Information Note on the Court’s case-law 200

October 2016

Irina Smirnova v. Ukraine - 1870/05

Judgment 13.10.2016 [Section V]

Article 8

Positive obligations

Article 8-1

Respect for home

Lack of appropriate legal framework to protect occupant of flat from harassment by co-owners: violation

Facts – The applicant, an elderly woman, lived in a one-bedroomed flat that had been her home for many years and which she had recently acquired in equal shares with her adult son under a privatisation scheme. Her son gave his share in the flat to a third party, V.S., who in company with another man, A.N., began to insult, harass and physically assault the applicant and damage her belongings in an attempt to force her to sell her share in the property. Fearing for her safety, the applicant eventually moved out. Her attempts to recover full possession of the flat through the civil courts were unsuccessful as under Ukrainian law her son had not been required to obtain her consent before entering into the deed of gift in favour of V.S. and a co-owner could not be dispossessed on the grounds on which the applicant relied (unlawful conduct, unsuitability of the flat for joint use and refusal to share in the costs of maintenance). The applicant also made a number of complaints to the police. V.S. and A.N. were convicted of extortion and given prison terms some ten years after her first complaint.

Law

Article 3: The repeated and premedi tated nature of the verbal attacks to which the applicant was subjected coupled with the incidents of physical violence by a group of men against a single senior woman reached the threshold of severity required to come within the ambit of Article 3 and eng aged the State’s positive duty to set in motion the protective legislative and administrative framework. Although the principal offenders were prosecuted and sentenced to significant prison terms, it nonetheless took the State authorities over twelve years to resolve the matter. In view of the extreme delays in instituting and conducting the criminal proceedings, the State had failed to discharge its positive obligation under Article 3.

Conclusion : violation (unanimously).

Article 8: Under this provision the applicant complained that she had been obliged to tolerate the presence inside her home of persons foreign to her household and their disagreeable, but essentially non-criminal conduct, including discourteous use of the flat and the applicant’s belongings, spoliation of the amenities, and noise and other nuisance.

The Court found that the criminal proceedings in which V.S. and A.N. were ordered to pay compensation and were divested of their share in the flat eventually r edressed these aspects of the applicant’s complaint. However, because of the extreme delays in the proceedings the applicant’s rights under Article 8 had been set at naught for a very considerable period.

As to whether the respondent State had an adequate non-criminal legal framework in place providing the applicant with an acceptable level of protection against the intrusions on her privacy and enjoyment of her home, the Court observed that sharing one’s home with uninvited strangers, regardless of how se nsibly they behave, creates very important implications for a person’s privacy and other interests protected by Article 8. Accordingly, where a member State adopts a legal framework obliging private individuals to share their home with persons foreign to t heir household, it must put in place thorough regulations and necessary procedural safeguards to enable all the parties concerned to protect their Convention interests.

In the instant case, however, Ukrainian law had not afforded the applicant any meaningf ul forum in which to (i) object against cohabitation with A.N., V.S. and their acquaintances on the ground that such cohabitation created disproportionate consequences for her rights guaranteed by Article 8 of the Convention and (ii) obtain appropriate and expeditious protection against unwanted intrusions into her personal space and home, including, if necessary, by way of an injunction.

While the Court was prepared to accept that civil remedies such as an action for damages, a demand to cease and desist f rom interfering with enjoyment of another’s possessions, or an action for establishing the rules of use of an object of shared property could be helpful in a situation where lawful cohabitants need to settle specific disagreements concerning the use of a c ommon flat, the situation in the present case was much less trivial. The applicant’s complaint was that her flat was not suitable for use by more than one family and that V.S. and A.N., had entered it by breaking in and taking possession of it against her will. The Government had not shown how the aforementioned remedies could address and redress the core of the above complaint.

Conclusion : violation (unanimously).

Article 41: EUR 4,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also, mutatis mutandis , McCann v. the United Kingdom , 19009/04, 13 May 2008, Information Note 108 ; Ćosić v. Croatia , 28261/06, 15 January 2009, Information Note 115 ; and B. v. the Republic of Moldova , 61382/09 , 16 July 2013)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes