CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 27 mars 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .s4C4F9E80 { width:206.43pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FIFTH SECTION DECISION Application no. 28848/07 Ivan Stepanovych YASINSKYY against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 27   March 2018 as a Committee composed of:   André Potocki, President,   Mārtiņš Mits,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar , Having regard to the above application lodged on 15 June 2007, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr   Ivan   Stepanovych   Yasinskyy, is a Ukrainian national who was born in   1960 and lives in Ternopil. He was represented before the Court by Mr   L.R.   Tararuk, a lawyer practising in Ternopil. 2.     The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr   I.   Lishchyna of the Ministry of Justice. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     In   1998 the applicant, an employee of the Ternopil Railway Department (“the Railway”) at the material time, was allocated a one-bedroom flat in an accommodation hall owned by the Railway, to be occupied by him and his wife and son as social tenants (“Flat A”). The applicant moved into this accommodation with his family and registered their residence in it with the local registration authority. 5.     On 16   January   2001 the Railway signed an agreement with Ternopil municipality under which some blocks of flats owned by it were to be transferred to municipal ownership. 6.     On 27   November   2001 the Railway decided to allocate to the applicant and his family a bigger, two-bedroom flat (“Flat B”) in one of the blocks of flats that had fallen under the transfer agreement with the municipality. 7.     On 13   December   2001 the Railway, together with a representative of the municipality, signed the act of transfer in respect of the block of flats that contained Flat B. 8.     On 19   December   2001 the municipality, which apparently had not been informed of the Railway’s previous decision in the applicant’s favour, decided to allocate Flat B to the family of I.B., a police officer. On the same date I.B. was issued with an occupancy order ( ордер ) in his name (see applicable legal provisions in paragraph   33 below). However, at that time I.B. did not move into the flat, and it remained vacant. 9 .     On 26   December 2001 the Ternopil City Council approved the act transferring to the municipality of the block of flats in which Flat B was situated. 10.     In   February   2002 the Railway requested the City Council’s executive committee to issue an occupancy order in respect of Flat B in the applicant’s name, in accordance with its decision of 27   November   2001. 11.     On 19   March   2002 the executive committee refused to issue the order, referring to the fact that an order for the same flat had already been issued in favour of I.B. 12 .     Notwithstanding the executive committee’s refusal to issue the occupancy order, on 22   March   2002 the applicant and his family moved into Flat B. At the same time, they remained registered as the tenants of Flat A. 13.     On 16   April   2002 I.B., based on the occupancy order issued in his favour, registered himself as a resident in Flat B. In the meantime, the applicant and his family continued to use Flat B as de-facto tenants. 14.     On 18   April   2003 the Ternopil transport prosecutor instituted civil proceedings in the interests of the State and of the applicant. He sought to oblige the municipality to issue the occupancy order in respect of Flat B in the applicant’s favour and to annul the order issued to I.B. (see applicable legal provisions in paragraph   34 below). The prosecutor referred in this respect to Article   55 of the Housing Code of 1983, under which upon the transfer of corporate housing to municipal ownership, the previous owners retained a priority right to allocate flats in them to their employees (see   paragraph   32 below). 15.     In   July   2003 I.B.   lodged a counterclaim, alleging that his right to occupy Flat B was lawful and seeking the eviction of the applicant and his family. 16.     In the course of the hearings, the applicant, who joined the proceedings as a “third party without separate claims” (see applicable legal provisions in paragraph   35 below) supported the prosecutor’s claim and argued that his occupancy of Flat B was lawful. 17.     On 21   June   2004 the Zborivskyy District Court allowed the prosecutor’s claim against the municipality and dismissed I.B.’s eviction claim against the applicant and his family. It found that as at 19   December   2001, the Railway had remained the lawful owner of Flat B, as the transfer agreement in respect of the block of flats in question had not yet been finalised. The municipality had therefore not been in a position to allocate the disputed flat to I.B. on that date. 18 .     Following an appeal by I.B., on 19   August   2004 the Ternopil Regional Court of Appeal quashed this judgment, rejected the prosecutor’s claim, and allowed I.B.’s claim for the applicant’s eviction with his family. It considered that on the date on which the executive committee had issued an occupancy order in I.B.’s favour the block of flats had no longer belonged to the Railway and the City Council had had a lawful right to allocate the disputed flat to an individual on a municipal waiting list. It furthermore noted that the applicant and his family had moved into the flat in spite of the fact that their request for an occupancy order had been refused. Their occupancy had therefore been devoid of legal basis from its very beginning. Accordingly, the court ordered the eviction of the applicant and his family. 19.     On 13   September   2004 enforcement proceedings were instituted with a view to evicting the applicant, his wife and his son from Flat B. 20.     On an unspecified date the transport prosecutor lodged an appeal in cassation against the judgment of 19   August   2004. He alleged, in particular, that the Court of Appeal had failed to apply Article   55 of the Housing Code (see paragraph   32 below) and had not taken into account the fact that the Railway’s decision to allocate the flat to the applicant had predated the municipality’s decision to give that same flat to I.B. 21.     