Published on 18 October 2021
THIRD SECTION
Application no. 51994/19
Andrey Viktorovich SERGIYENKO
against Russia
lodged on 28 September 2019
communicated on 1 October 2021
SUBJECT MATTER OF THE CASE
In 2015-2016 the applicant purchased two unfinished buildings (foundations) constructed in 2010 on the basis of construction permits delivered by the authorities and a lease agreement for the plot of land. The applicant’s title was duly registered. In 2016 the municipality of Krasnodar lodged a claim seeking to declare the foundations unauthorised constructions and to demolish them, as they were situated at the territory of a park. While the first-instance court allowed the claim and ordered the applicant to demolish the unfinished buildings, the court of appeal appointed expert examination, that attested conformity of the buildings to the applicable regulations, and took the applicant’s side. In its turn, the first cassation court quashed the appeal judgment and restored the first-instance one, having declared the lease contract to the land plot of 2008 and the construction permits of 2009 null and void. The second cassation court upheld the judgment. Under Russian law, the court judgment ordering a respondent to demolish an unauthorised construction serves a basis for annulment of the title.
The application concerns annulment of the applicant’s title to the unfinished buildings which had been declared unauthorised constructions. Also, the applicant complains that the first cassation court acted in excess of its jurisdiction in so far as the validity of the lease contract and the construction permit had not been examined by lower jurisdictions, while the second cassation court did not respond to the applicant’s arguments. It is unclear from the application whether the buildings were de facto demolished.
QUESTIONS TO THE PARTIES
1. Was the interference with the applicant’s property rights, namely the court judgment ordering the applicant to demolish the unfinished buildings and serving a basis for annulment of the applicant’s title, carried out in conformity with the requirements of Article 1 of Protocol No. 1?
In particular:
(a) Was the interference with the applicant’s property rights carried out “subject to the conditions provided for by law” (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, §§ 95-97, 25 October 2012, with further references)? What was the legal basis for declaring the unfinished buildings as unauthorised constructions?
(b) Did the interference serve a legitimate public (or general) interest, within the meaning of Article 1 of Protocol No. 1 to the Convention (see Vistiņš and Perepjolkins, cited above, § 106)?
(c) Was the interference reasonably proportionate to the aim sought to be realised? Did the interference impose an excessive individual burden on the applicant, on account of the deprivation of property without compensation? Did the authorities respect their duty to act in good time and in an appropriate and consistent manner, taking into account the delivery of the construction permits for the buildings in the park zone (see, mutatis mutandis, Moskal v. Poland, no. 10373/05, § 72, 15 September 2009; Tumeliai v. Lithuania, no. 25545/14, §§ 78-82, 9 January 2018; and Zhidov and Others v. Russia, nos. 54490/10 and 3 others, § 110, 16 October 2018)?
2. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
In particular:
(a) Were the cassation proceedings adversarial and did they comply with the principle of equality of arms? In particular, was the applicant provided with the opportunity to comment on all relevant aspects of the case, namely to request application of the limitation period to annulment of the lease agreement and the construction permits (see, mutatis mutandis, Galich v. Russia, no 33307/02, §§ 23 et 25, 13 May 2008)?
(b) Did the first and second cassation instances provide adequate and sufficient reasoning for their findings, in particular for quashing of the appeal judgment? Did they respond to the applicant’s arguments (see, mutatis mutandis, Hirvisaari v. Finland, no. 49684/99, §§ 30-32, 27 September 2001)?
3. The parties are requested to inform the Court about any further developments regarding the applicant’s situation, namely, whether the judgment of the Commercial Court of Krasnodar Region of 19 December 2016 was executed and if so, the date of the execution.