AS TO THE ADMISSIBILITY OF
by Vita Anatolyevna VELIZHANINA
The European Court of Human Rights (Fifth Section), sitting on 27 January 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 May 2003,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicant, Ms Vita Anatolyevna Velizhanina, is a Ukrainian national who was born in 1962 and lives in Moscow. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
A. The circumstances of the case
On 8 June 1990 the applicant, Mr O.V. (her husband) and two children (Mr A.V. born in 1986 and Ms S.V. born in 1980) moved into a State-owned flat in Yalta, Ukraine, under a specially protected tenancy agreement. On 23 July 1991 the applicant divorced Mr O.V. According to the applicant, since their divorce she and Mr O.V. have made continuous, but unsuccessful, efforts to exchange the flat for two smaller ones.
In summer 1993 the applicant resigned from her job in the Yalta port and sent her children to school in Moscow, Russia, where they acquired temporary registration at the flat of some people she knew for the period of their studies. In 1997 the elder daughter, S.V., entered university in Moscow and subsequently moved to a dormitory.
On an unspecified date in 1998 Mr O.V. instituted civil proceedings against the applicant and the children, seeking termination of their tenancy. He alleged that the three of them had established a new home at an unknown address in Moscow, where the applicant had met another man, visited the Yalta flat only on occasion for leisure purposes and were no longer interested in occupying it on a permanent basis.
On 9 September 1998 the applicant was served with a summons at her Yalta address, but it was returned undelivered.
On 15 September 1998 the Yalta City Court heard the case in the applicant’s absence and allowed Mr O.V.’s claim. This judgment was not appealed against and became final.
On 20 October 1998 Mr O.V. de-registered the applicant and the children from the flat and on 5 November 1998 privatised it in his name.
On 29 March 1999 he sold the flat to the B. family.
According to the applicant, she learned about the judgment and the subsequent transactions concerning the flat in May 1999, when the B. family moved in and changed the locks.
On 26 August 1999 the applicant solicited signatures from eleven residents of her building and the neighbouring one, attesting to the fact that she had resided in the flat and left it only on occasion.
Some time before May 2000 the case file was lost and subsequently restored by December 2000.
On 6 December 2000 the applicant alleged before the Yalta City Court that the judgment of 15 September 1998 was unfair, in particular, as she had not been accorded an opportunity to participate in the proceedings.
On an unspecified date the applicant requested the Supreme Court of Ukraine to lodge an application for supervisory review (protest) against this judgment. On 6 March 2001 a protest was lodged and on 6 April 2001 the Presidium of the Supreme Court of the Crimea quashed the judgment, referring, in particular, to the insufficiency of evidence to the effect that the applicant had been duly notified of the court proceedings. The case was referred back for fresh consideration.
On 18 July 2001 the applicant and her daughter S.V., who had reached the age of majority, lodged a counter-claim, seeking to annul the privatisation of the flat and the subsequent contract of sale. The applicant maintained that she had lived in the flat on a permanent basis. In support of her allegation, she provided copies of certificates of her dental treatment in Yalta in August 1998 and her temporary employment with “N.”, a private company, between 1 June and 1 August 1998.
On 13 November 2001 the Yalta City Court allowed Mr O.V.’s claim and dismissed the counter-claims. It found that the applicant had failed to show that after 1993 she and her children had used the apartment as a permanent residence. The court acknowledged that they might have visited it on occasion, but found this fact insufficient to justify their interest in retaining the specially protected tenancy. In its reasoning the court referred, in particular, to the testimonies of three neighbours, given at the hearing, according to which the applicant and the children were around occasionally; depositions by three other neighbours, given to a local constable, providing analogous information; absence of any evidence that the applicant had been receiving correspondence at her Yalta address in the period in question; absence of any records in the municipal health-care facility concerning the applicant’s children in 1993-1998; and absence of any evidence that the applicant had paid utility and other charges related to the apartment in the period in question.
