CHERKUN v. UKRAINE

FIFTH SECTION

DECISION

Application no. 59184/09
Nina Pylypivna CHERKUN
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 12 March 2019 as a Chamber composed of:

Angelika Nußberger, President,
Yonko Grozev,
Ganna Yudkivska,
André Potocki,
Síofra O’Leary,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 21 October 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Nina Pylypivna Cherkun, is a Ukrainian national, who was born in 1955 and lives in Yampil, the seat of the eponymous district, in the Vinnytsya Region. She was represented before the Court by Mr M. Tarakhkalo, a lawyer practising in Kyiv.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

A. The circumstances of the case

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

1. Summary of the facts

4. The applicant owns a house located at the end of a dead-end passage on Ordzhonikidze Street. She inherited the house from her mother in 2003 but formalised her title to it only in December 2007, after the problems with her neighbour’s construction had begun (see the next paragraph). It appears that the applicant never formalised the title to the land on which her house sits (see paragraphs 26 and 27 below). In the 1980s the local authorities gave permanent use of the land in question to the person from whom the applicant’s mother had bought her house: at the time Soviet law did not allow private ownership of land (see Zelenchuk and Tsytsyura v. Ukraine, no. 846/16, 1075/16, § 9, 22 May 2018).

5. At some point in 2007, according to the applicant in June or July that year, Mr B., who owns a neighbouring house, started building an extension to his house, a cellar and a garage (“B.’s extension project”). Initially, in August and October 2007, he obtained permits for his project even though at the time, like the applicant, he had no title to the land on which his property stood.

6. The construction was conducted in part on the land which de facto had previously formed part of the dead-end passage which constitutes the applicant’s access to her property. As a result of the construction, that road was narrowed, and the applicant objected to the construction. According to the applicant, while prior to B.’s extension the road leading to her property was more than twenty metres wide, it became 3.5 metres wide, ending in a 90-degree turn.

7. The applicant’s key legal argument against B.’s extension was that it was in breach of domestic construction and planning regulations (see paragraph 44 below) that required that, at the end of dead-end passages: (i) there be an open manoeuvring area measuring at least twelve by twelve metres to allow fire engines and other emergency response vehicles to pass and that (ii) the road be at least five metres from any walls (see paragraph 44 below). There is no such open area in front of the applicant’s house and in fact the wall of the new structures built by B. is one metre from the road (see paragraph 29 below).

8. According to the applicant, she cannot reach her property by car. In evidence, she relied on a letter from the District Administration (see paragraph 15 below). According to the Government, she “freely uses the passage” to her property.

9. The applicant took the following measures against the construction:

(i) firstly she successfully had the permits for B.’s extension project revoked, in October and early November 2007, mainly on the grounds that at the time they had been issued B. had had no title to the land (see paragraphs 12 and 14 below). However, in the meantime, in late November 2007 and in April 2008, the town council granted B. rights of ownership of the land, and this applied also to the land on which the extension stood (see paragraph 13 below);

(ii) secondly the applicant unsuccessfully attempted to have B.’s new structures demolished and to have his title to the land on which they stood revoked (see paragraphs 20 and 23 below);

(iii) thirdly, the applicant and her husband unsuccessfully attempted (see paragraph 28 below) either to obtain exclusive private use of the dead-end passage or to have the authorities seize the neighbours’ land for public use and to create, on the seized land, an open manoeuvring area.

2. Permits for the construction project, their revocation and B.’s title to the land

10. In July and August 2007 respectively the town administration granted planning permission for B.’s extension project and the District Administration issued a permit for construction works.

11. On 10 October 2007, in response to a complaint from the applicant’s husband, an inspector from the Vinnytsya Regional State Construction Inspectorate (“the Regional Inspectorate”) examined the site. On 12 October 2007 the Regional Inspectorate stated, in a letter to the applicant’s husband, that the construction permits had been issued unlawfully, since B. had no title to the land (see the relevant legislative provision at paragraph 42 below). The permit for construction works had been signed by an official, who had acted ultra vires. The dead-end passage did not meet the requirements of the construction regulations concerning the need for an open area at the end of such passages and the minimum distance of the road from the walls (see paragraph 44 below), which was a mere 0.5 metres instead of the required 5 metres.

