FIFTH SECTIONCASE OF DROZDYK AND MIKULA v. UKRAINE(Applications nos. 27849/15 and 33358/15)  JUDGMENTArt 1 P1 • Peaceful enjoyment of possessions • Invalidation of applicants’ titles to plots of land, which they used and owned for years, as lands fell within railway exclusion zones, without any compensation • Serious doubts as to lawfulness and legitimate aim of interference • Absence of clear domestic regulation allowing for monetary or any other form of compensation for any damage in applicants’ situation • Disproportionate burden imposed Art 46 • Execution of judgment • Individual measures • Respondent State to ensure full restitution of applicants’ titles to reclaimed land, or provision of monetary compensation or of comparable property Prepared by the Registry. Does not bind the Court. STRASBOURG24 October 2024 FINAL 24/01/2025 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Drozdyk and Mikula v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mattias Guyomar, President, María Elósegui, Kateřina Šimáčková, Mykola Gnatovskyy, Stéphane Pisani, Úna Ní Raifeartaigh, Artūrs Kučs, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the applications (nos. 27849/15 and 33358/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Ms Mariya Petrivna Drozdyk (“the first applicant”) and Ms Olga Pavlivna Mikula (“the second applicant”; together – “the applicants”), on 27 May 2015 and 1 July 2015 respectively;the decision to give notice to the Ukrainian Government (“the Government”) of the applicants’ complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, and to declare the remainder of the applications inadmissible;the parties’ observations;Having deliberated in private on 8 October 2024,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The cases concern the invalidation of the applicants’ titles to plots of land, which they had used and owned for years, on the basis that the lands fell within railway exclusion zones and thus should never have been transferred into private property. The applicants referred to Article 6 of the Convention and Article 1 of Protocol No.1 to the Convention.THE FACTS2. The first applicant was born in 1946 and lives in Chudei, Chernivtsi Region; the second applicant was born in 1949 and lives in Bryukhovychi, Lviv Region. They were represented, respectively, by Mr O.P. Bernyk, a lawyer practising in Storozhynets, Chernivtsi Region, and Ms K.O. Bilevych, a lawyer practising in Lviv.3. The Government were represented by their Agent, Ms M. Sokorenko.4. The facts of the cases may be summarised as follows.Application no. 27849/155. In 1965 the applicant’s husband had obtained permission to build a house on a plot of land belonging to the local collective farm; apparently, he never formalised his title either to the house or to the land. The applicant and her husband had been living in that house since at least the 1970s. In 2005, after the death of her husband, the applicant sought to obtain title to the house and the land. By a court judgment of 17 August 2005 her claims to inherit the property were granted. The court ruled to “acknowledge the property right [of the applicant] over the ... hereditary estate consisting of the [house and land]”.6. By a decision of the Chudei Village Council of 7 December 2009 the applicant’s technical documentation for the transfer of two plots of land (one for the house and one for gardening, forming together the land initially allocated to the applicant’s late husband) into private property was approved.7. In 2010 the applicant obtained ownership certificate (державний акт) to two plots of land measuring 0.25 ha and 0.0575 ha. It appears that the bigger plot, on which the applicant’s house is located, faces the railway track.8. In January 2014 the State enterprise Lviv Railways (“the Railways”) initiated civil proceedings against the applicant and the Chudei Village Council seeking to have the latter’s decision of 7 December 2009 set aside and the applicant’s title invalidated. The Railways argued that, according to the results of a documentary inspection conducted in October 2013, it had been established that the applicant’s plots of land were partly within the railway protection zone. In reaching that conclusion the inspector relied on technical documents, namely railway construction plans, dating from 1949, according to which the protection zone in that location was sixty meters on each side, whereas the applicant’s land was located twenty-eight meters away from the axis of the track. The Railways also relied on several Soviet-era documents regarding the use of land by railways as well as on the Land Code of Ukraine and the Law of Ukraine on Transport which stipulate that land forming part of railway protection zones is part of the lands of railway transport and is State property. The Village Council and the applicant objected to those claims, stating that the allocation of land to the applicant had been lawful as the Railways had no formalised title to the plots of land at issue.9. By a judgment of 3 April 2014, the Storozhynets Local Court allowed the Railways’ claims, essentially repeating their arguments. It set