CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 14 décembre 2017

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UKRAINE   (Application no. 19957/07)                         JUDGMENT       STRASBOURG   14 December 2017         This judgment is final but it may be subject to editorial revision In the case of Dakus v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Erik Møse, President,   Yonko Grozev,   Gabriele Kucsko-Stadlmayer, judges, and Anne-Marie Dougin, Acting Deputy Registrar, Having deliberated in private on 21 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   19957/07) against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Nataliya Vasylivna Dakus (“the applicant”), on 24   April 2007. 2.     The applicant, who had been granted legal aid, was represented by Ms   L.G.   Ibadova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr   I.   Lishchyna of the Ministry of Justice of Ukraine. 3.     On 7 February 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1978 and lives in Kalush. 5.     The facts of the case, as submitted by the parties, may be summarised as follows. 6.     In 1996 V.D., the applicant’s future husband and his parents living in corporate housing (“flat A”) owned by “K.T.”, a State company (hereinafter “the K.T. company”), were offered the chance by the latter to exchange this accommodation for larger corporate housing accommodation (“flat B”), which was also owned by the same Company. Having accepted this offer, the three of them signed a written undertaking to vacate flat A when they moved to flat B. 7.     In July 1997 the applicant married V.D. and joined him, his parents and brother to live in flat A. 8.     In 1998 the applicant’s and V.D.’s son was born. Along with the applicant, he was registered by the local authority as a co-tenant of flat A on the grounds that both of them had become members of the original tenants’ family. 9.     In 1999 the K.T. company transferred ownership of flat A to the municipality. 10.     At various subsequent dates the applicant’s husband and parents-in-law moved out into flat B and registered their residence at the new address. 11.     According to the Government, the applicant and her son also moved into flat B at the material time. 12.     According to the applicant, she and her son remained residents in flat A, as her marriage with V.D. was falling apart and living together had become intolerable. 13.     In August 2004 V.D. and the applicant divorced. 14.     On 20   July 2005 the K.T. company decided to reallocate flat A to the family of R., its employee, who lived in an accommodation hall ( гуртожиток ). 15.     In October 2005 the K.T. company lodged a claim in the Kalush Town Court, seeking, in particular, to evict the applicant and her son from flat A. It argued that there was no legal basis for them to remain in the property, which had been reallocated to a new tenant (R.). 16 .     On 25   July 2006 the court dismissed the claim for the eviction of the applicant and her son. It found, in particular, that the applicant had lawfully moved into flat A as a member of the original tenants’ family and so had acquired all the rights of a social tenant, within the meaning of Article   64 of the Housing Code (1983). She and her son had never promised to relocate and had remained residents of flat A at the material time. They had not been included in the occupancy voucher (« ордер ») of flat B and had not been provided with any other housing. They could therefore not be evicted without being provided with alternative accommodation. Moreover, in   1999 the K.T. company had transferred flat A to municipal ownership. It had therefore had no standing in 2005 to reallocate the same flat to R.’s family or to bring the present proceedings. 17.     The K.T. company appealed, referring to Article   55 of the Housing Code. 18 .     On 14   September 2006 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 25   July 2006 and ordered the applicant’s and her son’s eviction “without provision of any other accommodation”. It held that the Kalush Court, having properly established the relevant facts, had interpreted the law incorrectly. Notably, according to Articles   55 and 99 of the Housing Code, the applicant (together with her son) – having settled in flat A as a member of the original tenants’ family – was bound by the duty of the original tenants to vacate the flat. There was therefore no legal basis for the applicant’s and her son’s continued residency in flat A, and this fact constituted a sufficient basis for their eviction without the provision of any other housing. Furthermore, the Kalush Court had erred in respect of the K.T. company’s legal standing. Under Article   55 of the Housing Code, notwithstanding the transfer of the property to the municipality, the K.T. company had retained the right to allocate the flat to one of its employees. It had therefore had legitimate standing to seek the vacation of the flat by its previous tenants. 19.     