Ukrainian Supreme Court allowed a water fund, ignoring ECHR

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On February 26, 2020, took place  closing session the lawsuit of the Ecopark Osokorki public organization against the State Architectural and Construction Inspectorate of Ukraine. on the cancellation of a permit for construction work “Complex development of the territory of the Osokorki-Tsentralny residential complex”. The final point in the dispute between the public, the supervisory authority and the developers was to be set by the Supreme Court.

Long history

The case in which residents of Osokorky microdistrict justify the right of citizens to a safe environment for life and health has been dragging on for the second year in a row. so, the court of first instance, by its decision of November 7, 2018, decided to refuse to satisfy the claims of the Ecopark Osokorki Public Organization, alleging that there is supposedly no relationship between the violated rights of the plaintiff (residents of the Osokorka microdistrict) and the adoption of the contested decision – construction permit issued to the developer of the site.

The groundlessness of such arguments of the Kyiv District Administrative Court at a hearing in the Supreme Court, said Alexey Petrenko, a lawyer for the Ecopark Osokorki public organization.He noted that during the trial in the first instance, specific circumstances of the case were investigated, namely, the court, concluding that there were no violations of the rights and legitimate interests of the company when issuing a building permit, violated the provisions of Art.246 of the Code of Administrative Procedure of Ukraine. Among other things, paragraph 3 was grossly violated, according to which the court provides a reasoned assessment of each argument cited by the participants in the case.

So, when making the decision, court did not take into account the references of the representative of the Ecopark Osokorki public organization about the violation of the rights of citizens – residents of the microdistrict to a safe environment for life and health, which is an integral part of the right to life guaranteed by Art. 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention).

Right of citizens is an inalienable

However, a different opinion was the court of appeal. On June 11, 2019, by a decision of Sixth Appeal Administrative Court, the designated court decision was quashed, court adopted a new ruling, which satisfied the claims of the Ecopark Osokorki public group to revoke the building permit, which, among other things, was to be carried out on the lands of the water fund.

In particular, The panel of judges, that decision is referred to need to take into account the practice of the European Court of Human Rights (hereinafter – the ECHR) regarding the application of the Convention when making decisions on the violation of human rights and fundamental freedoms.

The trial court did not take into account the practice of applying the ECtHR provisions of the Convention on Cases”LErablier A.S.B.L. v. Belgium” (L’Erablière ASBL v. Belgium) dated February 24, 2009 and the National Group of Information and Counteraction of the Melox Plant- “No to Melox” 2006.

These decisions are fundamental both in terms of access to justice for members of the public (community activists) in general, and on issues related to the protection and preservation of the environment.

Motivating their position, the Osokorkov community also referred to the provisions of specialized international acts, such as the European Charter on Environment and Health, as well as the Aarhus Convention, which guarantee the right to access to justice for the “interested public”. However, these arguments were clearly not enough for the Supreme Court.

What does this mean?

The decision of the Supreme Court can be a dangerous precedent for the consideration of such cases in court. Indeed, by its decision, the panel of judges not only canceled, decision of the court of first instance, which did not fully take into account all the factual circumstances of the case, in particular, right of the community directly, and not through delegated bodies, to represent their interests in court. She also canceled the “model” decision of the appellate court, in which such a right was clearly confirmed.

Given the difficulty of making just such a decision in a given situation, while the motivational part of the court’s conclusions remains unknown.

However, having reversed the decision of the court of appeal, which was based on the practice of ECHR in ensuring all citizens, without exception, and equally the right to a safe and healthy environment through the self-representation of society in the courts, the Supreme Court created a “negative” precedent that demonstrates the inconsistency in the application by the courts of certain provisions of Convention.

Recall that according to Article 17 of Ukrainian law “On the implementation of decisions and application of the practice of the European Court of Human Rights”, the practice of the European Court of Human Rights is mandatory for the courts of Ukraine to apply as a source of law.

At the same time, according to paragraph 5 of Art. 242 of Code of Ukrainian Administrative Proceedings, when choosing and applying the rule of law to disputed legal relations, the court takes into account the conclusions on the application of the rules of law set forth in the decisions of the Supreme Court.


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