European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

CASE OF CHORNENKO v. UKRAINE

(Application no. 59660/09)

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

14 January 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Chornenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Latif Hüseynov, President,
          Lado Chanturia,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 59660/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Ms Tetyana Mykolayivna Chornenko (the first applicant), Mr Mykola Vasylyovych Chornenko (the second applicant) and Mr Kostyantyn Mykolayovych Chornenko (the third applicant), on 26 October 2009;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the decision to reject the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 3 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The present case concerns an allegation that the applicants were unlawfully and unfairly evicted from their room in a former State-owned hostel after it had been converted into a privately-owned block of flats. They raise complaints under Articles 8 and 6 of the Convention.

THE FACTS

I.       Background

2.  The first applicant, born in 1967, and the second applicant, born in 1968, are spouses and parents of the third applicant, born in 1991. They live in the village of Khudyaky. The applicants, who had been granted legal aid, were represented by Mr M. O. Tarakhkalo and Ms O. O. Protsenko, lawyers practising in Kyiv.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

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

5.  In 1995 a State-owned company, Cherkasybudmaterialy, was converted into an open joint-stock company, Ch. (“the Corporation”) within the framework of Ukraine’s transition from a Soviet to a market economy.

6.  In 1996 the applicants’ family was allocated a room in a hostel located at P. street in Cherkasy. It appears from the case file that this hostel had initially belonged to the Cherkasybudmaterialy company and was intended to serve as its employees’ corporate residence. Within the framework of the company’s transformation into a privately owned Corporation, on an unspecified date ownership of the hostel was transferred to the latter.

7.  On 6 December 1996 the local department of the Ministry of Interior registered the hostel’s address as the applicants’ place of residence in their national passports.

8.  On 1 February 2002 the Corporation requested Cherkasy No. 21 Technical College (“the College”) to provide temporary accommodation to several families residing in the aforementioned hostel (including the applicants’ family), as it wished to carry out renovation work in the hostel building. In exchange for that service, the Corporation promised assistance in renovating the College’s student hostel.

9.  By September 2002 the applicants’ family had moved into the College’s hostel on the basis of a one-year temporary lease contract negotiated by the Corporation with the College. The applicants remained registered as residents at their previous address, in the Corporation’s hostel.

II.     first set of eviction proceedings and accompanying events

10.  In February 2003 the Corporation lodged a civil claim against the applicants seeking a declaration that they had lost the right to occupy its hostel and should therefore be deregistered by the Ministry of Interior as its residents. The Corporation submitted in that respect that in 2002 the applicants had moved out of its hostel of their own free will and that their current whereabouts were uncertain. Accordingly, they should be considered as being no longer interested in occupying the hostel premises and as having lost their occupancy rights, in accordance with Article 72 of the Housing Code (see paragraph 39 below).

11.  On 10 October 2003, while those proceedings were pending, the College ordered the applicants and other families temporarily relocated from the Corporation’s hostel to vacate its student hostel. It referred to the fact that their temporary lease contracts had expired and that the College needed more space to accommodate its students and employees.

12.  On 22 January 2004 the Corporation obtained a permit from the Cherkasy City Council (“the City Council”) to convert its hostel into a block of flats; it then commenced the reconstruction works.

13.  On 4 June 2005 (a Saturday) several families from among the former residents of the Corporation’s hostel broke into the reconstruction site, took the keys from the building’s custodian by force and installed themselves in their former rooms, which by that time had been merged with other rooms to form complete flats. No information has been provided concerning the applicants’ personal role in the incident. It is evident from the file, however, that they, together with several other families, settled into the flat which incorporated their former hostel room.

14.  On 22 June 2005 the Prydniprovskyy district prosecutor’s office in Cherkasy instituted criminal proceedings in respect of the assault on the custodian. According to the information provided by the Government, those proceedings were subsequently suspended on the grounds that the actual perpetrators had not been identified and that eventually the case file had been destroyed after a water pipe burst in the police archives.