The applicant and Ms S.V. appealed. They challenged the witness statements as unreliable and inconsistent and referred to the court’s failure to question the eleven neighbours, who had certified in 1999 that the applicant and the children had regularly resided in the flat. They further noted that their belongings had remained in the flat until Mr O.V. had moved them into a garage prior to the sale. They also noted that no evidence had been presented to the effect that they had established a permanent residence in Moscow or elsewhere. In addition, in 1995 and 1997 the applicant and Ms S.V., respectively, had obtained Ukrainian passports, being registered as the flat residents, which demonstrated their continuous interest in residing in Yalta. As regards the payment of the charges, they maintained that the applicant had been unable to pay them, as she had been destitute, receiving no child support from Mr O.V. and taking odd jobs.
Mr O.V. filed an objection against this appeal, alleging that he had provided financial support to the children until their departure for Moscow and, had the applicant been in a destitute situation, she could have sought child support from him through court proceedings. Neither had she presented any documents to prove that she had any employment in Yalta. Moreover, she could not have been employed, as she had even failed to obtain a tax identification number, necessary for employment according to legislation which had been implemented at the material time. He further alleged that the applicant had moved to Moscow because she had met a new “father” for the children and had attempted to manage without having any contact with him (Mr O.V.), except on her occasional visits. Her conduct had hindered his ability to exchange the flat, notwithstanding his considerable efforts, certified by relevant documents. Therefore, unable to pay the charges, which were calculated on an assumption that four persons lived in the flat, Mr O.V. had to de-register his former family members from the flat and sell it. As regards the eleven neighbours who had allegedly supported the applicant’s position, Mr O.V. noted that she had been given leave to bring them to court, but had failed to secure their appearance. He also mentioned that they were not immediate neighbours and could not in open court stand by their earlier statements, which had, in his opinion, been given by them under pressure from the applicant.
A representative of the B. family also filed an objection, noting, in particular, that if the applicant had lived in the flat on a permanent basis, as she had submitted, she would not have learned about its privatisation and sale with such a delay. Moreover, the certificate of her employment in Yalta in summer 1998 had been issued by a fake company and was not in accordance with the law.
On 21 January 2002 the Court of Appeal of the Crimea upheld the previous judgment, referring, in particular, to the fact that the applicant had failed to secure the appearance of her witnesses and that there was no reason to consider that the B. family had acquired the flat in bad faith.
On 27 November 2002 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.
B. Relevant domestic law
1. Constitution of Ukraine
The relevant provisions of the Constitution read as follows:
“Everyone has the right to housing. The State creates conditions that enable every citizen to build, purchase as property, or to rent housing.
Citizens in need of social protection are provided with housing by the State and bodies of local self-government, free of charge or at a price affordable for them, in accordance with the law.
No one shall be forcibly deprived of housing other than on the basis of the law pursuant to a court decision”.
The relevant provisions of the Housing Code read as follows:
Article 9. Housing rights of citizens
“Citizens shall have a right to obtain residential premises from the State or public housing stock for use during an indefinite period according to the established procedure... [“the specially protected tenancy”].
Citizens shall have a right to privatisation of flats (houses) from the State housing stock....
Nobody may be evicted from occupied residential premises or restricted in their right of occupancy of occupied residential premises except on the grounds and according to the procedure established by law...”
Article 71. Retention of residential premises for temporarily absent citizens
“In the event of the temporary absence of a tenant or members of his family, residential premises shall be retained for them for six months.
In the event that a tenant or members of his family have been absent on serious grounds for a period exceeding six months, the said term may be prolonged by a landlord upon the application of the absent [occupant] and, in the event of a dispute, by a court ...”
Article 72. Procedure for declaring a person to have lost the right of occupancy of residential premises
“A declaration that a person has lost the right of occupancy of residential premises, as a consequence of the absence of that person in excess of established time-limits, shall be made through court proceedings”.
The applicant complained that she had been deprived of her specially protected tenancy and that her claims for annulment of the privatisation and contract of sale had been dismissed in violation of her right to respect for her home. She also complained under Article 6 § 1 of the Convention that the decisions taken by the domestic courts were arbitrary and that she had therefore been deprived of a fair hearing.
