Communicated on 28 November 2019

FIFTH SECTION

Application no. 6578/12 Larysa Volodymyrivna BRAZHEVSKA against Ukraine lodged on 20 January 2012

STATEMENT OF FACTS

The applicant, Ms Larysa Volodymyrivna Brazhevska , is a Ukrainian national, who was born in 1951 and lives in Zhytomyr.

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

In January 2005 the applicant ’ s son, a military serviceman, perished on duty while participating in the peace-making mission in Iraq.

In June 2005 the applicant, her daughter and grandchild, who lived as one family in an old and dilapidated house, were placed on the waiting list for allocation of social housing managed by the Zhytomyr City Council ’ s Executive Committee (“Executive Committee”).

In July 2008 the applicant instituted administrative proceedings complaining that the Executive Committee had not yet proposed her any housing. She argued that the defendant had failed to fulfil its obligations under the Veterans Act, whose Section 15 § 15 gave her family an unconditional entitlement to be provided with social housing within two years of being placed on the waiting list, as they were considered the f amily of a perished veteran. On 24 February 2010 the Higher Administrative Court upheld the ruling of the Appeal Court, which had found that the proceedings fell within the jurisdiction of the civil courts.

In March 2010 the applicant instituted civil proceedings, having re ‑ lodged her claim with the Korolyovskyy District Court in Zhytomyr (“District Court”). The applicant did not provide a copy of her statement of claim to the Court. As appears from the applicant ’ s submissions made in the application form and from the summary of her position made by the District Co urt in its judgment of 19 April 2011 (see below) she argued before the District Court as follows. Firstly, her entitlement to social housing within two years of having been placed on the waiting list was unconditional and it was not open to the Executive Committee to cite lack of funds as the ground for not honouring its unconditional obligation under the law. Secondly, the Executive Committee, in fact, was mismanaging its waiting lists. According to her information, her family was included in the list of people, who had “priority” right to receive social housing within the meaning of Article 43 of the Housing Code, together with a large number of other families, whose entitlements stemmed from a variety of legal provisions. In the applicant ’ s opinion, her family should have instead been added to a separate special list of persons entitled to receive housing “out-of-turn”, in accordance with Article 46 of the Housing Code. According to the applicant ’ s information, between 2005 and 2008 the defendant authority had obtained sufficient funding for allocating housing to all the persons, who, like herself, had right to receive it “out-of-turn”.

The Executive Committee contested the applicant ’ s allegations. It informed the District Court that the applicant ’ s family was no. 294 in its priority waiting list comprised of persons entitled to allocation of the housing under various legal provisions concerning social protection of the military and their families. A special State programme had been put in place to fund acquisition of the housing for persons on this waiting list. However, the funding received by the municipalit y within this programme in 2005 ‑ 2008 was insufficient to meet the existing demand. It had allowed acquiring fifty flats only. They had been distributed to the first families in line, whose full list was made available by the defendant to the court. It appeared from this list that the impugned families had been either the families of disabled or perished veterans, like the applicant, or the families of retired military personnel, who had been placed on the waiting list between 1986 and 1990. The defendant also noted that the next family in line to receive the housing had been on the pr iority list since 1991 and that in 2009-2010 no flats had been distributed, as no funding had been allocated within the aforementioned special State programme.

On 19 April 2011 the District Court allowed the applicant ’ s claim, ordering the Executive Committee to provide her family with social housing as soon as possible and awarding her 5,000 Ukrainian hryvnias in moral damages for the defendant ’ s failure to do so earlier. It held, in particular, that under Section 15 § 15 of the Veterans Act the applicant was unconditionally entitled to obtain social housing within two years of having been placed on the waiting list. The defendant had failed to act in discharging its obligation in the applicant ’ s respect, as lack of funds did not relieve a State authority from a duty to honour an obligation established by law. The court also agreed with the applicant that the Executive Committee had incorrectly managed its waiting lists. It found that the applicant ’ s family had to be placed on the list of persons entitled to be provided with housing “out-of-turn” rather than being included in the “priority” waiting list. Only twenty-four other families from the priority waiting list had the same entitlement, including eighteen families of disabled veterans and six families of perished veterans placed on the waiting list prior to the applicant ’ s family. The applicant ’ s correct number in line as of June 2005 should have therefore been twenty-five. Had she been attributed this correct place in the list, her family should and could have already been provided with a flat under the special State programme, which had funded acquisition of fifty flats in 2005-2008.

