FIFTH SECTION
\nCASE OF SADOVYAK v. UKRAINE
\n(Application no. 17365\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n17 May 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Sadovyak v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Andr\u00e9 Potocki, President, Having deliberated in private on 17 April 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no.\u00a017365\/14) against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by four Ukrainian nationals, Mrs OlhaMykhaylivnaSadovyak (\u201cthe first applicant\u201d), Mr VolodymyrValeriyovychSadovyak (\u201cthe second applicant\u201d), Mr Mykola VolodymyrovychSadovyak (\u201cthe third applicant\u201d) and Ms AnastasiiaVolodymyrivnaSadovyak(\u201cthe fourth applicant\u201d) (collectively \u201cthe applicants\u201d), on 27 March\u00a02014.<\/p>\n 2.\u00a0\u00a0The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agents, most recently, Mr\u00a0I.\u00a0Lishchyna of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0On 10\u00a0February 2015 the application was communicated to the Government. It was also decided that the application should be given priority under Rule\u00a041 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicants were born in 1966, 1971, 1993 and 1996 respectively. The second applicant is the former spouse of the first applicant and the third and the fourth applicants are their children. The first, the third and the fourth applicants live in Lviv. The second applicant had his registered residence in Lviv as at the time when the application was lodged; his current whereabouts are not known.<\/p>\n 5.\u00a0\u00a0In August 2001 the second applicant, a military officer at the material time, was provided with a two-room flat for himself and his family in an accommodation hall owned by the Lviv Military Academy. Subsequently all four applicants obtained residence registration with the local authority as tenants of that flat. Since 2001 (and as at the time of the observations exchanges between the parties), the household was paying the relevant maintenance charges and other tenancy-related fees, which were calculated on the premise that the flat was occupied by four persons.<\/p>\n 6.\u00a0\u00a0On 28\u00a0November 2003 the second applicant was dismissed from military service on grounds of redundancy. The dismissal order stipulated that he was eligible for priority allocation of social housing from the waiting list managed by the Ministry of Defence.<\/p>\n 7.\u00a0\u00a0In 2005 the first and the second applicant divorced and the first applicant and her children were placed on the waiting list for social housing managed by the municipal authority.<\/p>\n 8.\u00a0\u00a0In August 2011 the Lviv garrison military prosecutor instituted eviction proceedings against the applicants. He referred, essentially, to the fact that the accommodation hall belonged to the Military Academy and was designed for the temporary housing of military personnel. Meanwhile, none of the applicants had any connection to the military or the Military Academy, which owned the building.<\/p>\n 9.\u00a0\u00a0On 15\u00a0November 2012 the Frankivskyy District Court in Lviv dismissed the prosecutor\u2019s claim. It found that the applicants had lawfully obtained the tenancy in connection with the second applicant\u2019s previous military service. Regard being had to the applicable legal provisions concerning the social protection of former military officers and their families, they could not be evicted from the accommodation hall without first being provided with other housing. In addition to that, the fourth applicant had still been a minor at the material time, and further legislation applicable to the protection of minors warranted the protection of her housing rights.<\/p>\n 10.\u00a0\u00a0Following an appeal by the prosecutor, on 17\u00a0September 2013 the Lviv Regional Court of Appeal quashed this judgment and ordered the applicants\u2019 eviction. It found that they had settled in the disputed premises without the building owner having taken a formal decision authorising their occupancy and without an occupancy order (\u201c\u043e\u0440\u0434\u0435\u0440\u201d), having been issued in their favour. Accordingly, the applicants\u2019 occupancy was unlawful abinitio. This fact extinguished the applicability of the legal provisions cited by the first-instance court concerning the social protection of retired military officers, their families and minors.<\/p>\n 11.\u00a0\u00a0The applicants lodged a cassation appeal against this judgment. They noted, in particular, that the disputed housing had been their only home for more than ten years and that their eviction would render them homeless. They also submitted that their income level was not sufficient for them to acquire housing at their own expense and that they did not have any family members in Lviv who could offer shelter to them. Their residence was duly registered and they had been dutifully paying all the applicable fees connected with their occupancy of the flat. The fact that the building owner had failed to comply with certain formalities connected with regularising their occupancy was not their fault. In addition, evicting them on this basis should have become time-barred in 2004 (three years after they had moved into the flat). Lastly, the applicants referred to the judgment of the European Court of Human Rights in the case of Kryvitska and Kryvitskyyv. Ukraine (no.