Communicated on 19 June 2017

FOURTH SECTION

Application no. 30854/09 Olena Sylvestrivna SHEVCHUK against Ukraine lodged on 6 June 2009

STATEMENT OF FACTS

The applicant, Ms Olena Sylvestrivna Shevchuk , is a Ukrainian national who was born in 1953 and lives in Kamyanka in the Chernihiv Region.

A. The circumstances of the case

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

The applicant alleges that she cohabited with a certain V.G. as an unregistered life partner in his flat from 1985 until V.G. ’ s death in 2005. Initially, the flat belonged to the municipality but V.G. privatised it in 1993 and obtained an ownership certificate, which was in his name only. On an unspecified date V.G. drew up a will, bequeathing the flat to his grandson, A.G. The applicant was allegedly unaware of either act prior to V.G. ’ s death. She was registered at the time as residing at a different address in another village. V.G. died in July 2005.

The applicant brought a claim against A.G., represented by his father (the deceased ’ s son) and the privatisation authorities, seeking a declaration that she, as a member of the deceased ’ s family who had permanently resided in the flat prior to his death, retained the right to a protected tenancy in respect of the flat. She sought on those grounds to invalidate the flat ’ s privatisation and its transfer to A.G.

On 10 November 2006 the first-instance court rejected the applicant ’ s claim as unsubstantiated. It held that there was proof that the applicant had lived in the flat prior to V.G. ’ s death, but that that had been on a temporary basis, without a right to a protected tenancy.

On 25 January 2007 the Chernihiv Regional Court of Appeal overruled the judgment and allowed the applicant ’ s claim. It held that it had been proven that the applicant had cohabited with V.G. from 1985 to his death and had been a member of his family within the meaning of Article 64 § 2 of the Housing Code, having a right to a protected tenancy in the flat within the meaning of Article 64 § 1 of the Code (see “Relevant domestic law” below). The Court of Appeal held that the evidence showed that the applicant had lived in the flat for twenty years, which meant that the first-instance court ’ s interpretation of her as living there on a temporary basis had been erroneous. The Court of Appeal held that the fact that at the material time the applicant had been registered as residing at a different address did not constitute conclusive evidence which precluded a finding that she was a member of the deceased ’ s family and had cohabited with him.

On 10 October 2007 a three-judge panel of the Supreme Court, sitting as a court of cassation, rejected appeals by the defendants and a prosecutor and upheld the Court of Appeal ’ s judgment. It found that there was no sign of any error that justified quashing the decision.

According to the applicant, she obtained an ownership certificate for the flat in her name following the Supreme Court ’ s decision of 10 October 2007. The certificate was set aside later, once the Supreme Court decision had been quashed in extraordinary review proceedings (see below).

On an unspecified date the defendant, A.G., represented by his father, lodged an appeal for an extraordinary review of the 10 October 2007 decision in the light of “exceptional circumstances”. He argued that the impugned decision had led to a divergent application of the Supreme Court ’ s case-law. The applicant alleges that she was not informed of that appeal or of its examination by the Supreme Court.

On 25 December 2008 the Civil Chamber of the Supreme Court allowed the extraordinary appeal, quashed the Supreme Court panel ’ s decision of 10 October 2007 and the appellate decision of 25 January 2007 and upheld the first-instance court ’ s judgment. By way of reasoning, it held that the decisions in the applicant ’ s case had led to divergences in its case-law, referring to a case originating in Kyiv, which had also concerned a plaintiff seeking to invalidate the privatisation of a flat. In that case, a Supreme Court panel had held that a plaintiff registered as residing at a different address at the time of privatisation could not be considered as having acquired a right to a protected tenancy of a flat where he or she was not registered. The Civil Chamber held that the position taken by the Supreme Court panel in that case had been correct while the one taken in the applicant ’ s case had been wrong. The Chamber did not name the parties in the Kyiv case, or the date, the number of the decision or other information to allow for a more precise identification. The Civil Chamber found that the Chernihiv Regional Court of Appeal had misinterpreted the evidence as showing that the applicant had resided in the flat: it had only proved that she had lived there temporarily, not as a member of the deceased ’ s family entitled to a protected tenancy. The fact that she had not challenged the privatisation of the flat while V.G. had been alive also showed that her claim was unsubstantiated.

A.G., acting through his father, initiated eviction proceedings against the applicant following the Civil Chamber ’ s decision of 25 December 2008. On 30 March 2011 the Higher Specialised Civil and Criminal Court, in a final decision, upheld a lower court decision allowing the eviction claim. The judgment was enforced on an unspecified date and the applicant was evicted.

B. Relevant domestic law

1. Civil Code of 2004

At the material time Article 354 of the Code provided that judicial decisions in civil cases which had been dealt with in cassation could be reviewed in the light of exceptional circumstances on the grounds that they had resulted from a divergent application of the law by the courts of cassation.

2. Housing Code of 1983

Article 64 § 1 of the Code provides that the family of a tenant in publicly owned housing enjoy the same rights as the main tenant. Article 64 § 2 classifies the tenant ’ s spouse (in a registered civil marriage), children and parents as family members but provides that other individuals can be recognised as such if they cohabit with the tenant as members of his or her household.

3. Housing Privatisation Act of 1992

At the material time section 8 of the Act provided that publicly owned housing could be privatised by tenants with the consent of all the members of the tenant ’ s family, with the tenant and his or her family members acquiring equal shares in the property.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the Supreme Court did not inform her of the extraordinary appeal in her case and unjustifiably quashed a final judicial decision in her favour. Referring to Article 8 of the Convention, she complains that that decision breached her rights to a private life, home and property.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of legal certainty and equality of arms respected in the extraordinary review procedure before the Supreme Court?

2. Has there been a violation of the applicant ’ s rights under Article 8 of the Convention on account of the above proceedings before the Supreme Court, which led to her subsequent eviction ?

3. Has there been an interference with the applicant ’ s peaceful enjoyment of her possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention, on account of the above proceedings before the Supreme Court? If so, was that interference in compliance with the requirements of Article 1 of Protocol No.1?