FIFTH SECTIONCASE OF LYSAK v. UKRAINE(Application no. 52299/14)      JUDGMENT STRASBOURG20 October 2022 This judgment is final but it may be subject to editorial revision.In the case of Lysak v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, Lado Chanturia, Ivana Jelić, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 52299/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 July 2014 by a Ukrainian national, Ms Svitlana Vasylivna Lysak (“the applicant”), who was born in 1949 and lives in Cherkasy;the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Ukrainian Government (“the Government”), represented by their acting Agent, Ms O. Davydchuk, and to declare the remainder of the application inadmissible;the parties’ observations;Having deliberated in private on 29 September 2022,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The case concerns the applicant’s complaint under Article 1 of Protocol No. 1 that equipment belonging to her and situated on municipal land had been unlawfully dismantled, for which she had been unable to obtain compensation.2. The applicant, a private entrepreneur, owned and operated three kiosks (temporary structures at which goods were sold) situated on municipal land in three locations in Cherkasy.3. The municipal authorities considered that her rights to use the land had expired. The applicant appealed against that assessment to the Cherkasy Regional Commercial Court, which issued preliminary injunctions on 14 August 2008 and 19 May 2009 prohibiting the municipal authorities from dismantling the equipment. On 31 March 2010, in a final decision, the court declared the authorities’ assessment unlawful and ruled that the applicant continued to have the right to rent the land in question.4. On 28 April 2009 the city’s executive committee ordered the municipal working group that dealt with unlawful structures to proceed with the removal of the applicant’s equipment. A member of the group, Mr K., the director of a municipal company, was directed to provide equipment for the dismantling operation and to arrange for the storage of the dismantled equipment.5. On 28 May 2009, despite the commercial court’s interim injunction (see paragraph 3 above), the municipal working group dismantled the applicant’s equipment and its contents (kiosks, cash registers, stock of goods for sale) and put them in storage. The applicant alleged that the equipment had been damaged in the dismantling process and had become unusable as a result, and the stocks had been lost.6. On 21 September 2010 the Cherkasy Sosnivsky District Court, in a final decision, declared the executive committee’s decision of 28 April 2009 (see paragraph 4 above) unlawful. It referred, in particular, to the fact that the decision had been taken in disregard of the commercial court’s injunctions (see paragraph 3 above).7. The applicant lodged a criminal complaint accusing the city officials of abuse of public office and other crimes. K. was eventually charged with criminal dereliction of duty in that connection. The applicant lodged a civil claim for damages within the framework of those proceedings against K. and the State Treasury.8. On 4 October 2013 K. was found guilty but released from serving his sentence. The civil claim was dismissed, the court pointing out that it could be resubmitted in separate civil proceedings. Subsequently the conviction was quashed and the case was remitted for further investigation, most recently on 16 February 2016. There is no information about further developments in those proceedings.9. The applicant sued the city council and the city executive committee in the administrative courts, seeking a declaration that their actions in removing her equipment had been unlawful and also damages. On 22 January 2014 the High Administrative Court upheld the lower courts’ decisions rejecting the claim. The courts reasoned in particular that it would be appropriate for the applicant to seek compensation within the framework of the criminal proceedings against K.THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTIONThe parties’ submissions10. The Government submitted that the application was inadmissible for failure to exhaust domestic remedies. The applicant could have lodged a separate civil claim against Mr K., brought a claim for damages against the City Council after its decision to demolish the kiosks had been declared unlawful or requested a review of the decision of the High Administrative Court of 22 January 2014 in view of “newly discovered circumstances” following the quashing of the judgment finding K guilty.11.

Outcome for Article P1-1: violation