Communicated on 3 December 2015

FIFTH SECTION

Application no. 59660/09 Tetyana Mykolayivna CHORNENKO and others against Ukraine lodged on 26 October 2009

STATEMENT OF FACTS

The first applicant, Mrs Tetyana Mykolayivna Chornenko , born in 1967, and the second applicant, Mr Mykola Vasyliovych Chornenko , born in 1968, are spouses and parents of the third applicant, Mr Kostyantyn Mykolayovych Chornenko , born in 1991.

A. The circumstances of the case

In 1996 the applicants occupied a room in a corporate dormitory, which at the material time was classified as public housing stock and was managed by the joint stock company “ Ch ”.

In 2001 the applicants signed a protected tenancy contract with Ch.

On 1 February 2002 Ch. requested P., a local technical college, to provide temporary accommodation to ten families residing in the aforementioned dormitory, including the applicants ’ family, as the dilapidated state of the building made it necessary to carry out capital renovation works.

On 1 September 2002 the applicants ’ family moved into a dormitory managed by P. on the basis of a one-year temporary lease contract.

After the applicants had moved out, Ch. obtained a permit from the Cherkassy City Council to convert the dormitory, in which they had earlier resided, into an apartment building.

In February 2003 Ch. instituted civil proceedings against the applicants, seeking a declaration that they had lost their right to occupy the dormitory because they had abandoned it.

On 10 October 2003, while these proceedings were pending, P. ordered the applicants to vacate its dormitory as their temporary lease contract had expired.

Having vacated P. ’ s dormitory on an unspecified date, the applicants and some other former residents of Ch. ’ s dormitory returned to the building they had previously occupied and settled in the unfinished apartments, apparently in spite of Ch. ’ s objections.

In 2005 Ch. instituted eviction proceedings against the applicants and several other persons, who occupied its dormitory. On an unspecified date the eviction proceedings against the applicants were joined to the proceedings in which Ch. claimed that they had abandoned the dormitory.

On 25 May 2006 the Prydniprovskiy District Court in Cherkassy found that the applicants had illegally occupied the premises under reconstruction and ordered their eviction.

The applicants appealed, alleging that their eviction would render them homeless. They also submitted that they had been in a protected tenancy relationship with the plaintiff, which meant that the latter had no right to evict them, unless they had been provided with other accommodation.

On 5 July 2006 the Cherkassy Regional Court of Appeal allowed the applicants ’ appeal. Referring, in particular, to Articles 71, 72 and 100-102 of the Housing Code of 1983, it recognised, in particular, that the applicants had occupied Ch. ’ s dormitory on the basis of a protected tenancy contract. They could not be considered as having “abandoned” the premises, as their resettlement had been arranged by Ch. as a temporary measure necessitated by the renovation works. Accordingly, the applicants retained interest in occupying their previous accommodation and their protected tenancy could not be terminated on the grounds cited by Ch. For the same reasons, their eviction in connection with the reconstruction of the building could only be possible if they were provided with other accommodation.

On 20 December 2007 the Chernigiv Regional Court of Appeal, acting as a cassation instance, rejected Ch. ’ s cassation appeal and the judgment of 5 July 2006 became final.

In the meantime, the reconstruction of the former dormitory was finished and on 29 December 2006 the Cherkassy City Council re-registered it as an apartment building. On 27 March 2007 Ch. was registered as the owner of the apartments in this building, including the one de facto occupied by the applicants.

On 7 February 2008 Ch. instituted new eviction proceedings against the applicants. It noted, in particular, that they had illegally moved into an apartment owned by it without a lease.

The applicants objected and submitted that this claim was essentially the same as the one which had already been rejected in the previous eviction proceedings.

On 2 June 2008 the Prydniprovskiy District Court in Cherkassy allowed Ch. ’ s claim and ordered the applicants ’ eviction. It found that the previous dispute concerned occupancy of a dormitory, while the present one concerned eviction from a privately owned apartment, the right of occupancy of which was governed, in particular, by Articles 158 and 165 of the Housing Code. The dormitory having undergone reconstruction, the applicants ’ previous accommodation had not been preserved. The judgment of 5 July 2006 could not have concerned the apartment at stake in these new proceedings, because Ch. had lawfully registered title to this apartment only in March 2007. The applicants having lodged no claims against Ch. asserting any right to occupy the new apartment, they had illegally resided in it and had to be evicted to protect the interests of the legitimate private owner.

The applicants appealed, submitting, inter alia , that they had moved into the apartment at issue as they had nowhere else to live. The proceedings at issue concerned the same accommodation as the previous eviction proceedings decided in the applicants ’ favour. Their right to occupy it was based on their protected tenancy relationship with Ch., which could seek their eviction only after they were provided with other housing.

On 7 May and 28 September 2009 the Cherkassy Regional Court of Appeal and the Supreme Court upheld the judgment of the District Court of 2 June 2008.

According to the applicants, cases lodged by Ch. against other former dormitory residents yielded a different outcome. However, they did not provide copies of the relevant documents.

B. Relevant domestic law

1. Constitution of Ukraine

Article 47 of the Constitution of Ukraine reads as follows:

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 State power 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 other than on the basis of the law pursuant to a court decision.”

2. Housing Code of the Ukrainian Soviet Socialist Republic of 1983

The relevant provisions of Chapter I (“General Provisions”) of the Housing Code, as worded at the material time, read as follows:

Article 4. Housing stock

“ Residential buildings, as well as residential premises in other buildings located on the territory of the Ukrainian SSR shall constitute the housing stock.

