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FIFTH
SECTION
CASE OF SERYAVIN AND OTHERS v. UKRAINE
(Application
no. 4909/04)
JUDGMENT
STRASBOURG
10
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Seryavin and Others
v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna
Yudkivska,
Julia Laffranque, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4909/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Ukrainian nationals, Mr Oleksandr
Valerianovych Seryavin, Mrs Iryna Mykolayivna Kolomiyets
and Mrs Larysa Viktorivna Logvinova (“the applicants”),
on 29 December 2003.
- The
applicants were represented by Mrs I.Y. Cherpak, a lawyer practising
in Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- The
applicants alleged, in particular, that the authorities had
unlawfully commissioned renovation work on their attic and
subsequently transferred it to a third party, and that the courts had
adopted arbitrary judgments in respect of their claim in that
respect.
- On
1 April 2009 the President of the Fifth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1960, 1960 and 1959 respectively and live in
Kyiv.
- The
applicants are owners and residents of apartments in a
multi-apartment building. By 1998 all but three of some fifty
apartments located in this building had been privatised by their
residents pursuant to the Law of Ukraine “On Privatisation of
the State Housing Stock”. The three non-privatised apartments
remained in municipal ownership.
- On
29 April 1998 the Kyiv City State Administration authorised Mrs N.N.
to renovate the attic of the building and construct a mansard floor
with a view to obtaining title to the renovated and newly constructed
premises on condition that the residents’ consent was sought
for the project.
- On
29 May 1998 Mrs N.N. signed an investment contract for renovation and
construction works with the Radyansky District Housing Maintenance
Company (Державне
підприємство
по утриманню
житлового фонду
Радянського
району м. Києва)
acting for the building’s owner. According to the contract, the
building was municipally owned, and the municipality was to grant Mrs
N.N. title to the construction on completion of the works.
Subsequently Mrs V.G. became party to this contract as the second
investor. Neither the applicants nor the other apartment owners were
asked for their consent to the project. On a number of occasions the
apartment owners unsuccessfully contacted various authorities to
object to the construction works.
- In
July 2001 the apartment owners formed the Apartment Owners
Association (“the Association”), which was joined by the
applicants.
- In
April 2002 the investors started the works on the building.
- According
to the applicants, their apartments suffered damage on account of the
construction works (such as cracks in the ceiling and the walls,
flooding and pieces of plaster falling off).
- In
October 2002 the Association instituted civil proceedings in
Svyatoshynsky District Court, Kyiv, seeking to annul the investment
contract and to restore the attic to its previous state, alleging, in
particular, that the municipality owned only three apartments in the
building and should have sought the consent of the other apartment
owners in order to conclude the contract. The applicants, who were
represented by the Association, subsequently also joined the
proceedings on their own behalf, along with two other apartment
owners.
- The
Shevchenkivsky District State Administration (the successor of the
Radyansky District State Administration; “the Administration”)
lodged a counterclaim, seeking to prevent the plaintiffs from
interfering with the works and to have their refusal to consent to
them declared illegitimate. By way of reasoning, the Administration
submitted that the building, and particularly its attic and roof,
were old and in very poor condition. They urgently needed investment
for renovations. The construction works were therefore beneficial for
all the apartment owners and residents of the building.
- On
an unspecified date Svyatoshynsky Court ordered the suspension of the
construction works in connection with the dispute. Nevertheless the
works continued and were completed by 6 December 2002.
- On
26 December 2002 the Shevchenkivsky District Council granted the
title to the renovated and newly constructed premises to the
investors. On an unspecified date the applicants and the Association
amended their claims, seeking to have this decision quashed.
- On
29 January 2003 Svyatoshynsky Court dismissed the applicants’
and the Association’s claims and allowed the counterclaim by
the Administration. The relevant parts of the judgment read as
follows:
“From the moment of privatisation of the
apartments, the plaintiffs and, at the material time, the Radyansky
District Administration, which had remained the owner of three
apartments, obtained joint divided ownership to the building,
including auxiliary premises ...
According to Article 113 of the Civil Code of Ukraine,
possession, use and disposal of joint divided property shall be
carried out with the consent of all the owners, while in the absence
of consent the dispute is to be decided by a court.
Consequently, the question of reconstruction of the
attic and renovation of the building had to be decided with the
consent of all the co-owners of the house. However, as established by
court, the investment agreement was concluded by one of the co-owners
of the building without the consent of other co-owners, in connection
with which the present proceedings arose.
...
Regard being had to the fact that the investment
agreement has been practically completed by the material time, that
this has facilitated improvement of the technical state of the entire
building and that, in addition to the plaintiffs, the Shevchenkivsky
District Administration also owns some apartments in it, the
plaintiffs’ refusal to consent to the construction works under
the investment agreement is unlawful and encroaches on the rights of
other co-owners; therefore the initial claim should be dismissed and
the counterclaim allowed.
...
Demands to quash the decision no. 114 of the
Shevchenkivsky District Council of 26 December 2002 consenting
to alienation ... of the premises constructed on the attic ... from
municipal property ... shall not be allowed on the following grounds.
... The building was owned at all times by the municipal community
represented by the Council, which, according to Article 60 of the Law
of Ukraine “On Local Self-Governance”, unilaterally ...
executes rights of possession, use and disposal of the objects of
municipal property, including housing stock. Therefore, regard being
had to the above and that the reconstruction of the attic... was
carried out at N. N.’s and V. G.’s expense, the
Shevchenkivsky District Council was empowered to take such a
decision”.
17. In
February 2003 the plaintiffs appealed, alleging various violations of
substantive and procedural law by the trial court. In particular,
they maintained that the Svyatoshynsky Court’s reasoning
concerning the District Council’s right to transfer the title
to the attic had been in manifest disregard of applicable law and in
contradiction of the court’s own findings that
according to Article 113 of the Civil Code the attic was co-owned by
the municipality and the plaintiffs.
- On
14 April 2003 the Kyiv City Court of Appeal dismissed this appeal.
The judgment, in so far as relevant, read as follows:
“... in rejecting the claim... the [district]
court reasonably considered that before the creation of the
Association (on 26 July 2001) and from the moment of privatisation by
the plaintiffs of particular apartments... the building... was in the
joint divided ownership of the individual apartment owners and the
District Council; the legal status of which parties concerning
possession, use and disposal of the building being governed by
Article 113 of the Civil Code of Ukraine.
Deciding the present dispute and finding ... the refusal
of the plaintiffs – co-owners of the building - to consent to
the reconstruction of the attic premises and construction of the
mansard floor unreasonable, the court had properly considered ...
necessity to carry out such works ... regard being had to the
technical state of the roof and the attic premises ..., [and] that
... [in the course of the reconstruction] some other works [were
carried out] for the improvement of the living conditions of all the
owners and tenants of the residential premises [as well as] the value
of the building as a property.
Regard being had to the fact that a mansard floor was
constructed at the investors’ expense and without the
participation of the plaintiffs ... the Shevchenkivsky District
Council had lawfully decided the issue of disposal of the above
premises, in compliance with Article 119 of the Civil Code of
Ukraine.”
- The
plaintiffs appealed in cassation, maintaining in particular that it
was unlawful to deprive them, as they represented over 70% of the
apartment owners, of their property on the basis of a reference to
its alleged improvement by a third party, to which they had never
consented. They also submitted that the condition of the house in
general had been made worse as a result of the works.
- On
13 August 2003 the Supreme Court rejected the plaintiffs’
request for leave to appeal in cassation.
- Subsequently
the plaintiffs unsuccessfully attempted to obtain an extraordinary
review of their claims with reference to inconsistent jurisprudence
of domestic courts in application of the law in similar cases.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine
- Relevant
provisions of the Constitution of Ukraine read as follows:
Article 13
“... The State ensures the protection of the
rights of all subjects of the right of property and economic
management, and the social orientation of the economy. All subjects
of the right of property are equal before the law.”
