FIFTH SECTION

DECISION

Application no . 74113/10 Alla Pylypivna IVANOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 September 2015 as a Committee composed of:

André Potocki, President, Ganna Yudkivska, Síofra O ’ Leary, judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 5 December 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Alla Pylypivna Ivanova, is a Ukrainian national, who was born in 1960 and lives in Kyiv. She was represented before the Court by Ms I.D. Potyey, a lawyer practising in Donetsk.

The Ukrainian Government (“the Government”) were represented by their Acting Agent, Mrs Olga Davydchuk.

A. The circumstances of the case

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

1. Background of the case

In 1993 the applicant, then a civil servant with the Department of Justice, was allocated a room in the municipal dormitory for public servants located at V. street in Donetsk.

In March 1996 the applicant became a judge of a district court in Donetsk.

On an unspecified date the Municipal Company for the Maintenance of Administrative Buildings (“the Maintenance Company”) requested the applicant to vacate the dormitory as its re construction envisaged in the urban development plan for 2007 w as to be carried out. The applicant refused to move out.

In May 2007 the Maintenance Company started reconstruction works.

On 13 September and 19 November 2007 a letter was handed to the applicant offering her to occupy a room of 12 square metres in a dormitory at K. street instead of the one where she lived. According to the Government, the applicant did not respond to the offer.

2. Eviction proceedings

On 16 November 2007 the Maintenance Company instituted civil proceedings against the applicant seeking her eviction (“the eviction proceedings”). It argued, in particular, that having terminated her service for the Department of Justice in 1996, the applicant was no longer entitled to accommodation in a dormitory for public servants.

The applicant contested this claim and stated that she had not lost her entitlement as she had become a judge and thus remained in public service.

In January 2008 the Maintenance Company offered the applicant a choice between two rooms in K. and M. streets dormitories of 12 and 17.3 square metres respectively. The applicant refused both offers.

In February 2008 the Maintenance Company modified its initial claim and sought the applicant ’ s resettlement in another municipal dormitory located at M. street pending reconstruction of the V. street dormitory .

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

The applicant appealed against the above decision and stated in particular that the Maintenance Company had no proper permit to conduct the renovation works. She also submitted that the court ’ s findings concerning suitability of the M. street dormitory for her resettlement were speculative. She argued, i nter alia , that that dormitory also featured in the 2007 urban development plan and was to be converted into a guest house.

On 14 April 2009 the Donetsk Regional Court of Appeal modified the judgment of 29 October 2008. It agreed that the applicant ’ s relocation was necessary for her own safety in view of the danger caused by the reconstruction works. On the other hand, the court found that it was not certain that the applicant would be unable to return to her dormitory upon completion of the works. The court thus ordered that the applicant would be only temporarily relocated to the M. street dormitory until the completion of the works.

The applicant appealed in cassation and requested suspension of the relevant enforcement proceedings pending examination of the case in cassation. She suggested that in the absence of proper and comprehensive documents concerning the scope of the reconstruction works it was not clear whether her room would remain in existence following the reconstruction and whether the building would be suitable for permanent occupation as kitchens and other auxiliary premises had already been reconfigured for other use.

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

On unspecified date the applicant lodged an appeal for extraordinary review of the case by the Supreme Court.

In the meantime, on 21 July 2009, the bailiff moved the applicant ’ s personal belongings from the V. to the K. street dormitory to enforce the judgment of 14 April 2009.

On 22 July 2009 the Supreme Court accepted the applicant ’ s request for extraordinary review and ordered suspension of the relevant enforcement proceedings.

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

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

On 12 March 2012 the Kyivsky District Court of Donetsk discontinued the eviction proceedings because of the Maintenance Company ’ s repeated failure to appear at the hearings. It follows from the case file that this decision was not appealed against by the parties to the proceedings.

3. Proceedings on revocation of the r econstruction permit

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

On 16 February 2010 the applicant challenged this permit before the Donetsk District Administrative Court (“the Administrative Court”), seeking its revocation (“the permit revocation proceedings”). She grounded her claim, inter alia , on the fact that the proceedings concerning her eviction from the building at issue had been pending. Pending the outcome of the permit revocation proceedings, the applicant requested an injunction suspending the works.

On 19 February 2010 the Administrative Court allowed the injunction request and prohibited the construction works pending the outcome of the proceedings. On 12 March 2010 it allowed the Maintenance Company ’ s petition and withdrew the injunction in view of the risk of destruction of the building. The applicant ’ s appeal against this decision was dismissed as groundless.

On 22 March 2010 the Administrative Court rejected the applicant ’ s claims concerning the permit revocation. The applicant appealed against this decision and requested the Donetsk Administrative Court of Appeal to issue an injunction suspending the works . It is not clear from the case file if this request was allowed.

On 3 June 2010 the Donetsk Administrative Court of Appeal upheld the judgment of 22 March 2010 and rejected the applicant ’ s claim.