aside the decision of the Chudei Village Council of 7 December 2009 and invalidated the applicant’s ownership certificate in those parts in which her plots of land overlapped with the lands of the Railways (0.2441 ha and 0.0089 ha respectively). In doing so it relied on Articles 152 and 155 of the Land Code (see paragraph 21 below), in accordance with which the rights of persons over a plot of land can be protected by setting aside acts of local authorities if they breach those rights. For the court that also entailed the invalidation of title documents issued on the basis of those acts.10. The applicant appealed against that judgment and on 12 June 2014 the Chernivtsi Region Court of Appeal allowed her appeal. It quashed the above-mentioned judgment and found that the Railways had failed to prove that their right to the disputed land had been duly formalised, although that had been required both by the Soviet legislation in force when the railway track at issue was built, and by the modern Ukrainian legislation. It also stated that none of the grounds for the termination of property rights as provided for in Article 140 of the Land Code (see paragraph 21 below) applied in the applicant’s case.11. The Railways appealed against that decision and, by a final judgment of 3 December 2014, the Higher Specialized Court for Civil and Criminal Cases quashed the judgment of the Court of Appeal and upheld the Local Court’s judgment and its reasoning.12. The applicant sought to have her case reviewed by the Supreme Court on the ground that there was a divergence in the application of substantive law, but her request was refused as unsubstantiated. In support of her request, she provided references to three judgments, one given by the Higher Specialized Court for Civil and Criminal Cases and two by the Higher Commercial Court, in which those courts had rejected similar claims by the Railways relating to different plots of land in various locations based on the fact that the claimant had no formally registered rights to the disputed lands and the technical documentation for the construction of the railway it referred to was not enough to prove those rights.Application no. 33358/1513. According to the applicant, in 1946 her grandfather had obtained a right of use over a plot of land in the village of Bryukhovychi for gardening, and the applicant’s family had been working on that land ever since. The Government contested that assertion stating that the applicant provided no evidence in support.14. In 2005 the applicant initiated a procedure to obtain ownership of that land.15. By a decision of 20 July 2006, the Bryukhovychi Village Council approved the technical documentation that the applicant had had drawn up for the plot of land at issue. On 14 December 2006 the applicant obtained an ownership certificate for the plot of land, which measured 0.1366 ha.16. In March 2014 the local prosecutor, together with the Railways and the Ministry of Infrastructure, initiated proceedings to set aside the above‑mentioned decision of the local council and invalidate the applicant’s title. The prosecutor referred to a technical plan of the railway’s construction dating from 1962, according to which a part of the land belonging to the applicant overlapped with the land allegedly allocated to the railway as the railway protection zone in that location was forty meters. The prosecutor submitted that any allocation of land affecting the Railways’ lands had to be conducted with its agreement, which had not been done in the applicant’s case. The prosecutor further referred to a number of Soviet-era documents regarding the use of land by railways as well as to the Land Code of Ukraine and the Law of Ukraine on Transport, which stipulate that land forming part of railway protection zones is part of the lands of railway transport and is State property. The applicant disagreed, stating that all of the Railways’ arguments that were premised on the forty-meter protection zone were ill‑founded as the standard protection zone for local railways was twenty‑three meters and her plot of land was located some twenty meters from the track.17. On 12 September 2014 the Shevchenkivskyi District Court of Lviv rejected the prosecutor’s claims, finding that the Railways had no title documents to the plot of land at issue and that the 1962 technical plan could not testify to the existence of such rights. The court also found that it had not been necessary to obtain the agreement of the Railways during the initial procedure with the Village Council concerning the disputed land because on the side facing the railway track the plot of land in question bordered a passageway belonging to the “lands of common use” so it did not directly border the railway track.18. Subsequent to an appeal against that decision, the Lviv Region Court of Appeal reversed it and found for the prosecutor on 8 December 2014. It essentially repeated the arguments advanced by the prosecutor in his claim; it also noted that in 2012-2013 the Railways had paid land tax for a consolidated plot of land which allegedly included the disputed land. The court concluded that