Article 41
“Everyone has the right to own, use and dispose of
his or her property, and the results of his or her intellectual and
creative activity.
...
No one shall be unlawfully deprived of the right of
property. The right of private property is inviolable.
The expropriation of objects of the right of private
property may be applied only as an exception for reasons of social
necessity, on the grounds of and by the procedure established by law,
and on the condition of advance and complete compensation of their
value. The expropriation of such objects with subsequent complete
compensation of their value is permitted only under conditions of
martial law or a state of emergency.
...”
Article 124
“...
The jurisdiction of the courts extends to all social
interactions falling within the ambit of the law that arise in the
State.
...”
B. Civil Code of Ukraine of 1963 (repealed with effect
of 1 January 2004)
- Relevant
provisions of the Civil Code of Ukraine in force at the material time
read as follows:
Article 113 Right of Joint Divided Ownership
“Possession, use and disposal of property held in
joint divided ownership shall be carried out with the consent of all
the shareholders, and, in the absence of consensus, the dispute shall
be decided by court.
...
Every shareholder... according to the size of his share
shall be entitled to proceeds from joint property, shall be liable
before third parties for obligations regarding the joint property and
shall take part in payment of various taxes and dues, as well as in
maintenance and safekeeping expenses concerning the joint property.
Every shareholder of a joint divided property shall have
right to transfer his share of the joint property to a third person
for or without remuneration.”
Article 119 Consequences of construction of adds-on,
annexes, or reconstruction in a building held in joint divided
ownership
“In the event a person owning a share in a
residential building held in joint divided ownership increases its
useful area at his own expense by constructing an annex, an add-on or
by reconstructing it with the consent of other shareholders and
according to established procedure, the shares of the joint divided
owners of the building and the use of the premises in it shall be
changed accordingly.”
C. Law of Ukraine “On Local Self-Governance”
no. 28/97-VR of 21 May 1997
- Relevant
provisions of the Law of Ukraine “On Local Self-Governance”
read as follows:
Section 60. Right of communal (municipal)
property
“1. Territorial (municipal) communities
of villages, towns, cities, districts in cities shall hold the right
of communal (municipal) property to movable and immovable possessions
... including ... housing stock, non-residential premises ... and
other possessions ... determined on the basis of the law as objects
of right of communal (municipal) property, as well as proceeds
obtained from their alienation.
...
5. Bodies of local self-governance shall execute, on
behalf of and in the interests of the territorial (municipal)
communities and in accordance with the law, powers of possession, use
and disposal of communal (municipal) property, including all property
transactions ..., sell and purchase ..., decide on other issues
related to their alienation ...”
D. Law of Ukraine “On Privatisation of the State
Housing Stock” of 1992
- Relevant
provisions of the Law of Ukraine “On Privatisation of the State
Housing Stock” read as follows:
Section 10
“...
2. Owners of apartments in multi-apartment
buildings shall be co-owners of the auxiliary premises of the
building... Auxiliary premises (storage rooms, storehouses and so on)
shall be transferred into the residents’ ownership free of
charge and shall not be subject to privatisation separately.
3. For ensuring effective use of privatised
apartments and their management, owners of apartments (houses) may
create societies or associations of individual apartment or house
owners. In a multi-apartment building whose apartments are not fully
privatised, there shall be concluded, between the society
(association) of individual owners and owners of non-privatised
apartments, an agreement on joint possession of the building and
shared participation in expenses for its maintenance.”
E. Judgment of the Constitutional Court of Ukraine of 2
March 2004 (case no. N 1-2/2004).
- The
relevant part of the judgment reads as follows:
“... the basis for consideration of the case ...
is the practical necessity of ... the official interpretation of ...
paragraph 2 of Article 10 of the Law of Ukraine “On
Privatisation of the State Housing Stock”, existence of
inconsistent interpretation of these provisions by the State
authorities, including the courts and bodies of local
self government...