15.  On an unspecified date following the applicants’ re-installation in the former hostel, the Corporation amended its civil claim lodged against them (see paragraph 10 above) with a demand that they be evicted.

16.  On 25 May 2006 the Prydniprovskyy District Court in Cherkasy allowed the Corporation’s claim. It found that the applicants had illegally occupied the premises under reconstruction, and ordered that they be evicted.

17.  The applicants appealed, alleging that their eviction would render them homeless. They also submitted that they were in a protected-tenancy relationship with the Corporation, which meant that the latter had no right to evict them owing the reconstruction works unless they were provided with other accommodation, which had not been the case.

18.  On 5 July 2006 the Cherkasy Regional Court of Appeal allowed the applicants’ appeal. Referring to the provisions of Chapter III Title II of the Housing Code of 1983, which governed tenancies in premises belonging to public-housing stock (see paragraph 39 below), it found that the applicants had been lawfully allocated room in the Corporation’s hostel on the basis of a lease contract of indefinite duration. This contract had not been rescinded by the parties before the defendants’ temporary relocation in 2002 and it, therefore, had still been in force at the material time. Given the fact that the applicants’ resettlement had been initiated by the plaintiff as a temporary measure necessitated by the renovation works, they could not be considered as having lost their interest (within the meaning of Article 72 of the Housing Code) in occupying the hostel, as argued by the plaintiff. Accordingly, their tenancy could not be terminated on the grounds cited by the latter. For the same reasons, under Articles 100-102 of the Housing Code, the applicants’ eviction in connection with the reconstruction of the building was not possible unless they were provided - in the event of such eviction - with other suitable accommodation.

19.  The Corporation lodged a cassation appeal against that ruling.

20.  On 20 December 2007 the Chernigiv Regional Court of Appeal, acting as a court of cassation, rejected the Corporation’s cassation appeal, and the judgment of 5 July 2006 became final.

21.  In the meantime, on 27 March 2007, the reconstruction of the former hostel having been completed, the Corporation was registered as the owner of all the flats that it contained - including the flat de facto occupied by the applicants.

III.  Second set of eviction proceedings against the applicants

22.  On 7 February 2008 the Corporation lodged a new claim against the applicants, seeking to remove them from the reconstructed building as illegal occupants who did not have any lease agreement.

23.  The applicants objected and submitted that that claim was essentially the same as that which had already been rejected in the previous eviction proceedings.

24.  On 2 June 2008 the Prydniprovskyy District Court in Cherkasy allowed the Corporation’s claim and ordered the applicants’ eviction. It found that the previous dispute had concerned the applicants’ occupancy of a hostel under reconstruction, whereas the present one concerned their eviction from a privately-owned flat. The court ruled that occupancy of such a flat was governed by Title 6 of Chapter III of the Housing Code, which concerned accommodation in the private sector (see paragraph 40 below). The former hostel having undergone reconstruction, the applicants’ previous accommodation had not been preserved. The previous eviction proceedings could not have concerned the flat at issue in these new proceedings, because the Corporation’s title to the flat had only been registered in March 2007, whereas the judgment by which its claim had been rejected was dated 5 July 2006. The applicants occupied the disputed flat without having signed a lease contract, contrary to Article 158 of the Housing Code (see paragraph 40 below), and had to be evicted in order to protect the interests of the legitimate private owner. Under Article 165 of the Housing Code (see ibid.), the Corporation was not obliged to re-house the applicants after the reconstruction of the building owned by it.

25.  The applicants appealed, submitting, inter alia, that the proceedings at issue concerned the very same accommodation as the previous eviction proceedings that had been decided in their favour. Their right to occupy it was based on their protected tenancy relationship with the Corporation, which, according to the findings of the courts in the previous proceedings against them, had been concluded lawfully and remained valid. In ordering their eviction in the new set of proceedings, the trial court had contradicted the findings of the judicial authorities in the previous proceedings and had not cited any legal grounds on which the pre-existing tenancy relationship could be considered extinguished.