The defendant appealed.

On 13 October 2011 the Zhytomyr Regional Court of Appeal allowed this appeal and rejected the applicant ’ s claim. The reasoning part of the judgment read as follows:

“... On 9 June 2005 the applicant and her family of three persons were placed on the Executive Committee ’ s priority housing waiting list, which included disabled war veterans and other citizens having equal standing under the law ... As of 1 January 20 08 her number [in the list] was 294. Among the families of the military personnel, who perished on duty, ... the claimant is currently number six. Preceding her in the same category are the families eligible to the same special entitlements as herself, who had been placed on the list of persons in need of improved housing before [the applicant] (on 17 October 1991, 28 January 1993, 23 September 2004, 23 December 2004 [and] 14 April 2005).

In view of the above, allocation of the housing to [the applicant] before allocating it to the persons, who are in the same list as the plaintiff, and who have the right to be provided with the housing out-of-turn and are in line before her, shall breach the rights of the indicated persons, which is inadmissible.”

The applicant appealed on points of law arguing that the District Court ’ s judgment had been correct.

On 1 December 2011 the Higher Specialised Court in Civil and Criminal Cases rejected the applicant ’ s request for leave to appeal in cassation.

1. Housing Code (1983)

Relevant provisions of the Code, as worded at the material time, read as follows:

Article 43. Sequence of allocating [social] housing to the citizens

“Allocation of [social] housing to the citizens included in the list of persons in need of better housing shall take place according to the order established by the waiting list.

...

From among the persons included in the list of persons in need of better housing, there shall be formed lists of persons, who have priority right to be allocated with the housing.

Sequence of allocation of the housing shall be determined depending on the chronology of placement on the waiting list ([or] placement on the priority waiting list).”

Article 46. Allocation of [social] housing out-of-turn

“[Social] Housing shall be allocated out-of-turn to:

- persons disabled in the World War II and persons recognised as falling in the same category in accordance to the established procedure within two years of the date of the decision on their inclusion into the list of persons entitled to out-of-turn housing allocation ... before any other category of persons entitled to allocation of housing out-of-turn;

... ”

2. Law of Ukraine “On the Status of war veterans, guarantees of their social protect ion” no. 3551-XII of 22 October 1993 (The Veterans Act)

Relevant provisions of the Act, as worded at the material time, read as follows:

Section 10 . Persons covered by the present Act

“Coverage of the present Act concerns:

1) families of military servicemen, ... participants of combat actions in the territory of other States ..., who perished ... on duty ... ; ”

Section 15. Special entitlements of the persons covered by the present Act

“Persons covered by the present Act (see Section 10) shall be eligible to the following special entitlements:

...

15) allocation of housing out-of-turn to persons in need of better housing, including by allocation of the housing, which is being transferred to the municipal councils and State administrations by the ministries, other central executive authorities, enterprises and organisations. Persons referred to in this section shall be provided with the housing within two years of the day of their placement on the list of persons in need of better housing. ... ”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the Appeal and Higher Courts failed to provide an adequate response to the essential arguments raised in her submissions.

The applicant also complains under Article 1 of Protocol No. 1 that the failure of the State authorities to provide her family with social housing within the two-year period established by law was in breach of her right to the peaceful enjoyment of possessions.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts provide an adequate and conclusive response to her complaints including the allegedly incorrect management of the waiting lists by the municipal authority?

The Parties are requested to provide copies of the applicant ’ s statement of claim and appeal on points of law.

2. Did the applicant ’ s right under domestic law to be provided with social housing within two years of having been placed on a waiting list constitute an asset attracting the guarantees of Article 1 of Protocol No. 1?

If so, did failure of the State authorities to provide her with the housing within this timeframe amount to a breach of her right to peaceful enjoyment of possessions within the meaning of this provision ?