12. On 26 October and 1 November 2007 the District Administration and the town administration respectively suspended the permit for construction works and revoked the planning permission (see paragraph 10 above) in view of the fact that B. had no title to the land.

13. On 29 November 2007 the town council, in response to B.’s application, formally granted him title to a plot of land measuring 0.064 hectares under his house and outbuildings. This permission was subsequently clarified and reduced to 0.0608 hectares on 17 April 2008. The clarification had received prior approval from the district architect on 30 January 2008. The permission covered the new structures.

14. On 11 December 2008 the District Administration’s planning and architecture department, acting on an instruction from the district prosecutor, revoked the approval of the chief architect of the district for B.’s extension project, on the basis of which the permit for construction works had been issued (see paragraph 10 above), on the grounds that it was contrary to regulations in respect of dead-end passages (see paragraph 44 below).

15. On 12 January 2009 the District Administration wrote to the town mayor. It stated that the letter was being sent in response to a complaint by the applicant’s husband, and was based on an examination of the planning documents. The administration considered that the district architect had acted wrongly in approving the borders of the land allocated to B. by the town council’s decision of 17 April 2008 (see paragraph 13 above). In particular, the border between B.’s and the applicant’s land was 24.2 metres long, which did not allow for access to the applicant’s property by car (розмір межі з домоволодінням Черкун Н.П. – 24,20 метра, що не дає можливості виїзду з території домоволодіння Черкун Н.П.).

16. On 7 February 2009 the District Administration’s planning and architecture department wrote to the mayor that the situation with the applicant’s property could be resolved either by:

(i) seizing the neighbours’ land for public needs and creating an open manoeuvring area at the end of the dead-end passage or

(ii) transferring the entire dead-end passage to the applicant’s exclusive use, which was a possibility since all the neighbouring properties had alternative direct access to the common roads.

17. On 9 February 2009 the Regional Prosecutor’s Office wrote to the applicant’s husband in response to his complaint. The letter: (i) reiterated the findings of the Regional Inspectorate’s check conducted in October 2010 (see paragraph 11 above); (ii) stated that the Regional Inspectorate’s recommendations had been complied with since the planning permission and the permit for construction works had been revoked, and following the revocation the construction works had ceased; (iii) informed the applicant’s husband that the district prosecutor’s office had charged an employee of the District Administration’s planning and architecture department with an administrative offence for acting unlawfully in issuing the permission for construction works and that the District Court had subsequently convicted and fined that employee; (iv) the prosecutor’s office saw no grounds to lodge any civil claims.

18. On 23 February 2009 the Regional Administration’s planning and architecture department wrote to the town council that, in allocating land to B., it had failed to take into account the applicant’s needs in terms of access to her property, in particular the requirements of the regulations concerning the need for access for fire engines (see paragraph 44 below).

3. First set of proceedings concerning the alleged illegality and demolition of the neighbour’s constructions

19. In March 2008 the applicant lodged a claim against her neighbour and the city council, seeking a declaration that the neighbour’s construction was illegal and an order for its demolition.

20. On 23 September 2008 the Yampil District Court (“the District Court”), having examined the applicant’s claim on the merits, rejected it. It held that, pursuant to Article 376 of the Civil Code (see paragraph 37 below), claims for the demolition of illegal constructions could be lodged only by public authorities.

21. On 18 February 2009 the Vinnytsya Regional Court of Appeal (“the Court of Appeal”) rejected the applicant’s appeal and upheld the District Court’s judgment. The Court of Appeal stated that it had not been proven that B. had breached the applicant’s rights. In particular, it was established that B. had built his extensions within the boundaries of his land. The applicant had failed to provide evidence, either before the District or the Court of Appeal, that the structures erected by B. would breach her rights or those of other third parties. The applicant had argued that B. would continue construction and would be bound to encroach on the road in order to complete the construction project. However, that argument was merely hypothetical. The court could not accept the applicant’s argument that the officials who had issued the permits had acted ultra vires and that the construction project breached, in the applicant’s assessment, construction standards because, under the law, supervision of legality of construction was within the competence of public authorities, and not of private individuals. The Court of Appeal added that, should B. in future interfere with the applicant’s rights, she would be entitled to bring a claim under the provisions of the Land Code concerning the obligations of owners of land not to interfere with their neighbours’ enjoyment of their land (see paragraph 39 below).