On 6 October 2010 the High Administrative Court of Ukraine quashed the above judgment and remitted the case for a fresh consideration. It noted, in particular, that lower courts had failed to examine in detail whether carrying out the reconstruction works was compatible with the applicant ’ s continuous occupation of the V. street dormitory and, if not, whether it was lawful to issue the reconstruction permit before deciding on the applicant ’ s resettlement. The High Administrative Court instructed the trial court to suspend the reconstruction works pending the outcome of the proceedings, if need be, and to verify whether in the circumstances of the case the works were carried out by the defendant intentionally in order to drive the applicant out of her home in breach of the domestic law.

On 9 December 2010 the Administrative Court rejected the applicant ’ s request for suspension of the construction work pending the outcome of the proceedings.

On 24 December 2010 the Administrative Court rejected the applicant ’ s claim. It noted, in particular, that the Maintenance Company had taken numerous steps to protect the applicant ’ s housing rights, including several options for provisional accommodation. The Administrative Court noted the applicant ’ s failure to respond to those offers. It further stressed that 80% of the reconstruction works were completed and that revocation of the permit would serve little benefit, all the more so that the defendant had reassured the court that the applicant would be provided with a dwelling in the reconstructed building. The Administrative Court also found that the applicant ’ s reference to the ongoing eviction proceedings was irrelevant for the proceedings at issue. The applicant appealed against this judgment.

On 4 February 2011 the Donetsk Administrative Court of Appeal ordered suspension of the works pending examination of the applicant ’ s claim but the order was allegedly not complied with.

On 14 June 2011 the Donetsk Administrative Court of Appeal quashed the judgment of 24 December 2010, revoked the reconstruction permit and lifted the injunction measures. It particularly stated that the document proving the Maintenance Company ’ s right to use the land on which the V. dormitory was located had been declared invalid by a court judgment of 13 April 2011 and that this very fact sufficed to find the issue of the reconstruction permit to be groundless. Issuing the permit affected the applicant ’ s right to home as she should have been provided with other premises first, and the authorities ’ failure to settle this particular problem was the actual reason which led to the dispute at issue.

This judgment was appealed against to the High Administrative Court. The outcome, if any, of these proceedings is unknown.

The case file indicates that at the end of 2013 the applicant resided in the contested dormitory and the reconstruction works were under way. According to the applicant, due to reconfiguration of the rooms, she was unable to use the kitchen and had no sanitary facilities in her room. The Government submitted that the works were completed by 98% and all utilities, including gas, heating and electricity supply, were operating.

In early 2015 the applicant left the Eastern Ukraine due to the armed conflict.

B. Relevant domestic law

1. Constitution of Ukraine

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 otherwise than on the basis of the law pursuant to a court decision.”

2. Housing Code of 1983

The relevant provisions of the Housing Code are as follows:

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

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

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

...

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

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

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

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

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

... ”

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

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

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

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

Article 132. Eviction from dormitories

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

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

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

...

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

COMPLAINTS

The applicant complained that from 2007 to 2012 her right to respect for her home was breached and her life was endangered by unlawful reconstruction works in V. street dormitory and the authorities ’ attempts to divest her of her only home which she had lawfully occupied. She further stated that she had no effective remedies in respect of the above complaints as judicial authorities had failed to protect her rights. The applicant invoked Articles 3 , 6, 8 and 13 of the Convention in this respect.

THE LAW

1. The Court notes that the applicant ’ s complaints are in substance two ‑ fold: (i) risk of being unlawfully evicted, and (ii) unlawful reconstruction of the dormitory which created inappropriate and dangerous living conditions.

The Court, which is master of the characterization to be given in law to the facts of the case, will examine these complaints under Article 8 of the Convention, which reads in so far as relevant as follows:

Article 8

“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.”

The Government did not comment on the merits of the applicant ’ s complaint s but raised an objection as to exhaustion of domestic remedies. They argued, in particular, that be ing appointed a judge in 1996, the applicant was entitled to an apartment but failed to lodge the relevant application to the authorities as required by the domestic law.

The applicant did not submit any comments in reply.

The Court does not consider it necessary to examine the Government ’ s objection given that this part of the application is in any event inadmissible for the following reasons.

As regards the applicant ’ s complaint about the risk of unlawful eviction, the Court notes that the final court decision by which the applicant ’ s eviction was ordered was quashed by the Supreme Court following extra - ordinary review of the case. T he eviction proceedings were eventually discontinued by the first-instance court because of the Maintenance Company ’ s failure to appear. Thus, the applicant ’ s right to reside in the premises at issue remained unaffected and the case file, in fact, suggests that the applicant reside d there until early 2015, when she had to leave Donetsk because of armed conflict in the region .

To the extent that the applicant complained that she had been forced to live in unacceptable conditions caused by allegedly unlawful reconstruction of the dormitory, the Court observes that s hortly after the reconstruction works commenced, the authorities made a number of steps to re settle the applicant into another dormitory for the time of the reconstruction, but she appears to have refuse d the offers . In any event, the applicant provided no information as to the outcome of the relevant proceedings initiated by her in 2009 .

Accordingly, the Court finds that this part of the application must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained that she had no remedies to protect her right to respect for home. She relied on Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court, having declared the relevant complaint under Article 8 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention (see Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, § 82, 27 May 2008). It follows that the applicant ’ s complaint under Article 13 of the Convention must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 October 2015 .

Milan Blaško André Potocki Deputy Registrar President