26.  On 7 May 2009 the Cherkasy Regional Court of Appeal dismissed the applicants’ appeal and upheld the judgment of the District Court of 2 June 2008. It noted that in 1996 the applicants could not have been allocated the disputed premises as protected tenants, as they had not been employees of the Corporation. Accordingly, their lease had been terminated once they had moved out of the hostel in 2002 and the plaintiff had not been obliged to accommodate them.

27.  In June 2009 the applicants lodged a cassation appeal against that decision. They alleged that Articles 158 and 165 of the Housing Code could not apply in their case, as those provisions concerned the rental of premises from “citizens”, whereas the building in question was part of the public-housing stock. They alleged that transfer of the hostel by the State to a private entity had been in breach of applicable law (it had to be transferred to the municipal authorities instead). The applicants additionally submitted that they had lawfully settled in the disputed premises in 1996 as protected tenants, a fact that had already been established in the final court judgments delivered in the previous proceedings and could not be re-determined in the proceedings at issue. They were therefore entitled to the protection guaranteed by Articles 101-102 of the Housing Code.

28.  On 23 June 2008 the Cherkasy regional prosecutor’s office joined the proceedings by also lodging a cassation appeal on the applicants’ behalf. They submitted that in finding that the applicants had no grounds for occupying the disputed flat, the courts had failed to take into account their pre-existing tenancy relationship with the Corporation, the validity of which had been confirmed by the court judgments delivered in the course of the previous eviction proceedings. The facts established in the previous proceedings could not be re-established in the proceedings at issue and the guarantees of re-housing set out in Articles 101-102 of the Housing Code applied in the present case.

29.  On 28 September 2009 the Supreme Court of Ukraine, sitting in a single-judge formation, declined to hear the applicants’ and the prosecutor’s appeals in cassation.

30.  On 15 December 2009 the applicants were evicted from the former Corporation’s hostel converted into the block of flats.

31.  According to the Government, soon after their eviction the applicants re-installed themselves in the same flat, and had to be evicted for a second time. The Government did not provide any documents in support of that account of events. According to the applicants, after being evicted, they moved to Khudyaky.

32.  In 2010 the applicants unsuccessfully attempted to challenge the Corporation’s ownership certificate in respect of the reconstructed building.

IV.  Other relevant facts

A.    Revocation of the reconstruction permit and ensuing proceedings

33.  On 9 February 2006, in response to numerous complaints lodged by former hostel residents, Cherkasy City Council decided to annul the permit allowing the Corporation to convert the hostel into a block of flats, referring to the Corporation’s failure to ensure the proper re-housing of the hostel’s residents. It furthermore obliged the Corporation’s director, Mr P., to act urgently with a view to ensuring the re-housing of all those families that had re-installed themselves in June 2005 in the building under reconstruction.

34.  On 22 March 2006 the Cherkasy Regional Commercial Court allowed a claim lodged by the Corporation against the Council seeking the annulment of the 9 February 2006 decision. It found that the residents concerned had been provided with accommodation in the College’s student hostel and had voluntarily moved out of the Corporation’s hostel before the reconstruction works had begun.

35.  It appears that the City Council did not appeal against that decision and that it thus became final. The applicants and other former residents were not invited to take part in these proceedings.

B.    Purchase of a house

36.  In August 2007 the second applicant took out a twenty-year bank loan with an interest rate of 11% per annum and purchased a 66-square-metre house in the village of Khudyaky, some twenty-five kilometres from Cherkasy. Currently the applicants occupy this house.

RELEVANT LEGAL FRAMEWORK

I.        Constitution of Ukraine

37.  Article 47 of the Constitution of Ukraine 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.”

II.     Housing Code of the Ukrainian Soviet Socialist Republic of 1983

38.  The relevant provisions of Chapter I (“General provisions”) of the Housing Code, as worded at the material time, read as follows:

Article 4.  Housing stock

“Residential buildings ... shall constitute the housing stock.