22. On 29 May 2009 the Supreme Court upheld the lower courts’ decisions, holding that there were no indications of errors of substantive or procedural law.

4. Second set of proceedings concerning invalidation of the neighbour’s title to land

23. In March 2009 the applicant lodged a claim against the town council and B. seeking to quash the town council’s decision to transfer land to B. (see paragraph 13 above). She argued that neither B. nor the town council had heard her or obtained her consent before determining the borders of B.’s land, in particular that she had not been present at the hearing of the land disputes commission of the town council on whose recommendation the council’s decision had been based.

24. She relied, in particular, on the provisions of the Land Code concerning the requirement to invite “interested parties” to the hearings of land dispute commissions set up by municipal councils and the Planning (Main Principles) Law’s provision requiring that legitimate interests of neighbours be taken into account in planning decisions (see paragraphs 41 and 43 below respectively).

25. The District Court held hearings in the presence of the parties. It also visited the site, where, assisted by a surveyor from the local land authority, it proceeded to measure the relevant distances on the ground. It noted, for example, that there were 3.5 metres from the border of B.’s land to the applicant’s gate. The measurements matched those found in the town authorities’ documentation on the basis of which land was transferred into B.’s ownership.

26. On 28 May 2009 the District Court rejected the applicant’s claim. The court established that B.’s structures remained within his land as defined by the town council. They did not encroach on the public passage. There was no evidence for the applicant’s assertions that there was an interference with her enjoyment of her land. The court also found that the applicant had no title to her land, and so there was no requirement to obtain her consent to B.’s land grant. In reaching the above conclusions the District Court referred to a number of provisions of the Land Code relevant to the case.

27. On 22 June 2009 the Court of Appeal upheld the District Court’s judgment. It held that the applicant had failed to show that she had the right to the land on which her house was located. In any event, she had failed to prove that her rights had been breached. The District Court had fully established the facts of the case and had drawn the correct legal conclusions. This decision was not appealed against, and became final.

5. The applicant’s and her husband’s attempts to obtain exclusive use of the dead-end passage and the third set of proceedings

28. The applicant’s husband on her behalf proposed that the entire dead‑end passage be given to the applicant for her exclusive ownership and use (see paragraph 16 above).

29. On 4 March 2013 the District Administration’s planning and architecture department, following up on the applicant’s husband’s complaint, sent a letter to the mayor. The department stated that, prior to June 2007, the passage which led to the applicant’s property had complied with the regulations for dead-end passages (see paragraph 44 below). As a result of unlawful construction begun in 2007 the passage no longer complied with those requirements. In particular, instead of five metres, there was only one metre between the walls and the road. That dead-end passage, 35.96 metres in length and 3.5 metres in width, had to be allocated to the applicant, as all the other neighbouring properties had independent access to the common roads. The department recommended that the town council take action in that respect.

30. On 19 March 2013 the town council refused to allocate the passage to the applicant’s husband exclusively, deciding that it should remain in municipal ownership and for the common use of the applicant and her two neighbours.

31. The applicant’s husband lodged a claim with the administrative courts against the town council seeking, in essence, to declare unlawful its failure to follow the District Administration’s recommendation (see paragraph 29 above).

32. The courts rejected the claim. They held that the municipal authorities were independent of the State authorities, which could not issue directives on matters within municipal competence, including planning. The town council had duly examined and rejected the District Planning Department’s recommendation (see paragraph 30 above). In April 2014 the High Administrative Court upheld the lower courts’ decisions.

6. The applicant’s and her husband’s situation

33. The applicant and her husband receive pensions as disabled persons of the third (least severe) category of disability. The husband was born in 1953: he has a driving licence and owns a 1997 VAZ 2107 which is a saloon 1.61 metres in width and 4.14 metres in length.

34. From 8 January to 28 July 2008 the applicant’s husband was employed as the acting head of the District Administration’s planning and architecture department. On the latter date he was briefly appointed the head of the administration’s housing and utilities department. He left the administration on 2 August 2008.

35. On 7 May 2013 the applicant’s husband, acting on the applicant’s behalf, sent a letter to the Court informing it about certain developments in the case. He also stated that in 2008 he had been the acting head of the District Administration’s planning and architecture department. He alleged that his refusal, in that position, to approve certain development projects had put him on the wrong side of the members of the town council and of the judges of the District Court, thus leading to the applicant’s difficulties with her land and her neighbour.

