SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5326/02 
by Zoya Nikolayevna DANILYUK 
against Ukraine

The European Court of Human Rights (Second Section), sitting on 19 May 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr I. Cabral Barreto
 Mr V. Butkevych
 Mrs A. Mularoni
 Mrs E. Fura-Sandström
 Ms D. Jočienė, 
 Mr D. Popović, judges
and Mr S. Naismith, Deputy Section Registrar,

Having regard to the above application lodged on 14 November 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Zoya Nikolayevna Danilyuk, is a Ukrainian national, who was born in 1955 and lives in Simferopol, Ukraine.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1990, as a result of the Chernobyl nuclear plant disaster, the applicant and her family had to move from Korosten, which is situated 100 km from Chernobyl (a so-called “third zone of radioactive pollution”). The applicant settled in Simferopol, the Crimea. The applicant's apartment in Korosten (which she had leased from the State) is currently occupied by her son's family

In 1996 the Simferpol City Executive Committee provided the applicant with an apartment in a co-operative house. The applicant paid part of the price. The applicant alleges that the apartment was in an unfit state and that she had to spend money to have it repaired.

On 18 October 1999 the applicant applied to the Executive Committee for the reimbursement of the expenses incurred in acquiring the apartment, to which she was entitled as a victim of the Chernobyl disaster.

By September 2000 the applicant had received, in three instalments, a total of UAH 12,629 (approximately EUR 2,000) by way of reimbursement of the cost of purchasing the apartment. In January 1999 the applicant instituted proceedings against the Ministry of Chernobyl Affairs, alleging that the sum received did not cover the amount that she had had to spend on the repair of the apartment and took no account of the effects of inflation.

On 19 October 2000 the Tsentralny District Court of Simferopol rejected the applicant's claim. On 16 May 2001 the Supreme Court of the Crimea upheld this judgment. The court stated, inter alia, that the case was not a civil but a public law dispute. Therefore, the sum to be reimbursed could not be based on the actual expenses and losses of the applicant but had to be determined by the local authorities on the basis of the Law of 27 February 1991 (see the “Relevant law” below) and relevant governmental regulations. The court further indicated that, in the applicant's case, the amount of the reimbursement had been determined by the Council of Ministers of the Crimea on the basis of the method established by the Ministry of Chernobyl Affairs in accordance with the 1991 Law. The sum was calculated with reference to the value of the apartment on the date of purchase, the time of the payment of the reimbursement and other criteria. Since the applicant's costs had been reimbursed in full, the applicant had no right under domestic legislation to receive any further sum from the State.

B.  Relevant domestic law

According to Articles 1 and 4 of the Law “On the Status and Social Security of the Victims of the Chernobyl Nuclear Plant Disaster” of 28 February 1991 (“the 1991 Law”), the zones of radioactive pollution are determined depending on their level of pollution. Persons living in the third zone of radioactive pollution are entitled to “guaranteed voluntary resettlement”. This means that the citizens who live in this zone are entitled to receive objective information about the level of pollution, sufficient to enable them to decide whether to continue living in this territory. If they decide to leave the area, then the authorities are obliged to create the necessary conditions for resettlement.

Article 32 §§ 2 and 3 of the Law provides that persons who moved from the third zone of radioactive pollution are entitled to receive free housing with at least two options to apply for it. First, they can apply to the local authorities to obtain free municipal housing. In this case:

“[the persons] are put by the organisations they work in or by executive committees of the local councils on a separate waiting list for attribution of municipal housing on the priority basis”

Or second:

“the executive committee of the local council, the citizens' employer as well as the citizens themselves can buy ... homes and apartments from private persons for a market price ... as well as vacant public homes or apartments for residual value”

In case if persons resettling from the Chernobyl zone opt for acquiring the housing on their own (either by buying or building it) they are entitled to have their costs and expenses reimbursed to them by the State. The amount of and procedure for reimbursement are determined by the councils, based on the Law and relevant governmental regulations.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 that the State failed to repay in full the losses which resulted from the effects of inflation because of the authorities' delay in repaying the cost of acquiring her apartment. She also complains of the failure to reimburse her for the expenses which she incurred in having the apartment repaired.