\u00a030856\/03, judgment of 2\u00a0December 2010), and alleged that their eviction would be in breach of the principles established in that judgment, according to which the courts had to assess whether the eviction was necessary in a democratic society.<\/p>\n 12.\u00a0\u00a0On 20\u00a0November 2013 the Higher Specialised Court of Ukraine dismissed the applicants\u2019 cassation appeal.<\/p>\n 13.\u00a0\u00a0Subsequently, enforcement proceedings were instituted with a view to evicting the applicants. The parties have not informed the Court whether the eviction order has been enforced.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n Housing Code of Ukraine, 1983 (as it read at the material time)<\/p>\n 14.\u00a0\u00a0Article\u00a0129 of the Housing Code read as follows:<\/p>\n \u201cHaving taken a decision to allocate dwelling space in [its] accommodation hall, the administration of the enterprise, establishment [or] organisation shall issue a special order (\u043e\u0440\u0434\u0435\u0440)…, which shall be the only basis for moving into the allocated dwelling space….\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0APPLICATION OF ARTICLE 37\u00a0\u00a7\u00a01 OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT<\/p>\n 15.\u00a0\u00a0By Article 37\u00a0\u00a7\u00a01\u00a0(a) of the Convention, the Court may decide to strike an application out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue his application.<\/p>\n 16.\u00a0\u00a0The Court notes that after the communication of the present application to the respondent Government, the parties informed it that the second applicant had quit living in the disputed flat. The first applicant notified the Court that she and the children had lost contact with him and that they were unaware of his whereabouts. The second applicant himself did not provide the Court with any updates on his whereabouts.<\/p>\n 17.\u00a0\u00a0In these circumstances, the Court considers that the second applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37\u00a0\u00a7\u00a01\u00a0(a) of the Convention (compare with J.\u00a0and\u00a0Others v. Austria, no.\u00a058216\/12, \u00a7\u00a7\u00a071-74, ECHR 2017 (extracts)). Furthermore, in accordance with Article 37\u00a0\u00a7\u00a01 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case in his respect.<\/p>\n 18.\u00a0\u00a0Accordingly, the Court decides to strike the application, inasmuch as it was lodged by the second applicant, out of its list of cases. In the following parts of the present judgment, the expression \u201cthe applicants\u201d should be taken to refer to the first, third and fourth applicants only.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 19.\u00a0\u00a0The applicants complained that their eviction had been ordered unfairly and without their personal situation being taken into account. They invoked Article\u00a08 of the Convention, which reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There 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.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 20.\u00a0\u00a0The Government noted that the first and the second applicant had divorced in 2005. They further submitted that the second applicant had also moved out of the disputed flat in 2005. Given that the applicants had not informed the Court of these factors (material for the examination of the case), the lodging of their complaint had constituted an abuse of the right of individual application.<\/p>\n 21.\u00a0\u00a0The first applicant contested this argument. She submitted that all the domestic authorities had been duly put on notice of her divorce. She further argued that the second applicant had continued to live in the flat for a number of years after the divorce. Notwithstanding the fact that he had eventually started spending a lot of time elsewhere, at the time when the present application was lodged, he maintained a sufficient connection with the flat. Notably, he remained registered with the local authority as one of the tenants and all the tenancy fees were calculated on the premise that the flat was occupied by four persons. Lastly, in her view, the whereabouts of her former husband had no bearing on the determination of the remaining applicants\u2019 rights as regards the disputed flat. The third and the fourth applicants did not provide any comments on the matter apart from stating that they maintained their initial application.<\/p>\n 22.\u00a0\u00a0The Court observes that a finding of abuse of the right of individual application might be made in extraordinary circumstances \u2013 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.