The housing stock shall include:

Residential buildings ... that belong to the State (State housing stock);

Residential buildings ... that belong to the collective farms and other cooperative organisations, their associations, trade unions and other public organisations (public-housing stock);

Residential buildings that belong to cooperatives created with a view to constructing housing (cooperative housing stock);

Residential buildings (or parts of [such] buildings) [and] apartments that belong to citizens as private property (private-housing stock);

Apartments in multi-apartment buildings, ... as well as residential premises in other buildings, regardless of property type, that are allocated to citizens who, under the law, need social protection (social housing stock);

Housing stock shall also include residential buildings that belong to the State-collective and other State-cooperative associations, enterprises and organisations. In accordance with the U.S.S.R. Framework Housing Act, such buildings shall be subject to the same rules as those established for public-housing stock ...” [1]

Article 9.  Housing rights of citizens

“Under the established procedure, citizens shall have a right to be allocated residential premises from the State or public-housing stock or in buildings belonging to housing cooperatives for their permanent occupation ...

Nobody may be evicted from allocated residential premises ... except on the grounds and in accordance with the procedure established by law. ...” [2]

39.  The relevant provisions of Chapter III, Title 2 (“Use of residential premises in the building of the State and public-housing stock”) of the Housing Code, as worded at the material time, read as follows:

Article 71.  Reservation of residential premises for temporarily absent citizens

“In the event of the temporary absence of a tenant or members of his/her family, the residential premises [in question] shall be reserved for them for six months.

Should the tenant or members of his/her family be absent for serious reasons for a term exceeding six months, then at the request of the absent person, that term may be extended by the lessor, or, in the event of a dispute, by the court ...” [3]

Article 72.  Procedure for declaring an individual to have lost the right of occupancy in residential premises

“A determination that an individual has lost the right of occupancy in residential premises, as a consequence of the absence of that individual beyond the established time-limits, shall be made through court proceedings.” [4]

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

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

...

In the event that a plan for the capital renovation of a residential building envisages the reconstruction or reconfiguration of apartments, the occupants and members of their households must be familiarised with this plan. Objections and proposals [lodged by] the aforementioned persons [that are] rejected by the planning entity shall be considered by the bodies that manage the respective housing stock, as well as by the executive committee of the local council of people’s deputies ... .” [5]

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

“In the event that the capital renovation of a residential building belonging to the State or public-housing stock is envisaged [and] that renovation cannot be carried out without the relocation of an occupant, the owner shall be obliged to provide the occupant and members of his household with other residential premises for the duration of the capital renovation, without interrupting the tenancy agreement in respect of the premises under renovation. ...

... Upon the completion of the capital renovation ... the occupant shall return to the residential premises previously occupied by him (or her). ...” [6]

Article 102.  Provision of citizens with other residential premises in the event that the residential premises occupied by them cannot be preserved (or their size changes significantly) as a result of capital renovation

“Where the residential premises occupied by a tenant and members of his (or her) household following capital renovation cannot be preserved or will considerably increase in size, ... the tenant and members of his (her) household must be provided with other suitable housing before the beginning of that capital renovation. Where, following capital renovation, residential premises will significantly decrease in size, then upon the demand of the occupant he (she) and members of his (her) household must 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.” [7]

40.  The relevant provisions of Chapter III, Title 6 (“Use of residential premises in buildings (or apartments) belonging to the private-housing stock”) of the Housing Code, as worded at the material time, read as follows:

Article 158.  Lease agreements in respect of residential premises owned by citizens

“Tenants shall use residential premises privately owned by citizens [in a manner] in accordance with the lease agreement governing those premises.