B. Relevant domestic law

1. Constitution

36. Article 55 § 1 of the Constitution provides that “human and citizens’ rights and freedoms shall be protected by courts.”

2. Civil Code

37. Article 376 § 7 of the Civil Code provides that, in case of material deviation from a construction project which is contrary to the public interest or violates the rights of third parties, or in case of material breach of the rules governing construction, the courts can, on the basis of a claim lodged by an appropriate State or municipal authority, issue a judgment ordering the person who erected the building to modify it as required. If such a modification is impossible, or if the person who erected the building refuses to modify it, the property in question shall be demolished at the expense of such a person.

3. Code of Civil Procedure of 2004 (as worded at the relevant time)

38. Article 8 §§ 8 and 9 of the Code provided that courts could not refuse to give judgment if there was no legislation governing matters before them or if that legislation was incomplete, unclear or contradictory. If there was no legislative provision governing the matter before the court, the court had to apply a legislative provision governing similar matters. If there was no such similar provision, it had to decide on the basis of the general principles of law.

4. Land Code of 2001

39. Article 103 of the Code provides that owners and users of land must use their land in a way that causes the least inconvenience possible to the owners and users of neighbouring land in terms of shade, smoke, unpleasant odours, noise, and so on. They must not use their land in a way that prevents the users and owners of neighbouring land from using it according to its designated use. Article 104 of the Code provides that owners and users of land can demand the cessation of activities on neighbouring land which can have a negative impact on people’s or animals’ health, air quality, land, and so on.

40. Article 158 authorises the courts and municipal authorities, within the borders of municipalities, to resolve land disputes. Decisions of municipal authorities can be appealed against to courts.

41. Article 159 requires that hearings in land disputes be conducted in the presence of “interested parties”, who must be informed of such hearings.

5. Spatial Planning and Development Law (Закон України «Про планування і забудову територій») of 2000

42. Section 24 of the Law, which was in effect when the applicant’s dispute with her neighbour arose, provided that a planning permit could be obtained by an owner or a lawful user of a piece of land. It listed, among the documents to be submitted with applications for planning permits, a document evidencing title to the land or the owner’s permit to use the land for development.

On 12 March 2011 that law was replaced by the Regulation of Development Activities Law (Закон України «Про регулювання містобудівної діяльності») of 2011. There is no indication that the new law introduced any changes of relevance to the present case.

6. Planning (Main Principles) Law of 1992

43. Section 5 of the Law requires planners to take decisions which are based on a number of principles, among them the need to take into account the “legitimate interests and claims of owners and users of the land and of the buildings adjacent to the construction site”.

7. Regulations in Respect of Dead-End Passages

44. State Construction Regulations (ДБН) 360-92 containing rules regarding dead-end passages were enacted on 17 April 1992 by the order no. 44 of the State Department for Construction and Architecture. The relevant provision of the regulations in respect of dead-end passages read:

“3.22 In single-family housing areas, in addition to the street networks, networks of passages within blocks of houses shall be planned (слід формувати мережу внутрішньоквартальних проїздів). The width of the parts of those passages dedicated to vehicle passage shall be 3.5 metres for one-lane passages and 5.5 metres for two-lane passages...

The length of the dead-end passages shall be no more than 150 metres. They must end in turning circles, the axis of vehicle movement being at least ten metres in radius, or in open manoeuvring areas for U-turns measuring at least twelve by twelve metres. Access roads to the residential and public buildings ought to be planned to be at least 3.5 metres in width and at least five metres from the walls, to be suitable for the passage of emergency vehicles.”

COMPLAINTS

45. The applicant complained of:

(i) a violation of her right of access to a court, as guaranteed by Article 6 § 1 of the Convention, on account of the domestic courts’ decisions in the first set of proceedings;

(ii) a violation of her right to respect for her home, under Article 8 § 1 of the Convention and of her right to peaceful enjoyment of her possessions, under Article 1 of Protocol No. 1, on account of the authorities’ alleged failure to resolve the problem of obstructed access to her property.