... provisions of paragraph 2 of Article 10 of the Law
of Ukraine “On Privatisation of the State Housing Stock”
shall be understood as follows:
1.1. Auxiliary premises (basements,
storehouses, storage rooms, attics, pram storage rooms etc.) shall be
transferred to the joint ownership of citizens simultaneously with
privatisation of the apartments by them... Confirmation of the right
of ownership of the auxiliary premises shall not require any
additional actions, in particular, the creation of an association of
owners of a multi-apartment building, nor shall there be a
requirement to join such an association.
1.2. An owner (owners) of non-privatised
apartments in a multi-apartment building is a co-owner (are
co-owners) of auxiliary premises on an equal basis with the owners of
privatised apartments...”
F. Jurisprudence of the Ukrainian Courts in Cases
concerning Transactions in Auxiliary Premises of Multi-Apartment
Buildings without consent of Apartment Owners
- By
the decision of 7 August 2003 (case no. 22-3816), the Kyiv City Court
of Appeal reversed the judgment of the Pechreskyy District Court of
Kyiv of 7 April 2003, acknowledging as lawful the reconstruction of
an attic and the transfer of title to it to an investor. The Court of
Appeal, in particular, invalidated the reconstruction contract
concluded between the District Administration and a third-party
investor without consent of the plaintiffs – owners of
privatised apartments in a multi-apartment building. On 23 December
2004 the Court of Appeal’s judgment was upheld by the Supreme
Court of Ukraine and became final. In its judgment, the court
referred, in particular, to the following reasons:
“... Having rejected the claim, the
[first-instance] court took it that as of the time of transfer of the
title to the attic to “S.” [the investor], the right of
joint ownership of the attic had not been created for the owners of
privatised apartments, as such a right could have been created only
upon privatisation of all apartments in the building ... and entry
[by the apartment owners] into a contract concerning joint possession
of the residential building and participation in its maintenance
expenses. Since ... a contract concerning joint possession of [the
auxiliary] premises had not been concluded and maintenance of the
building was carried out by the ... municipal company, the defendant
was not obliged to obtain consent of the owners of privatised
apartments for reconstruction of the attic.
However, it is not possible to agree with these
conclusions, since the court has reached them as a result of
incorrect application of substantive law provisions.
...
The law does not provide that the right of joint
ownership of auxiliary premises is created for the owners of
privatised apartments of the building only after the creation of an
association of the co-owners... Namely, simultaneously with
privatisation of apartments, individuals renting an apartment obtain
ownership of the apartment and auxiliary premises and there is no
need for further formalisation of the ownership of auxiliary premises
prescribed by law.
...
According to Article 113 of the Civil Code of Ukraine,
possession, use and disposal of property held in joint divided
ownership shall be conducted upon consent of all shareholders,
lacking which the dispute shall be decided by court.
The multi-apartment building no. 2-4/7 on the P. street
in the city of Kyiv, which has 98 privatised apartments, is a joint
divided property of the citizens – owners of privatised
apartments and the competent State body, which carries out the
owner’s authority in respect of the non-privatised apartments.
Consequently, the municipal authority does not have a
right to sell, lease out or decide on reconstruction, modification of
auxiliary premises, in particular, the attic, without consent of the
owners of privatised apartments.
In light of the above, allegations of the plaintiffs
that the investment contract ... is invalid for the purposes of
Article 48 of the Civil Code of Ukraine are well-founded, since such
a contract does not comply with the requirements of the law ...”
- Several
analogous decisions, which, referring to similar reasons, invalidated
renovation, ownership transfer and other contracts concerning attics
of multi-apartment buildings concluded by the authorities without
consent of the privatised apartments owners, were taken by the
Shevchenkivsky District Court of Kyiv in 2003-2004 (in particular,
judgments of 30 December 2003 in case no. 2-4364; of 4 February 2004
in case no. 2-52/2004 and of 23 March 2004 in case no. 2-170/04).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
TO THE CONVENTION
- The
applicants first complained that the local authorities had unlawfully
interfered with their possession of the attic by concluding an
investment contract for its renovation and the construction of a
mansard floor without their consent.
