KASHCHUK v. UKRAINE
Inadmissible
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant, Mr Mykola Spyrydonovych Kashchuk, is a Ukrainian national who was born in 1955. His present place of residence is unknown. He was represented before the Court by Mr V.A. Struts, a lawyer practising in Mykolayiv. 2. The Ukrainian Government (“the Government”) were represented, most recently, by their Acting Agent Ms Olga Davydchuk. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The events relate to a house owned by the applicant in Zaliznychne village in the Mykolayiv region, where he lived with his wife and their two daughters (born in 1978 and 1985). 5. In February 1996 the village suffered extensive groundwater flooding. 6. In April 1996 (the exact date is illegible in the available documents) a technical survey of the applicant’s house was carried out. As stated in the survey report, the building was made of beaten earth walls and was constructed shortly after 1945. It had no foundations and measured twentythree square metres, of which nineteen square metres were living area. The building lacked basic amenities such as a lavatory, water supply, sewage system, gas supply or telecommunications. While the maximum habitable life of such buildings was up to thirty years, the applicant’s house had been in use for more than fifty years. Following the flood, its floors were covered with water (about forty-five centimetres deep) and the walls were damp. It was not deemed feasible to carry out repairs and demolition was deemed to be the only option. 7. On 26 April 1996 the Executive Committee of the Mykolayiv City Council (“the Mykolayiv Council”) issued an order “On measures for eliminating the consequences of the natural disaster in Zaliznychne village”. It noted that thirty-seven residential buildings had remained flooded with groundwater since February 1996. Twenty-seven of them were at risk of collapsing. A commission of experts was appointed to assess the situation and draw up recommendations for further measures. 8. On 18 June 1996 the commission issued its report. The applicant’s house was among those assessed as “having practically exhausted their capacity for use as a result of the groundwater flooding”. The commission noted that measures for lowering the level of the groundwater had been unsuccessful, that the condition of the houses was deteriorating and that they could collapse at any moment. Its conclusion was that the houses were dilapidated, uninhabitable and should be demolished. 9. On 28 June 1996 the Mykolayiv Council approved the above report, as well as a list of dilapidated and uninhabitable houses, including the one belonging to the applicant. It recommended that the local authorities dealing with housing issues, together with local companies, resettle the people concerned to hostels on a temporary basis. 10. The local authorities further recommended to the applicant that he turn to his employer, the Equator plant, for help in solving his housing problem. 11. On 30 August 1996 the Mykolayiv Council delivered a decision on the resettlement of the residents of the flooded houses, including the applicant’s family, to hostels. It guaranteed that within three years they would receive new accommodation, subject to applicable benefits and the available funding. The Equator plant was directed to resettle the applicant’s family. 12. On 16 September 1996 Equator’s administration and its trade unions proposed that the applicant’s family move temporarily to a flat at either 44a or 46a V. Street. The applicant declined the offer on the grounds of the poor condition of the buildings in question. 13. On 17 June and 31 October 1997 the Mykolayiv Council and the mayor’s office, respectively, wrote to the applicant in reply to his complaints about the failure to provide him with free accommodation, saying that he had declined the proposal of temporary resettlement to a flat at 46a V. Street for no good reason. Furthermore, the local authorities had provided the applicant’s daughter with a two-room flat, with partial amenities, for temporary resettlement. 14. On 27 November 1997 the applicant made a written statement to his employer that he was refusing the proposed accommodation at 44a V. Street owing to its poor condition. 15. On 1 June 1999 the Equator’s administration replied to his repeated requests for accommodation by writing to him that in January 1998 the housing fund of the plant had been transferred to the Mykolayiv city municipal property agency, apart from two buildings (44a and 46a V. Street). The building at 46a V. Street was indeed in a very poor, even critically bad, condition. As regards the building at 44a V. Street, the applicant had twice been offered a flat there, but had declined the offer. According to the information provided by the Government, the flat in question measured about fifty-five square metres, of which the living area was thirty-four square metres. However, according to the applicant, the only accommodation he was offered had been a small room without any amenities (see below). 16. On 23 June 1999 the applicant wrote to the Equator’s administration that the only offer he had actually received concerned a room measuring about ten square metres, without any amenities, at 46a V. Street. He emphasised, however, that he would have also declined any offer to be resettled in the building at 44a V. Street, where the conditions were equally poor. 17. On 20 September 2000 a technical survey of the buildings at 44a and 46a V. Street was carried out. Since their construction in 1947, they had not been refurbished and their general condition was considered as being very poor. 18. In May 2001 the applicant found out that he was number 147 on the plant’s general waiting list for accommodation. He complained about that to the Mykolayiv Council, which replied on 6 July 2001 that that was an error, that it should be corrected and that he was indeed entitled to be on the priority waiting list, pursuant to the decision of 28 June 1996. 19. On 27 August 2001 Equator’s administration moved the applicant from the general waiting list to the priority list, where he was at number 36. 