Housing stock shall include:

...

Residential buildings ... , which belong to the collective farms and other cooperative organisations , their associations, trade unions and other public organisations (public housing stock);

...

Residential buildings (parts of the buildings), apartments, which belong to individuals as private property (private housing stock);

... .

Housing stock shall also include residential buildings, which belong to the ... enterprises and organisations. ... These buildings shall be subject to the same rules, which are established for the public housing stock . ..”

Article 9. Housing rights of citizens

“Citizens shall have a right to obtain residential premises from the State or public housing stock for use during an indefinite period according to the established procedure ... [“the protected tenancy”] .. .”

The relevant provisions of Chapter III, Title 2 (Use of residential premises in the buildings of the State and public housing stock) of the Housing Code, as worded at the material time, read as follows:

Article 71. Reservation of residential premises for temporarily absent citizens

“In the event of temporary absence of a tenant or members of his/her family the residential premises shall be reserved for them for six months.

Should the tenant or members of his/her family be absent for serious reasons for the term exceeding six months, upon request of the absent person this term may be extended by the lessor, or, in case of a dispute, by the court .. .”

Article 72. Procedure for declaring an individual to have lost the right of occupancy in residential premises

“A declaration that an individual has lost the right of occupancy in residential premises, as a consequence of the absence of that individual in excess of the established time-limits, shall be made through court proceedings.”

Article 100. Reconstruction and reconfiguration of a residential building and residential premises

“... Reconstruction and reconfiguration of a residential building and residential premises shall be allowed upon consent of the occupant, members of his (her) household and the owner and upon authorisation by the executive committee of the local council of people ’ s deputies.

...

In the event that a plan of capital renovation of a residential building envisages reconstruction or reconfiguration of apartments, the occupants and members of their households should be familiarised with this plan. Objections and proposals of the aforementioned persons, rejected by the planning entity, shall be considered by the bodies, which manage the respective housing stock, as well as the executive committee of the local council of people ’ s deputies, which shall validate the plan of the capital renovation.”

Article 101. Provision of residential premises to citizens in connection with capital renovation of a residential building

“In the event capital renovation of a residential building belonging to the State or public housing stock is envisaged, when the renovation cannot be carried out without relocation of an occupant, the owner shall be obliged to provide the occupant and members of his household with other residential premises for the duration of the capital renovation, without interrupting the occupancy agreement for the premises under renovation. In the event the tenant refuses to relocate ... the owner may demand the relocation by way of court proceedings.

... Upon completion of the capital renovation ... the occupant shall return to the residential premises occupied by him (her) earlier. ...”

Article 102. Provision of citizens with other residential premises in the event that following capital renovation of the residential premises occupied by them they cannot be preserved or their size changes significantly

“Where the residential premises occupied by an occupant and members of his (her) household following the capital renovation cannot be preserved or will considerably increase in size, ... the occupant and members of his (her) household should be provided with other suitable housing before the beginning of the capital renovation. Where following the capital renovation the residential premises will significantly decrease in size, upon demand of the occupant he (she) and members of his (her) household should be provided with other suitable housing before the beginning of the capital renovation. Disputes arising in connection with the above shall be decided by way of court proceedings.”

The relevant provisions of Chapter III, Title 6 (Use of residential premises in the buildings (apartments) of the private housing stock) of the Housing Code, as worded in the material time, read as follows:

Article 158. Lease agreements in respect of residential premises owned by the citizens

“Tenants shall use residential premises privately owned by citizens in accordance with the lease agreement in respect of those premises.

A lease agreement in respect of residential premises shall be concluded in writing between the owner and the tenant, with subsequent registration by the executive committee of the local council of people ’ s deputies or by the management authority created thereby. The contract should include details concerning the subject of the contract and the period for which it is concluded, the rights and duties of the landlord and the tenant, and other terms of the lease.”

Article 165. Eviction of a tenant from a residential building (apartment), which belongs to a citizen, for the duration of the capital renovation

“ ... Upon completion of the renovation works the owner of the building (apartment) shall be obliged to provide the tenant with the accommodation occupied by him/her previously or with another comparable accommodation in the building (apartment) owned by him/her, except in the event where according to the building (apartment) reconstruction of reconfiguration project approved by the executive committee of the local council of people ’ s deputies the accommodation occupied by the tenant may not be preserved.”

COMPLAINTS

The applicants complain that the judgment of 2 June 2008 breached the principle of legal certainty and resulted in them having been arbitrarily and unfairly deprived of their home.

QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing in the determination of their civil rights in the second set of eviction proceedings brought against them, as required by Article 6 § 1 of the Convention? In particular, did the judicial authorities provide an adequate response to the applicants ’ argument concerning the existence of a protected tenancy agreement between them and the building owner and the latter ’ s obligation to provide them with accommodation?

2. Has there been a violation of the applicants ’ right to respect for their home as guaranteed by Article 8 of the Convention on account of the court ruling ordering their eviction? In particular:

(a) was it foreseeable in law that the guarantees against eviction enjoyed by the applicants in respect of the premises occupied by them pursuant to a protected tenancy agreement would no longer apply after the conversion of the dormitory into an apartment building following its reconstruction?

(b) did the domestic judicial authorities strike a fair balance between the applicants ’ interests and those of the building owner, when ordering the applicants ’ eviction (see, for example, Kryvitska and Kryvitskyy v. Ukraine , no. 30856/03, § 44, 2 December 2010)?