FIFTH SECTION
DECISION
Application no. 57841/15
Nina Yuriyivna SATANINA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 November 2023 as a Committee composed of:
Carlo Ranzoni, President,
Mattias Guyomar,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 57841/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 November 2015 by a Ukrainian national, Ms Nina Yuriyivna Satanina, who was born in 1967 and lives in Brovary (“the applicant”), and who was granted legal aid and was represented by Mr M. Tarakhkalo, Ms O. Kucher, Ms V. Lebid, and Ms O. Protsenko, lawyers practising in Kyiv;
the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s investment in a housing construction by a private company, which has never been finished. Blaming the authorities for that, she alleged a breach of her rights under Article 1 of Protocol No. 1.
2. On 10 March 2005 the Brovary City Council (“the Brovary Council”) approved amendments to the general city plan which provided for the construction of a multi-storey residential building near a school.
3. In March 2007 the applicant entered into an agreement with a housing trust fund managed by a private company, P. Z., whereby she financed in full[1] the construction of a one-room flat on the seventh floor in the future house at the aforementioned location. The construction, which was entrusted by P.Z. to another private company, S.S., was due to be completed in the third quarter of 2007 and the house was to be ready for habitation by the end of 2007.
4. On 1 October 2007 the construction permit which had been issued to S.S. by the local authorities in 2005 expired, without an extension having been sought in accordance with the relevant rules. That being so, on 29 November 2007 the Brovary Council refused to extend the lease of the land plot in question to S.S., and that lease subsequently expired on 29 December 2007. By that time, S.S. had excavated foundations and installed 200 foundation pillars. S.S unsuccessfully challenged the refusal to extend the lease agreement before the domestic courts. The final ruling in those proceedings was delivered by the Supreme Court on 16 December 2008.
5. The applicant has not informed the Court whether she received any reimbursement or compensation from P.Z. or S.S. She has not brought any judicial proceedings against either of those companies.
6. The Brovary Council conducted numerous meetings with the investors, the agenda of which concerned finding ways to protect their rights and to ensure the completion of the construction in question. In February 2008 the Brovary Council envisaged inviting tenders for the construction contract, but for unknown reasons that tender did not take place. Following an agreement reached at a joint meeting between the investors and the Executive Committee of the Brovary Council, between 2009 and 2011 the land plot was leased to the local large-scale construction unit (відділ капітального будівництва). There is no information as to whether any construction work was carried out during that period.
7. In August 2011 the applicant brought a civil claim against the Brovary Council, alleging that it had breached her right to the peaceful enjoyment of her possessions, firstly by having unlawfully refused to extend the lease contract with S.S., and secondly by having failed to ensure the completion of the construction. She requested, in particular, that the Brovary Council be obliged to engage a construction company, finance the construction, and ensure both her registration as one of the investors and her entitlement to an apartment equivalent to the one she had invested in. On 8 November 2013 the Brovary City Court rejected that claim. It held that the Brovary Council was not bound by any civil-law obligations towards the applicant, and that there was no causal link between its decisions and her unsuccessful investment project. The court observed that the applicant had voluntarily entered into an agreement with a housing trust fund managed by a private company, which, in turn, had entrusted the construction to another private company, and that there were no grounds for holding the Brovary Council responsible for those companies’ failures to respect their obligations towards the applicant. The above-mentioned decision was upheld by the Kyiv Regional Court of Appeal on 15 January 2014 and by the Higher Specialised Court for Civil and Criminal Matters on 23 April 2014.
8. In the meantime, on 20 October 2011 the Brovary Council had issued a permit for the preparation of technical documents regarding the potential allocation of the land plot in question to the Education Department, with a view to extending the premises of the school located nearby. The applicant challenged that decision on the basis that it contradicted the amendments to the general city plan of 10 March 2005 (see paragraph 2 above). However, on 17 May 2012 a friendly settlement between the applicant and the Brovary Council received court approval. No further information is available in that regard.
9. On 3 April 2014 the Brovary Council approved a land management plan whereby the land plot was allocated to the Education Department for its permanent use.
10. In August 2014 the applicant brought another civil claim against the Brovary Council, this time seeking the removal of impediments to her proprietary right to the one-room flat, in the construction of which she had invested. She requested that the court oblige the Brovary Council to take measures to ensure the resumption of the construction and renew the lease of the land plot to S.S. The applicant also challenged the Brovary Council’s decision to allocate the land plot to the Education Department. On 10 December 2014 the Brovary City Court rejected her claim as unfounded. On 9 February and 28 May 2015 the Kyiv Regional Court of Appeal and the Higher Specialised Court respectively upheld the first-instance court’s decision.
