Communicated on 10 February 2015

FIFTH SECTION

Application no. 17365/14 Olga Mykhaylivna SADOVYAK and others against Ukraine lodged on 27 March 2014

STATEMENT OF FACTS

The applicants are a family. Ms Olga Mykhaylivna Sadovyak (the first applicant) was born in 1966. She is married to Mr Volodymyr Valeriyovych Sadovyak (the second applicant), who was born in 1971. Their son, Mr Mykola Volodymyrovych Sadovyak (the third applicant), was born in 1993, and their daughter, Ms Anastasiya Volodymyrivna Sadovyak (the fourth applicant), was born in 1996. The applicants are Ukrainian nationals and live in Lviv .

A. The circumstances of the case

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

The second applicant is a professional military officer, now retired. From 1997 to 2002 he carried out his military service in the Military Institute of the Lviv Polytechnic University (eventually renamed as the Military Academy).

In 1999 the Military Institute placed the second applicant and his family on the waiting list for getting free accommodation.

In July 2001 the director of the aforementioned institute and his deputy issued a written decision granting the second applicant ’ s application for accommodation in the institute ’ s dormitory. The dormitory manager handed the applicants the keys to the flat in question, provided them with the required furniture and explained them the rules. Since then that flat has been their only accommodation.

On 25 December 2003 the second applicant was discharged from the military service on redundancy grounds. The respective order of the Ministry of Defence specified that the applicants remained on the waiting list for obtaining free accommodation.

In August 2011 the Lviv Garnison Military Prosecutor, acting in the interests of the Military Academy, brought an action against the applicants seeking their eviction from the dormitory. He claimed that they had settled there on a temporary basis with the consent of the Academy ’ s administration, but that their occupancy of the flat in question had never been duly formalised.

On 15 November 2012 the Frankivskyy District Court of Lviv rejected that claim. It held that the settlement of the applicants in the dormitory had not been arbitrary and that there were no grounds for their eviction. The court relied, in particular, on the provisions of the Housing Code prohibiting, in certain cases, eviction of dormitories ’ tenants without rehousing them. It noted that such protection extended to persons who had worked for at least ten years in the organisation, which had assigned dormitory premises to them. Another protected category included persons discharged on redundancy grounds. Furthermore, the court noted that the fourth applicant was a minor whose right to housing called for special safeguards.

On 17 September 2013 the Lviv Regional Court of Appeal quashed the above judgment upon the claimant ’ s appeal and delivered a new one. It ordered the applicants ’ eviction from the dormitory without providing them with any other accommodation. The appellate court grounded that decision by the fact that the applicants had settled in the dormitory without having an occupancy voucher ( ордер на вселення ) .

The applicants appealed on points of law. They submitted, in particular, that they could not be held responsible for the administration ’ s failure to issue an occupancy voucher following its decision to assign the flat to them. Furthermore, the applicants argued that the appellate court ’ s decision ran contrary to the Court ’ s case-law under Article 8 of the Convention. They noted in this connection that in its judgment on the case of Kryvitska and Kryvitskyy v. Ukraine (no. 30856/03 , 2 December 2010) the Court had found a violation of that provision on the ground that the domestic authorities had failed to provide adequate reasons for dismissing the applicants ’ arguments or to assess the proportionality of their eviction. The applicants emphasized that they had brought the aforementioned findings to the attention of the appellate court, but their argument had been disregarded despite the fact that, under Article 17 of the Law of Ukraine “On execution of judgments and application of case-law of the European Court of Human Rights” the Court ’ s case-law was a source of law in Ukraine.

On 20 November 2013 the Higher Specialised Court for Civil and Criminal Matters summarily endorsed the judgment of the appellate court, having stated that there were no reasons for setting it aside. That ruling was final.

On 31 January 2014 the Frankivskyy Court issued a writ of enforcement ordering the applicants ’ eviction from the flat.

On 25 June 2014 the bailiffs ’ service opened the enforcement proceedings.

On 13 August 2014 the Frankivskyy Court postponed the enforcement of the judgment for six months (till 13 February 2015) following the applicants ’ request. The reason for that decision was that the applicants ’ family was hosting their relatives displaced from the eastern regions of Ukraine because of the armed conflict there.

B. Relevant domestic law

1. Housing Code (1983, with amendments)

Article 124 provides for eviction, without rehousing, of employees and officials from the accommodation provided to them by their employer in case of termination of their employment relations.

Article 125 stipulates certain exceptions from the above rule. It prohibits, in particular, eviction of persons who have worked for at least ten years in the respective organisation.

Under Article 128, in order to get accommodation in a dormitory, there should be a joint decision of the administration of the respective institution (company) to that effect.

Article 129 further specifies that, following such decision, the administration should issue an occupancy voucher ( ордер на вселення ) , which is the only basis for settling in the respective accommodation.

2. Law “On ensuring the exercise of housing rights of dormitories ’ tenants” (2008)

As stated in Article 1, this law is applicable to dormitories ’ tenants who do not have accommodation of their own and who have actually and on legitimate grounds lived in a respective dormitory for more than five years.

Article 19 prohibits eviction or enforced resettlement of dormitories ’ tenants if other accommodation suitable to live in is not provided to them.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that the domestic proceedings in their case were unfair. More specifically, they complain that the courts ignored their argument about the necessity to assess the proportionality of the interference with their right to home under Article 8 of the Convention contrary to the Court ’ s case-law, namely the judgment on the case of Kryvitska and Kryvitskyy v. Ukraine (no. 30856/03 , 2 December 2010).

Furthermore, the applicants complain that by ordering them to vacate the flat in question the domestic courts violated their right to respect for their home under Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ right to respect for their home, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

Did the applicants have the proportionality and reasonableness of the measure determined by a tribunal in the light of the relevant principles under Article 8 of the Convention (see Kryvitska and Kryvitskyy v. Ukraine , no. 30856/03 , § 60, 2 December 2010, and Bjedov v. Croatia , no. 42150/09 , § 66, 29 May 2012)?

2. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, did the Lviv Regional Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters give adequate reasons for their decisions of 17 September and 20 November 2013?