CASE OF SKUBENKO v. UKRAINE
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Zoryana Bortnovska
9. The applicant was born in 1953 and lives in Kyiv. He is a former employee of the Institute of Semiconductor Physics of the Academy of Sciences of Ukraine (the “ASU”). 10. Between 1991 and 1995 the applicant, who was already a tenant of studio No. 35/5 in a communal apartment, petitioned various Ukrainian authorities seeking the right to reside in studio No. 35/6, which had become vacant in January 1995. By a decree of 10 July 1995, the Leningradsky District Council of Kyiv (the “LDC”) granted Mrs V.M.K. (a private person) the right to use that studio. 11. On 30 August 1995 the applicant lodged complaints with the Leningradsky District Court of Kyiv (the “Leningradsky Court”), seeking Mrs V.M.K.’s eviction from the studio. He also requested the court to issue him with a certificate granting him the right to occupy it. 12. On 22 November 1996 the Leningradsky Court rejected the applicant’s claims as being unsubstantiated. On 5 February 1997 the Kyiv City Court quashed this judgment and remitted the case for fresh consideration. 13. In December 1997 the applicant lodged his complaints with the Leningradsky Court against the ASU and the LDC, seeking to quash the decree of 10 July 1995 and to be allocated studio No. 35/6. By a judgment of 4 December 1997, the court quashed the decree of 10 July 1995 and recognized the applicant’s right to use the studio. The court ordered the respondents to take all necessary measures for the applicant’s enjoyment of his residential premises and the enforcement of the judgment of 4 December 1997. The judgment became final on 14 December 1997. 14. In January 1998 the applicant lodged the writ of execution with the Leningradsky District Execution Service of Kyiv. As a result, the certificate of Mrs V.M.K. granting her the use of studio No. 35/6 was annulled. 15. On 6 February 1998 the applicant lodged the writ of execution with the Starokyivsky District Execution Service of Kyiv (the “Starokyivsky Execution Service”) to oblige the ASU, one of the owners of the apartment, to certify that he could use studio No. 35/6. The execution proceedings were instituted on 23 February 1998. 16. Between April 1998 and February 1999, the applicant lodged several complaints with the Leningradsky Court, the Starokyivsky District Court of Kyiv (the “Starokyivsky Court”), the Kyiv City Court, the General Prosecution Service and the Kyiv Department of the Ministry of Justice, complaining about the failure of the Execution Service to enforce the judgment of 4 December 1997. 17. On 1 September 1998 the Starokyivsky Execution Service initiated administrative proceedings against the Logistics Director of the ASU who had failed to execute the judgment given in the applicant’s favour. 18. On 10 September 1998 the Logistics Department of the ASU informed the applicant and the Starokyivsky Court that the applicant had received the keys and free access to studio No. 35/6 in May 1998. 19. On 23 September 1998 the Starokyivsky Court fined the Logistics Director of the ASU for failure to comply with the judgment of 4 December 1997. 20. The Director appealed against this decision as he did not have the power to issue a certificate for the use of the apartment, which power lay with the LDC. The Kyiv City Court allowed the Director’s appeal on 4 November 1998. On 29 December 1998 the Starokyivsky Court dismissed the petition of the Starokyivsky Execution Service of 1 September 1998 by which it had initiated administrative proceedings against the Logistics Director of the ASU. 21. On 5 August 1999 the applicant was dismissed from his position at the ASU for alleged failure to appear at work for a lengthy period of time. 22. On 6 August 1999 the ASU issued resolution No. 1041 granting the applicant the use of studios Nos. 35/5 and 35/6. They also petitioned the LDC to issue a certificate (ордер) for the applicant’s use of those studios. 23. On 28 September 1999 the LDC issued decree No. 1329 authorising the applicant to use apartments Nos. 5 and 6 situated at 14, Dobrokhotov Street in Kyiv. 24. On 12 October 1999 the Kyiv Department of Justice informed the applicant about the execution of the judgment of 4 December 1997. 25. On 20 October 1999 the LDC issued a certificate (ордер на квартиру) to the applicant recognising his right to use the aforementioned apartments. 26. On 29 October 1999 the applicant informed the Court that the certificate for the use of the appartment was invalid as it concerned apartments No. 5 and 6, but not studios Nos. 35/5 and 35/6, specified in the judgment of the Leningradsky Court. 27. In January 2001 the ownership title of appartment No. 35 belonging to the ASU was transferred to the LDC. 28. In July 2003 the applicant was informed by the Communal Residence Department of the LDC that he would be provided with a certificate for his residential premises. 29. On 7 August 2003 the LDC issued decree No. 1411 acknowledging the applicant’s right to use studio No. 35/6 and issued him with a certificate of use on 2 September 2003. 30. The relevant provisions of the domestic law and practice are cited in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and the admissibility decision in the present case (Skubenko v. Ukraine, no. 41152/98, 6 April 2004).