The applicant also complains that the hearings were unfair since the courts' decisions were not in her favour. She invokes in substance Article 6 of the Convention.

The applicant further complains under Article 8 of the Convention of a violation of her right to respect for her home. She alleges that the hardship which she suffers due to the insufficiency of the reimbursement amounts to a violation of Article 2 of the Convention.

The applicant finally states that some other Chernobyl victims were given more favourable treatment by the authorities in that they received reimbursement earlier. She invokes Article 14 of the Convention.

THE LAW

A.  Preliminary objection of the Government

The Government raised a preliminary objection at the outset alleging that the application was incompatible ratione personae with the provisions of the Convention. In that connection, they pointed out that in order to have standing as a victim of a breach of the right of property, applicants had to show that they had such a right or had a prospect of being found to be entitled to a right to a pecuniary benefit once the legal conditions had been satisfied. Conversely, if those conditions were not satisfied, they had no entitlement and the State could not be held responsible for the fact that they had not been granted the benefit.

The Government indicated that, to overcome the effects of the Chernobyl disaster, the Law “On the Status and Social Security of the Victims of the Chernobyl Nuclear Plant Disaster” of 28 February 1991 (the “Law”), was adopted whereby the State voluntarily undertook to provide the victims of the disaster with an opportunity to change their place of residence. Consequently, the applicant could not assert that she had any pre-existing right of property in the sums claimed, and, accordingly, that she had standing as a “victim” of the alleged violations, within the meaning of Article 34 of the Convention.

The applicant did not address this argument in her observations.

The Court reiterates that “victim” means a person directly affected by the act or omission which at issue, a violation being conceivable even in the absence of any detriment. In that connection, the Court considers that the issue whether an applicant may claim to be a “victim” within the meaning of Article 34 of the Convention does not turn on the substance or content of the right in question, but solely on whether it is linked to the person who relies on it (see, mutatis mutandis, Sanles Sanles v. Spain (dec.), no. 48335/99, 26 October 2000).

In the instant case, the Court notes that the applicant has sought payment from the State of a sum corresponding, in her view, to the money she lost on account of the authorities' delay in reimbursing her expenses for an apartment. She also complained of the way in which the domestic courts had applied the 1991 Law which had allegedly given her an expectation of obtaining a pecuniary right in the future. The Court finds that the considerations above suffice to demonstrate that the applicant's personal interests were at stake and that she has accordingly been “directly and personally affected” by the conduct of the State authorities (A.P.C.A., L.P.C.A., Abîd and 646 Others c. Romania (dec.), no. 34746/97, 10 July 2001). The applicant may, therefore, claim to be a “victim” of the alleged violations and the preliminary objection must be dismissed.

B. The merits of the complaints

1.  Complaints under Article 1 of Protocol No. 1 to the Convention

The applicant (a victim of the Chernobyl disaster) complains about the State's failure to reimburse, in due time and in full, her expenses incurred in acquiring an apartment, and the State's refusal to compensate for her losses caused by inflation. She invokes Article 1 of Protocol No. 1, 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.”

a. Submissions of the parties

The respondent Government maintained in their observations that, in order to determine whether Article 1 of Protocol No. 1 was applicable in a given case, the Court had to make sure that the application did in fact concern the applicant's “possessions”. In that connection, they noted that under the settled case-law of the Convention institutions, “possessions” meant either existing possessions, or at least a legitimate expectation of being granted the enjoyment of a right of property.

According to the Government, the applicant applied to the domestic courts for compensation of her losses, the right to which, in her view, was guaranteed by national law. The courts examined and rejected her claim as unsubstantiated. Therefore, the applicant's claim, having no ground in domestic legislation, could not be regarded as involving her “possessions”. In these circumstances, the Government contended that that complaint was incompatible ratione materiae with the provisions of the Convention.

