Communicated on 5 July 2019

FIFTH SECTION

Application no. 45368/12 Svitlana Oleksandrivna MARCHENKO against Ukraine lodged on 12 July 2012

STATEMENT OF FACTS

The applicant, Ms Svitlana Oleksandrivna Marchenko , is a Ukrainian national, who was born in 1976 and lives in Boryspil .

A. The circumstances of the case

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

In May 1999 Y.M. (the applicant ’ s future husband) and O.M. (his adult daughter from a previous marriage) were allocated protected tenancy of a municipally owned flat.

In 2006 Y.M. instituted proceedings alleging that O.M. had never moved into the flat having chosen to remain living with her mother, and that she should therefore be declared to have lost her protected tenancy.

On 30 October 2006 the Golosiyivskyy District Court (“District Court”) heard the case in O.M. ’ s absence and issued a default judgment against her.

On 26 December 2006 O.M was unregistered as a flat resident.

In January 2007 the applicant, who had recently married Y.M., registered her residence in the above flat as protected tenant ’ s new family member.

On 1 July 2007 the couple ’ s daughter, Sabrina, was born. She was likewise registered in the same flat, as protected tenant ’ s family member.

On 9 June 2008 the District Court annulled its default judgment against O.M. upon her appeal, having found that she had not been properly informed about the proceedings against her and the case was remitted for a fresh consideration.

In March 2009 Y.M. died and the applicant replaced him in the proceedings.

On an unspecified date O.M. lodged a counter-claim, seeking to evict the applicant and her daughter arguing that her consent had not been sought for them to move in. She submitted that her non-residence in the flat had been temporary and involuntary, because her late father had abused alcohol and created intolerable living conditions.

After several rounds of pr oceedings, on 21 December 2010 the District Court found that O.M. had good reasons not to live in the disputed flat; her absence having been temporary, she had not lost her right to occupy it. In view of this, under Article 65 of the Housing Code, her consent had to be sought for the applicant to move in. As none had been given, the applicant ’ s tenancy registration had been unlawful and she had not acquired any right to keep the flat after Y.M. ’ s death. However, Sabrina ’ s residence was regular, because under the same provision Y.M. had the right to register his minor child in the flat without anyone ’ s consent. Therefore, Sabrina had acquired a lawful and independent right to remain in the flat as protected tenant after his death and could not be evicted. In view of this, the applicant could likewise not be evicted, as Sabrina was a minor and the applicant, as her only remaining parent, needed to take care of her.

Both parties appealed.

On 5 October 2011 the Kyiv Court of Appeal agreed with the District Court that both, Sabrina and O.M., had a right to occupy the disputed flat. It however decided that Sabrina ’ s right to remain in the flat had no bearing on the applicant ’ s right to remain. As she had settled in the flat without O.M. ’ s consent in breach of applicable law, there was no legal basis for her to reside there after Y.M. ’ s death. Accordingly, she had to be evicted.

The applicant appealed in cassation on her own and her daughter ’ s behalf. She argued that she had lawfully established her home in the disputed flat and had her residence duly registered with the consent of Y.M., its only tenant at the material time, de jure and de facto ; and that she had regularly paid applicable charges and maintenance fees. O.M., on the contrary, had never made any attempts to establish her home in the disputed flat during her father ’ s life and had not raised any complaints with the authorities concerning his conduct, which showed that her choice to live at her mother ’ s place was deliberate. She had also not taken part in any rental, maintenance or other payments. In the applicant ’ s view, O.M. also did not intend to establish her home in the disputed flat after her father ’ s death and needed it only as a pecuniary asset, which could be privatised and sold. She alleged that O.M. was in need of money to repay her numerous loans, as was evident from official correspondence in O.M. ’ s name, which kept coming to the flat ’ s address as her registered residence. Finally, the applicant submitted that for years the disputed flat was her only home and that her eviction would adversely affect her ability to provide care to Sabrina and contradict the child ’ s interests.

On 6 February 2012 the Higher Specialised Court upheld the judgment of the Appeal Court.

B. Relevant domestic law

Article 65 of the Housing Code of Ukraine (1983), insofar as relevant, reads as follows:

“A tenant may settle his spouse, children, parents, as well as other persons in the residential premises he/she occupies, according to the established procedure [and] upon written consent of all family members, who live with him/her. Such consent is not necessary for settling minor children with their parents.

Persons, who settled in the residential premises as tenant ’ s family members, shall acquire equal with other family members right to us e the residential premises ... ”

COMPLAINT

The applicant complains under Article 8 of the Convention that the court ’ s decision to evict her was neither lawful, nor fair and that it was taken in violation of her and her minor daughter ’ s right to respect for their private and family life.

QUESTION TO THE PARTIES

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