THE COURT’S ASSESSMENT
11. The applicant complained under Article 1 of Protocol No. 1 that, owing to various unlawful decisions and omissions by the local authorities, she had lost the funds she had invested in the construction of a flat. She alleged, in particular, that the Brovary Council had unlawfully refused to extend the lease agreement with S.S., which had made the completion of the construction impossible. Furthermore, the applicant submitted that the Brovary Council had subsequently failed to respect its commitments to the investors. She also alleged that that authority’s decision to transfer the land plot in question to the Education Department had been unlawful and had undermined her proprietary interests.
12. The Government submitted that there had been no causal link between the authorities’ decisions and the applicant’s investment in the unfinished construction. They noted that the Brovary Council had terminated the lease of the land plot to S.S. because of the latter’s failure to have its construction permit extended, and that the lawfulness of that decision had been duly verified by the courts. In the Government’s view, the applicant could not be regarded as having exhausted domestic remedies, given that she had not brought any proceedings against S.S. or P.Z. In developing that argument, the Government submitted that the applicant, whose claims should have been brought against the above-mentioned private companies rather than the State, lacked victim status. In the alternative, they argued that her grievance was incompatible ratione materiae with the Convention. Lastly, the Government invited the Court to declare the application inadmissible as manifestly ill‑founded.
13. The Court finds that it is not necessary to address all the Government’s objections, as the application is inadmissible for the following reasons.
14. The Court observes that, according to the applicant, the construction was blocked first and foremost by the allegedly arbitrary refusal by the local authorities to extend the lease of the land plot to the constructing company. The Court finds it relevant to note that, by the time the multi-storey residential building should have been ready for habitation, the construction had advanced no further than the digging of foundations and the installation of foundation pillars (see paragraph 4 above). No responsibility of any authorities was ever alleged in explanation of that very limited progress, and the reasons for it are unclear. The applicant did not provide any indication as to when she could realistically have expected the construction to be completed had S.S. obtained the requested extension of the lease agreement. Furthermore, the fact that the construction company carried out only an insignificant part of the work cannot but suggest that only a small part of the investors’ finances was spent, unless there was some mismanagement or other issue. Bearing these considerations in mind, the Court is not convinced that the impact of the authorities’ refusal to extend the lease agreement with S.S. was indeed crucial in blocking the construction. Even assuming the contrary to the applicant’s benefit, the Court notes that the final decision in the domestic judicial proceedings concerning that refusal was delivered almost seven years before the lodging of the application (ibid.).
15. It follows that, in so far as the applicant complained about the refusal of the local authorities to extend the lease agreement with S.S., her complaint is out of time, regardless of other possible grounds for declaring it inadmissible. The Court reiterates in this connection that compliance with the six-month time-limit concerns a matter which falls under its jurisdiction and which it is not prevented from examining of its own motion, even in the absence of an objection by the Government (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 98, 6 November 2018, and the cases cited therein).
16. As regards the applicant’s arguments concerning the failure of the Brovary Council to respect its commitments to investors and the alleged breach of her property rights on account of the allocation of the land plot to the Education Department, the Court reiterates that Article 1 of Protocol No. 1 covers only those claims in respect of which the applicant can argue that he or she has at least a reasonable and legitimate expectation of obtaining effective enjoyment of a property right (see Öneryıldız v. Turkey [GC], no. 48939/99, § 124, ECHR 2004-XII). A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 75, 13 December 2016). In the present case, the Court accepts that the efforts undertaken, or at least declared, by the local authorities with a view to defending the investors’ rights (see paragraph 6 above) might have given the applicant hope that the construction would be completed at some point. That said, the applicant did not show, either at domestic level or before this Court, that the State had been legally obliged to help her with her investment project. Nor were there sufficient grounds for her to claim a substantive interest protected by Article 1 of Protocol No. 1 in respect of the land plot in question, which was eventually allotted to the Education Department (contrast Mkhchyan v. Russia, no. 54700/12, § 63, 7 February 2017). Accordingly, this part of her application is incompatible ratione materiae with the provisions of the Convention.
17. In sum, the application does not meet the admissibility criteria set out in Article 35 §§ 1 and 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 December 2023.
Martina Keller Carlo Ranzoni
Deputy Registrar President
[1] For the amount of 233,356 Ukrainian hryvnias (UAH), which at the material time was equivalent to about 33,300 euros (EUR).
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