THE LAW

A. Objections as to admissibility of the application as a whole

46. Without commenting on the admissibility or merits of particular complaints, the Government submitted that the application was inadmissible as a whole on account of abuse of the right of individual application and non-exhaustion of domestic remedies. The Court does not consider it necessary to examine those objections since the application is in any case inadmissible for the following reasons.

B. Alleged violation of Article 6 of the Convention

47. The applicant complained that the domestic courts’ decisions in the first set of proceedings breached her right of access to a court as provided for in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The parties’ submissions

48. The applicant submitted that the rule of Article 376 § 7 of the Civil Code (see paragraph 37 above) applied by the domestic courts, to the effect that only public authorities could demand the demolition of illegal structures, even if such structures interfered with the rights of third parties, restricted her right to a court to such an extent that its very essence was impaired. That rule pursued no legitimate aim, and there was no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

49. She referred to the provision of the domestic Constitution declaring that courts were protectors of individual rights (see paragraph 36 above) and of the Code of Civil Procedure to the effect that, in case of the absence of, or a lack of clarity in, the legislative rules applicable to a dispute before them, the courts were required to apply rules by analogy or to decide the case on the basis of the general principles of law (see paragraph 38 above).

50. The Government, having objected to the admissibility of the application in general (see paragraph 46 above), did not comment on the admissibility or merits of particular complaints.

2. The Court’s assessment

(a) Relevant general principles

51. The Court reiterates that Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 84, 29 November 2016).

52. The right of access to court is not absolute, but may be subject to limitations; these are permitted by implication, since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is not part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid., § 89).

53. However, it is necessary to maintain a distinction between procedural and substantive elements: fine as that distinction may be in a particular set of national legal provisions, it remains determinative of the applicability and, as appropriate, the scope of the guarantees of Article 6 of the Convention, which can, in principle, have no application to substantive limitations on a right existing under domestic law (ibid., § 100). Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Károly Nagy v. Hungary [GC], no. 56665/09, § 61, 14 September 2017).

(b) Application of the above principles to the present case

54. The Court observes that the applicant had access to court at three levels of jurisdiction. The domestic courts concluded, in essence, that there had been no breach of the applicant’s own rights on account of B.’s extension project, since B.’s structures remained within the borders of his land and the applicant had failed to prove that they interfered with her rights. They concluded that she had no right under domestic law to obtain demolition of B.’s structures on the mere grounds that their construction had allegedly been illegal. Only public authorities had that right (see paragraph 21 above).

55. That conclusion was based on the interpretation of a provision of the Civil Code (see paragraphs 20 and 37 above), to all appearances a substantive-law provision. The applicant did not argue otherwise. Therefore, the situation in question is not in the nature of a procedural bar. The applicant did not disagree with the interpretation of that particular provision by the domestic courts. Instead, she appeared to argue that the courts had to disregard it and to develop a different rule, by relying on the constitutional principle guaranteeing judicial protection of rights and on the provision of the Civil Procedure Code allowing the courts to decide cases on the basis of general principles of law (see paragraphs 36 and 38 above). In other words, they had to create a right for third parties to obtain orders for demolition of illegally erected structures.

56. As stated above, Article 6 does not guarantee any particular content for civil “rights and obligations”. The applicant’s case does not concern the situation where her right recognised under domestic law can only be asserted by someone else (see Philis v. Greece (no. 1), 27 August 1991, §§ 60-66, Series A no. 209) but rather a situation where she has no substantive right to ask for demolition of illegal construction and only public authorities have the right to do so.

57. It follows that this complaint is incompatible with the Convention ratione materiae and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violations of Article 8 of the Convention and of Article 1 of Protocol No. 1

58. The applicant complained of violations of her right to respect for her home and of her right to the peaceful enjoyment of her possessions, as guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1, which read:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1

“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.”

1. The parties’ submissions

(a) The applicant

59. The applicant submitted that there was an interference with her right of access to her house and property. She could not drive to and from her house, and so could not freely use her husband’s car: she indicated the District Administration’s letter of January 2009 to the effect that there was no access to her house by car (see paragraph 15 above). Moreover, there was no access to her property for emergency vehicles. This was serious, as the applicant was sixty-two and her husband sixty-five years old (see paragraph 33 above) and lack of access for those emergency vehicles could potentially be fatal. Accordingly, the interference reached the threshold of severity to bring Article 8 and Article 1 of Protocol No. 1 into play.