\u00a039964\/02, \u00a7\u00a073, 13\u00a0November 2008, and Vinniychuk v. Ukraine, no.\u00a034000\/07, \u00a7\u00a042, 20\u00a0October 2016, with further references). It is notable that in the present case the question of whether or not the second applicant had abandoned the flat was neither examined by the domestic courts within the framework of the relevant eviction proceedings, nor even raised by the prosecutor in his statement of claim. The grounds on which the order was made to evict the applicants \u2013 irregularity of their initial occupancy (see paragraph\u00a010 above) – were unrelated to the circumstances indicated by the Government. Within the context of examining the complaints lodged by the first, third and fourth applicant concerning alleged unlawfulness and unfairness of the aforementioned eviction order, the Court does not therefore consider that the first applicant\u2019s divorce or the second applicant\u2019s whereabouts are of any importance. It therefore dismisses the Government\u2019s objection.<\/p>\n 23.\u00a0\u00a0The Court next notes that the present complaint is not manifestly ill\u2011founded within the meaning of Article 35\u00a0\u00a7\u00a03\u00a0(a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 24.\u00a0\u00a0In their initial application the applicants argued that the disputed eviction order was neither lawful nor necessary in a democratic society. In essence, they reiterated the same arguments as those raised in their cassation appeal against the judgment of 17\u00a0September\u00a02013 (see paragraph\u00a011 above). After the case was communicated, they indicated that they maintained their original position.<\/p>\n 25.\u00a0\u00a0The Government noted that the accommodation hall in which the disputed flat was located was specifically designed for meeting the temporary housing needs of military servicemen in need of accommodation as a result of their service. The applicants had been provided with the flat on a temporary basis, in connection with the second applicant\u2019s military service. After he had been dismissed from the army (and, moreover, divorced the first applicant and moved out of the flat), there had been no basis whatsoever for other applicants to remain in it. The court order to evict them had therefore been lawful. It had also pursued a legitimate aim: specifically, the protection of the rights and interests of military servicemen in need of accommodation. Likewise, it had been based on relevant and sufficient reasons and was therefore \u201cnecessary in a democratic society\u201d.<\/p>\n 26.\u00a0\u00a0The Court reiterates that the loss of one\u2019s home is the most extreme form of interference with the right to respect for one\u2019s home (see, among other authorities, McCann v. the United Kingdom, no.\u00a019009\/04, \u00a7\u00a050, 13\u00a0May 2008). In the present case, it is not clear whether the disputed eviction order has been enforced. This circumstance does not, however, preclude the Court from examining the present complaint, as the obligation on the applicants to vacate the flat amounted to an interference with their right to respect for their home (see, for example, \u0106osi\u0107 v. Croatia,no.\u00a028261\/06, \u00a7\u00a018, 15\u00a0January 2009).<\/p>\n 27.\u00a0\u00a0The Court further notes that an eviction order would constitute a violation of Article\u00a08 of the Convention unless it is issued \u201cin accordance with the law\u201d, pursues one of the legitimate aims enumerated in Article\u00a08 \u00a7\u00a02, and can be regarded as \u201cnecessary in a democratic society\u201d. The expression \u201cin accordance with the law\u201d does not merely require that the impugned measure should have a basis in domestic law but also refers to the quality of the law in question. In particular, the law must be sufficiently clear in its terms and afford a measure of legal protection against arbitrary application (see, among other authorities, Kryvitska and Kryvitskyy, cited above,\u00a7\u00a7\u00a042-43). In addition to that, 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, \u00a7\u00a044 and Winterstein and Others v.\u00a0France, no.\u00a027013\/07, \u00a7\u00a7\u00a0148\u00a0(\u03b4) and 155, 17\u00a0October 2013).<\/p>\n 28.\u00a0\u00a0In the present case, the disputed eviction was ordered by the Lviv Regional Court of Appeal on the sole ground that the occupancy was devoid of legal basis ab initio in view of the fact that the State entity that owned the building had failed to document it properly (see paragraph\u00a010 above).<\/p>\n 29.\u00a0\u00a0The Court accepts in this regard that the eviction order was taken by a competent court at the close of adversary proceedings and had some basis in domestic law (see paragraph\u00a014 above).<\/p>\n 30.\u00a0\u00a0The Court also accepts the Government\u2019s argument that this measure pursued a legitimate aim within the meaning of Article 8\u00a0\u00a7\u00a02 of the Convention \u2013 specifically, the protection of the interests of military servicemen in need of temporary service-related accommodation.<\/p>\n 31.