CASE OF DAKUS v. UKRAINE
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer
4. The applicant was born in 1978 and lives in Kalush. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1996 V.D., the applicant’s future husband and his parents living in corporate housing (“flat A”) owned by “K.T.”, a State company (hereinafter “the K.T. company”), were offered the chance by the latter to exchange this accommodation for larger corporate housing accommodation (“flat B”), which was also owned by the same Company. Having accepted this offer, the three of them signed a written undertaking to vacate flat A when they moved to flat B. 7. In July 1997 the applicant married V.D. and joined him, his parents and brother to live in flat A. 8. In 1998 the applicant’s and V.D.’s son was born. Along with the applicant, he was registered by the local authority as a co-tenant of flat A on the grounds that both of them had become members of the original tenants’ family. 9. In 1999 the K.T. company transferred ownership of flat A to the municipality. 10. At various subsequent dates the applicant’s husband and parents-in-law moved out into flat B and registered their residence at the new address. 11. According to the Government, the applicant and her son also moved into flat B at the material time. 12. According to the applicant, she and her son remained residents in flat A, as her marriage with V.D. was falling apart and living together had become intolerable. 13. In August 2004 V.D. and the applicant divorced. 14. On 20 July 2005 the K.T. company decided to reallocate flat A to the family of R., its employee, who lived in an accommodation hall (гуртожиток). 15. In October 2005 the K.T. company lodged a claim in the Kalush Town Court, seeking, in particular, to evict the applicant and her son from flat A. It argued that there was no legal basis for them to remain in the property, which had been reallocated to a new tenant (R.). 16. On 25 July 2006 the court dismissed the claim for the eviction of the applicant and her son. It found, in particular, that the applicant had lawfully moved into flat A as a member of the original tenants’ family and so had acquired all the rights of a social tenant, within the meaning of Article 64 of the Housing Code (1983). She and her son had never promised to relocate and had remained residents of flat A at the material time. They had not been included in the occupancy voucher («ордер») of flat B and had not been provided with any other housing. They could therefore not be evicted without being provided with alternative accommodation. Moreover, in 1999 the K.T. company had transferred flat A to municipal ownership. It had therefore had no standing in 2005 to reallocate the same flat to R.’s family or to bring the present proceedings. 17. The K.T. company appealed, referring to Article 55 of the Housing Code. 18. On 14 September 2006 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 25 July 2006 and ordered the applicant’s and her son’s eviction “without provision of any other accommodation”. It held that the Kalush Court, having properly established the relevant facts, had interpreted the law incorrectly. Notably, according to Articles 55 and 99 of the Housing Code, the applicant (together with her son) – having settled in flat A as a member of the original tenants’ family – was bound by the duty of the original tenants to vacate the flat. There was therefore no legal basis for the applicant’s and her son’s continued residency in flat A, and this fact constituted a sufficient basis for their eviction without the provision of any other housing. Furthermore, the Kalush Court had erred in respect of the K.T. company’s legal standing. Under Article 55 of the Housing Code, notwithstanding the transfer of the property to the municipality, the K.T. company had retained the right to allocate the flat to one of its employees. It had therefore had legitimate standing to seek the vacation of the flat by its previous tenants. 19. The applicant lodged a request for leave to appeal in cassation. She noted that she and her minor son had been lawful and registered residents of the disputed flat for eight years. During this period, she had dutifully engaged in the payment of all expenses relating to her occupancy of the flat. Unlike her former husband and in-laws, she and her son had not given any promises to vacate flat A and had not acquired any rights to live in flat B with them. Accordingly, her and her son’s eviction would effectively render them homeless. 20. On 16 November 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation, ruling that her submissions did not contain any argument creating an appearance that there could be a problem under applicable law. 21. On 15 December 2006 the applicant requested the Kalush Court to postpone her eviction, in particular, because she had no other accommodation and her salary was too small for her to rent private-sector housing. 22. On 21 December 2006, while the applicant’s request was pending consideration, the State bailiffs arrived at flat A and had the applicant vacate it and surrender the keys. 23. On 25 December 2006 the local registration authority annulled the applicant’s and her son’s registration as residents of flat A. 24. On 29 December 2006 the Kalush Court allowed the applicant’s request for her and her son’s eviction to be postponed; it postponed their eviction for three months, referring to her indigent status and the interests of a minor child. 25. According to the applicant, after her eviction she had to seek emergency refuge in the home of a colleague and subsequently rented odd accommodations at various places. She submitted testimony given by various acquaintances and copies of some fixed-term lease agreements. 26. The Government contested this account, insisting that the lease agreements were fictitious and the applicant had de facto lived in flat B permanently since 2004 without proper registration.