention, which provides as follows:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
...
(b) the matter has been resolved;
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect of human rights as defined in the Convention and the Protocols thereto so requires.”
19. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions in turn: first, whether the circumstances complained of directly by the applicant still obtain and, second, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002, and Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I).
20. After notice of the application had been given to the Government, the Court was informed that the applicant’s family had received a new flat in exchange for their house. The Court takes note of the Government’s submissions that the new flat was larger than the house and that it was located in the newly constructed building (see paragraph 16 above). The Court also takes into account the fact that the applicant’s house had been classified as dilapidated since 1994 (see paragraph 5 above). Moreover, under the settlement agreement of 2014 the applicant’s family had waived any further claims in relation to the alleged violation of their property rights in that regard. The agreement was approved by a domestic court and the applicant did not appeal against it (see paragraph 8 above). In the light of these new facts, the Court considers that the material facts complained of by the applicant have ceased to exist and the applicant has been afforded adequate redress in respect of her grievances under Article 1 of Protocol No. 1.
21. Having regard to the above considerations, the Court concludes that the matter giving rise to this complaint can therefore be considered “resolved” within the meaning of Article 37 § 1 (b). The Court also considers that no particular reason relating to respect for human rights as defined in the Convention requires it to continue its examination of the matter under Article 37 § 1 in fine.
22. Accordingly, the application should be struck out of the Court’s list of cases in so far as it relates to Article 1 of Protocol No 1 (see Sisojeva and Others, cited above, § 104).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23. The applicant complained that the length of the civil and administrative proceedings in question had been incompatible with the “reasonable time” requirement. She relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
24. The Court notes that while the issue with the applicant’s entitlement to immovable property has been settled at the domestic level, nothing suggests that those arrangements resolved the applicant’s claim relating to the excessive length of the domestic proceedings. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V). The claim on reasonable length of proceedings has a separate standing even in the event of a favourable outcome of the domestic civil proceedings (see Politikin v. Poland, no. 68930/01, §§ 20, 25 and 27 April 2004) or the acquittal of criminal charges (see Kobtsev v. Ukraine, no. 7324/02, § 44, 4 April 2006). Accordingly, in the absence of any acknowledgement of the alleged violation of the right to a reasonable time of proceedings and redress on that account, the applicant may still claim to be a victim under this head.
25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
26. In the leading case of Krasnoshapka v. Ukraine (no. 23786/02, 30 November 2006), the Court already found a violation in respect of issues similar to those in the present case.
27. Having examined all the material submitted to it, the Court finds no fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. The Court notes that in the instant case the length of the administrative proceedings which had direct relevance to the applicant’s civil rights exceeded eight years and eight months at three levels of jurisdiction. Throughout this lengthy period, there was no substantial delay on the part of the applicant. On the contrary, the Government have not provided any reasonable explanation for the excessive length of the proceedings which the administrative courts eventually terminated for lack of jurisdiction (see paragraph 10 above). Moreover, the administrative proceedings stayed the civil action which had previously been initiated by the applicant’s family in the civil courts and which was determined even later, after the termination of the administrative proceedings (see paragraphs 11 and 14 above). Assessing the duration of both sets of proceedings in their entirety, the Court finds that the “reasonable time” requirement has not been met in the present case.
28. This complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention (see, for similar approach, Shumelna v. Ukraine [Committee], no. 10494/18, § 11, 21 February 2019 and Rudyy v. Ukraine [Committee], no. 19019/18, § 10, 11 April 2019).APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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.”
30. The applicant did not submit any claims for just satisfaction within the specified time-limit. The Court therefore makes no award under Article 41.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,Holds that the matter giving rise to the applicant’s complaint under Article 1 of Protocol No. 1 has been resolved and decides to strike the application out of its list of cases in so far as it relates to that complaint;Declares the complaint under Article 6 § 1 of the Convention admissible;Holds that there has been a violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 10 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Stéphanie Mourou-Vikström
Deputy RegistrarPresident
Full & Egal Universal Law Academy