FIFTH SECTION
Applications nos 46311/08 and 2973/10
Lyudmyla Ivanivna KOCHKINA and Oleksiy Ivanovych KOCHKIN against Ukraine
lodged on 17 September 2008 and 6 July 2009 respectively
STATEMENT OF FACTS
The applicants, Ms Lyudmyla Ivanivna Kochkina and Mr Oleksiy Ivanovych Kochkin, are Ukrainian nationals, who were born in 1948 and 1975 respectively and live in Kyiv. The first applicant is the second applicant’s mother.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are the owners of a one-room apartment on the ground floor of a multi-storey building. The kitchen window and the balcony of the apartment are situated by the entrance to the building.
Following an agreement of 21 February 2002 between company K. and a communal house maintenance company, Z., concierge premises were constructed near the entrance to the building. As previously there was a waste collector room entrance on that spot, the waste collector room and the concierge premises were joined and the waste collector door was moved. According to the photos, sent by the applicants, one of the walls of this construction is adjoining the left side of their balcony. The entrance to the waste collector room is now perpendicular to their balcony and very close to it.
The applicants state that previously the wall was situated further away and the waste collector entrance was facing the street and not their balcony. The waste collector smells, especially in summer, the view from the balcony is partially blocked by the wall and the rain from the construction roof pours on the applicants’ balcony.
A. Decision of 24 December 2002 and enforcement proceedings
On 24 December 2002 the Obolonskyy District Court of Kyiv, following the applicants’ complaint about a breach of their property rights, found that, contrary to the construction project, the construction in question had been built against the applicants’ balcony. The court held that K. should re-construct the annex building in accordance with the approved project. The court rejected the applicants’ claim for non-pecuniary damages finding that the applicants did not live in this apartment and wanted to sell it.
On 11 February 2003 the bailiffs’ service instituted enforcement proceedings. On two occasions M., K.’s director, was fined for failure to enforce the court decision.
On 3 June 2003 the court adopted a resolution clarifying the manner in which the decision of 24 December 2002 was to be enforced. It noted that the construction wall had to be moved further away from the applicants’ balcony.
On 28 January 2005 a forensic technical construction expert examination concluded that it was impossible to enforce the decision of 24 December 2002. The expert concluded that the construction was in conformity with its project except for one corner. It was, however, “impossible to establish whether the distance between the construction and the applicants’ balcony was in conformity with the project plan”. It was also concluded that rain water from the construction roof could leak on the applicants’ balcony. The applicants also had no access to one side of their balcony from the outside so the balcony’s renovation could not be done from that side. The expert finally noted that there were no construction norms for concierge premises constructed on the entrance side of the building.
On 18 October 2005 the Obolonskyy District Prosecutor’s Office refused to institute criminal proceedings against M. for non-enforcement of the decision of 24 December 2002. It was found that the applicants had unlawfully put glass frames on their balcony so “there is no evidence that the concierge premises hinder their use of the apartment”.
On 12 April 2006 the Obolon District Bailiffs’ Service terminated the enforcement proceedings in the case for “the failure to enforce the decision without the defendant’s assistance”.
On 14 December 2009 the Kyiv Regional Administrative Court quashed the decision of 12 April 2006. On 15 February 2011 the Kyiv Administrative Court of Appeal upheld the decision of 14 December 2009. On 31 January 2013 the Higher Administrative Court of Ukraine quashed the decisions of 14 December 2009 and 15 February 2011, and terminated the proceedings in the case. The court held that the applicants should lodge their complaint before the civil court.
On 6 September 2013 the Obolonskyy District Court in the civil proceedings quashed the decision of 12 April 2006. The company K. appealed against the decision of 6 September 2013 and the proceedings are still pending.
B. Proceedings concerning the demolishing of the concierge premises
In August 2006 the applicants instituted court proceedings requesting K. to demolish the concierge premises. They stated that, according to a forensic technic construction expert examination of 28 January 2005, it was impossible to enforce the decision of 24 December 2002, therefore, the concierge premises should be demolished.
On 9 November 2006 the Obolonskyy District Court found against the applicants. The court held that the construction in question had been carried out following an agreement between the communal enterprise Z. and the company K. Since it was not a construction but “premises maintenance works” (“облаштування приміщень”) no special permission for such construction was needed.
On 12 November 2007 the Kyiv City Court of Appeal upheld this decision. The court found that on 31 January 2002 the Kyiv City State Administration provided financing for the construction of concierge premises in the existing buildings. The district administrations were obliged to set up the schemas of those premises. On 21 February 2002 the communal house maintenance company Z. concluded an agreement with the company K. for a concierge premises construction. Upon completion, the construction was approved by Z. Therefore, K. “cannot be obliged to dismantle the construction since it did not built it”. Moreover, the subject matter of the agreement was not the waste collector room but the concierge premises.
On 18 March 2008 the Supreme Court of Ukraine rejected the applicants’ request for leave to appeal in cassation.
C. Proceedings concerning the lawfulness of the construction
In July 2006 the applicants instituted court proceedings challenging the lawfulness of the construction of the concierge premises and the construction acceptance act (“акт прийняття в експлуатацію”). They stated that there were no construction permission and no construction project plan therefore the construction was unlawful.
On 28 August 2008 the Obolonskyy District Court found against the applicants. The court held that K. had constructed the concierge premises in accordance with a construction project submitted by Z. The construction was accepted by Z., which means that the work had been performed correctly. The court referred to the decisions of 24 December 2002 and 9 November 2006 and held that there were no grounds for finding that the construction was unlawful. The court also noted that in order to avoid unpleasant smell from the waste collector, the premises had double doors.
On 11 November 2008 the Kyiv City Court of Appeal upheld this decision. On 27 January 2009 the Supreme Court of Ukraine rejected the applicants’ request for leave to appeal in cassation.
COMPLAINTS
The applicants complain that the construction of an extension for a waste collector room and concierge premises breached their rights for respect to their home.
They also complain about the refusal of the courts to allow their claims, length of their proceedings and about non-enforcement of the decision of 24 December 2002.
The applicants invoke Articles 6 § 1 and 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 in respect of the construction near their apartment? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
2. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference necessary to control the use of property in accordance with the general interest? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
3. Does the lengthy non-enforcement of the judgment of 24 December 2002 given in the applicants’ favour disclose a breach of their right of access to a court, as guaranteed by Article 6 § 1 of the Convention, and amount to a violation of the applicants’ rights guaranteed by Article 8 § 1 of the Convention and Article 1 of Protocol No. 1?
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