- They
also complained that they had been unlawfully deprived of their
shares in the attic by the District Council’s unilateral
decision to transfer them to the investors.
- The
applicants relied on Article 1 of Protocol No. 1 in respect of the
above complaints, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government submitted no observations concerning admissibility of the
above complaints.
- The
Court considers that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The submissions of the parties
(a) The applicants
- The
applicants submitted that the municipal authorities had unlawfully
interfered with their right of ownership of a share in the attic by
concluding the investment contract without their consent. These
authorities had further unlawfully deprived them of their shares in
the attic by transferring them to the investor without the
applicants’ consent.
- In
support of their arguments the applicants submitted several decisions
given by domestic courts in other proceedings, unrelated to the
present case, in which similar unilateral actions by the public
authorities concerning reconstruction of auxiliary premises in
multi-apartment buildings without the consent of the apartment owners
had been recognised as unlawful.
- The
applicants further stated that the actions by the authorities in
their case were not only unlawful but also unfair and unjustified, as
the investors had regard only to their own interests. Contrary to the
courts’ findings, the investors had completed only those works
which were necessary for construction of the mansard floor, and had
not carried out renovation works on the building itself. Moreover,
the actual state of the building had deteriorated as a result of the
construction works.
(b) The Government
- The
Government objected to this view. They stated that the applicants had
unreasonably objected to the reconstruction of the attic by the
investors, as the project was beneficial to all parties concerned.
The building having been very old and in poor condition, renovation
of the attic was an urgent necessity. As the applicants, who were
co-owners of the attic, resisted the renovation, the municipality, as
the owner of three apartments in the building and consequently a
co-owner of the attic, disputed the applicants’ refusal in
court and obtained a reasoned judgment endorsing the investment
project. The subsequent transfer to the investors of the mansard,
which replaced the attic, was also lawful and fair, as confirmed by
the same court decisions adopted at the close of adversary
proceedings.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that Article 1 of Protocol No. 1 in substance
guarantees the right of property and comprises "three distinct
rules": the first rule, set out in the first sentence of the
first paragraph, is of a general nature and enunciates the principle
of the peaceful enjoyment of property; the second rule, contained in
the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, is concerned, amongst other things,
with the right of a State to control the use of property. The three
rules are not "distinct" in the sense of being unconnected:
the second and third rules are concerned with particular instances of
interference with the right to peaceful enjoyment of property and
should therefore be construed in the light of the general principle
enunciated in the first rule (see, among other authorities, Lithgow
and Others v. the United Kingdom, 8 July 1986, § 106,
Series A no. 102).
- In
order to be compatible with the general rule set out in the first
sentence of the first paragraph of Article 1, any interference by a
public authority with the protected right must strike a “fair
balance” between the demands of the general interest of the
community and the requirements of the protection of the individual’s
fundamental rights. The issue of whether a fair balance has been
struck becomes relevant only once it has been established that the
interference in question satisfied the requirement of lawfulness and
was not arbitrary (see Beyeler v. Italy [GC], no. 33202/96,
§ 107, ECHR 2000 I).
- The requirement of lawfulness, within the meaning of
the Convention, demands compliance with the relevant provisions of
domestic law and compatibility with the rule of law (see
Hentrich v. France,
judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, §
42). While it is primarily for the national authorities, notably the
courts, to resolve problems of interpretation of domestic
legislation, the role of the Court is to ascertain whether the
effects of such interpretation are compatible with the Convention
(see Kushoglu v. Bulgaria, no. 48191/99, § 50, 10
May 2007). Therefore, even though it has only limited power to review
compliance with domestic law, the Court may draw appropriate
conclusions under the Convention where it observes that the domestic
courts have applied the law in a particular case manifestly
erroneously or so as to reach arbitrary conclusions (see
Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83,
ECHR 2007 I; Kuznetsov
and Others v. Russia, no. 184/02, §§ 70-74 and
84, 11 January 2007; Păduraru
v. Romania, no. 63252/00, § 98, ECHR 2005-...