20. On 22 February 2002 Mykolayiv Council wrote to the applicant that he was number 35 on its housing waiting list. All the families on the list before him continued to live in uninhabitable conditions and the applicant had to wait his turn. 21. On 22 May 2002 the applicant brought a civil claim against the Equator plant and the Mykolayiv Council, seeking the allocation of free accommodation for his family (by that time consisting of six people as the applicant’s elder daughter had married and given birth to a girl in 2001), as well as compensation in respect of non-pecuniary damage. 22. On 19 September and 20 December 2002 the Equator’s administration and the Mykolayiv Council removed the applicant from their housing waiting lists. 23. On 9 January 2003 the Zavodskyy District Court of Mykolayiv (“the Zavodskyy Court”) found against the applicant. It noted that he had declined two offers of resettlement. Furthermore, he had inherited some real estate in 1990, of which he had not informed the authorities. As a result, Equator’s administration and the Mykolayiv Council had rightly taken him off their housing waiting lists. 24. The applicant appealed. He submitted, in particular, that the property he had inherited consisted of less than six square metres and could not be regarded as alternative accommodation for his family. To corroborate his statement, he provided an expert’s technical survey. 25. On 1 April 2003 the Mykolayiv Regional Court of Appeal (“the Court of Appeal”) quashed the judgment of 9 January 2003 and remitted the case for fresh examination at first instance. It noted that the applicant’s claim concerned the allocation of free accommodation, rather than his exclusion from the housing waiting lists. 26. On 24 November 2003 the Zavodskyy Court allowed the applicant’s claim in part. It considered it established that his house had become uninhabitable as a result of a natural disaster. Accordingly, the court held that the applicant was entitled to free accommodation, pursuant to Article 46 of the Housing Code (see paragraph 32 below). The applicant was also awarded compensation in respect of non-pecuniary damage (1,000 Ukrainian hryvnias, which was then equivalent to about 150 euros, from each of the two defendants). 27. On 5 February 2004 the Court of Appeal quashed the first-instance court’s judgment following appeals by the defendants and adopted a new judgment which in the main dismissed the applicant’s claim. With reference to the decisions of Mykolayiv Council of 28 June and 30 August 1996 (see paragraphs 9 and 11 above), the Court of Appeal noted that the applicant’s house had been among those inspected by a technical commission following the flood and that Equator’s administration had been responsible for resettling his family. It considered that the case file did not contain any evidence proving that the applicant’s house had become uninhabitable as a result of a natural disaster and therefore concluded that Article 46 of the Housing Code was not applicable. However, the applicant was to be restored to the priority housing list, in accordance with Article 45 of the code, given that his house was uninhabitable. This restoration, according to the Court of Appeal, constituted sufficient compensation in respect of non-pecuniary damage. 28. The applicant appealed against the judgment on points of law. He insisted that his house had become uninhabitable as a consequence of the flood. 29. On 11 April 2006 the Supreme Court rejected the applicant’s cassation appeal, giving a concise reasoning that it had not discerned any violations of the law. 30. Article 5 stipulates that the State’s housing stock comprises that of local councils of people’s deputies (житловий фонд місцевих Рад) and that of ministries, state committees and institutions (відомчий житловий фонд). 31. Article 45 contains a non-exhaustive list of categories of people whose living conditions need to be improved and who are therefore entitled to free accommodation being placed on a priority housing list (першочергове надання жилих приміщень). As further set out in Article 60, approval of the rules of keeping records about people belonging to those categories was the responsibility of the Council of Ministers of the Ukrainian SSR and the Ukrainian Republican Council of Trade Unions. 32. Article 46 provides for categories of people entitled to free accommodation without being on a housing list (позачергове надання жилих приміщень), including “citizens whose dwelling has become uninhabitable as a result of a natural disaster”. The Article further states that such people shall be included on a separate waiting list. No time-limits are set down for the allocation of dwellings to such people. 33. Article 48 of the Housing Code states, in particular, that the minimum size of residential premises should comply with standards laid down by the Cabinet of Ministers and the Trade Union Federation. 34. According to Article 50, residential premises should comply with the relevant sanitary and technical standards. 35. Article 52 governs the allocation of flats from the institutional housing stock (відомчий житловий фонд). 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 (Article 58). 36. “Rules of keeping records about people in need of improved living conditions and the allocation of free accommodation for them ...” (Правила обліку громадян, які потребують поліпшення житлових умов, і надання їм жилих приміщень ...), which were approved by Resolution of the Council of Ministers of the Ukrainian SSR and the Ukrainian Republican Council of Trade Unions no. 470 of 11 December 1984 (with further amendments), also contain several provisions of relevance. 37. More specifically, point 44 contains a list of categories of people on housing waiting lists who must be provided with free accommodation as a matter of priority. One such category concerns “people living in dilapidated buildings not subject to major repairs” (§ 14). Furthermore, point 46 (§ 1) reiterates the provisions of Article 46 of the Housing Code (see above).