Communicated on 8 July 2019

FIFTH SECTION

Application no. 30698/10 Oksana Mykolayivna VOLKOVA against Ukraine lodged on 20 May 2010

STATEMENT OF FACTS

The applicant, Ms Oksana Mykolayivna Volkova , is a Ukrainian national, who was born in 1974 and lives in Rivne.

A. The circumstances of the case

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

On an unspecified date the applicant and her parents were allocated a social flat in K. street as protected tenants. The flat measured 61 square meters in total and consisted of three rooms measuring nine, twelve and eighteen meters respectively.

In 1995 the applicant ’ s family was granted ownership of this flat, in equal shares to each of its three members, within the framework of the national program for converting public housing stock into private property.

On unspecified dates the applicant married S.V. and moved out from the aforementioned flat.

According to the applicant, their family established their home in unspecified rented accommodation.

In 2003 the couple had a son, and in 2005 a daughter.

In December 2005 the applicant instituted proceedings against her parents, seeking to divide “in-kind” their shares in the K.-street flat.

On 17 November 2006 the Rivne Court designated a 12-square-metre room as the applicant ’ s in-kind share and the two remaining rooms as her parents ’ share. It further decided that the common areas (kitchen, sanitary rooms and the corridor) could not be meaningfully divided and should remain in undivided ownership.

This judgment having become final, on an unspecified date the applicant opened a separate account for the payment of applicable charges and fees and declared herself, her husband and children as residents in the above flat to the registration authorities. However, the family in fact did not move into the flat. According to the applicant, her parents prevented them from doing so. In particular, they refused to clear her room from their belongings and to provide her with the keys to the flat.

On an unspecified date the applicant instituted a second set of proceedings against her parents, complaining about interference with her property right for K.-street flat.

On 10 July 2006 the applicant supplemented her initial statement of claim, seeking a court order enjoining her parents from interfering with the use of her share in the flat also by “any future owners or tenants”.

In court, the applicant ’ s parents argued that they were not preventing the applicant from using her room. However, in view of highly inimical relationship between them and S.V., they strongly opposed his installation in the flat and considered co-habitation with him intolerable.

On 20 November 2007 the court allowed the applicant ’ s claim. It obliged the applicant ’ s parents to give her a set of keys to the flat and vacate the room allocated to her in-kind from their belongings.

On several occasions, in the presence of a State bailiff, the applicant ’ s parents refused to provide a set of keys.

In March 2008 the applicant instituted a third set of proceedings against her parents, seeking to obtain an express court order validating the installation of herself, her husband and children in the room she owned in the disputed flat.

On 29 July 2008 the Rivne Court allowed this claim, referring to Article 383 of the Civil Code.

The applicant ’ s parents appealed. They submitted that the applicant and S.V. had no genuine intention to establish their home in the disputed room. They noted that S.V. had owned a flat in Ch. street , which he had recently disposed of in favour of his minor son (apparently from a previous relationship), in order to create an appearance that he had no home. The applicant herself had other housing available to her at Kr. street . In the applicant ’ s parents ’ view, the couple was scheming against them with a view to obtaining, in future, pecuniary benefits from the disputed room, rather than living in it. They argued that this could be seen from the applicant ’ s additional statement of claim of 10 July 2006, in which she had sought to enjoin her parents from interfering with the use of her share in the flat not only by themselves , but also by any “future owners or tenants.”

On 11 November 2008 the Rivne Regional Court of Appeal quashed the first-instance ’ s court ’ s judgment to the extent that S.V. ’ s rights were concerned. It noted, in particular, that, as the applicant owned the room, she could not be prevented by law from using it as her own or her minor children ’ s residence. However, as the common areas were co-owned by her parents, forcing them to tolerate the presence of S.V., another adult, in these premises against their will would unduly encroach upon their rights.

The applicant appealed on points of law, alleging, in particular, that the Appeal Court ’ s judgment amounted to an interference with her family life, as it did not allow her husband to establish his home with herself and their common children. She also submitted that they had no other residence.

On 10 March 2010 the Supreme Court rejected the applicant ’ s appeal. It referred, in particular, to Article 156 of the Housing Code, which established that an adult person could install himself/herself in a flat only if the owner of the premises gave consent and to Article 358 of the Civil Code, stipulating that co-owned property had to be managed on the basis of consensus between the co-owners. The court concluded that in view of these provisions and the strong opposition of the applicant ’ s parents against co-habiting with S.V., the Appeal Court had properly rejected the applicant ’ s demand in his respect. More so, S.V. himself had not taken part in the proceedings and had not expressed his intention to install himself in the disputed room.

Subsequently, S.V. instituted a separate set of proceedings seeking to assert his right to reside in the applicant ’ s room in the flat at K. street . His claims were rejected in three instances with reference to the opposition from the applicant ’ s parents.

On 15 November 2012 the Rivne Court allowed the applicant ’ s parents ’ demand to de-register S.V. as a resident in the K.-street flat on the ground that, de-facto , he was not residing there and had no legal right to install himself. S.V. ’ s appeals were dismissed by the courts at two higher instances.

According to the applicant, her family lives in rented accommodation costing them 200 euros a month.

B. Relevant domestic law

1. Civil Code of Ukraine (2004)

Relevant provisions of the Code read as follows:

Article 358. Exercise of the right of co- ownership with defin ed shares

“ 1. Right of co- ownership with defined shares shall be exercised by the co-owners on the consensual basis.

2. Co-owners may establish a set of rules concerning possession and use of the effects , which are in their co-ownership with defined shares.

3. Each of the co-owners shall be entitled to be allocated for his/her possession and use that part of co-owned effects in-kind, which is equivalent to his/her share in the right of co-ownership with defined shares. In the event that it would be impossible, he/she shall be entitled to demand the corresponding pecuniary compensation from other co-owners, who possess and use the shared property. ...”

Article 383. Rights of the owner of a residential house [or] flat

“ 1. Owner of a residential house [or] a flat shall be entitle d to use the premises for his/her own habitation, habitation of the members of his /her family, other persons and shall not have the right to use them for industrial production. ...”

2. Housing Code of Ukraine (1983)

Article 156 of the Code, insofar as relevant, reads as follows:

“... Upon consent of the owner of the house (flat), a member of his/her family shall be entitled to install other family members in the residential premises occupied by him/her. No such consent of the owner is necessary for installing minor children with their parents.”

COMPLAINTS

The applicant complains under Articles 8 and 13 of the Convention that she was prohibited from installing her husband in the flat, of which she is a co-owner, and that the available domestic remedies proved to be ineffective.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for her private, family life and/or home, contrary to Article 8 of the Convention?

2. Did the applicant have at her disposal an effective remedy for her complaint under Article 8 of the Convention, as required by Article 13 of the Convention?