the Village Council had had no powers to dispose of the plot of land at issue without first obtaining the agreement of the Railways, and that therefore its decision had to be invalidated. While the court noted that only 0.0212 ha of the applicant’s plot overlapped with the lands claimed by the Railways, it invalidated her title in full.19. The applicant lodged an appeal against that decision with the Higher Specialized Court for Civil and Criminal Cases, but on 14 January 2015 it refused to open cassation proceedings, having found that the appellate court’s judgment was lawful and well-founded and that the applicant’s arguments in her cassation appeal did not evidence any deficiencies in the appellate court’s conclusions.RELEVANT LEGAL FRAMEWORKCivil Code of Ukraine of 200320. The relevant provisions of the Civil Code of Ukraine of 2003, as in force at the material time, read as follows:Article 216. Legal consequences of the invalidity of a transaction“1. An invalid transaction does not entail legal consequences other than those related to its invalidity.2. In the event of the invalidity of a transaction, each party shall return in kind to the other party everything that it has acquired by way of the transaction, or, if that is impossible because, for instance, the acquisition consists in the use of property, the performance of works or the provision of services, to reimburse the value of the acquired benefit at the market rate at the time of reimbursement ...”Article 390. Settlement of financial claims in relation to reclaiming property from illegal possession“...3. A bona fide or a mala fide beneficiary shall have the right to claim from the owner the reimbursement of expenses necessary for the maintenance and preservation of the property [while it was in his or her possession], as of the moment the owner acquired the right to return the property or transfer of the profits.4. A bona fide beneficiary shall have the right to retain the improvements made by him or her to the property if they can be separated from the property without damaging it. If the improvements cannot be separated from the property, a bona fide beneficiary shall have a right to reimbursement of the relevant expenses in the amount by which the value of the property increased.”Article 1166. General grounds of liability for damages inflicted on property“1. Any pecuniary damage resulting from unlawful decisions, acts or [failures to act] related to personal rights of a physical or legal entity as well as any damage inflicted on the property of a physical or legal entity shall be indemnified in full by the person that inflicted it....4. Damage resulting from lawful actions shall be indemnified in cases established by this Code and by other laws.”Article 1173. Compensation of damage caused by a state authority, an authority of the Autonomous Republic of Crimea or a local self-government authority“1. Damage caused to an individual or a legal entity by unlawful decisions, actions or omission of State authorities, authorities of the Autonomous Republic of Crimea or local self-government authorities in the exercise of their powers shall be compensated by the [relevant] State, Autonomous Republic of Crimea or local self-government body irrespective of whether the body was at fault.”Land Code of Ukraine of 200221. The relevant parts of the Land Code of Ukraine of 2002, as in force at the material time, read as follows:Article 68. Lands of the railway transport“The lands of railway transport include: the lands allocated to the railway for the railway tracks and related infrastructure as their exclusion zones; stations with their buildings and energy infrastructure, and locomotive, carriage, track, freight and passenger facilities, and lands occupied by signalling and communication facilities, by water supply and sewerage facilities; lands occupied by protective and strengthening plantations, service, cultural and household buildings, and other facilities necessary to ensure the operation of rail transport.”Article 84. State ownership of land“1. All land in Ukraine is in state ownership, except for land in municipal and private ownership....4. State-owned land that cannot be transferred to private ownership includes:...b) lands occupied by State railways ...”Article 125. Emergence of the right to a plot of land“The right of ownership over a plot of land, as well as the right of permanent use and the right to lease a plot of land, arise from the moment of the State registration of these rights.”Article 126. Registration of property rights to a plot of land“The right of ownership and use of a plot of land shall be formalised in accordance with the Law of Ukraine ‘On State Registration of Property Rights to Immovable Property and Encumbrances Thereon’.”Article 140. Grounds for termination of ownership of a plot of land“Ownership over a plot of land can be terminated on the following grounds:a) a voluntary waiver by the owner of the right to the plot of land;b) the death of the owner of the plot of land in the absence of an heir;c) the alienation of the plot of land by a decision of the owner;d) foreclosure on a plot of land