CASE OF PANCHENKO v. UKRAINE
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
4. The applicant was born in 1957 and lives in Brovary, Ukraine. 5. The applicant is a disabled war veteran. From 1994 he was on a special list of persons to be allocated an apartment by the State on priority basis (see paragraph 38 below). 6. In May 1997 the applicant instituted proceedings in the Brovary Town Court (“the Town Court”) against Brovary Town Council, requesting the court to order the defendant to provide him with an apartment on a priority basis. 7. On 17 July 1997 the court dismissed the applicant's claim. 8. The applicant appealed and on 19 August 1997 the Kyiv Regional Court (since June 2001 the Kyiv Regional Court of Appeal) upheld the lower court's judgment. 9. In August 2001 the applicant instituted proceedings in the Town Court against the Brovary Town Executive Committee, the Kyiv Regional State Administration and the Ministry of Defence of Ukraine, requesting the court to order the defendants to provide him with a apartment on a priority basis and seeking compensation for non-pecuniary damage. 10. On 10 December 2001 the court dismissed the applicant's claims. 11. On 14 March 2002 the Kyiv Regional Court of Appeal (“the Court of Appeal”) quashed the lower court's judgment and remitted the case to it for fresh consideration. 12. In the course of subsequent hearings before the Town Court the applicant withdrew some of his claims, eventually requesting the court only to order the Ministry of Defence of Ukraine to provide him with an apartment on a priority basis. 13. On 27 November 2002 the Town Court dismissed the applicant's claim. On 27 December 2002 the same court rectified certain clerical errors in its judgment. 14. On 6 June 2003 the Court of Appeal quashed the judgment of 27 November 2002 and rendered a new one, ordering the Ministry of Defence of Ukraine to provide the applicant with an apartment within three months of the judgment becoming final. Apparently, this judgment was not appealed against. 15. On 20 October 2003 the State Bailiff's Service instituted proceedings to enforce this judgment. 16. In May 2004 the applicant requested the Court of Appeal to change the means of enforcement of the judgment of 6 June 2003. In particular he sought replacement of the in-kind award with monetary compensation to him in the amount of 225,332.40 Ukrainian hryvnias (UAH). 17. On 27 May 2004 the court rejected that request, indicating that the matter should be examined by the Town Court. 18. On 13 October 2004 the Town Court allowed the applicant's request in part, ordering the Ministry of Defence of Ukraine to pay Brovary Town Council the above-mentioned sum in order to purchase an apartment for the applicant. 19. On 12 May 2005 this sum was transferred to the bank account of Brovary Town Council. 20. On 16 May 2005 the State Bailiff's Service terminated the enforcement proceedings against the Ministry of Defence of Ukraine as the judgment of 6 June 2003 as amended by the decision of 13 October 2004 had been enforced. 21. On 26 May 2005 Brovary Town Council authorised the Brovary Town Executive Committee to arrange the purchase of an apartment for the applicant in compliance with the judgment of 6 June 2003 as amended by the decision of 13 October 2004. 22. According to the Government, the sum awarded on 13 October 2004 was insufficient to purchase an apartment for the applicant on the secondhand market due to the dramatic increase in real estate prices. For that reason, having invited tenders, on 30 August 2005 the Brovary Town Council concluded a contract with an appropriate company for the construction of an apartment for the applicant. 23. By 2007 the apartment at issue had been constructed, and on 14 August 2007 the Brovary Town Executive Committee issued the applicant with a housing warrant (ордер на заселення житлової площі). On several occasions the applicant was invited to take that warrant but to no avail. 24. On 3 July 2008 the Town Court found the applicant to be abusing his rights (namely, by evading concluding the tenancy contract and, accordingly, paying the tenancy fee) and ordered him to take the housing warrant and move into the apartment within ten days. In that regard enforcement proceedings were instituted against the applicant but the judgment of 3 July 2008 has not yet been enforced. 25. In November 2007 the applicant instituted proceedings in the Town Court against the Brovary Town Executive Committee, seeking to annul the defendant's decision of 14 August 2007 to issue him with the housing warrant. In particular, he pleaded that the floor space of the apartment allocated to him was less than that guaranteed by the domestic law and that the apartment had been purchased as a result of an unlawful tender. On 8 September 2008 the court dismissed his claims as unsubstantiated. It is not clear whether the applicant appealed against that decision. 26. According to the applicant, though, the judgment has still not been enforced. He did not inform the Court about the events set out in the preceding paragraphs (23-25). 27. In October 2005 the applicant instituted administrative proceedings in the Town Court against Brovary Town Council, seeking enforcement of the judgment of 6 June 2003 as amended by the decision of 13 October 2004. In view of the increase in real estate prices, the applicant also sought an additional sum of money to be paid by the defendant as compensation for pecuniary damage as a result of the alleged inactivity. 28. On 28 October 2005 the court dismissed the applicant's claim on account of procedural shortcomings (in particular, for failure to pay the court fee). 29. On 17 February 2006 the Court of Appeal quashed that decision and remitted the matter of the admissibility of the applicant's claim to the Town Court for fresh consideration. 30. On 24 November 2006 the Town Court dismissed the applicant's claim as unsubstantiated. 31. On 26 February 2007 the Court of Appeal upheld that judgment. 32. On 25 September 2008 the Higher Administrative Court quashed the lower courts' decisions and discontinued the proceedings, having found that the claim should be examined under the civil procedure. 33. On 31 October 2006 the applicant requested the General Prosecutor's Office to institute criminal proceedings against Brovary Town Council, alleging embezzlement and misuse of budgetary funds. 34. On 15 December 2006 the prosecutor refused to institute criminal proceedings as requested. The applicant appealed against that decision to the Town Court. 35. On 3 August 2007 the Town Court quashed the decision in question and referred the matter back for additional investigation. Subsequently the prosecutor refused to institute the proceedings in question on several occasions and the applicant successfully challenged those refusals before the Town Court. 36. Apparently the investigation is still pending. 37. Under section 61 of the 1983 Housing Code publicly owned dwellings shall be used on the basis of a tenancy contract concluded between the tenant and the relevant authority. 38. The Military Servicemen Legal and Social Protection Act (no. 2011-XII of 20 December 1991, as amended at the material time) sets forth that the State provides the military servicemen with, among other benefits, appropriate dwelling (section 12). Those servicemen who have retired due to their service-related injuries and diseases are entitled to housing on a priority basis (section 12 § 4). 39. Under section 6 § 1 of the State Housing Fund Privatisation Act (no. 2482-XII of 19 June 1992, as amended at the material time) the dwelling occupied by the military servicemen who enjoy benefits under the above Military Servicemen Legal and Social Protection Act shall be granted free of charge into private property of these military servicemen. 40. The Veterans of War and Their Social Protection Guarantees Act (no. 3551-XII of 22 October 1993, as amended at the material time) guarantees that disabled war veterans shall be housed within two years, at maximum, of submitting an appropriate application, provided that their existing accommodation does not comply with the relevant housing standards (section 13 § 18). 41. The State Social Housing Fund Act (no. 3334-IV, valid since 1 January 2007) provides the same guarantees to the veterans of war (sections 11 and 12). Under section 3 § 5, however, social dwellings are not subject to privatisation. 42. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). 43. Under section 33 of the Enforcement Proceedings Act the bailiff and the parties to the enforcement proceedings (debtor and creditor) are entitled to request proprio motu the relevant court to change the means of enforcement of a court decision if there are circumstances which preclude its enforcement by the means specified in that decision.