FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38162/04
by Eduard Petrovych MELNYK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 7 September 2010 as a Chamber composed of:
Renate Jaeger, President,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 25 August 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Eduard Petrovych Melnyk, is a Ukrainian national who was born in 1933 and lives in Lviv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1938 the applicant's grandmother, Ms Y., was executed by the People's Commissariat of the Interior and her personal property was confiscated.
In 1989 she was fully exonerated as a victim of political repression.
In 1995 and 1998 the State Archive of the Vinnytsia Region confirmed that Ms Y. had been rehabilitated posthumously and noted that there were no records concerning the confiscated property.
On 28 April 1998 the Tulchyn Town Commission for Restoring Rights of Victims of Political Repression (“the Commission”) awarded the applicant 112.5 Ukrainian hryvnias (UAH), which was equal to fifty percent of fifteen times the minimum [Ukrainian] salary, in compensation for the property confiscated from Ms Y. in 1938. The Commission based that decision on Law No. 962-XII and the Cabinet of Ministers' Resolutions Nos. 112 and 429 (see the “Relevant domestic law and practice” below). In its examination of the evidence, it noted that while the confiscation of “the personal property” of Ms Y. was confirmed by the 1938 verdict, there was no itemised list of that property. The Commission checked the applicant's allegation that the house of his grandmother had been confiscated together with some other property, and found that this was not true. In fact, as confirmed by the real estate registry books of 1965 kept by the local council in the village where Ms Y. had lived, the applicant's mother (the daughter of Ms Y.) had been living in that house and owned two-thirds of it at the time. Furthermore, in 1965 she had sold her part of the house to a third person, which was also confirmed by documentation. The villagers contacted by the Commission for further verification confirmed this too. Moreover, the house in question was no longer standing.
In April 2000 the applicant brought a civil claim against the Commission with the Frankivskyy District Court of Lviv seeking an increase of the compensation to UAH 600,548, with a view to covering, in particular, the market value of two houses and the income which his grandmother could have made during about a sixty-year period if she had not been executed.
On 24 December 2001 the court rejected the applicant's claim as unsubstantiated, having found that the contested decision of the Commission was in compliance with law and based on an accurate assessment of the facts of the case.
On 20 May 2002 and 1 July 2004 the Lviv Regional Court of Appeal and the Supreme Court respectively upheld that judgment.
B. Relevant domestic law and practice
Article 5 of Law of Ukraine No. 962-XII “On Rehabilitation of Victims of Political Repression in Ukraine” of 17 April 1991 provided for restitution in kind of confiscated buildings and other property wherever possible (if the house was not occupied and the property was still standing). It was the prerogative of the Cabinet of Ministers to establish the amount of pecuniary compensation awarded where in-kind restitution was not possible.
Regulation of the Cabinet of Ministers No. 112 “On the Procedure for Payment of Financial Compensation, Return of Property or Reimbursement of its Value to Rehabilitated Citizens or their Heirs” of 18 February 1993 provided for compensation equal to up to fifteen times the minimum salary in cases where it was impossible to restore the property in kind. In any event, the total amount of the compensation could not exceed sixty-five times the minimum salary regardless of the value of the confiscated buildings and other property.
Pursuant to Resolution of the Cabinet of Ministers No. 429 “On the Procedure of Settlements with Rehabilitated Citizens” of 18 April 1996, the calculation unit for determining the compensation was set at fifty per cent of the minimum salary (UAH 7.5 instead of 15).
COMPLAINTS
The applicant complained under Article 1 of Protocol No. 1 that the State had failed to compensate him adequately for the 1938 confiscation.
He further complained under Articles 3 and 6 § 1 that the compensation awarded to him by the domestic authorities was humiliatingly meagre and wrongly upheld by the courts.
THE LAW
1. The applicant complained under Article 1 of Protocol No. 1 that he had not received adequate compensation in respect of the confiscation of his grandmother's property during the political repression of 1938.
The Court emphasises that a violation of Article 1 of Protocol No. 1 can only be alleged in so far as the impugned decisions relate to a person's “possessions” within the meaning of this provision. “Possessions” can either be “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining the effective enjoyment of a property right (see, for example, Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 69, ECHR 2002‑VII).
In the present case the applicant's action before the domestic courts did not concern any of his “existing possessions”, but constituted his unsuccessful attempt to obtain restitution in respect of the confiscation of his grandmother's property which had taken place some fifty years earlier. It is to be examined whether that restitution claim could be regarded as having been based on a “legitimate expectation”.
The Court notes that Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does it impose any restrictions on the Contracting States' freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003).
The Court observes that Ukraine undertook certain obligations vis-à-vis persons who had suffered political repression under the totalitarian regime, or their heirs, having adopted a number of laws and bylaws in that connection in the early 1990s (see “Relevant domestic law and practice” above). Specifically, the applicable legislation provided for restitution of the unlawfully confiscated property under certain conditions. It could be restored to the pre-confiscation owners or their heirs in kind, inter alia, if it were still standing and not lawfully occupied. If those conditions were not met, the State undertook to pay a modest amount of pecuniary compensation – up to fifty percent of fifteen times the minimum salary (or up to fifty percent of sixty-five times the minimum salary where a larger-scale confiscation was at issue) – regardless of the property's actual value.
The Court notes that in the present case the applicant never claimed restoration of the property in kind and was awarded compensation equal to fifty percent of fifteen times the minimum salary, which was the maximum amount envisaged in such cases. He failed to prove, either to the domestic courts or to this Court, that any real estate had been confiscated from his grandmother. Even if he had, the maximum pecuniary compensation he could have expected would not exceed fifty percent of sixty-five times the minimum salary, for the State never undertook to reimburse the market value of property unlawfully confiscated during Soviet times.
While the applicant could have understandably been frustrated by the low amount of the award, his mere hope to receive more generous compensation cannot be considered as a “legitimate expectation” since it was based neither on any legal provision nor on domestic case-law (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332).
The Court therefore finds that in the present case the applicant had no possessions within the meaning of Article 1 of Protocol No. 1, the right to enjoyment of which he alleged to have been infringed. Accordingly, his complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. Relying on Article 6 § 1 of the Convention, the applicant contested the outcome of the domestic proceedings, by which his claim for higher amount of compensation had been rejected.
The Court recalls that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to interpret and apply rules of substantive and procedural law (see, amongst many references, Gurepka v. Ukraine, no. 61406/00, § 45, 6 September 2005). In so far as the relevant domestic decisions do not disclose any manifestly arbitrary reasoning, the Court considers that this complaint under Article 6 § 1 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
3. Lastly, the applicant complained under Article 3 of the Convention that he had suffered humiliation and anguish in respect of the alleged violations examined above.
The Court finds no indication that the treatment complained of reached the threshold of severity required to bring the matter within the scope of Article 3 (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25, and, for the application of the principle in a similar context, Balcı v. Turkey (dec.), no. 60202/00, 24 May 2007).
It follows that this part of the application should be rejected also as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsRenate Jaeger
Deputy RegistrarPresident
Full & Egal Universal Law Academy