European Court of Human Rights

FIFTH SECTION

Application no. 74113/10
Alla Pylypivna IVANOVA
against Ukraine
lodged on 5 December 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Alla Pylypivna Ivanova, is a Ukrainian national, who was born in 1960 and lives in Donetsk.

A.  The circumstances of the case

In 1993 the applicant, a civil servant with the Department of Justice at the material time, was allocated a room in the Municipal Dormitory for public servants. This dormitory, located at V. street in Donetsk, has been her only permanent residence since that time.

In March 1996 the applicant became a judge in a District Court in Donetsk.

On an unspecified date the Municipal Company for the Maintenance of Administrative Buildings (“the Maintenance Company”) requested the applicant to vacate the dormitory in view of its reconstruction envisaged in the urban development plan for 2007.

The applicant refused.

In May 2007 the Maintenance Company started the reconstruction project.

In November 2007 it instituted civil proceedings seeking the applicant’s eviction (“the eviction proceedings”). The Maintenance Company argued, in particular, that having terminated her service for the Department of Justice in 1996, the applicant was no longer entitled to accommodation in a dormitory for public servants.

The applicant contested this claim, submitting that she had not lost the entitlement, as she had become a judge and remained in public service, rather than quit her employment for no reason.

In February 2008 the Maintenance Company modified its initial claims, seeking the applicant’s relocation to another municipal dormitory located at M. street in view of the V. street dormitory reconstruction.

On 29 October 2008 the Kyivskyy District Court of Donetsk allowed the Maintenance Company’s claim. It noted that contrary to the requirements of applicable law, the plaintiff had failed to produce a proper reconstruction permit. However, regard being had to the actual state of the reconstruction works (i.e., the supply of utilities had been largely cut off; two additional floors were being constructed on top of the building, partitions and walls were being reconfigured; etc.) the dormitory had become virtually uninhabitable and its further occupation by the applicant was dangerous for her life and health. The court further ordered that the applicant be permanently relocated to the M. street dormitory, as according to the available documents it was apparent that the V. street dormitory would be reconstructed into a guest house for temporary stay and the applicant’s room would not be preserved. Finally, the court found that the applicant’s relocation to the M. street dormitory would not worsen her living conditions.

The applicant appealed, maintaining, in particular, that the Maintenance Company had no proper permit to conduct the reconstruction works. She also submitted that the trial court’s findings concerning suitability of the M. street dormitory for her relocation were speculative. Inter alia, this dormitory also featured in the 2007 urban development plan as subject to reconstruction with a view to conversion into a guest house.

On 14 April 2009 the Donetsk Regional Court of Appeal modified the above judgment. It agreed that the applicant’s relocation was necessary for her own protection in view of the works. On the other hand, the court found that, based on the available materials, the Maintenance Company planned capital renovation rather than reconstruction of the V. street dormitory. It was not apparent that the applicant would be unable to return to it upon completion of the works. The court thus ordered that the applicant relocate to the M. street dormitory temporarily, until the completion of the works.

The applicant appealed in cassation against both aforementioned judgments and requested suspension of the relevant enforcement proceedings. In her cassation appeal, the applicant suggested that, absent proper and comprehensive documents concerning the scope of the works, it was not clear whether her room would remain in existence and whether the building would be suitable for permanent occupation as a dormitory upon the completion of the works. In particular, kitchens and other auxiliary premises had already been reconfigured for other use.

On 30 April 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation and the judgment of 14 April 2009 became final.

The applicant lodged an extraordinary appeal with the Supreme Court.

On 22 July 2009 the Supreme Court initiated extraordinary review of the judgments of 29 October 2008 and 14 April 2009 and ordered that the relevant enforcement proceedings be suspended.

On 14 December 2009 the Donetsk Regional Department for Architecture and Construction issued the Maintenance Company with a reconstruction permit in respect of the V. street dormitory.

On 16 February 2010 the applicant challenged this permit before the Donetsk District Administrative Court, seeking its revocation (“the permit revocation proceedings”). On numerous occasions in the course of these proceedings the applicant unsuccessfully attempted to obtain an injunction order suspending the works pending consideration of her complaint.

On 4 March 2010 the Supreme Court quashed the judgments of 29 October 2008 and 14 April 2009 concerning the applicant’s relocation and remitted the case for a fresh consideration. It found, in particular, that it was not clear from the case-file, whether the plaintiff was renovating or reconstructing the dormitory and whether it sought to remove the applicant permanently or temporarily. It was likewise unclear, whether she could return to her previous room upon the completion of the works, or, alternatively, whether she could be suitably accommodated in the M. street dormitory on a permanent basis.

On 22 March and 3 June 2010 respectively the Donetsk District Administrative Court and the Donetsk Administrative Court of Appeal rejected the applicant’s claims concerning the permit revocation.

On 6 October 2010 the Higher Administrative Court quashed these judgments and remitted the case for a fresh consideration. It noted, in particular, that the lower courts had not examined in detail, whether carrying out of the works was compatible with the applicant’s continuous occupation of the V. street dormitory; and, if not, whether it was lawful to issue the challenged permit before resolving the applicant’s relocation question. It also instructed the trial court to suspend the works until the resolution of the dispute, if need be, and to verify, whether by means of carrying out the works, the defendant had aimed at driving the applicant out of her home in breach of the law.

In November 2010 the Maintenance Company amended its claims in the eviction proceedings, noting that it was seeking the applicant’s temporary relocation only.