The applicant lodged a request for leave to appeal in cassation. She noted that she and her minor son had been lawful and registered residents of the disputed flat for eight years. During this period, she had dutifully engaged in the payment of all expenses relating to her occupancy of the flat. Unlike her former husband and in-laws, she and her son had not given any promises to vacate flat A and had not acquired any rights to live in flat B with them. Accordingly, her and her son’s eviction would effectively render them homeless. 20.     On 16   November 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation, ruling that her submissions did not contain any argument creating an appearance that there could be a problem under applicable law. 21.     On 15   December 2006 the applicant requested the Kalush Court to postpone her eviction, in particular, because she had no other accommodation and her salary was too small for her to rent private-sector housing. 22.     On 21   December 2006, while the applicant’s request was pending consideration, the State bailiffs arrived at flat A and had the applicant vacate it and surrender the keys. 23.     On 25   December 2006 the local registration authority annulled the applicant’s and her son’s registration as residents of flat A. 24 .     On 29   December 2006 the Kalush Court allowed the applicant’s request for her and her son’s eviction to be postponed; it postponed their eviction for three months, referring to her indigent status and the interests of a minor child. 25.     According to the applicant, after her eviction she had to seek emergency refuge in the home of a colleague and subsequently rented odd accommodations at various places. She submitted testimony given by various acquaintances and copies of some fixed-term lease agreements. 26.     The Government contested this account, insisting that the lease agreements were fictitious and the applicant had de facto lived in flat   B permanently since   2004 without proper registration. II.     RELEVANT DOMESTIC LAW Housing Code of Ukraine, 1983 (as it read at the material time) 27.     Under Article   55 of the Code, social tenancy of accommodation transferred by State enterprises to municipal ownership were to be offered first to employees of such enterprises who were in need of better housing conditions. 28.     Under Article   64 of the Code, the members of the family of a tenant who lived with that tenant acquired the same rights and obligations as that tenant in respect of the accommodation in question. If such persons ceased to belong to the tenant’s family, they had the right to continue occupying the accommodation, while sharing the original tenant’s rights and obligations. 29.     The tenant and his or her family members could allow other persons to stay in their accommodation as temporary tenants (under Articles 98 and   99 of the Housing Code). In such a case, however, the temporary tenants would not acquire any permanent or independent right to occupy that accommodation. THE LAW I.     ALLEGED VIOLATION OF ARTICLE   8 OF THE CONVENTION 30.     The applicant complained that her and her minor son’s eviction had been ordered by the courts unfairly and without their personal situation being taken into account. She also complained that the process of enforcing the eviction order had been brutal and arbitrary. The applicant invoked a number of the Convention provisions in respect of the above-mentioned complaints. The Court, being master of the characterisation to be given in law to the facts of the case, considers that the above-mentioned complaints fall to be examined under Article   8 of the Convention. This provision 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.     As to the alleged absence of interference with a “home” 31.     The Government argued that in 2004 the applicant and her son had abandoned flat A and had moved into flat B. The applicant’s former residence could therefore not be considered her “home”, within the meaning of Article   8 of the Convention. The Government contested, in essence, the applicability of the impugned provision to the facts of the case and alleged that the present complaint was therefore manifestly ill-founded. 32.     The applicant disagreed and alleged that flat A had been her only home at the time when the eviction order had been made. 33.     The Court notes that according to the findings of the domestic courts, the applicant and her son occupied flat A and had no other housing at the time when their eviction was ordered (see paragraphs   16 and 24 above). The Court considers that these findings constitute a sufficient basis for it to conclude that the disputed flat constituted her “home”, within the meaning of Article   8 (see, for example, McCann v. the United Kingdom , no.   19009/04, §   46, 13   May 2008). 34.     The Government’s objection must therefore be dismissed. 2.     As to the alleged abuse of the right of individual application 35.     The Government further alleged that the present application was abusive, as the applicant had manipulated the facts and concealed important information. They reiterated in this respect that the applicant and her son had moved into flat B in 2004 and that their interest in retaining flat A had not been connected to a genuine desire to live there. 