CASE OF YESICHKO AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF YESICHKO AND OTHERS v. UKRAINE

(Application no. 35659/13)

JUDGMENT
 

STRASBOURG

8 February 2024

This judgment is final but it may be subject to editorial revision.

In the case of Yesichko and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Lado Chanturia, President,
 Stéphanie Mourou-Vikström,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 35659/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 May 2013 by three Ukrainian nationals, Ms Oksana Gennadyevna Yesichko, born in 1975 and her daughters, Ms Yekaterina Vladimirovna Polikhovskaya, born in 2002, and Ms Sofiya Olegovna Yesichko, born in 2009 (“the applicants”), who live in Sevastopol, and were represented by Mr S.A. Zayets, a lawyer practising in Irpin;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented, most recently, by their Agent, Ms M. Sokorenko;

the parties’ observations;

Having deliberated in private on 18 January 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the allegedly unlawful and unnecessary eviction of the applicants from a room in a communal flat.[1] The applicants relied on Articles 3 and 8 of the Convention.

2.  In March 2010 the municipal company R., which managed the block of flats in which the applicants and Mr Y. (the first applicant’s spouse) resided, instituted proceedings seeking to evict them from a room which measured 10 square metres and which they occupied without having obtained an occupancy order (ордер) from the Sevastopol City State Administration (“the SCSA”). R. argued that pursuant to Article 116 of the 1983 Housing Code (“the HC”), the defendants were to be evicted, as they had acted arbitrarily in occupying the room.

3.  The applicants lodged a counterclaim, seeking to oblige the SCSA to issue an occupancy order in respect of them. They noted that prior to moving into the room in question, their family had lived in the neighbouring room, which measured 14 square metres and which they shared with Mr T. (the first applicant’s father) and two other relatives. In 2008 R.’s previous director had allowed the applicants’ family to renovate, at its own expense, a dilapidated vacant room, located in the same flat and used as a closet, and to move into it, which they had done. However, subsequently the SCSA had refused to issue an occupancy order in respect of them for the room in question, in spite of the fact that Article 54 of the HC provided that tenants of communal flats who needed a larger living space had a preferential right over any outsiders to occupy vacant rooms in those flats.

4.  The district childhood protection board (Рада опіки) joined the proceedings as a third party and supported the counterclaim, arguing that returning two minor children to Mr T.’s room would create an adverse environment for their upbringing in view of the extremely cramped conditions.

5.  On 23 December 2011 the Leninskyi District Court in Sevastopol dismissed R.’s eviction claim, allowed the defendants’ counterclaim and ordered the SCSA to issue the occupancy order in respect of them. The court found, in particular, that the defendants could not be considered to have occupied the disputed room arbitrarily, as R.’s previous director had given them prior permission to do so. The court further noted that the SCSA’s refusal to issue the occupancy order had been based, essentially, on a restrictive interpretation of the term “tenant” used in Article 54 of the HC, referring exclusively to tenants of social housing, whereas Mr T. had obtained ownership of the room he had been occupying and in which he had previously housed the first applicant and other relatives. The court noted that, regard being had to the date of the enactment of the HC (1983), the term “tenant” as used in Article 54 should be considered in its historical context. It was obvious from the text of Article 54 that its overall purpose had been to reduce, as far as practicable, the number of household units occupying communal flats by providing their occupants who were living in cramped conditions a preferential right to settle in vacant rooms in those flats as opposed to allocating them to non-occupants. Regard being had to the fact that the applicants’ and Mr T.’s households would enjoy only 2.1 square metres per person if the defendants were to return to Mr T.’s room, it would be artificial and overly formalistic to interpret Article 54 as denying the applicants’ family the opportunity to occupy a vacant 10-square-metre room renovated by them with R.’s permission.

6.  On 18 October 2012 the Sevastopol City Court of Appeal allowed an appeal lodged by the SCSA and ordered the eviction of the defendants. The court found that Article 116 of the HC applied in the case at hand since the defendants had moved into the disputed room without having received an occupancy order, which, pursuant to Article 58 of the HC, was the only document that could legitimise occupancy of the publicly owned residential premises. The defendants could, therefore, be evicted, as they had acted arbitrarily in occupying the room. The SCSA, for its part, could not be obliged to issue the occupancy order, as Article 54 of the HC gave the preferential right to occupy vacant rooms in communal flats to “tenants”, whereas Mr T., in whose room the applicants’ family had previously lived, was its “owner”. There were therefore no grounds for preferential allocation of the disputed room to the defendants. Although they had been on the social housing waiting list, they would have to wait for their turn.