at the request of a creditor;e) the alienation of a plot of land for reasons of public necessity or for public needs;f) confiscation ordered by a decision of a court;g) the non-alienation of the plot of land by foreigners and stateless persons within the prescribed period in cases specified by this Code.”Article 152. Ways to protect rights to land“...3. Protection of the rights of citizens and legal entities to land shall be carried out by way of:...d) recognition of the decisions of executive authorities or local self-government authorities as null and void.”Article 155. Responsibility of executive authorities and local self-government authorities for issuing acts that violate the rights of landowners“1. If an executive body or a body of local self-government issues an act violating the rights of a person to own, use or dispose of a plot of land belonging to him or her, such an act shall be declared invalid....”Law of Ukraine “On Transport”22. The relevant part of the Law of Ukraine “On Transport” reads as follows:Section 11 Transport land“Transport land is the land provided for use to transport companies and organisations in accordance with the Land Code of Ukraine to perform the tasks assigned to them for the operation, repair, improvement and development of transport facilities. ...”Law of Ukraine OF 2009 on the alienation of land or other property located on land for reasons of public necessity or for public needs23. The law sets out detailed procedures and conditions for such alienation which can take the form of voluntary redemption (викуп) or forced alienation (примусове відчуження) by court order, if the owner objects; and which entails compensation both for the land itself, and for any property, such as private housing, located on that land. The compensation can take the form of monetary compensation to the value of the land, which is to be established in accordance with land valuation procedures, and compensation of any damage caused by the alienation, or the form of provision of comparable land and/or housing.THE LAWJOINDER OF THE APPLICATIONS24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 1 Of PROTOCOL No. 1 to THE CONVENTION25. The applicants complained that the invalidation of their titles to land had been unlawful and disproportionate, in breach of the provisions of Article 1 of Protocol No. 1 to the Convention, which reads as follows:“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”AdmissibilityExhaustion of domestic remedies26. The Government argued that both applicants had failed to exhaust domestic remedies. In that respect they referred to Articles 216, 390, 1166 and 1173 of the Civil Code of Ukraine (see paragraph 20 above) regulating, in particular, the compensation of damage caused by unlawful decisions of local authorities and, in cases where property is to be returned to its owner, the reimbursement of expenses necessary for the maintenance and preservation of property or of any expenses leading to an increase in the value of the property.27. In support of their submissions, they provided examples of two judgments at the domestic level, namely in cases nos. 439/1127/18 and 488/6211/14-ц. In the first case the plaintiff had claimed non-pecuniary damages from a village council owing to the impossibility of his accessing his property for eight years; his claims had been granted by the court of appeal, and non-pecuniary damages had been awarded to him. In the second case, in which a prosecutor had sought to reclaim certain plots of land back into State property as forestry lands, the Government pointed to the domestic court’s conclusions that the defendant had not been deprived of the opportunity to lodge a claim against the owner of the plot of land seeking, under Article 390 of the Civil Code, reimbursement of the costs associated with the maintenance and preservation of the land.28. In the light of the above, the Government considered that the applicants had had opportunities at the domestic level to remedy the situation, which they had failed to use.29. The first applicant provided no submissions as to admissibility. The second applicant noted that the remedies proposed by the Government had not addressed the issue of compensation for the reclaimed land itself and were, therefore, not relevant for the case. She further argued that Articles 1166 and 1173 of the Civil Code were not applicable to her case, as they regulated situations where a person’s rights had been violated by the decisions or actions of the local authorities, whereas in her case such decisions (that is, the Village Council’s decisions on the allocation of the land in question) had violated the rights of the Railways, as established by the domestic courts, and not her rights as the owner of the land. Thus, she concluded that there existed no effective domestic remedies. The second applicant also noted that the appellate court’s judgment in the case no. 439/1127/18 had been quashed by the Supreme Court on 24 May 2023, and that the judgment in the other case (no. 488/6211/14-ц) contained no conclusion on the issue of compensation of damage.30.

Outcome for Article P1-1: violation