36.     The applicant contested these submissions. 37.     The Court observes that a finding of abuse of the right of individual application might be made in extraordinary circumstances – notably, when an application is clearly unsupported by evidence, or is deliberately based on false or misleading submissions, or presents a description of facts that omits events of central importance (see, in particular, Khaylo v. Ukraine , no.   39964/02, §   73, 13   November 2008, and Vin niychuk v. Ukraine , no.   34000/07, §   42, 20   October 2016 with further references). 38.     Turning to the facts of the present case, the Court is unable to find any such extraordinary circumstances. As already noted above, the Government’s submissions as to the place of the applicant’s residence at the time of her eviction contradict the conclusions reached by the domestic courts, which examined this matter in detail in adversary proceedings. In any event, the crux of the applicant’s argument is the alleged failure by the domestic courts to assess her personal situation in substantiating their decision to evict her, and the purportedly abrupt and arbitrary manner in which this decision was enforced by the State bailiffs. The applicant provided copies of the relevant court decisions and all other necessary information and documents relevant to the domestic eviction proceedings, which enable the Court to assess the matter. 39.     The Court therefore considers that the Government’s objection must be dismissed. 3.     Non-exhaustion of domestic remedies in respect of the enforcement procedure 40.     The Government further alleged that in so far as the applicant’s complaint was related to the enforcement of the eviction order, she had not exhausted domestic remedies. Notably, the applicant had never aired her complaints about the bailiffs’ actions before the domestic courts or other authorities. 41.     The applicant argued that she had duly exhausted all the domestic remedies, as the eviction claim against her had been examined by courts at three instances. 42.     The Court notes that in other judgments against Ukraine it has already noted that there exists the possibility under domestic law to complain about the conduct of bailiffs during enforcement proceedings (see,   for example, mutatis mutandis , Fuklev v. Ukraine , no.   71186/01, §§   47 ‑ 60 and 74, 7   June 2005). The applicant neither lodged any domestic complaint, nor explained in her observations why resorting to domestic remedies would be ineffective in her case. 43.     The Court therefore upholds the Government’s objection as to the non-exhaustion of domestic remedies and rejects the applicant’s complaint in so far as it relates to the enforcement procedure. This part of the application is therefore inadmissible, in accordance with Article 35   §§   1 and   4 of the Convention. 4.     Conclusion as to admissibility 44.     Having dismissed the applicant’s complaint in so far as it relates to the enforcement of the court-issued eviction order, the Court notes that her complaint about the alleged unfairness of this order itself is not manifestly ill-founded within the meaning of Article 35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 45.     The applicant argued, in essence, that the court judgment of 14   September 2006 ordering her eviction had been devoid of any analysis of her personal situation and the consequences that the eviction would have on her and her minor son. It had therefore not been necessary in a democratic society. 46.     The Government did not make any comment on the merits of the present complaint. 47.     The Court reiterates from its established jurisprudence that loss of one’s home is the most extreme form of interference with the right to respect for one’s home (see, among other authorities, McCann, cited above, §   50). It further notes that State interference in this regard constitutes a violation of Article   8 of the Convention, unless it pursues one of the legitimate aims enumerated in Article 8   §   2, is “in accordance with the law”, and can be regarded as “necessary in a democratic society” (see, among other authorities, Kryvitska and Kryvitskyy v. Ukraine , no.   30856/03, §   42, 2   December 2010). Any person at risk of being subject to eviction should in principle be able to have the proportionality of the measure in question determined by a court. In particular, where relevant arguments concerning the proportionality of the interference have been raised, the domestic courts should examine them in detail and provide adequate reasons (see, among other authorities, Kryvitska and Kryvitskyy, cited above, §   44 and Winterstein and Others v. France , no.   27013/07, §§   148   (δ) and 155, 17   October 2013). 48.     In the present case, the applicant’s eviction was ordered by the Ivano-Frankivsk Court of Appeal, which found that her continued occupancy of the disputed flat was in breach of the provisions of the Housing Code and that it had properly been reallocated to R. and his family (see paragraph   18 above). 