A lease agreement in respect of residential premises shall be concluded in writing between the owner and the tenant, [and shall be subsequently] registered by the executive committee of the local council of people’s deputies or by the management body created thereby. The contract should include details concerning the subject of the contract and the period for which it is concluded, the rights and duties of the landlord and the tenant, and other terms of the lease.” [8]

Article 165.  Eviction of a tenant from a residential building (or apartment) that belongs to a citizen, for the duration of the capital renovation

“ ... Upon the completion of the renovation works, the owner of the building (or apartment) shall be obliged to provide the tenant with the accommodation occupied by him/her previously or with other comparable accommodation in the building (or apartment) owned by him/her, except in the event that, under the building (apartment) reconstruction or reconfiguration project approved by the executive committee of the local council of people’s deputies, the accommodation occupied by the tenant cannot be preserved.” [9]

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

41.  The applicants complained that the court order for their eviction had amounted to unlawful and unfair interference with their right to respect for home. They relied on Article 8 of the Convention, which reads as follows:

“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.”

A.    Admissibility

1.     Submissions by the parties

(a)    The Government

42.  The Government submitted that Article 8 was not applicable in the applicants’ case, as the disputed accommodation had not been their “home”. In September 2002 the applicants had willingly moved into the College’s student hostel and had established their home there. They had therefore lost their ties with their previous residence. The reason for their moving back in 2005 had not been to protect their home, but to seek the acquisition of a flat larger than their previous accommodation - in other words, they had been seeking unjustified enrichment.

43.  The Government further alleged that the lodging of the present application had constituted an abuse of the right to apply to the Court. They noted in this regard that the applicants had not informed the Court in their application form that in 2007 they had purchased a house in the village of Khudiaky. Moreover, in the domestic eviction proceedings they had falsely argued that the hostel was their only home.

(b)    The applicants

44.  The applicants contested the Government’s arguments.

45.  They argued that their links to the Corporation’s hostel had been continuous and significant throughout the entire period of their occupancy (1996-2009). Their relocation to the College’s student hostel in 2002 had constituted a temporary measure requested by the Corporation on the pretext of the need to renovate their habitual residence. Throughout the period of their temporary relocation, the applicants had remained registered as residents at the address of the Corporation’s hostel and had expected to move back after the expiration of the one-year temporary lease agreement. Instead, the Corporation had defrauded them and all the hostel residents by obtaining a permit to convert the hostel into a block of flats (in breach of the requirements of Articles 100-102 of the Housing Code) once the hostel had been cleared of all occupants. Consequently, after the expiration of the temporary lease agreement with the College, the applicants - together with other former hostel residents - had nowhere to go and had been forced to take the desperate step of moving back into their previous accommodation while it had been still under reconstruction. At the material time, given their situation, such tactics constituted the only way of avoiding homelessness and defending their housing rights against a dishonest and fraudulent landlord. After moving back into the hostel in 2005, while it had still been under reconstruction, the applicants had not left it until the enforcement of the eviction order at the end of 2009.

46.  In the applicants’ view, the 2007 purchase of the house in Khudyaky was not a material consideration in the determination of their Convention complaint, which concerned the unlawful and unfair extinguishment of their right to occupy different premises. In fact, that house purchase was a desperate attempt to secure some kind of accommodation in the face of the threat of homelessness. The move to Khudyaky upon the applicants’ eviction had entailed a considerable outlay for the family in terms of the cost of the loan. It also disrupted the family’s social ties and required complete re-organisation of their daily life, including lengthy daily commute to Cherkasy, where the second applicant had been working and the third applicant (then a minor) went to school. Accordingly, retaining their tenancy in the hostel had constituted an existential issue for the applicants. They had only moved to Khudyaky in 2010 after having lost their last hope of winning the tenancy dispute.

