MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1362/H46-36

5 December 2019

1362nd meeting, 3-5 December 2019 (DH) Human rights   H46-36 Zelenchuk and Tsytsyura v. Ukraine (Application No. 846/16) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2019)1207

 

Application	Case	Judgment of	Final on	Indicator for the classification
846/16+	ZELENCHUK AND TSYTSYURA	22/05/2018	22/08/2018	Complex and structural problem

Case description

The case concerns the long-lasting moratorium on the alienation of agricultural land, found by the Court to be in violation of the applicants’ property rights. The Court stressed under Article 46 of the Convention that the problem underlying the violation of Article 1 of Protocol No. 1 concerns the legislative situation itself and that its findings extend beyond the sole interests of the applicants in the instant case, as an exceptionally large number of individuals are affected by the moratorium.

The Court considered it incumbent on the Ukrainian authorities to take appropriate legislative and/or other general measures to ensure a fair balance between the interests of agricultural land owners on the one hand, and the general interests of the community, on the other, in accordance with the principles of the protection of property rights under the Convention. It clarified that this does not mean that an unrestricted market in agricultural land has to be introduced in Ukraine immediately.

Status of execution

The Ukrainian authorities submitted information on 18 October, 13 November and 15 November 2019 (see DH-DD(2019)1207, DH-DD(2019)1315 and DH-DD(2019)1340 for full details). A summary of the key points of their submission is set out below.

Individual measures:

The amount of costs and expenses was transferred directly into the bank account of the applicants’ lawyer within the time limit.

General measures:

On 20 December 2018, the moratorium was extended by the Parliament until 1 January 2020.

The authorities submitted that a large-scale land market reform aimed at introducing an agricultural land market is a priority and is supported at the highest political level. The measures taken in the course of the land reform are the following.

A Draft Law “On Amendments to Certain Legislative Acts of Ukraine on Agricultural Land Turnover” No. 2178, submitted by the Government, is currently pending before Parliament (“the Draft Law”). In the authorities’ view, it will create an agricultural land market with transparent conditions for market purchase. According to the Draft Law, a blanket ban on alienation of agricultural land of all ownership forms will be lifted as from 1 October 2020. The sale of agricultural land will be allowed to citizens of Ukraine, to legal entities registered under the laws of Ukraine, to municipalities and to the State. The Draft Law also provides for the limitation of land ownership per subject of ownership (individual or legal entity’s), and for the pre-emptive rights of tenants.

The authorities also noted that a number of alternative draft laws on the same matter have been registered before Parliament.

Along with the introduction of the agricultural land market, financial support for farmers in the form of cheaper loans is envisaged. Moreover, to ensure better cooperation between the parties concerned and the authorities, the post of the Agent of the President of Ukraine on Land Issues has been created. A governmental hotline and an informational website about the progress of the land-market reform were also launched.

The authorities provided information on consultation meetings and round tables with stakeholders in the agricultural sector, including on envisaged Parliamentary hearings of 4 December 2019 on land reform. Also, on 4 October 2019 the authorities participated in an expert meeting about the measures necessary for the execution of this judgment that was organised by the Department for the Execution of Judgments.

NGO submission:

On 11 October 2019, EasyBusiness, a non-governmental organisation, which was a third party intervener in the proceedings before the Court, made a submission under Rule 9.2 (see, DH-DD(2019)1215 for full details).

It noted that the measures already adopted are not sufficient for the execution of this case. As to Draft Law No. 2178, EasyBusiness considers that it is in line with the provisions of the Convention and with the judgment, but expresses concerns about the unreasonable long transitional period for the lifting of moratorium and the lack of an effective remedy for the losses incurred by owners during this period. The NGO also raised concerns about the provisions of the alternative draft laws which, in its view, provide for unreasonable and disproportionate limitations on the property rights of those currently affected by the moratorium and would, if enacted, be contrary to the Convention. EasyBusiness recommends that the authorities adopt and implement the Draft Law without further delay and in compliance with the requirements of the Convention.

In response, the Ukrainian authorities indicated that the conclusions mentioned in the NGO submission were taken into account by the authorities concerned.

Analysis by the Secretariat

Individual measures:

In the light of the information provided, individual measure required for the applicants is to lift the sale ban on agricultural land owned by them. This is intrinsically linked to the general measures.

General measures:

As stated above, the violation found in this case resulted from the long-lasting, broad and inflexible moratorium affecting agricultural land, which imposed an excessive burden to the applicants’ property rights.

As indicated by the Court, the problem stems from the legislation itself and thus affects a large number of persons[1], whose interests must also be taken into account, and which should be balanced against the relevant public interest. For as long as the situation is not resolved, it has the potential to generate a large number of similar applications to the Court.

On 13 November 2019, a Law No. 2178-10 was adopted in the first reading. The Law which would see the moratorium lifted as of 1 October 2019, and provides for the right to acquire agricultural lands to foreign citizens and entities as of 1 January 2024, has the potential to be the first step in resolving the problem highlighted by the Court. As discussed at the expert meeting organised by the Department for the Execution of Judgments on 4 October 2019, the aim of which was to assist the authorities to analyse the necessary general measures, such limitations envisaged by the Law fall within the State’s margin of appreciation and do not raise concerns, being prima facie compatible with the requirements of the Convention. The Committee may therefore wish to encourage the authorities to adopt the Law in accordance with national parliamentary proceedings without any further delay. In addition to that, the Committee should encourage the authorities to adopt the implementing by-laws envisaged by the transitional provision of the Law, ensuring full compliance of these with Convention requirements.

The authorities should also be called upon to ensure that the legislation adopted, as well as the associated implementing measures, is Convention-compliant and do not impose additional, excessive limitations on the property rights of owners of agricultural land.

Financing assured: YES