The applicant did not lodge any separate appeal in cassation. 22 .     In September   2004 the enforcement proceedings with a view to the applicant’s eviction were stayed in view of the pending cassation proceedings. 23.     On 20   December   2006 the Supreme Court rejected the prosecutor’s cassation appeal, having found no irregularities in the application of the law by the Court of Appeal. 24.     On 7   February   2007 the enforcement proceedings with a view to the applicant’s eviction were reopened. 25.     On 20   February   2007 the applicant lodged a request for a stay of the enforcement proceedings, referring to the absence of any other housing; the difficulties in relocating during the winter, and the fact that his family was suffering from recurrent seasonal colds. 26 .     On 7   March   2007 the Zborivskyy District Court postponed the eviction until 1   May   2007 at the applicant’s request. 27 .     In May   2007 the enforcement proceedings were renewed and the applicant and his family were evicted and returned to live in Flat A. They remained on the Railway’s waiting list for more spacious housing. 28.     In 2012 ownership of Flat A was transferred to the applicant and his family members in equal shares according to the scheme of gratuitous public housing transfer to its occupants adopted by the State. 29.     On 24   October   2012 the Railway provided the applicant and his wife with a one-bedroom flat (“Flat C”) on the basis of a social tenancy agreement, while Flat A was retained by the applicant’s son. 30.     In February   2013 the applicant and his wife registered their residency in Flat C. B.     Relevant domestic law 1.     Housing Code of Ukraine, 1983 (as worded at the material time) 31 .     Under Article   52 of the Code, decisions on the allocation of dwellings belonging to the corporate housing stock were to be taken jointly by the entity or enterprise that owned the respective dwelling and representatives of the trade union committee operating in that entity or enterprise. These decisions were subject to subsequent validation by the executive committee of the respective municipality. 32 .     Under Article   55 of the Code, social tenancy in accommodation transferred from corporate housing stock to municipal ownership was to be offered first to employees of the former owners of such accommodation. 33 .     Under Article   58 of the Code, the “only basis for moving into the allocated dwelling” which belonged to public housing stock was an “occupancy order” issued by the executive committee of the municipality in question on the basis of a decision to allocate this dwelling to a particular person (household). Orders could only be issued in respect of unoccupied premises. 2.     Code of Civil Procedure, 1963 (repealed with effect from 1   September   2005) 34 .     Under Article   13 of the Code, as worded at the material time, prosecutors had standing to introduce civil actions on behalf of the State, as well as on behalf of persons who “in view of their health status or other valid reasons are not able to defend their rights.” 35 .     Under Articles   98, 99 and 108 of the Code, as worded at the material time, persons taking part in proceedings as “third parties without separate claims” had the same procedural rights as the parties to these proceedings with respect to participating in the hearings, providing and examining evidence, and lodging appeals. COMPLAINTS 36.     The applicant complained that he had been arbitrarily denied the right to occupy Flat B and had been evicted therefrom, in breach of Article   8 of the Convention. 37.     He also complained that the domestic proceedings concerning the determination of the relevant dispute had been inordinately lengthy, in breach of Article   6 of the Convention. THE LAW A.     Alleged violation of Article   8 of the Convention 38.     The applicant first complained that he had been arbitrarily denied occupancy of Flat   B and evicted from it, in breach of Article   8 of the Convention, which, insofar as relevant, reads as follows: “1.     Everyone has the right to respect for his ... home ... . 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.” 39.     The Government argued that the present complaint was manifestly ill-founded. 40.     Citing Articles   52 and 58 of the Housing Code (see paragraphs 31 and 33 above), they submitted that the Railway’s decision to allocate the disputed flat to the applicant could have created a right of occupancy only if and after the municipality had subsequently approved it and issued an occupancy order in the applicant’s name. A request by the Railway for such an order to be issued had been refused by the municipality in March 2002, because an order in I.B.’s name had already been issued. The applicant, despite being aware of this situation, had moved into the disputed flat without any grounds, thus interfering with another private party’s lawful right to occupy the same premises. The decision taken by the domestic courts to evict the applicant had thus been neither unlawful nor unfair. Moreover, the applicant’s family had also retained occupancy of Flat   A, and their residence in it had continued to be registered throughout the entire period of their arbitrary occupation of Flat   B. Eventually the applicant and his family members had been given ownership of Flat   A according to the legal scheme of gratuitous public housing transfer to its occupants. Concurrently, the applicant and his family had also remained on the Railway’s waiting list with a view to being allocated more spacious housing. In 2012, the applicant had received a separate flat for his wife and himself, while their son had remained living in Flat   A. 41.     