On 24 December 2010 the Donetsk District Administrative Court rejected the applicant’s claim with respect to the revocation of the reconstruction permit. It noted, in particular, that the Maintenance Company had taken numerous actions to protect the applicant’s housing rights, including offers of other provisional accommodation. Furthermore, by the material time, the reconstruction works had been completed by 80%, and revocation of the original permit would serve little benefit, particularly, as the defendant had assured the court that the applicant would be provided with a dwelling in the reconstructed building. The applicant appealed against this judgment.

On 4 February 2011 the Donetsk Administrative Court of Appeal ordered suspension of the works pending examination of the applicant’s complaint. According to the applicant, the works have continued notwithstanding the above court order.

On 14 June 2011 the Donetsk Administrative Court of Appeal quashed the judgment of 24 December 2010 and revoked the reconstruction permit as issued in breach of applicable law. It is unclear from the case-file materials, whether this decision has become final.

On 12 March 2012 the Kyivsky District Court of Donetsk discontinued the eviction proceedings with a view to the plaintiff’s repeated failures to appear for the hearings.

On several occasions the applicant unsuccessfully attempted to institute criminal proceedings against various authorities in connection with allegedly unlawful interference with her housing rights and property.

According to the applicant, the reconstruction works in the V. street dormitory continue until the present day.

B.  Relevant domestic law

1.  Constitution of Ukraine

Article 47 of the Constitution of Ukraine, which is the relevant provision, reads as follows:

Article 47

“Everyone shall have the right to housing. The State shall create conditions enabling every citizen to build, purchase, or rent housing.

Citizens in need of social protection shall be provided with housing by the bodies of State power and local self-government, free of charge or at a price affordable for them in accordance with law.

No one shall be arbitrarily deprived of housing other than on the basis of the law pursuant to a court decision.”

2.  Housing Code of 1983

The relevant provisions of the Housing Code are as follows:

Article 100. Reconstruction and reconfiguration of a residential building and residential premises

“...Reconstruction and reconfiguration of a residential building and residential premises shall be allowed upon consent of the occupant, members of his (her) household and the owner and upon authorisation by the executive committee of the local council of people’s deputies.

In the event that the owner, the occupant or the members of his (her) household refuse to consent to the reconstruction or reconfiguration of residential premises, the dispute may be decided by court, in the event that the executive committee of the local council of people’s deputies authorises the reconstruction or reconfiguration.

...

In the event that a plan of capital renovation of a residential building envisages reconstruction or reconfiguration of flats, the occupants and members of their households should be familiarised with this plan. Objections and proposals of the aforementioned persons, rejected by the planning entity, shall be considered by the bodies, which manage the respective housing stock, as well as the executive committee of the local council of people’s deputies, which shall validate the plan of the capital renovation.”

Article 101. Provision of residential premises to citizens in connection with capital renovation of a residential building

“In the event capital renovation of a residential building belonging to the State or public housing stock is envisaged, when the renovation cannot be carried out without relocation of an occupant, the owner shall be obliged to provide the occupant and members of his household with other residential premisesfor the duration of the capital renovation, without interrupting the occupancy agreement for the premises under renovation. In the event the tenant refuses to relocate ... the owner may demand the relocation by way of court proceedings.

The residential premises provided for the duration of the capital renovation should be located within the limits of the same inhabited locality and meet the established sanitary and technical standards.

Upon completion of the capital renovation ... the occupant shall return to the residential premises occupied by him (her) earlier.

...”

Article 102. Provision of citizens with other residential premises in the event that following capital renovation of the residential premises occupied by them they cannot be preserved or their size changes significantly

“Where the residential premises occupied by an occupant and members of his (her) household following the capital renovation cannot be preserved or will considerably increase in size, ... the occupant and members of his (her) household should be provided with other suitable housing before the beginning of the capital renovation. Where following the capital renovation the residential premises will significantly decrease in size, upon demand of the occupant he (she) and members of his (her) household should be provided with other suitable housing before the beginning of the capital renovation. Disputes arising in connection with the above shall be decided by way of court proceedings.”

Article 129. Ordinance for occupation of residential space in a dormitory

“Based on the decision on provision of residential space in a dormitory, the administration of an enterprise, institution or organisation shall issue a citizen with a special ordinance, which shall be the only ground for the occupancy of the residential space provided”.

Article 132. Eviction from dormitories

“...Individuals, who worked pursuant temporary employment contracts... [and] terminated their employment, are subject to eviction without provision of other housing from a dormitory [room], provided to them in connection with their employment...

Other employees..., who occupied a dormitory in connection with their employment, may be evicted without provision of other housing in the event they terminate employment at will without serious grounds, [or are dismissed] for having breached the labour discipline or having committed a crime.

Individuals, who ceased employment on other grounds... may be evicted only on condition of provision other housing.

...

Individuals, who live in dormitories, shall also be evicted in the event of demolition of the building or reconstruction of the building (residential premises) in a non-residential one, or where the building (residential premises) is under a threat of collapse”.

COMPLAINTS

The applicant complains that her right to respect for home was breached and her life was endangered on account of the purportedly unlawful reconstruction works in the V. street dormitory and attempts by the authorities to divest her of her only lawful home.

She further complains that the judicial authorities have failed to protect her rights and that there are no effective domestic remedies for her complaints.

The applicant refers to Articles 6 and 13 of the Convention with respect to the above complaints.

QUESTIONS




  Has there been a violation of the applicant’s right to respect for her home, contrary to Article 8 of the Convention? In particular, regard being had to the fact that the issue of the applicant’s relocation and its temporary or permanent character had not been decided before the deployment of the reconstruction works, have these works been carried out in accordance with the law, and, if so, did the applicant suffer an individual and excessive burden in connection with the works at issue?

 




  Did the applicant have at her disposal an effective domestic remedy for her complaint about breach of her right to respect for home, as required by Article 13 of the Convention?