2.     The Court’s assessment

(a)    Applicability of Article 8

47.  The Court notes that, as is evident from the file, in 1996 the applicants were allocated a room in the Corporation’s hostel. They then started using it as their family residence. The authorities, in their turn, officially registered them as residents at the hostel’s address (see paragraph 7 above). In 2002 the applicants re-settled into another residence based on a temporary one-year lease agreement negotiated by their landlord, the Corporation, on the pretext of the need to renovate the hostel (see paragraph 8 above). Nothing in the case file indicates that the applicants planned to abandon the previous accommodation at that time. They also remained registered as residents of the Corporation’s hostel for the duration of the move. It is also evident that in 2005, after the expiration of the lease contract at their temporary residence, the applicants re-installed themselves in the Corporation’s hostel under reconstruction at the material time and kept using it as their family residence until their eviction in 2009. In these circumstances, the Court considers that regardless of whether the applicants’ occupancy of the Corporation’s hostel was in accordance with the law, their links with the disputed premises were sufficiently strong and continuous so as to attract the applicability of Article 8 (see Lazarenko and Others v. Ukraine, no. 27427/02 (dec.), § 53, 11 December 2012, with further references and Brežec v. Croatia, no. 7177/10, §§ 35-36, 18 July 2013). The Government’s relevant objection must therefore be dismissed.

(b)    Abuse of right of application

48.  The Court reiterates that an application deliberately based on false or misleading submissions or on a description of facts that omits events of central importance may in principle constitute an abuse of the right of application, within the meaning of Article 35 § 3 (a) of the Convention (see Vinniychuk v. Ukraine, no. 34000/07, § 42, 20 October 2016, with further references). However, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).

49.  Regard being had to the circumstances of the present case and the arguments advanced by the applicants in justification of their complaint before the Court, it cannot establish that the purchase of a house in Khudyaky in 2007 was of central importance for the determination of that complaint or that by omitting to inform the Court about that purchase in their application form the applicants had intended to mislead it. It cannot find, therefore, that the applicants abused the right of application. Accordingly, the Government’s relevant objection should be dismissed.

(c)     Overall conclusion as to admissibility

50.  The Court furthermore notes that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

51.  The applicants submitted that their eviction had been neither lawful nor necessary in a democratic society.

52.  The Government disagreed. They acknowledged that the applicants’ eviction had constituted an interference with their right to a home, assuming that the Court considered that the disputed premises constituted the applicants’ “home” for the purposes of Article 8 of the Convention. They furthermore argued that that interference had been lawful. Notably, in the second set of eviction proceedings, the national courts had established that the applicants had not been employed by the Corporation at the time that they had initially been allocated accommodation in the hostel. Accordingly, their tenancy could not have been deemed to have been covered by the protected tenancy guarantees of the Housing Code. Under Article 165 of the Housing Code, the owner of a privately-owned building was dispensed from the obligation to accommodate a former tenant in the event that that tenant’s rented premises were not preserved as a result of a reconstruction project. The Government also submitted that the disputed hostel had been lawfully converted by its owner into a block of flats, under a permit issued by the municipality. Accordingly, there had been no legal basis for obliging it to provide housing to the applicants in the reconstructed building.

53.  The Government also argued that the interference had pursued a legitimate aim - namely, the protection of the private owner’s property rights. It had also been necessary, in a democratic society, to avoid imposing on that owner a disproportionate obligation to house unwanted tenants.

C.    The Court’s assessment

54.  The Court reiterates that loss of one’s home is a most extreme form of interference with the right to respect for the home (see, among other authorities, McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008 and Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 41, 2 December 2010). An interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and furthermore is “necessary in a democratic society” in order to achieve the aim (see, among other authorities, Fyodorov and Fyodorova v. Ukraine, no. 39229/03, § 83, 7 July 2011). The requirement of lawfulness, within the meaning of the Convention, demands compliance with the relevant provisions of domestic law and compatibility with the rule of law (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015). Even though the Court has only limited power to review compliance with domestic law, it may draw appropriate conclusions under the Convention where it observes that the domestic courts have applied the law in a particular case manifestly erroneously or so as to reach arbitrary or unforeseeable conclusions (see, mutatis mutandis, Seryavin and Others v. Ukraine, no. 4909/04, § 40, 10 February 2011 with further references; Kryvitska and Kryvitskyy, cited above, § 43; and Altay v. Turkey (no. 2), no. 11236/09, §§ 54-55 and 57, 9 April 2019).

