CASE OF KARAKUTSYA v. UKRAINE
No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev
5. In December 1996 the first applicant concluded a three-year military service contract with the Ministry of Defence. 6. In March 1999 its housing commission allocated him a studio in a residence hall for students and employees of the National Defence Academy of Ukraine (“the Defence Academy”), located on Z. Street in Kyiv, and the applicants moved into this accommodation. 7. In December 1999 the first applicant concluded another three-year military service contract. 8. On an unspecified date in 2001 the applicants’ daughter was born. 9. In December 2001 the first applicant rescinded his contract with the Ministry of Defence and resigned from military service, citing family circumstances. 10. On 4 April 2002 he was employed as a salesman by G., a private company. 11. On an unspecified date and for unknown reasons the first applicant registered himself as a temporary resident at an address on P. Street in Kyiv. However, according to the applicants’ submissions, the family continued to live in and pay charges for the Z. Street studio, which they had renovated and modernised at their own expense. 12. In October 2002 the Defence Academy and Office of the Prosecutor General instituted proceedings in the Shevchenkivskyy District Court in Kyiv, seeking to evict the applicants’ family from the Z. Street accommodation. Relying on Article 132 paragraph 1 of the Housing Code (see paragraph 35 below), the plaintiffs argued that because the first applicant had resigned from military service, he and his family were obliged to vacate the accommodation, which had been provided to them on a temporary basis in connection with the first applicant’s military service. 13. During the trial, the applicants alleged that the first applicant had been “cantoned” or quartered in the disputed accommodation as a military serviceman, a fact which triggered a special duty on the part of the State to keep providing him with housing upon his resignation from the armed forces. Article 132 paragraph 1 of the Housing Code, which concerned accommodation for seasonal and temporary employees, did not apply in their case. They also noted that the first applicant had a dependent wife and young child, and that the family had no other accommodation in Kyiv. 14. On 11 November 2003, after hearing oral submissions of all interested parties and having examined the written evidence presented, the court ruled for the plaintiffs. It found that the disputed accommodation had been provided to the applicants on a temporary basis, as a privilege in connection with the first applicant’s military service. Since it had been his decision to terminate the contract early, there was no right to keep the accommodation or any duty of the State to provide other accommodation under the applicable law. Article 132 paragraph 1 of the Housing Code was therefore applicable and the applicants’ family was legally obliged to vacate the Z. Street accommodation. 15. On 9 December 2003 the first applicant lodged an appeal with the Kyiv City Court of Appeal (“the Court of Appeal”). No copy has been provided to the Court. 16. On 29 January 2004 the Court of Appeal upheld the judgment of 11 November 2003, following a hearing attended by representatives of the Defence Academy but not by the first applicant. The court held, in particular, that his service contract had contained no clauses obliging the Ministry to provide him with housing during his service. The fact that he had been provided with temporary accommodation at the Ministry’s discretion did not mean that the State had a duty to accommodate him or his family after termination of the contract. 17. According to the applicants, the Court of Appeal did not notify them of the date and time of the hearing of 29 January 2004. They further stated that on two occasions – in April 2004 and sometime in 2005 (the applicants could not recall the exact dates) – the first applicant had visited the Court to enquire about the status of the proceedings, but did not receive any meaningful response. 18. According to the applicants, on 28 April 2004 they were evicted from the Z. Street accommodation. 19. On 7 May 2004 the Official Gazette of Ukraine (Офіційний вісник України) published the new Code of Civil Procedure (hereinafter “the 2004 Code”), which was adopted on 18 March 2004 and entered into force on 1 September 2005. 20. On 12 August and 26 September 2005 the first applicant lodged written complaints with the President of the Court of Appeal concerning the delay in examining his appeal. 21. On 3 October 2005 the Deputy President of the Court of Appeal informed him that his case had already been decided and that the judgment of 11 November 2003 had been upheld. 22. On 16 and 24 November 2005 the first applicant wrote to the Court of Appeal with a request to be provided with a copy of the decision taken on 29 January 2004. 23. On 29 November 2005 the applicants received a copy of that decision. 24. On 13 December 2005 the applicants lodged a request with the Supreme Court of Ukraine for leave to appeal in cassation out of time against the rulings of 11 November 2003 and 29 January 2004, on the grounds that they had not been notified of the latter ruling until 29 November 2005. They argued, in particular, that the Court of Appeal had failed, in breach of the requirements of the applicable law, to notify them of the date and time of the appeal hearing and the decision taken in their case. They had hence been deprived of their statutory right to attend the appeal hearing and to lodge a cassation appeal within the statutory time-limit. They also argued that the lower courts had erred in their assessment of the facts and application of the law in their case. In particular, since the first applicant had resigned from military service in connection with family circumstances, his situation fell within the ambit of paragraph 3, not paragraph 1 of Article 132 of the Housing Code. Accordingly, his family could only be evicted from the accommodation reserved for military personnel if they had been provided with other comparable accommodation. The applicants also relied on section 12 of the Social Protection of Military Servicemen Act (see paragraph 36 below) as the basis for their entitlement to permanent accommodation. 25. On 20 December 2005 the Supreme Court rejected the applicants’ request for leave to appeal out of time, noting that, in accordance with Article 325 § 2 of the new Code of Civil Procedure of 2004 such leave could only be granted within one year of pronouncement of the decision subject to appeal (see paragraph 34 below).