Communicated on 3 November 2017
FOURTH SECTION
Application no. 47166/09
Svitlana Ivanivna ILCHENKO
against Ukraine
lodged on 31 August 2009
STATEMENT OF FACTS
The applicant, Ms Svitlana Ivanivna Ilchenko, is a Ukrainian national who was born in 1951 and lives in Kyiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 July 2003 the Main Housing Directorate of the Kyiv City State Administration (“the Directorate”) instituted civil proceedings against the applicant, seeking the demolition of her garage. The building was situated on a plot of land which had been given to the Directorate by the Kyiv City State Administration (“the Administration”) under a decision by the Administration of 24 April 2003 and a building lease agreement of 7 July 2003.
In the course of the proceedings the State Real Estate Inventory Bureau (Бюро технічної інвентаризації), which was involved as a third party, submitted that the applicant was the owner of the garage pursuant to the extract from decision no. 183 issued by the Executive Committee of the Leninskyy District Council of Kyiv on 11 April 1983 and certificate no. 102/11, issued by the Starokyivskyy District Council of Kyiv on 30 January 1995.
On 30 September 2003 the applicant filed a counterclaim against the Directorate and the Administration, seeking acknowledgment of her title to the plot of land under the garage (“the plot of land”) and the annulment of the Administration’s decision of 24 April 2003 and of the building lease agreement of 7 July 2003.
On 3 February 2004 the Brovary District Court of Kyiv Region dismissed the Directorate’s main claim and found for the applicant. The court found that the applicant was the owner of the garage and had thus acquired title to the plot of land by usucaption.
Upon appeal by the Directorate, the Kyiv Regional Court of Appeal quashed that decision on 30 April 2004 and remitted the case for fresh examination to the local court.
On 3 March 2005 the Supreme Court quashed the decision of the court of appeal and remitted the case for fresh examination to it.
On 7 July 2005 the Kyiv Regional Court of Appeal quashed the decision of the local court of 3 February 2004, finding for the Directorate and against the applicant. The court of appeal found that the applicant had not proved her entitlement to the plot of land. It also established that she had had no right to acquire title to the plot of land by usucaption. As a result, the court of appeal ruled on the demolition of the applicant’s garage and dismissed her counterclaim.
On 15 July 2005 the applicant applied for the suspension of the enforcement of the court decision of 7 July 2005, arguing that she would appeal against it on points of law and that enforcement at that stage would have an irreversible effect.
On 26 July 2005 the applicant submitted an appeal on points of law against the court decision of 7 July 2005.
On 8 August 2005 the applicant again applied for the suspension of the enforcement of the court decision of 7 July 2005.
On 12 August 2005 the State Bailiff Service, enforcing the court decision of 7 July 2005, demolished the applicant’s garage.
On 19 August 2005 the Brovary District Court of Kyiv Region granted the applicant’s suspension application. The applicant alleges that she received this decision on 6 September 2005.
On 16 February 2006 the Supreme Court quashed the court decisions of 3 February 2004 and 7 July 2005 and remitted the case for fresh examination to the first-instance court. The Supreme Court noted that the applicant was the owner of the garage, had paid land tax and that thus she had openly used the plot of land.
On 21 May 2007 the Kyiv Shevchenkivskyy District Court found for the Directorate and against the applicant. The court found that the applicant had possessed the garage from 1983 and had become its owner in 1995. The court also found that the applicant had had no right to use the plot of land. In addition, the court held that the domestic legislation applicable at the material time did not foresee that the registration of immovable property could be carried out on the basis of decisions issued by the executive committees of local councils and certificates issued by local councils. As a result, the court ruled in favour of the demolition of the garage.
Since some of the applicant’s counterclaims had not been considered by the Kyiv Shevchenkivskyy District Court, it delivered additional decisions on 24 June 2008 and dismissed them.
On 29 October 2008 the Kyiv City Court of Appeal upheld the decisions of the first-instance court of 21 May 2007 and 24 June 2008.
On 3 March 2009 the Supreme Court upheld that decision.
COMPLAINT
The applicant complains that the destruction of her garage amounted to a deprivation of property and breached her rights under Article 1 of Protocol No. 1 to the Convention. She complains in particular that the interference with her property rights was neither lawful nor justified and that she did not receive any compensation.
QUESTIONs TO THE PARTIES
1. Did the disputed garage constitute the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention?
2. If so, has there been an interference with the applicant’s peaceful enjoyment of her possessions, within the meaning of Article 1 of Protocol No. 1?
3. If so, was the interference in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? In particular was the above interference proportionate in terms of that Article?
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