55.  Examining the circumstances of the present case in the light of the aforementioned principles, the Court notes that the existence of an interference with the applicants’ Convention rights is not in dispute between the parties. It considers that, notwithstanding that the eviction order in the present case was taken in favour of a privately incorporated entity, its issuance constituted State action amounting to an interference with the applicants’ right to respect for their home (see, for instance, Brežec v. Croatia, no. 7177/10, §§ 37-40, 18 July 2013, and Vrzić v. Croatia, no. 43777/13, § 59, 12 July 2016).

56.  In assessing whether this interference was “in accordance with the law”, the Court takes note of the relevant historical context. It appears from the material before the Court that at the time of the events giving rise to the present application, Ukraine was in the process of a swift transition from the Soviet model of resource management to a free-market economy including a major restructuring of the housing sector. During the Soviet era, private sector housing belonging to “citizens” was scarce and the large proportion of the housing, which belonged to “public” stock, was occupied by protected (“permanent”) tenants (compare Brežec, cited above, § 48). Such tenancies could only be terminated under limited circumstances expressly provided by law (see Article 9 of the Housing Code, cited in paragraph 38 above).

57.  The transition to the market economy led to, inter alia, an increase in private-sector housing options and required a major reassessment of the relevant policies and accompanying legal framework.

58.  In the meantime, the wording of Article 4 of the Housing Code, which was adopted in 1983 and which, with some amendments, currently still remains in force, suggested that the notion of “private-housing stock” remained limited to housing owned by “citizens” (see paragraph 38 above). The Housing Code made no express reference to the housing belonging to entities incorporated under private law.

59.  In the particular circumstances of the present case, it appears that the corporate hostel in issue, which had once been State-owned, was at some point in time transferred by the State property fund to a certain company within the framework of the latter’s own conversion from a State-owned enterprise to a privately owned corporation. The case-file material contains no information concerning the exact timing or terms and conditions of the hostel’s transfer.

60.  It, however, appears from the available documents that up until the end of the hostel’s reconstruction and its re-registration as a block of flats, the applicants’ occupancy rights were consistently treated by the public authorities as well as by the Corporation itself as a protected tenancy covered by the provisions of Chapter III, Title 2 of the Housing Code, applicable to State and public housing stock (see paragraphs 8, 9, 10, 18, 20 and 33 above). In rejecting the eviction claim against the applicants in the first set of proceedings, the domestic courts decided, in their final judgments, that the applicants’ tenancy was, inter alia, covered by Articles 100-102 of the Housing Code (applicable to the “public-housing stock”, see paragraph 39 above). According to these findings, neither the applicants’ temporary resettlement nor the reconstruction of the former hostel extinguished their occupancy rights.

61.  In contrast to those findings, in the second set of proceedings, which resulted in the applicants’ eviction, the judicial authorities decided that their tenancy was governed by Chapter III, Title 6 of the Housing Code, applicable to “private-housing stock” (see paragraph 40 above). Accordingly, under Articles 158 and 165 of that Title, the reconstruction of the premises extinguished the Corporation’s duty to accommodate them. The District Court’s judgment of 2 June 2008 did not cite any legal grounds extinguishing applicability of Articles 100-102 as established in the first set of proceedings. The Court of Appeal in its judgment of 7 May 2009 and the Government in their observations attempted to justify this conclusion by stating that the applicants, who had not been employed by the Corporation, could not have been eligible to “protected tenancy” guarantees from the very beginning of their tenancy. However, that position contradicts the conclusions reached in the final judgments delivered by the courts in the first set of eviction proceedings (see paragraphs 18 and 20 above).

62.  The Court also notes that the prosecutor’s office challenged this position by lodging a cassation appeal on the applicants’ behalf and suggesting that the protected tenancy guarantees were applicable in their case. The applicants also appealed, submitting that Articles 158 and 165 of the Housing Code could only apply to residential premises owned by “citizens”, whereas their landlord was a “corporation”. However, the Supreme Court declined to hear either cassation appeal.