(extracts); Sovtransavto
Holding v. Ukraine, no. 48553/99, §§ 79, 97 and
98, ECHR 2002-VII; Beyeler
v. Italy, cited above, § 108, ECHR 2000-I; Kushoglu,
cited above, §§ 50-52 and, mutatis
mutandis, Tsirlis
and Kouloumpas v. Greece, judgment of 29 May 1997,
Reports of Judgments and Decisions
1997-III, §§ 59-63).
(b) Alleged unlawfulness of the conclusion
of the investment contract without the applicants’ consent
- The
Court notes that it is common ground between the parties that prior
to its reconstruction the disputed attic had been owned jointly by
all the owners of the apartments in the building, including the
applicants. Article 1 of Protocol No. 1 is therefore applicable in
the present case. The municipality’s decision to enter into a
contract for reconstruction of the attic by a third party
constituted, accordingly, interference with the applicants’
right to enjoy their possessions within the meaning of the first
sentence of the above Article.
- The
Court observes that in resolving the applicants’ (and other
co-owners’) dispute with the municipality, the domestic
judicial authorities noted expressly that according to the provisions
of the Civil Code in force at the material time the applicants’
consent had to be sought for the conclusion of the investment
contract, absent which it remained open to the authorities to apply
for judicial authorisation of their project (see paragraphs 16 and 23
above). In the meantime, the district administration did not fulfil
these requirements, having concluded the contract without seeking
either. As follows from the domestic courts’ reasoning, the
authorities have therefore not complied with the conditions provided
for by law for entering into the investment contract.
- The
Court notes that eventually the domestic courts validated the
contract upon its completion, having found it beneficial for all
co-owners of the building. It finds, however, that it is not
necessary to assess whether the domestic courts’ decision in
this regard struck a fair balance.
- In
this respect the Court notes that for the purposes of Article 1 of
Protocol No. 1 the fairness analysis becomes appropriate only
when the interference in question complies with applicable rules
established by law. It does not appear either from the case-file
materials or from the Government’s observations that the
municipality was in any way precluded from obtaining the consent for
the reconstruction either directly from the attic co-owners or by way
of a court order before entering into the investment contract.
Further, it does not follow from the available materials that any
provision of domestic law authorised the municipality to enter into
the contract without such a consent or, in the event of a dispute,
without its judicial resolution. The conclusion of the investment
contract constituted therefore interference, which was not in
accordance with the law.
- Article
1 of Protocol No. 1 was accordingly breached in this regard.
(c) Alleged unlawfulness of deprivation of
the applicants’ share in the attic
- In
light of the above findings that the applicants had initially been
entitled to a share in the attic, the Court deems it established
that, following its reconstruction into a mansard floor, which was
transferred to the investors, the applicants lost their property.
They were therefore deprived of their possessions within the meaning
of the second sentence of Article 1 of Protocol No. 1.
- According
to the documents in the case file, the decision to assign the mansard
floor to the investors was taken by the District Council
unilaterally, on the basis of the law authorising it to conduct
transactions in municipal property. On 29 January 2003 Svyatoshynsky
Court upheld this decision, relying on section 60 of the Law of
Ukraine “On Local Self Governance” (see paragraph 24
above) and noting that the building at issue in the present case was
municipal property.
- It
does not follow from the Government’s observations or other
materials in the case file that the court’s findings under
section 60 of the above statute can be reconciled with its references
to section 10 of the Law of Ukraine “On Privatisation of the
State Housing Stock” and to Article 113 of the Civil Code (see
paragraphs 23 and 25 above). Specifically, relying on these articles,
the court had stated that the building and its attic were held in
joint divided ownership by all apartment owners and the
municipality’s authority in management of the attic was,
therefore, limited to a share corresponding to the three
non-privatised flats.