60. Therefore, by allowing B. to build on the only passage to her house, the authorities had breached Article 8 and Article 1 of Protocol No. 1.

61. The fact that the permits for B.’s extension had been issued in breach of the regulations for dead-end passages was established in a number of official letters from the Regional Administration (see paragraphs 11 and 18 above), the prosecutor’s office (see paragraphs 14 and 17 above), and the District Administration (see paragraphs 15 and 29 above). In that situation the only remedy available to the applicant had been to ask for an order of demolition but the domestic courts had ruled that she had no right to do so.

62. Thus, having established that the applicant’s right to access her property had been infringed, the domestic authorities had violated their obligations to implement measures to protect the applicant from the negative consequences of her neighbour’s construction.

63. The domestic authorities had breached Article 8 and Article 1 of Protocol No. 1 by failing to institute an effective system of protection against illegal construction and to take effective measures to ensure respect for the applicant’s right to respect for her home and to the peaceful enjoyment of her property.

(b) The Government

64. The Government, having made submissions concerning the admissibility of the application in general (see paragraph 46 above), did not comment on the admissibility or merits of particular complaints.

2. The Court’s assessment

(a) The Court’s assessment of the evidence and establishment of the facts

65. The parties disagree as to whether the applicant’s house remained accessible by car after her neighbour had built, in 2007, new structures on the public land which was later transferred to him by the municipal authorities.

66. The Court notes that this issue was reviewed by the domestic courts and according to its case law, while it is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 154, 22 October 2018).

67. The District Administration’s letter (see paragraph 15 above) is the only evidence cited by the applicant for her assertion that she could not access her property by car. However, it is unclear what the statement in the letter was based on. Given the context, it cannot be ruled out that it was a mere quote from the complaint which the applicant’s husband had submitted to the administration. By contrast, the domestic courts’ findings in that respect were based not only on the examination of all the evidence in adversarial proceedings but also on targeted fact-finding through examination of the situation on the ground (see paragraph 25 above).

68. Other than the District Administration’s letter, the applicant did not submit any evidence to show that she or her husband could not access her house in her husband’s car, measuring 1.6 metres in width, through a passage more than twice as wide (see paragraphs 25 and 33 above).

69. Moreover, it is notable that the District Administration, the applicant and her husband proposed, as a solution to the problem created by B.’s extension project, that the passage be transferred to the applicant for her exclusive use (see paragraphs 16, 28 and 29 above). However, in that scenario the passage would have remained physically the same. The fact that they considered that an exclusive use of the same passage would resolve the problem appears to suggest that, contrary to the applicant’s submissions before the Court, a car could pass through the passage.

70. In any event, this apparent contradiction demonstrates a lack of clarity in the applicant’s submissions before the Court. Another contradiction is that many of the documents on which the applicant herself heavily relied in her submissions to the Court, most notably the Regional Administration’s letter of February 2009 (see paragraphs 18 and 61 above), only mentioned access difficulties for fire engines and were markedly silent concerning passenger cars.

71. Lastly, it is notable that, while the applicant made detailed comments on the distress she allegedly suffered as a result of the lack of access to her property for emergency vehicles (see paragraph 59 above), she made no similar detailed comments concerning the use of her husband’s car: most notably, she did not say where that car was kept or how it was used, given that there was supposedly no possibility for it to reach her house.

72. The Court concludes that there are no cogent elements which would allow it to question the finding of fact reached by the domestic courts, albeit implicitly, to the effect that despite her neighbour’s new construction, the applicant’s property remained accessible by car.

73. There is no doubt, however, that with that new construction in place, the dead-end passage to the applicant’s house does not comply with the domestic regulations for such passages in two respects:

(i) there is just one metre or 0.5 metres between the road and the wall, instead of the required five metres; and

(ii) there is not a sufficiently large open area at the end of the passage allowing fire engines direct access to the applicant’s house (see, among many official findings to that effect, the letter of the Regional Inspectorate, at paragraph 11 above).

74. The next question is whether that lack of compliance existed before the applicant’s neighbour built his extension, or was caused by it.

