Legal summary
June 2024
Futornyak v. Ukraine (dec.) - 41678/20
Decision 4.6.2024 [Section V]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Possessions
No legitimate expectation of compensation for the destruction of a car as a result of 2015 shelling by pro-Russian forces, in the absence of a legislative mechanism for compensating a terrorist act: inadmissible
Article 34
Victim
Supreme Court award for the State’s failure to introduce an appropriate mechanism for compensating damage caused by a terrorist act:inadmissible
Facts – In 2015 the applicant’s car was destroyed as a result of pro-Russian forces’ shelling of Mariupol which was controlled by Ukraine at the material time. The applicant lodged a civil claim for compensation against the State. In March 2020 the Supreme Court set aside the lower courts’ decisions. It found that domestic legislation, in particular the Law on the Fight against Terrorism 2003 (“the Anti-Terrorism Act”), provided for the right to obtain compensation from the State. However, this was dependent on a law regulating the procedure and conditions for compensation from the State budget, which was absent both at the time of the dispute and at the time of the court proceedings. Based on the above and the Court’s case-law (Budchenko v. Ukraine and Petlyovanyy v. Ukraine (dec.)), the Supreme Court concluded that there was no legitimate expectation that the State would have to provide compensation for the destruction of the car. It nevertheless awarded compensation for the State’s failure to comply with its positive obligation under Article 1 of Protocol No. 1 to the Convention. It found that the applicant’s property rights had been violated and that the State should have introduced a legislative mechanism for compensation, which it had failed to do.
Law –
Article 1 of Protocol No. 1:
(a) Alleged enforceable right to compensation from the State – The Court noted that according to section 19 of the Anti-Terrorism Act, as worded at the material time, entitlement to compensation from the State for damage caused to individuals by a terrorist act was conditional. The conditions and procedure for the award and payment of such compensation were to be established by law (and, after the recent legislative changes, by a regulation), which had never been enacted. The Supreme Court had confirmed, referring to its well-established case-law, that, in the absence of a legislative mechanism laying down the conditions and procedure, no enforceable right to compensation could arise from section 19 of the Anti-Terrorism Act taken alone. The applicant had not argued that this interpretation of domestic law had been arbitrary, contrary to the principles and rules of legislative technique in Ukraine, or otherwise untenable. Given the above, there was no sufficient legal basis either in law or in case‑law for the applicant’s alleged enforceable right to compensation from the State. As a result, he had no legitimate expectation of obtaining such compensation from the State Budget.
Conclusion: inadmissible (incompatible ratione materiae).
(b) State’s failure to adopt additional legislation providing for an enforceable right to compensation and setting out the conditions and modalities for the exercise of such a right – The Supreme Court had acknowledged the State’s failure to introduce an appropriate mechanism for compensation for damage caused by a terrorist act and had awarded the applicant approximately EUR 332 in compensation for that omission.
Conclusion: inadmissible (loss of victim status).
(See also Budchenko v. Ukraine, 38677/06, 24 April 2014; Petlyovanyy v. Ukraine (dec.), 54904/08, 30 September 2014; Zolotyuk v. Ukraine (dec.), 3958/13, 16 December 2014)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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