CASE OF KRYVENKYY v. UKRAINE
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Sergiy Goncharenko;Síofra O’Leary
5. The applicant, Mr Volodymyr Oleksandrovych Kryvenkyy, is a Ukrainian national who was born in 1934 and lives in Velyki Gadomtsi. 6. On 25 March 1997 the applicant obtained a certificate (cертифікат на право на земельну частку (пай)) attesting his entitlement to a nominal 3.61-ha share of the land belonging to the V.G. collective farm. At the same time, according to him, he was allocated a specific plot measuring 3.61 ha, which, he had farmed and paid land tax on since that time. It appears that the allocated land consisted of at least two different parcels, one of them measuring 0.6021 ha. 7. In September 1998 V.G. merged with Kh., a neighbouring collective farming company, which was designated as its successor. Following the merger, Kh. did not register itself as the new owner of the land formerly allocated to V.G. Subsequently the two farms separated again. 8. On 18 March 1999 the Parliament of Ukraine ordered the expropriation of 150 ha of Kh.’s land and its transfer to U.C.C. closed joint stock company for the exploitation of kaolin deposits. By the same decision, U.C.C. was obliged, in particular, to compensate the local council for the damage suffered by the agricultural producers in connection with the expropriation of the land. 9. On 10 June 1999 the Berdychiv district land authority drew up a draft land-ownership certificate designating the boundaries of the plot to be allocated to U.C.C. This plot was de facto located on the land which had been registered as belonging to V.G.. The draft certificate mentioned, in particular, that U.C.C. had to obtain and register a relevant State land-use certificate. 10. According to the applicant, until 2004 U.C.C. took no action to register its land-use rights and the plot designated for expropriation by Parliament’s decision of 18 March 1999 remained in the hands of the members of the V.G. collective farm. The 0.6021-ha parcel of the land farmed by the applicant was affected by the Parliament’s decision. 11. Meanwhile, on 17 January 2003 the Berdychiv district administration approved a draft certificate determining the boundaries of the plots of land to be designated to individual farmers from the lands allocated to V.G. and ordered production of the respective individual land-ownership certificates. 12. On the basis of this decision, on 4 June 2003 the applicant was issued with the land-ownership certificate for the aforementioned 0.6021-ha plot. No information concerning registration of ownership in respect of any other land parcels farmed by the applicant has been provided to the Court. 13. On 7 July 2005 the Berdychiv district prosecutor addressed the Berdychiv district administration objecting to its decision of 17 January 2003. The prosecutor maintained, in particular, that 150 ha of land designated for exploitation of kaolin deposits had been allocated to individual farmers in breach of U.C.C.’s rights. 14. On 22 July 2005 the Berdychiv district administration accepted the prosecutor’s objection and annulled its decision of 17 January 2003 in so far as it related to the 150 ha of land claimed by U.C.C. 15. On 31 August 2005 U.C.C. lodged a civil action claiming the 0.6021-ha plot of land allocated to the applicant and seeking annulment of the land-ownership certificate issued to him on 4 June 2003. It noted, in particular, that the Berdychiv district administration had already annulled its own decision of 17 January 2003, which had served as the basis for the issuance of the land-ownership certificate to the applicant. The issuance had therefore been devoid of legal basis. 16. On 17 August 2006 the Berdychiv Court allowed the aforementioned claim. It noted that the disputed plot had been allocated to the applicant mistakenly on the basis of the decision of 17 January 2003, without due regard to the fact that in 1999 this very plot had already been expropriated and transferred to U.C.C. 17. Following this decision, U.C.C. blocked the road leading to the plot disputed by the U.C.C. and it became impossible for the applicant to access it or use it for farming. 18. On 12 December 2006 the Zhytomyr Regional Court of Appeal upheld the above judgment. 19. The applicant appealed in cassation before the Supreme Court of Ukraine. He noted, in particular, that he had obtained the disputed land lawfully and in good faith. He could therefore not be deprived of it unless fair compensation was paid. 20. In February 2007 the applicant added to his cassation appeal, informing the Supreme Court of Ukraine that on 12 February 2007 the Regional Court had annulled the decision of 22 July 2005 and revalidated the decision of 17 January 2003, on the basis of which he had obtained his land-ownership certificate (see paragraph 23 below). 21. On 4 April 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation. 22. On an unspecified date several individuals, excluding the applicant, apparently the land owners whose land was also being claimed by U.C.C., instituted administrative proceedings against the Berdychiv district administration. They sought, in particular, to annul its decision of 22 July 2005 and to declare lawful the decision of 17 January 2003, on the basis of which their land-use certificates had been issued. 23. On 12 February 2007 the Zhytomyr Regional Court of Appeal allowed their claim. It noted, in particular, that Parliament had ordered the expropriation of Kh.’s land, while the land, whose boundaries had been in dispute, had belonged to V.G., which had been a separate legal entity on the date of the decision at issue. 24. On 23 July 2008 the Higher Administrative Court of Ukraine quashed the above decision and remitted the case for retrial. 25. After several rounds of proceedings, on 14 September 2011 the Berdychiv Court found that the decision of 22 July 2005 had been unlawful in so far as it had related to the plots of land of the individuals who had instituted the proceedings. On 6 December 2011 and 27 August 2013 the judgment of 14 September 2011 was upheld by the Zhytomyr Regional Administrative Court and the Supreme Court of Ukraine respectively.