CASE OF NOVOSELETSKIY v. UKRAINE [Extracts]
Violation of Art. 8;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
9. The applicant was born in 1938 and lives in Ussuriysk (Russia). 10. By a decision of 2 June 1995 under the Education Act, the trade union branch at the Melitopol State Teacher Training Institute (“the Institute”), which was the applicant's employer at the time, granted the applicant indefinite authorisation (ордер) to occupy and use a two-room, 25.1 sq. m flat in a building in Melitopol on the Institute's books. 11. In August 1995 the applicant resigned from the Institute and went to live in Vladimir (Russia) to prepare his doctoral thesis. Before leaving, he took his wife to Kotovsk (Ukraine), where she was due to receive medical treatment. 12. On 5 October 1995 the Institute annulled its decision of 2 June 1995 and granted authorisation to occupy and use the flat to T., another of its employees. 13. On 3 November 1995 T., accompanied by four witnesses, entered the flat. They noted that the flat was empty and made a statement to that effect. According to the applicant, his possessions were removed or stolen from the flat. 14. In November 1995 the applicant's wife returned to Melitopol. Unable to move back into the flat, which was now occupied by T.'s family, she had to return to Kotovsk and move in with relatives. In January 1996 the applicant returned to Melitopol, before joining his wife in Kotovsk. 15. In late February 1996 the applicant filed a civil claim against the Institute with the Melitopol City Court, claiming compensation for pecuniary and non-pecuniary damage and seeking to assert his right to free use of the flat in question. The Institute in turn lodged an application to have that right withdrawn from the applicant. 16. On 15 May 1996, following an intervention by the procurator at the applicant's request, the Institute annulled its decision of 5 October 1995, finding that it had been unlawful, and restored the applicant's rights to the flat. 17. In a judgment of 27 June 1996, the Melitopol City Court dismissed the applicant's claim and granted the Institute's application. It found in particular that, in accordance with the legislation in force and the employment contract concluded between the Institute and the applicant, the latter had forfeited his right to use of the flat concerned after taking up permanent residence elsewhere. The court also noted that, according to the statement made on 3 November 1995, the flat in question had been empty when it was entered. 18. Following an objection under the supervisory review procedure from the Zaporijya deputy regional procurator, the Zaporijya Regional Court, in a judgment of 23 May 1997, quashed the judgment of 27 June 1996 and remitted the case to the Melitopol City Court for further consideration. 19. By a judgment of 28 April 1998, the Melitopol City Court rejected the applicant's claim, reiterating in substance the findings of the judgment of 27 June 1996. 20. Following an appeal by the applicant on points of law the Zaporijya Regional Court, in a judgment of 18 August 1998, quashed the judgment of 28 April 1998 and remitted the case once more to the court of first instance. In particular, the Regional Court noted that the issue of the lawfulness of the Institute's decision of 5 October 1998, granting T. the rights to the flat in question, had not been addressed, despite the fact that the decision had subsequently been annulled following an objection from the procurator. The court further noted that the applicant's wife, who was also authorised to occupy the flat, had been absent from the flat only temporarily, and on medical grounds. The court noted, inter alia, that three of the four witnesses had signed the statement of 3 November 1995 at T.'s request and had not been present when he had entered the flat. 21. By an order of 2 December 1998 giving effect to the Institute's decision, the executive committee of Melitopol municipal council transferred ownership of the flat in question to T., a private individual. 22. In a judgment of 6 January 1999, the Melitopol City Court allowed the applicant's claim in part. That judgment was upheld by the Zaporijya Regional Court in a judgment of 16 February 1999. The court noted in particular that the applicant's move to Vladimir had been only temporary, and that Melitopol had remained his permanent place of residence. Accordingly, it found that the applicant had the right to free use of the flat in question in Melitopol. However, the court rejected the applicant's claim for damages, observing that the criminal investigation into the disappearance of his possessions had been closed by an order of 15 February 1996 (see paragraph 36 below). In that connection, the court took the view that neither the amount of the claim nor the existence of the pecuniary damage allegedly caused by the Institute had been borne out by the evidence provided. It also noted that the law made no provision for compensation in respect of non-pecuniary damage in landlord-tenant disputes. 23. On 17 May 1999 the Melitopol City Court forwarded the writ of execution in respect of the judgment of 6 January 1999 to the Melitopol department of the Ukrainian Ministry of Justice. 24. On 21 May 1999 the court bailiff noted that the flat in question was occupied by T.'s family. Accordingly, he lodged a request with the Melitopol City Court for an interpretation of the judgment of 6 January 1999. 25. In a decision of 14 September 1999, the Melitopol City Court dismissed the request on the ground that it was aimed at having the judgment in question varied rather than interpreted. Furthermore, it noted: “In examining the aforementioned civil case, the court was not aware that ownership of the flat in question ... had been transferred to a private individual, as T. had not informed the court of this fact when he gave evidence as a witness at the hearing. Only after the judgment had been delivered did this come to light. That being the case, neither the court nor the applicant R.N. Novoseletskiy was aware that the flat had passed into private ownership. It was for that reason that Mr Novoseletskiy lodged an application simply to be allowed to occupy the flat in question rather than to have [T.] evicted.” The Zaporijya Regional Court upheld that decision in a judgment of 9 December 1999. 