Communicated on 22 November 2017

FOURTH SECTION

Application no. 14031/09 Rayisa Mykhaylivna BRAYLOVSKA against Ukraine lodged on 17 February 2009

STATEMENT OF FACTS

The applicant, Ms Rayisa Mykhaylivna Braylovska , is a Ukrainian national who was born in 1938 and lives in Yalta.

A. The circumstances of the case

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

On 11 October 1997 the applicant purchased flat no. 2 at 1 Pushkinska Street in Yalta (“the Pushkinska flat”). It had one room and measured 37.5 sq. m. In summer, the applicant rented the flat out as it was located in the city centre next to the beach.

In the beginning of 2005 the majority of flats in the building in which the applicant ’ s flat was located were owned by JSC Zodiak-tsentr (hereinafter “the company”).

On 22 September 2005 the Executive Committee of the Yalta City Council (“the Committee”) held, on the basis of a report on the examination of the building at no. 1 Pushkinska Street, that the said building was under threat of collapse.

On 5 October 2005 the Yalta City Council (“the Council”) and the Committee concluded an agreement with the company which provided, inter alia , that the company would purchase a new flat to resettle the applicant from the dangerous building in exchange for granting to the company property title over the whole building, including the applicant ’ s flat. The Council and the Committee further undertook to authorise the company to demolish the building and to grant a construction permit to build a new one.

To comply with the above agreement, the company purchased flat no. 1 at 23 Sosnova Street (“the Sosnova flat”) in Yalta and transferred it into municipal ownership. The flat measured 57.7 sq. m., had two rooms and was located in an industrial area away from the city centre.

On 16 June 2007 the Council offered to resettle the applicant in the Sosnova flat as her new property. The applicant ignored the offer, providing no reason.

On 17 July 2007 the Committee instituted proceedings before the Yalta City Court, seeking the applicant ’ s eviction from the Pushkinska flat, annulation of her property right over that flat, her forced resettlement to the Sosnova flat and recognition of her property right over the latter.

On 4 October 2007 the Yalta City Court allowed the Council ’ s claim.

On an unspecified date the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) remitted the case for a fresh consideration to the first-instance court, having noted that the Council, which as at the time was the owner of the Sosnova flat, had not been involved as a party to the proceedings.

On 4 April 2008 the Council joined the proceedings and supported the Committee ’ s demands.

On 9 April 2008 the Yalta City Court found against the applicant. It annulled the applicant ’ s title to the Pushkinska flat, ordered her eviction therefrom and resettlement in the Sosnova flat as her new property. By the same decision, the court annulled the Council ’ s property right over the Sosnova flat. It noted, inter alia , that the building at no. 1 Pushkinska Street was under threat of collapse and that therefore, pursuant to the law, the applicant had to be evicted from her flat and provided with another one in the same city and in the appropriate conditions. The court established that the building was to be demolished, and not renovated as claimed by the applicant, and that therefore the applicant ’ s return to her flat was not possible. It further concluded that the applicant ’ s interests had been protected in full as the Sosnova flat constituted adequate compensation for the applicant in respect of the Pushkinska flat. It had more rooms and space than the Pushkinska flat, and was in an appropriate condition and in the same city. The court also noted that the market value of the Sosnova flat was higher than the starting price for the whole building on Pushkinska Street.

The applicant appealed, stating, inter alia , that “social need” was used as a fake reason to justify the unlawful deprivation of her property given that the title to her flat after her resettlement was to be given to another legal person, the company. Having further referred to governmental decree no. 189 of 26 April 1984, the applicant stated that the Council had acted ultra vires when it ordered the company to demolish the building as it was within the Regional Council ’ s ambit to decide whether a building should be demolished or restored. She also referred to the “General City-Development Plan”, adopted in 2006, according to which the building at no. 1 Pushkinska Street had to be rebuilt. The applicant alleged that the offered flat had not been of the same value as the Pushkinska flat and had not compensated her in full for her losses. She referred to the location of the Sosnova flat, the impossibility to profit from renting it out, and its poor general condition. In support, she provided an expert report, which stated that the building at no. 23 Sosnova Street was situated in a zone of active ground subsidence and that urgent and expensive construction work was necessary to prevent further damage. The applicant also disputed the fairness of the calculations used by the first-instance court, referring to the fact that, just before the building at no. 1 Pushkinska Street had been declared dangerous, the company had bought several flats from the applicant ’ s neighbours for very high prices.

On 17 June 2008 the Court of Appeal upheld the conclusions of the first-instance court. It reiterated that the building at issue was under threat of collapse and that in this situation the Housing Code clearly provided for the applicant ’ s eviction. It further noted that the Sosnova flat complied with the relevant requirements provided by the Housing Code and was even more spacious than the Pushkinska flat. Without addressing the applicant ’ s particular arguments raised in this connection in her appeal, the court concluded that the applicant had been compensated for the value of the Pushkinska flat in full.

On 18 August 2008 the Supreme Court of Ukraine rejected an application for leave to appeal on points of law from the applicant.

On 26 August 2008 the applicant and her son were evicted from the Pushkinska flat and the documents confirming their property right over the Sosnova flat were served.

The applicant unsuccessfully sought review of the case under newly discovered circumstances.

On 9 July 2009 the property right over the Pushkinska flat was transferred to the company.

B. Relevant domestic law

1. Constitution of Ukraine

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 the State 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

Article 110 of the Code provides that citizens shall be evicted from buildings belonging to the State if the buildings (residential premises) are under threat of collapse

Pursuant to Article 112 of the Code, in a case of eviction from buildings which are under threat of collapse, the executive committee of the local council shall provide the citizens with another well-furnished residence.

Article 113 of the Code sets out the requirements of the accommodation which shall be provided following eviction. The accommodation must be in the same town and in compliance with the requirements of Article 50 of the Code, that is to say it must be well-adapted to “the town conditions” (“ має бути благоустроєним стосовно до умов даного населеного пункту ” ) and meet sanitary and technical standards. Citizens that have been residing in a separate flat before eviction must be provided with a separate flat as well. The provided accommodation must not be smaller than that occupied before eviction.

3. Resolution of the Council of Ministers of the Union of Soviet Socialist Republics of 26 April 1984, no. 189

The relevant provisions of the Resolution provide that when it has been established that a building (residential premises) does not meet sanitary and technical requirements and is not suitable for living, the local council must submit to the regional council its proposal as to whether the building should be used for non-residential purposes or demolished. On the basis of the documents submitted by the local council, the regional council shall decide the fate of the building.

COMPLAINTS

The applicant complains under and Article 1 of Protocol No.1 to the Convention that she was unlawfully deprived of her property. She further alleges, under Article 6 § 1 of the Convention, that the trial in her case was not fair in that the domestic courts failed to address important arguments raised by her.

QUESTIONS TO THE PARTIES

1. Has the applicant been deprived of her flat in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?

2. If yes, was the applicant provided with adequate compensation for the loss of her property? In particular, did the flat provided to the applicant instead of the one she had been evicted from correspond to the real value of the latter?

3. 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 courts provide sufficient reasoning when depriving the applicant of her title to the flat and for their finding that the compensation provided to her in this connection had been adequate?