\u00a0\u00a0At the same time, the Court considers that the disputed order was not based on adequate reasons and was therefore not necessary in a democratic society.<\/p>\n 32.\u00a0\u00a0The Court notes in this respect that once the domestic judicial authorities decided that the occupation did not comply with the applicable legal regulations, they gave that aspect paramount importance, without weighing it up in any way against the applicants\u2019 arguments to the effect that this measure would place on them an excessive burden. Moreover, there has been no consideration given whatsoever to such questions as the time period of twelve years that had elapsed since the applicants had settled in the disputed flat together with the second applicant; the fact that the applicants had done everything that was required of them to have their tenancy duly registered with the competent authority and that during the entire period in question they had paid all the tenancy fees in good faith.<\/p>\n 33.\u00a0\u00a0The Court finds that the approach taken by the domestic courts is in itself problematic, as it amounts to a failure by them to assess the proportionality of the applicants\u2019 eviction (see, for instance, Yordanova and\u00a0Others v. Bulgaria, no. 25446\/06, \u00a7 123, 24 April 2012, and Winterstein and Others, cited above, \u00a7 156).<\/p>\n The Court notes in this respect the Government\u2019s argument (see paragraph 25 above) that any entitlement to temporary occupation of the accommodation in question had been closely linked with the second applicant\u2019s status as a serviceman and that that entitlement had been lost due to his discharge from the armed forces. The Court is prepared to accept in principle that that argument could have been important for the assessment of the matter of proportionality. However, it made no part of the reasoning of the domestic court which ordered the eviction (see paragraph 10 above). Therefore, the Government\u2019s arguments in this respect should be dismissed.<\/p>\n 34.\u00a0\u00a0The Court has already found violations of Article\u00a08 of the Convention in other cases where the applicants did not have the benefit, in the context of eviction proceedings, of an examination of the proportionality of the interference in question (see, among other authorities, McCann, cited above, \u00a7\u00a055; Kryvitska and Kryvitskyy, cited above, \u00a7\u00a7\u00a051-52; and Winterstein and Others, cited above, \u00a7\u00a7\u00a0158 and 167). It finds no reason to arrive at a different conclusion in the present case.<\/p>\n 35.\u00a0\u00a0The Court therefore concludes that there has been a violation of Article\u00a08 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6\u00a0\u00a7\u00a01 OF THE CONVENTION<\/p>\n 36.\u00a0\u00a0The applicants also complained that the courts had failed to analyse their central arguments \u2013 in particular, that they had been officially registered as tenants in the disputed flat for more than twelve years and that their eviction would seriously affect their private and family life. They relied on Article 6\u00a0\u00a7\u00a01 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 37.\u00a0\u00a0The Government contested these arguments.<\/p>\n 38.\u00a0\u00a0The Court notes that this complaint is linked to the applicants\u2019 complaint under Article\u00a08 and must therefore likewise be declared admissible.<\/p>\n 39.\u00a0\u00a0It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants\u2019 home is at the heart of their application. Regard being had to the reasons which served as a basis for finding a violation of Article 8 (see paragraphs\u00a031-33 above), the Court considers that it is not necessary to also examine the same facts under Article\u00a06 (see Kryvitska and Kryvitskyy, cited above, \u00a7\u00a056).<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 40.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 41.\u00a0\u00a0The applicants did not submit any claim for just satisfaction. Accordingly, the Court considers that there is no call for it to make any award.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Decides to strike out of the list the application inasmuch as it was lodged by the second applicant;<\/p>\n 2.\u00a0\u00a0Declaresthe complaints lodged by the first, third and fourth applicants admissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article\u00a08 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds that it is not necessary to examine separately the complaints lodged under Article 6\u00a0\u00a7\u00a01 of the Convention.<\/p>\n Done in English, and notified in writing on 17 May 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Andr\u00e9 Potocki FIFTH SECTION CASE OF SADOVYAK v. UKRAINE (Application no. 17365\/14) JUDGMENT STRASBOURG 17 May 2018 This judgment is final but it may be subject to editorial revision. In the case of Sadovyak v. Ukraine, The European Court of Human Rights…<\/p>\n
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n","protected":false},"excerpt":{"rendered":"