49.     In absence of any submissions by the applicant to the contrary, the Court is satisfied that this order was lawful and that it pursued at least one legitimate aim: namely, the protection of the rights of R. and his family. 50.     At the same time, the Court notes that the domestic courts ordered the applicant’s and her minor son’s eviction without having analysed the proportionality of this measure. Once they found that the occupation did not comply with the applicable provisions of the Housing Code, they gave that aspect paramount importance, without weighing it up in any way against the applicants’ arguments to the effect that she and her son had lived in the disputed accommodation for a long period of time (eight years) and that they had nowhere to relocate to. As the Court has emphasised in a number of previous judgments (see, for instance, Yordanova and Others v. Bulgaria , no.   25446/06, §   123, 24   April 2012, and Winterstein and Others , cited above, §   156), that approach is in itself problematic, amounting to a failure to comply with the principle of proportionality. 51.     The Court notes the Government’s allegations that the applicant’s factual submissions were not truthful and that, according to them, in fact she had occupied a different flat at the material time. At the same time, the Court observes that the domestic judgments did not address these points. The relevant arguments were either not raised by the claimant in the domestic proceedings or disregarded by the judicial authorities when choosing the reasons for their decisions. Moreover, the judgment of the Kalush Town Court clearly established that the applicant’s name was not included in the occupancy voucher for flat B, and the Ivano-Frankivsk Court of Appeal ordered the applicant’s eviction “without provision of any other accommodation” (see paragraph   18 above). The applicant’s subsequent appeal in cassation against this judgment was rejected without any response to her arguments concerning alleged relocation difficulties. Accordingly, the courts did not propose any explanation or argument as to the “necessity” of the eviction. 52.     The Court has already found violations of Article   8 of the Convention in other cases where the applicants did not have the benefit, in the context of the eviction proceedings, of an examination of the proportionality of the interference, in accordance with the requirements of this provision (see, among other authorities, McCann , cited above, §§   51 ‑ 55; Kryvitska and Kryvitskyy , cited above, §   52; and Winterstein and Others , cited above, §   158). It finds no reason to arrive at a different conclusion in the present case. This finding obviates the need to examine any other arguments raised by the parties, including whether or not the eviction order had indeed imposed a disproportionate burden on the applicant. 53.     There has accordingly been a violation of Article   8 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 54.     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.” A.     Damage 55.     The applicant claimed 59,000   hryvnias (UAH) in respect of pecuniary damage (the amount that she had allegedly paid in rent for accommodation following her eviction). She furthermore claimed 20,000   euros (EUR) in respect of non-pecuniary damage. 56.     The Government submitted that these claims were exorbitant and unsubstantiated and that the documents provided by the applicant in respect of rental payments were fraudulent. 57.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It notes in this respect that it has found a breach of Article   8 of the Convention on the ground that the domestic courts did not examine the applicant’s arguments concerning the proportionality of her eviction but rather limited their analysis to its lawfulness. The Court cannot speculate on the outcome of the eviction proceedings had these arguments been properly assessed. It therefore rejects the claim in respect of pecuniary damage. 58.     On the other hand, ruling on an equitable basis, the Court awards the applicant EUR   4,500 in respect of non-pecuniary damage. B.     Costs and expenses 59.     The applicant also claimed EUR   750 in legal fees payable directly to her lawyer, Mrs   L.   Ibadova. 60.     The Government pointed out that the applicant had not presented any documents in support of this claim. 61.     The Court notes that the applicant has already been granted EUR   850 by way of legal aid. She has not presented any documents as evidence that she has any outstanding financial obligations vis-à-vis her counsel. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses. C.     Default interest 62.     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 application admissible;   2.     Holds that there has been a violation of Article 8 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months, EUR   4,500 (four thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 December 2017, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Anne-Marie Dougin   Erik Møse Acting Deputy Registrar   President