63.  In view of the apparently contradictory holdings of the domestic courts and, moreover, having regard to the failure of the Supreme Court to explain why it declined to hear the arguments raised by the applicants and the prosecutor’s office in their appeals, the applicants’ eviction cannot have been compatible with the rule of law and free of arbitrariness. It cannot thus have met the requirement of lawfulness under Article 8 of the Convention.

64.  This finding obviates the need to examine any other arguments raised by the parties.

65.  There has accordingly been a violation of Article 8 of the Convention in the present case.

II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

66.  Relying on Article 6 of the Convention, the applicants also complained that the findings of the domestic courts in the second set of proceedings against them had amounted to a breach of the principle of legal certainty and that the courts had failed to address the central arguments raised by them in their defence.

67.  Having regard to the particular circumstances of the case and the submissions of the parties, the Court considers that the main legal question in the present application concerned the lawfulness of the applicants’ eviction. Having examined this question under Article 8 of the Convention, the Court considers that there is no need to give a separate ruling in respect of this part of the application (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

68.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

69.  The applicants claimed 40,000 US dollars (USD) and 2,520.83 hryvnias (UAH) in compensation for pecuniary damage. The USD 40,000 represented the cost of the mortgage taken out by the second applicant in order to purchase the house in Khudyaky. UAH 2,400 represented the sum spent by the applicants on legal assistance in the course of the domestic proceedings. The remaining sum of UAH 120.83 represented expenses related to correspondence with the Court. The applicants provided invoices and receipts as proof of their correspondence-related expenses and domestic legal fees.

70.  In addition, the applicants claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

71.  The Government submitted that the amounts claimed were exorbitant and unsubstantiated, save for the applicants’ partial substantiation of the correspondence expenses.

72.  The Court does not discern any causal link between the violation found and the cost of the mortgage contracted by the second applicant. It therefore rejects this claim. As to the remaining claims lodged under the same head, the Court considers it appropriate to examine them below under the head of “costs and expenses”.

73.  The Court also finds it appropriate to award the applicants jointly EUR 4,500 in respect of non-pecuniary damage.

A.    Costs and expenses

74.  In addition to the sums claimed in respect of domestic legal fees and correspondence expenses (see paragraph 69 above), the applicants also claimed EUR 3,450 in legal fees - payable to their lawyer, Mr M. Tarakhkalo - for their representation before the Court. They requested that this sum be paid directly into his bank account. The applicants provided a copy of the legal representation contract and an acknowledgment of the acceptance of services, from which it can be seen that Mr M. Tarakhkalo spent twenty-three hours on the preparation of the response to the Government’s observations in their case.

75.  The Government did not comment on this claim.

76.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

77.  In the present case, regard being had to the above criteria, the documents in the Court’s possession, and the fact that the applicants have already been granted EUR 850 in legal aid, the Court considers it reasonable to award the applicants jointly EUR 2,600 in legal fees incurred in connection with the Convention proceedings, to be paid directly into the bank account of the applicants’ lawyer, Mr M. Tarakhkalo. It furthermore awards the applicants jointly EUR 200 in respect of postal and various other expenses incurred in connection with bringing the domestic and Convention proceedings.

B.    Default interest

78.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 8 admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds that it is not necessary to examine the complaint under Article 6 of the Convention;

4.      Holds

(a)   that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,500 (four thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,600 (two thousand and six hundred euros), plus any tax that may be chargeable to the applicants, in respect of legal fees, to be paid directly into the account of the applicants’ lawyer Mr M. Tarakhkalo;

(iii) EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicants, in respect of other costs and expenses.

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Martina Keller                                                                    Latif Hüseynov
Deputy Registrar                                                                       President

 

Appendix

List of applicants

 

No.	Applicant’s Name	Birth date	Nationality	Place of residence
1.	Tetyana Mykolayivna CHORNENKO	12/05/1967	Ukrainian	Khudyaky
2.	Kostyantyn Mykolayovych CHORNENKO	01/09/1991	Ukrainian	Khudyaky
3.	Mykola Vasylyovych CHORNENKO	17/05/1968	Ukrainian	Khudyaky