- It
does not appear from the text of the Svyatoshynsky Court’s
judgment that at some point of time after the conclusion of the
investment contract analysed under Article 113 of the Civil Code and
before the assignment of the mansard floor to the investors under
section 60 of the Law “On Local Self-Governance” the
applicants or other apartment owners had transferred their title to
the attic to the municipality or at least delegated to it their right
to its management. On the contrary, the applicants insisted in their
appeal that they had considered themselves co-owners of the attic
until the moment it was transferred to the investors.
- The
Kyiv City Court of Appeal upheld the Svyatoshynsky Court’s
judgment. However, while not formally disputing its reasoning,
instead of clarifying the applicability of section 60 of the Law “On
Local Self-Governance” to the transfer of the attic, this court
found that the municipality’s ownership of it was based on a
different Civil Code provision (Article 119, see paragraph 23 above)
governing increases in the size of a shareholder’s possession
in the event he invests in the increase of a joint property.
According to this article the increase of the share was
preconditioned on the co-owners’ consent to the reconstruction
works and the investment of the acquiring co-owner’s own funds
in them. The Court of Appeal did not state how these preconditions
were met in the present case, where the investment contract had been
concluded by the public authority claiming to be the sole owner of
the building (see paragraph 8 above) and the reconstruction was
carried out at the expense of a third party.
- The
Court notes that divergent practice existed for some period of time
after the adoption of the new privatisation legislation, as
witnessed, for instance, by the examples of judgments presented by
the applicants (see paragraphs 27-28 and 35 above). The Court further
appreciates that the authorities, notably the national courts, needed
some time to develop practice concerning the maintenance of auxiliary
premises in the new situation. It notes that difficulties in
interpreting applicable law during the transitional period became
subject to consideration and eventual clarification by the
Constitutional Court, which endorsed automatic entitlement of owners
of privatised apartments to a share in auxiliary premises (see
paragraph 26 above).
- It
remains the case, however, that in the present application there
appears to be no clear legal basis for the applicants’ rights
to a share in the attic of their house to be extinguished.
- The
applicants were therefore unlawfully deprived of their possessions.
- There
was, accordingly, a breach of Article 1 of Protocol No. 1 in
this respect.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants also complained that the court decisions dismissing
their claims were arbitrary, in particular as no clear reasons were
adduced for justification of the transfer of the title to the attic.
They relied on Article 6 § 1 of the Convention, which, in
so far as relevant, reads as follows:
“In the determination of his
civil rights and obligations ... everyone is entitled to a fair ...
hearing ... by [a] ... tribunal established by law ...”
- The
Government, who presented no observations concerning admissibility of
this complaint, submitted that the claim was unmeritorious, as the
domestic courts had provided extensive reasoning for their decisions
and their assessment was not arbitrary.
- The
Court considers that this complaint is linked to the complaint
concerning lack of legal grounds for the applicants’ ownership
of a share in the attic to be extinguished, and must likewise be
declared admissible.
- The
Court reiterates that, according to its established case-law
reflecting a principle linked to the proper administration of
justice, judgments of courts and tribunals should adequately state
the reasons on which they are based. Article 6 § 1 obliges
courts to give reasons for their judgments, but cannot be understood
as requiring a detailed answer to every argument. The extent to which
this duty to give reasons applies may vary according to the nature of
the decision (see Ruiz
Torija v. Spain, judgment of 9
December 1994, Series A no. 303-A, § 29). Even though a domestic
court has a certain margin of appreciation when choosing arguments in
a particular case and admitting evidence in support of the parties’
submissions, an authority is obliged to justify its activities by
giving reasons for its decisions (see
Suominen v. Finland,
no. 37801/97, § 36, 1 July
2003). A further function of a reasoned decision is to demonstrate to
the parties that they have been heard. Moreover, a reasoned decision
affords a party the opportunity to appeal against it, as well as the
opportunity to have the decision reviewed by an appellate body. It is
only by giving a reasoned decision that there can be public scrutiny
of the administration of justice (see
Hirvisaari v. Finland,
no. 49684/99, § 30, 27 September 2001).