75. It does not appear that the question of whether the passage to the applicant’s house had complied with the above-mentioned requirements before B. built his new structures was examined by the domestic courts. However, the District Administration stated that it had complied with those requirements (see paragraph 29 above) and there is no material in the file, in particular in the domestic courts’ findings, to contradict that conclusion. The applicant alleged that the passage to her house used to be twenty metres wide (see paragraph 6 above). The Government did not specifically challenge her submissions on that point.

76. The Court considers it established, therefore, that as a result of the extension built by the applicant’s neighbour, the passage to her house narrowed considerably and ceased to comply with the domestic requirements for dead-end passages in terms of width and accessibility for emergency vehicles, even though it remained accessible to passenger cars.

(b) The complaint under Article 8

77. The Court has held that the mere fact that reconstruction carried out by an applicant’s neighbour may not have been lawful is not sufficient grounds for asserting that the applicant’s rights under Article 8 have been interfered with. The Court must rather examine, on the basis of all the material in the file, whether the alleged nuisance was serious enough to affect adversely, to a sufficient extent, the applicant’s enjoyment of the amenities of her home and the quality of her private and family life (see, for example, Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008; Mileva, cited above, § 91; and Dzemyuk v. Ukraine, no. 42488/02, § 77, 4 September 2014, with further references). The same principles should be applied in the present case.

78. The Court observes that the applicant did not make any detailed submissions regarding the nature of her disability or that of her husband (see paragraph 33 above and contrast, for example, the case of Enver Şahin v. Turkey, no. 23065/12, 30 January 2018, which concerned a disabled person with reduced mobility). She has not alleged that she needs special medical vehicles to have direct access to her house on a regular basis. As regards possible emergencies, which are of concern to the applicant (see paragraph 59 above), it does not appear that her house is entirely inaccessible to the emergency services. Notably, the dead-end passage is considerably shorter (thirty-five metres) than the maximum length allowed by the domestic regulations (150 metres) (see paragraphs 29 and 44 above).

79. Unlike in certain other cases examined by the Court, in the present case there was never an enforceable domestic decision finding a breach of the applicant’s rights, under domestic law, associated with the enjoyment of her home or other rights protected by Article 8 (contrast, for example, Cvijetic v. Croatia, no. 71549/01, §§ 51-53, 26 February 2004, and Dzemyuk, cited above, §§ 91 and 92; and see also, in the context of Article 1 of Protocol No. 1, Paudicio v. Italy, no. 77606/01, § 44, 24 May 2007).

80. For these reasons the Court is not convinced that the difficulties caused by the neighbour’s construction were serious enough to affect adversely, to a sufficient extent, the applicant’s enjoyment of the amenities of her home and the quality of her private and family life. Therefore, the Court has doubts as to whether the applicant’s situation falls within the ambit of Article 8 of the Convention.

81. However, even assuming, for the sake of argument and in the applicant’s favour, that there was an interference with her rights under Article 8, given her incomplete and contradictory submissions regarding the severity of that interference, the wide margin of appreciation the States enjoy in planning matters (see, for example, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52, and Buckley v. the United Kingdom, 25 September 1996, § 75, Reports of Judgments and Decisions 1996‑IV) and the fact that the applicant’s own failure to obtain title to her land contributed to her inability to oppose the relevant planning decisions at domestic level (see paragraph 26 above), the Court does not consider that an arguable case has been made that there has been a breach of Article 8.

82. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(c) The complaint under Article 1 of Protocol No. 1

83. The above findings are also relevant as far as the applicant’s complaint under Article 1 of Protocol No. 1 is concerned. The Court observes that all of her submissions concentrated on her difficulty in using the house as her residence, rather than the impact of her neighbour’s construction on it as her property, notably any reduction in its value (see Ivan Atanasov v. Bulgaria, no. 12853/03, § 83, 2 December 2010). Moreover, there is no domestic finding in that respect (contrast Paudicio, cited above, § 44). To the extent the applicant spoke about property rights at all, it was in the sense that she wished to acquire new property in the form of the ownership and exclusive use of the dead-end passage (see paragraph 62 above). However, the right to acquire possessions is not guaranteed by Article 1 of Protocol No. 1 as such (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX) and nothing indicates that the applicant could claim to have a “legitimate expectation” to obtain that land.

84. Accordingly, the Court concludes that this complaint is incompatible with the Convention ratione materiae and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 April 2019.

Claudia WesterdiekAngelika Nußberger
RegistrarPresident

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