7.  On 21 November 2012 the Higher Specialised Civil and Criminal Court rejected a request by the applicants for leave to appeal on points of law, in which they argued that the District Court had taken a correct decision. On 3 June 2013 it also refused a request by the applicants for leave to open extraordinary review proceedings in which they argued that there existed in practice divergent interpretations of the applicable provisions of the HC by the domestic courts.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

8.  Relying on Articles 3 and 8 of the Convention, the applicants complained that their eviction had been neither lawful nor necessary. The Court, which is master of characterisation to be given in law to the facts of a case, considers that these complaints fall to be examined under Article 8 only.

9.  The Court finds it evident from the material available to it, and notes that it was not contested in the domestic proceedings, that the applicants had actually established their “home” in the disputed room. It therefore dismisses the Government’s objection that the present complaints are incompatible ratione materiae with Article 8 of the Convention. The Court further finds that they are neither manifestly ill‑founded nor inadmissible on any other grounds. They must therefore be declared admissible.

10.  The Government argued that there had been no breach of Article 8 in the present case, since the applicants had presented no proof that they had actually been evicted. In any event, the eviction order issued in respect of them had been lawful and had pursued the legitimate aim of protecting the rights of others in need of social housing. Neither had it been disproportionate, as the applicants had been able to continue to reside in another room in the same flat.

11.  In view of the facts of the case in the light of its established case-law (see, among other authorities, McCann v. the United Kingdom, no. 19009/04, § 50, ECHR 2008; Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009; and Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, §§ 42-44, 2 December 2010), the Court finds that the court order for the applicants’ eviction from publicly owned housing amounted to an interference with their right to respect for their home.

12.  The Court is prepared to accept that the disputed interference might have been in pursuit of a legitimate aim, as put forward by the Government, and that it had some basis in domestic law, in particular in the provisions of Articles 58 and 116 of the HC, as interpreted by the Sevastopol City Court of Appeal.

13.  At the same time, the Court notes that the reasoning adduced by the Sevastopol City Court of Appeal (see paragraph 6 above) indicates that its finding that the applicants had occupied the disputed room without an occupancy order was given paramount importance. The court did not address, in its reasoning, the applicants’ arguments concerning the precarity of their situation or the particularity of the circumstances in which they had moved into the room in issue (see paragraph 3 above). It also did not indicate, in any manner, that it sought to weigh up the desire of the plaintiff – a public entity – to have the disputed room vacated for the benefit of unspecified third parties against the applicants’ submissions that retaining occupancy was an issue of vital importance for them. In those circumstances, the Court cannot find that the domestic authorities provided “sufficient reasons” to demonstrate a “pressing social need” for the disputed eviction order or that they justified its “proportionality” within the meaning of Article 8 of the Convention.

14.  The Court has previously found violations of Article 8 of the Convention in other cases, including in cases against Ukraine, where the applicants had not had the benefit, in the context of proceedings concerning eviction from public housing, of an examination of the necessity of the interference (see, for example, Kryvitska and Kryvitskyy, cited above, §§ 51‑52; Dakus v. Ukraine [Committee], no. 19957/07, §§ 52‑53, 14 December 2017; and Sadovyak v. Ukraine [Committee], no. 17365/14, §§ 34-35, 17 May 2018).

15.  In the present case the Court likewise finds that there has been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  The applicants claimed 3,000 euros (EUR) each in respect of non‑pecuniary damage and EUR 3,300 in respect of legal fees for their representation before the Court by their lawyer, Mr S. Zayets. They presented a time-sheet, from which it is apparent that Mr S. Zayets billed twenty-two hours at EUR 150 per hour for the applicants’ representation before the Court, starting from the date of the lodging of the application.

17.  The Government argued that the claims were exorbitant and poorly substantiated.

18.  Ruling on an equitable basis the Court awards to the applicants jointly EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

19.  Having regard to the documents in its possession, the Court further considers it reasonable to award the applicants EUR 2,000 covering legal fees, plus any tax that may be chargeable to them on that amount.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of legal fees;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 8 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President

[1]  A communal flat accommodates members of more than one household unit. In such an accommodation each household unit typically occupies one room (or several rooms) for personal use, while other facilities (most frequently a kitchen, a bathroom and a hallway) are shared and used by all the occupants. The concept of communal flats emerged during the Soviet era in response to the housing crisis in urban areas. Some communal flats still exist.