The applicant contested the Government’s submissions. In his view, the municipality’s decision to issue an occupancy order in respect of the disputed flat to I.B. had been in flagrant breach of the requirements of Article   55 of the Housing Code. Moreover, this decision had been taken by the municipality on 19   December   2001, that is, before it had become the owner of the block of flats where Flat B was situated (26   December   2001, see paragraph   9 above). The applicant also noted that Flat   A, which measured about 25   square meters, was too small for a family of three. He had been on the waiting list for improved social housing since   1985 and had been rightfully provided with Flat   B by his employer. 42.     The Court reiterates that, in Convention terms, whether or not a particular habitation constitutes a “home” that attracts the protection of Article   8 will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place (see, among other authorities, Prokopovich v. Russia , no.   58255/00, §   36, ECHR   2004 ‑ XI (extracts) and Kryvitska and Kryvitskyy v. Ukraine , no.   30856/03, §   40, 2   December   2010). It appears from the available material that the applicant occupied the disputed flat from March   2002 until May   2007 (see   paragraphs   12 and   27 above). The Court therefore considers that that flat constituted the applicant’s “home” for the purposes of Article   8 during the aforementioned period. 43.     The Court next reiterates that interference with the right to respect for a home will constitute a violation of Article   8 of the Convention, unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article   8   §   2, and can be regarded as “necessary in a democratic society” ( Kryvitska and Kryvitskyy , cited above, §   42). 44.     The Court notes that the order for the applicant’s eviction was based on a finding that he had deliberately occupied the disputed flat in absence of requisite occupancy order from the municipality. This occupancy was found to be irregular under applicable law from its very beginning (see paragraph   18 above). As is apparent from the case file material, the applicant’s claim as to his alleged entitlement to occupy the disputed flat was examined by the domestic judicial authorities at three instances in the course of adversary proceedings. There is nothing in the file indicating that the applicant himself might have been unable to advance all the necessary arguments in support of his personal position in this dispute (see the applicable legal provisions listed in paragraph   35 above). Eventually, the Court of Appeal concluded, in a reasoned decision, that the municipality’s choice to allocate the disputed flat to I.B. had not been in breach of the domestic law (see   paragraph   18 above). The Court is not in a position to review these findings, being mindful of a wide margin of appreciation afforded to the States in setting up policies defining conditions of access to public housing (see, for example, Kashchuk v. Ukraine (dec.), no.   5407/06, §   53, 10   May   2016) and of its own subsidiary role in reviewing the conclusions reached by the national judicial authorities as to the domestic legality of a measure (see Kryvitska and Kryvitskyy, cited above, §   43, with further references). Accordingly, the Court concludes that the applicant’s eviction met the “lawfulness” criterion established by the Convention. 45.     The Court further observes that the disputed measure pursued a legitimate aim – notably, to protect the rights of I.B. and the members of his household. 46.     As regards the “necessity” of the applicant’s eviction in a democratic society, the Court notes, first of all, that neither the applicant nor the prosecutor who instituted the impugned proceedings made any submissions in this respect before the national courts. The crux of the argument before them was related to the applicant’s alleged lawful entitlement to occupy the disputed flat. In these circumstances, the absence of any reasoning as to the “necessity” of the applicant’s eviction in the courts’ decisions does not raise a Convention issue (see also Karakutsya v. Ukraine , no.   18986/06, §§   74 ‑ 76, 16   February   2017, and compare and contrast Kryvitska and Kryvitskyy , cited above, §§   50-52). 47.     In addition to that, it is to be noted that enforcement of the eviction order was deferred for some two and a half years while the prosecutor’s cassation appeal was under consideration, and then for several more months in view of the winter season and the applicant’s complaints about health issues (see paragraphs   22 and 26 above). Accordingly, the authorities took measures to accommodate the applicant’s interests notwithstanding the conclusion that his occupancy of Flat   B was devoid of legal basis ab initio . 48.     Finally, it appears from the available material that throughout the entire period during which the applicant occupied Flat   B he remained officially registered as a resident in his previous accommodation (Flat A). He was able to return to this accommodation following his eviction and eventually to acquire ownership of it, together with his wife and son. He also remained on his employer’s social housing waiting list and was provided with a flat for himself and his wife in   2012, while his son remained in residence in the privatised Flat   A. 49.     In the light of all of the above, the Court considers that the applicant’s complaint under Article   8 is manifestly ill-founded and must be rejected, in accordance with Article   35   §   3 (a) and 4 of the Convention. B.     Alleged violation of Article   6 of the Convention 50.     The applicant also complained that the length of the proceedings in the present case, which lasted from April 2003 until December   2006, that is for three years and eight months at three instances, had been unreasonable, in breach of Article   6 of the Convention. 51.     Having considered this complaint in the light of all the material in its possession, the Court finds that, in so far as the matter complained of is within its competence, it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention provisions relied on by the applicants. 52.     It follows that this part of the application must also be declared inadmissible as manifestly ill-founded, pursuant to Article 35   §§   3   (a) and 4   of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 19 April 2018.   Milan Blaško   André Potocki Deputy Registrar   President