26. In November 1999 the Melitopol procurator applied to the Melitopol City Court on the applicant's behalf, seeking to have the transfer of ownership of the flat to T. on 2 December 1998 declared unlawful, and to have T. evicted from the flat. 27. At the hearing, the executive committee of Melitopol municipal council argued that the construction of the flats belonging to the Institute had been funded by the Ministry of Education, and that any decision concerning the flat in issue would have been taken entirely by the Institute management. 28. In a judgment of 25 May 2000, the Melitopol City Court granted the procurator's application, ordering T. to vacate the flat and the Institute to provide T.'s family with alternative accommodation. In addition, the court concluded that the Institute had acted unlawfully in relation to the disputed flat, in particular in approving the transfer of ownership to T., a private individual, in 1998, while the applicant's civil claim was still pending before the court. This judgment became final on 18 August 2000. 29. In a decision of 28 December 2000, the Melitopol City Court granted T. and his family a stay of execution of the judgment of 25 May 2000 until 1 April 2001, owing to the chronic illness of one of the family members. The applicant alleges that he was not informed of the court hearing on that issue. 30. In December 2000 and January 2001, the court bailiff imposed a fine on the director of the Institute for the delays in complying with the judgment in question. 31. By orders of 13 March and 28 March 2001, the court bailiff discontinued the execution proceedings in respect of the judgments of the Melitopol City Court of 6 January 1999 and 25 May 2000, after certifying that the flat in question was unfit for human habitation. On 28 March 2001, in a measure designed to secure possession of the flat by the applicant, a committee made up of the applicant and seven witnesses, in the presence of the court bailiff, certified that the flat in question was empty and unfit for human habitation and needed substantial repairs before it could be used. Among many other things, the committee noted that the sanitary fittings and electrical wiring had been seriously damaged, that the sink and surrounding pipes had been removed, making it impossible to use any running water, and that the contents of the sewage pipes emptied into the flat, creating a powerful stench. They also recorded the refusal of T. and an official of the Institute to hand over the keys to the flat to the court bailiff. 32. On 20 January 2004 six witnesses, of whom five were engineers, accompanied by the applicant, inspected the flat and noted that, as a result of the damage recorded on 28 March 2001, the sewage pipes emptied into the kitchen and toilets, as had been the case at their inspections in 2002 and 2003, and that the applicant was unable to use the sanitary facilities or running water. A statement to that effect was drawn up for the attention of the Institute. 33. According to a statement of 16 February 2004 addressed to the Institute and the procurator's office by the applicant and four engineers who had acted as witnesses, the sewage pipes were blocked and the water pipes and sanitary fittings were out of order. The statement referred to similar findings that had been made by the Institute on 13 February 2004. The signatories contended that the situation had not changed since 28 March 2001, when the applicant had taken possession of the flat. 34. In his letter of 10 February 2004 to the Court, the applicant complained that since 28 March 2001 he had been unable to live in the flat owing to its deplorable state; however, he had visited the flat regularly in order to monitor the situation. 35. On 6 February 1996 the applicant lodged a complaint with the Melitopol department of the Ministry of the Interior, alleging that his belongings had been removed from the flat. He requested that criminal proceedings be brought against the management of the Institute and against T. for unlawful entry into his flat. In support of his complaint, the applicant submitted two statements, one from his sister, G.G.S., and the other from his niece, G.I.V., to the effect that they had seen in the flat in question several pieces of furniture, a large number of books, a television, a radio, household appliances, two mammoth tusks and gold and silver jewellery, together with 5,000 United States dollars hidden in the stove and in the basement. The applicant also submitted a statement from T.G.M., a police officer, confirming that he had assisted the applicant in July 1995 in moving his personal effects from the hall of residence where he had lived previously to the flat in question. 36. According to the Government, the investigating authorities had responded to this complaint by conducting a detailed investigation into the alleged theft. The investigation established that, after being informed of the applicant's resignation and his departure for Russia, the director of the Institute had instructed T. to enter the flat and check that the heating was in order for the winter. In an order dated 15 February 1996, the Melitopol department of the Ministry of the Interior closed the criminal proceedings, finding that no offence had been committed (за відсутністю події злочину). The order made reference to the statement of 3 November 1995, drawn up by T. and signed by four witnesses, to the effect that the flat had been empty when it was opened up. 37. Between 1996 and 1999, the applicant lodged several complaints with the Melitopol procurator's office and the Zaporijya regional procurator's office seeking to have the order of 15 February 1996 quashed. 38. In a letter of 30 October 1999, the Zaporijya regional procurator's office informed the applicant that the Melitopol procurator's office had issued an order on 29 October 1999 quashing the order of 15 February 1996, and had reopened the criminal proceedings in response to his complaints concerning the disappearance of his possessions from the flat. 39. By a letter of 18 May 2001, the Zaporijya regional procurator's office informed the applicant that the investigation set up in response to his complaints had still not been completed. 