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
According to the Government, the disputed flat could not be considered the applicant’s home for the purposes of the Convention. In 1993 the applicant had deliberately abandoned Yalta, established a new residence in Moscow, and had no genuine intention of returning. Her submissions that she had done odd jobs in Yalta were improbable, as she had not even obtained a taxpayer identification number. She had not attempted to exercise her statutory right to privatise the flat and had stopped paying the charges on it. The fact that she had occasionally stayed in the flat when visiting the town was insufficient to establish that she had retained close links with the flat and that it was thus her home. Nevertheless, even assuming that the flat in issue could be covered by the guarantees of Article 8, the applicant’s deprivation of tenancy and dismissal of her other claims had been in accordance with the law and had pursued a legitimate aim, namely, the protection of the interests of Mr O.V. and the B. family. On balance, the courts’ decisions had not been disproportionate to the aim pursued.
The applicant did not respond to the Government’s observations within the time-limit allotted by the Court.
Assuming that the applicant’s interest in retaining her specially protected tenancy of the Yalta flat attracted the Article 8 guarantees of respect for her home and private and family life, the Court notes that the issue in the present case boils down to whether the domestic judicial authorities adduced relevant and sufficient reasons for finding that the applicant had deliberately abandoned the flat and had therefore lost her statutory right to retain it, and whether she had been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests (see, mutatis mutandis, Hunt v. Ukraine, no. 31111/04, §§ 53 and 56, 7 December 2006).
The Court notes in this regard that Article 8 does not afford a right to be provided with a home and that States are generally allowed a wide margin of appreciation in determining general measures of economic or social strategy, including the provision of social housing (see, mutatis mutandis, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports of Judgments and Decisions 1997 VII, and O’Rourke v. the United Kingdom (dec.), no. 39022/97, 26 June 2001). It further observers that the flat at issue in the present case was once allocated to the applicant’s family for permanent occupation under a social housing scheme of “specially protected tenancy”. Since the applicant never availed herself of the opportunity to privatise the flat at issue, her right to retain it was conditioned on its use as her permanent residence.
In dismissing in 2001 the applicant’s allegation that she had continued to reside in the flat, the domestic judicial authorities referred, in particular, to her failure to secure the appearance of any witnesses on her behalf, or to show that she had received any correspondence at her Yalta address or had paid any utility bills or other charges in respect of the flat since 1993. Notwithstanding the applicant’s allegations that she had been destitute, she further failed to provide proof that she had sought child support from her husband, financial assistance or regular employment in Yalta, after having resigned from her job in the Yalta port in 1993.
As regards the quality of the procedure leading to the aforementioned decision to deprive the applicant of her right of occupancy, the Court observes that the initial decision to this effect was taken in September 1998 in her absence. However, it further notes that this decision was quashed in April 2001. While it might have required of the applicant a certain effort to have the proceedings re-opened, in the light of the case-file materials it does not appear that she had pursued this matter with particular perseverance, as her first available complaint to this end is dated December 2000 and her subsequent formal statement of counter-claim was made in July 2001. The Court further notes that after the proceedings were re-opened, the applicant was given the benefit of full participation in adversarial proceedings, in the course of which she was represented by a lawyer of her choosing and was able to submit all the arguments she deemed necessary in support of her interests.
In the light of these findings, and regard being had to the fact that after the re-opening of the proceedings the judicial authorities were de facto confronted with the decision whether or not to restore the applicant’s tenancy to the detriment of Mr O.V. and the B. family, who had lawfully established a home in the flat at issue more than two years before, the Court finds no reason to conclude that the domestic judicial authorities overstepped their margin of appreciation in deciding that the applicant insufficient interest in retaining a specially protected tenancy. The applicant has therefore not made out an arguable claim under Article 8 of the Convention.
It follows that this aspect of the application must be rejected in accordance with Article 34 §§ 3 and 4 of the Convention.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
In this connection the Court finds that, having regard to the above findings under Article 8 concerning the decision-making procedure in the applicant’s case, the applicant’s complaint under Article 6 does not raise a separate issue (see, mutatis mutandis, Hunt, cited above, §§ 64-66) and must also be rejected. It follows that this part of the application must likewise be declared inadmissible 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.
Westerdiek Peer Lorenzen