The applicant did not contest these submissions.

b. The Court's assessment

The Court recalls that, according to the established case-law of the Convention organs, “possessions” within the meaning of Article 1 of Protocol No. 1 can be “existing possessions” (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48) or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining the effective enjoyment of a property right (see Pine Valley Developments Ltd. and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 23, § 51). However, Article 1 of Protocol No. 1 does not guarantee any right to acquire the ownership of property (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 50). It does not, for example, impose any general obligation on States to maintain the purchasing power of sums deposited through the systematic indexation of savings (see Gayduk and others v. Ukraine (dec.), no. 45526/99, 2 July 2002).

The Court, in the first place, finds it important to distinguish the present case from the judgment of 9 July 1997 in Akkus v. Turkey, in which the State's failure to compensate inflation losses, resulting from a delay in reimbursing the applicant's estate, was found to be in breach of Article 1 of Protocol No.1 (Reports of Judgments and Decisions 1997-IV, § 31). In the Akkus case the deferred reimbursement concerned land taken from the applicant for dam building purposes and, therefore, the State's obligation to compensate the inflation rate derived from its general duty under Article 1 of Protocol No.1 to provide adequate compensation for expropriated property (ibid, § 29). In the present case the applicant has never owned her apartment in Korosten and, moreover, after she had moved to the Crimea, her entitlement was taken up by her son who currently occupies this apartment.

The Court notes that the applicant's complaint concerns the reimbursement of the cost of purchasing an apartment. The payment of this sum was foreseen by the 1991 Law, being one of the State's undertakings to compensate the effects of the Chernobyl catastrophe. The precise amount was to be determined by the local authorities in accordance with certain conditions provided by the Law and the ensuing regulations. In the present case two instances of domestic courts found that the sum of the reimbursement payable to the applicant was calculated correctly by the authorities and that she had received the full amount to which she was entitled by the Law. The courts further stated that full compensation for inflation losses suffered as the result of the delay in reimbursement, as well as compensation for any post-purchase expenses, was not recognised by law. The Court finds no reason to question this assessment of the domestic courts or, on the basis of its own examination of the material before it, to reach a different conclusion.

The Court notes that the applicant received the reimbursement due to her under the Law, but that she had no right under Ukrainian legislation to obtain any further indemnity. The proceedings initiated by the applicant did not, therefore, concern “existing possessions”, within the meaning of Article 1 of Protocol No.1 or any “legitimate expectation”. This part of the application is accordingly incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2.  Complaints under Article 14 of the Convention in conjunction with Article 1 of Protocol No.1.

The applicant complains that some of the beneficiaries of the statutory reimbursements were treated more favourably than herself. She invokes, in conjunction with Article 1 of Protocol No.1, Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court reiterates in this connection that Article 14 has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. As the applicant's main complaint under Article 1 of Protocol No. 1 falls outside the scope of the Convention, this complaint must also be rejected as being incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4.

3.  Complaint under Article 6 of the Convention

The applicant complains that the proceedings in her case were unfair within the meaning of Article 6 of the Convention, which, in so far as relevant, provides the following:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

The Court considers that, even assuming that Article 6 of the Convention is applicable in the present case, it is not called upon to examine the alleged errors of facts and law committed by the domestic judicial authorities, insofar as no unfairness of the proceedings can be detected and the decisions reached cannot be considered arbitrary. The Court notes that the applicant enjoyed the right to adversarial proceedings with the participation of the interested parties. Within the framework of the proceedings, the applicant was able to introduce all necessary arguments to defend her interests, and the judicial authorities considered them properly. This part of the application must, therefore, be rejected in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

4.  Complaints under Articles 2 and 8 of the Convention

The applicant alleges that the delay in reimbursement infringed her rights guaranteed by Article 2 (the right to life) and Article 8 (the right to respect for one's home) of the Convention.

The Court observes that the applicant's claims are wholly unsubstantiated and disclose no appearance of a violation of these provisions. The Court finds, therefore, that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Naismith J.-P. Costa 
 Deputy Registrar President

DANILYUK v. UKRAINE DECISION


DANILYUK v. UKRAINE DECISION