40. On 27 August 2001 the Zaporijya regional procurator's office wrote to the applicant informing him that, by an order of 3 August 2001, the Melitopol department of the Ministry of the Interior had closed the criminal proceedings relating to the disappearance of his possessions on the ground that no offence had been committed, but that the proceedings to establish the lawfulness of that order were still in progress. 41. In two letters dated 28 December 2002 and 13 January 2003, the Melitopol procurator's office informed the applicant that the criminal proceedings relating to the disappearance of his possessions were still pending. 42. On 5 February 2003 the Zaporijya regional procurator's office examined the file relating to the investigation, quashed all the earlier decisions and ordered further investigations to be carried out. 43. By a decision of 22 March 2003, the Melitopol department of the Ministry of the Interior closed the criminal proceedings, finding that no offence had been committed. On 3 April 2003 the Melitopol deputy procurator quashed that decision and reopened the investigation. 44. In an order of 27 May 2003, the Melitopol department of the Ministry of the Interior, after summarising the main findings of the investigation, closed the criminal proceedings on the ground that no offence had been committed. 45. In particular, it was observed that G.G.S. and G.I.V., on whose statements the applicant had relied, had declined to attend in person in order to provide further information to the investigating officer. In that connection it was also pointed out that the Melitopol City Court had refused to take G.I.V.'s statement into account because she was related to the applicant. 46. T.G.M. was questioned several times on the subject of his statement, on 7 December 1999, 10 July 2001 and 21 May 2003. In his submissions, T.G.M. said that he had moved the following items into the flat in question: a washing machine, a refrigerator, some chairs, a guitar, some spare parts for cars and some home-made jams. However, the investigation noted that these items had not been mentioned by the applicant in his complaints. T.G.M. also maintained that he had seen a piece of mammoth tusk in the applicant's room in the hall of residence where he had lived previously. 47. It was established that, prior to his move into the disputed flat, the applicant had rented fully furnished accommodation with a surface area of 30 sq. m in a hall of residence. However, neither T.G.M., during an attempted reconstruction, nor the applicant, was able to say precisely where so many bulky items of furniture, of the kind described in the applicant's complaints, might have been fitted into a furnished dwelling with a surface area of 30 sq. m. 48. In addition, statements were taken in the course of the investigation from six persons, including T., who lived in the same building or adjoining buildings. They all asserted that they had seen no heavy or bulky items of furniture being moved into the flat in question between August and November 1995. Taking the view that items of that nature could not have been moved in without being noticed, and on the basis of the preceding statements, the investigating officer concluded that the applicant had never moved the items into the flat, and that the alleged theft had not taken place. 49. Furthermore, the order of 27 May 2003 accused the applicant of taking insufficient interest in the investigation, having failed to attend his appointments with the investigating officer. 50. Lastly, having observed some inconsistencies in the applicant's statements concerning the date of his return to Melitopol, the investigation concluded that the applicant had lodged his complaint concerning the alleged theft on fictitious grounds and with a view to material gain. In support of this argument, the order cited some criticisms made of the applicant by previous employers. 51. Article 4 of the Ukrainian Housing Code (Житловий кодекс України – “the Code”) of 30 June 1983 (as amended) stipulates that the State's housing stock comprises State-owned houses and dwellings in other buildings. 52. Section 1 of Law no. 2482-XII of 19 June 1992 on the privatisation of the State housing stock (Закон України “Про приватизацію державного житлового фонду”) defines the State housing stock as the housing stock of the municipal councils, together with the housing managed by State-owned companies, institutions and establishments (“the institutional housing stock”). 53. Under Article 18 of the Code, the housing stock is managed by the owner or by an establishment, to the extent that powers have been delegated to it by the owner. 54. Under the terms of the second paragraph of Article 184 of the Code, work carried out on buildings that form part of the institutional housing stock (відомчий житловий фонд) is funded by the budget of the companies, institutions and establishments concerned. 55. Article 52 of the Code governs the allocation of flats from the institutional housing stock. In particular, flats are allocated by a joint decision of the authorities and the trade union branches of the companies, institutions and establishments concerned, which either submit their decision to the relevant municipal council for approval or, in some cases, simply inform the council. On the basis of that decision, the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat (ордер), which constitutes the sole legal basis for taking possession of the allocated dwelling (see Article 58 of the Code). 56. Article 29 of the Code provides that the housing stock is subject to State supervision. This consists in ensuring that all the organisations and persons concerned observe the rules on the use and maintenance of the housing stock and that the distribution of living space and allocation of flats occur in the correct order. 57. The list of functions of the executive committees of the municipal councils set out in Article 15 of the Code includes State supervision of the use and maintenance of the housing stock, monitoring of the state of repair and use of the institutional housing stock, and monitoring of the waiting list of persons in need of better housing kept by the companies, institutions and establishments concerned.