- Turning
to the facts of the present case, the Court reiterates that in its
judgment of 29 January 2003 Svyatoshynsky Court found that prior to
the beginning of the reconstruction works the applicants, along with
other apartment owners, had co-owned their building with the
municipality. At the same time it stated that the municipality was
entitled to dispose, unilaterally and without the applicants’
consent, of its mansard floor, as it was the sole owner of the
building. It is not apparent from the judgment text that after the
reconstruction the applicants had either forfeited their rights of
co-ownership or lost them on any ground. No explanation is provided
why the applicants were considered co-owners of the building in the
context of the attic reconstruction, but not in the context of the
mansard floor transfer.
- The
judgment of 14 April 2003 given by the Kyiv City Court of Appeal does
not appear to add any clarity. Even assuming, on the basis of the
court’s reference to Article 119 of the Civil Code, that the
mansard floor, as a part of the building constructed without the
applicants’ involvement, was exempt from co-ownership, it is
not apparent on which legal ground the applicants’ property
rights to the attic were extinguished. The Court of Appeal did not
elaborate on the fact that, while Article 119 referred to the works
done at one co-owner’s expense and with the consent of the
other co owners, in the present case the reconstruction was
performed at the expense of a third party, who was given a unilateral
advance promise of title to the reconstructed premises by one
co-owner (the municipality) against the will of the others. Moreover,
it is not apparent from this reasoning whether the Court of Appeal
endorsed the first-instance court’s statement under section 60
of the Law “On Local Self-Governance” concerning the
municipality’s title to the building as such, or decided that
the applicants co-owned the building, but not the mansard floor.
- In
these circumstances, the Court finds that the domestic courts have
failed to adduce adequate reasoning for their decisions.
- There
was, accordingly, a breach of Article 6 § 1 of the Convention in
this respect.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants next complained that by virtue of the same issues which
had given rise to their complaint under Article 6 § 1 of the
Convention they had been deprived of an effective remedy for their
complaints under Article 1 of Protocol No. 1. They invoked Article 13
of the Convention in this respect, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court does not consider it necessary to rule on this submission,
because, where the right claimed is a civil one, the requirements of
Article 13 are less strict than, and are absorbed by, those of
Article 6 § 1 (see, among many other
authorities, British-American
Tobacco Company Ltd v. the Netherlands, judgment of 20
November 1995, Series A no. 331, p. 29, § 89;
Baumann v. France, no.
33592/96, § 39, 22 May 2001; Crişan
v. Romania, no.
42930/98, § 32, 27 May 2003; and Capital
Bank AD v. Bulgaria, no. 49429/99, § 121, 24
November 2005).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- Lastly,
the applicants complained under Article 8 of the Convention that they
had been subjected to intolerable living conditions during the works,
which had also caused damage to their apartments.
- Independently
of questions of whether the responsibility for any damage lay with
the State or with the private contractor, the Court notes that the
applicants did not present any material in evidence that they had
properly raised a relevant claim, in form or in substance, in
domestic proceedings and exhausted the available domestic remedies in
its respect.
- This
part of the application should therefore be rejected as inadmissible
in accordance with Article 35 §§ 1 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicants did not submit a claim for just satisfaction within the
time-limit allotted to them for this purpose. Accordingly, the Court
considers that there is no call to make any award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning interference
with and deprivation of the applicants of their possessions and
fairness of civil proceedings in this regard admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention on account of the conclusion by
a public authority of the investment contract for reconstruction of
the attic without the applicants’ consent;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention on account of the applicants’
deprivation of the attic;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
