Andrey Grigoryevich BABENKO and Andrey Andreyevich BABENKO v Ukraine - 68726/10 [2012] ECHR 145 (4 January 2012)

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Application no. 68726/10
Andrey Grigoryevich BABENKO and Andrey Andreyevich BABENKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 4 January 2012 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants, Mr Andrey Grigoryevich Babenko and Mr Andrey Andreyevich Babenko, are Ukrainian nationals who were born in 1924 and 1956 respectively and live in the town of Feodosiya, Ukraine. They were represented before the Court by Mr V. Kapitsyn, a lawyer practising in the same town.

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant is a Second World War veteran. Since April 2004 he has been on a housing waiting list of the Feodosiya Town Council Executive Committee as he required an improvement of his housing conditions. The first applicant requested to be provided with an apartment for his family of three (the first applicant, his wife and his son, who is the second applicant). The first applicant’s position on the main waiting list was no. 3068 and no. 109 on the special waiting list for Second World War veterans.

In February 2007 the first applicant instituted proceedings in the Feodosiysky Town Court against the Feodosiya Town Council and the Feodosiya Town Council Executive Committee asking to be provided with an apartment in accordance with Article 46 of the Housing Code of Ukraine. On 19 June 2007 the court allowed the first applicant’s claim and ordered the local authorities to provide him with an apartment.

On 7 August 2007 the Court of Appeal of the Autonomous Republic of Crimea (the ARC) quashed this decision and remitted the case for fresh consideration.

On 19 May 2008 the Feodosiysky Town Court rejected the applicants’ claim. The court found that in 2007 the first applicant’s position on the main waiting list was no. 2087 and no. 71 on the special waiting list for Second World War veterans. According to the Housing Code, citizens who are registered as needing improved living conditions are provided with housing in order of precedence. The applicant could thus not be provided with an apartment out of turn and before those persons who were above him on the list. Moreover, the local authorities did not have financing for housing construction from the State Budget.

On 21 January 2009 the Supreme Court of Ukraine dismissed the applicants’ appeal on points of law.

Relevant provisions of the Housing Code in force at the material time read as follows:

“Citizens who need improvement of housing conditions shall have right to be provided with housing for use in buildings of State or municipal residential stock according to procedures envisaged [by law]...”

“Citizens who are registered as needing improved living conditions are provided with housing in order of precedence.

The order of precedence for being provided with housing is set out in ... this Code and other legal acts ...

From those citizens registered as needing improved housing, lists of those who have a priority right for housing are formed.

The order of precedence depends on the date of registration (on the list of those, who have a priority right for housing).

Article 46 of the Housing Code was amended on 29 June 2004 by the following provisions, which came into force on 21 July 2004:

- Second World War veterans [...] within two years from the date of their registration on the list for priority housing ... Second World War disabled persons [...] shall receive housing prior to all other persons eligible for priority housing”

Article 30. Powers in the Areas of Housing Utility Services, Consumer and Trade Services, Public Catering Services, Transportation and Communications

6) to provide, in accordance with the law, housing which is free or accessible in price, to citizens who are in need of social protection ...”

The applicants complained without invoking any particular Convention Article that their rights had been violated since they were deprived of their right to an apartment.

The Government confirmed that the first applicant did indeed have a right under Article 46 of the Housing Code to be provided with an apartment within two years from the date of his registration on the list of priority housing. Therefore, the first applicant’s right to an apartment is provided by law and is indisputable.

However, such apartment is not given into the person’s property. The Government observed that the right to live in a particular property not owned by an applicant does not as such constitute a “possession” within the meaning of Article 1 of Protocol No. 1 (see H.F. v. Slovakia (dec.), no. 54797/00, 9 December 2003; Kovalenok v. Latvia (dec.), no. 54264/00, 15 February 2001; and J.L.S. v. Spain (dec.), no. 41917/98, 27 April 1999).

The Government further indicated that after receiving an apartment the first applicant would have a right to privatise it; however, this possibility would depend on a number of circumstances, including the first applicant’s will. The Government noted in this respect that future income which amounts in effect to a claim falls outside the scope of Article 1 of Protocol No. 1 (see Ian Edgar (Liverpool) Limited v. the United Kingdom (dec.), no. 37683/97, 25 January 2000).

In any event, the Government did not deny the obligation of the State to provide the first applicant with housing in accordance with Article 46 of the Housing Code. However, the first applicant’s current number on the veterans’ list is no. 42 and he cannot receive an apartment out of turn.

The Government concluded that in the present case the first applicant had no “possession” within the meaning of Article 1 of Protocol No. 1.

The applicants reiterated that according to the law in force the first applicant had to be provided with an apartment within two years from the date of his registration on the list of priority housing.

The Court notes at the outset that, although the first applicant was registered as a person needing improved housing conditions, the applicants did not provide any evidence that they had nowhere to live or that their housing was in such a deplorable state that it might raise an issue under Article 8 of the Convention.

The Court will further consider whether the applicants’ complaint might fall within the ambit of Article 1 of Protocol No. 1, 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.”

The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of this provision. “Possessions” can be “existing possessions” or assets, including claims by virtue of which the applicant can argue that he or she has at least a “legitimate expectation” of acquiring effective enjoyment of a property right. Where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 IX).

In particular, although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 53-55, ECHR 2005- X, and Andrejeva v. Latvia [GC], no. 55707/00, § 77, 18 February 2009).

In the present case, the first applicant is entitled to social security benefits such as improvement of his housing conditions, which was confirmed by the Government. Such improvement implies that the first applicant should be provided with an apartment to rent from the State. In this respect the Court recalls, as noted by the Government, that the right to live in a particular property not owned by an applicant does not as such constitute a “possession” within the meaning of Article 1 of Protocol No. 1 (see among other authorities Kovalenok v. Latvia (dec.), no. 54264/00, 15 February 2001).

Even assuming, as the Government suggested, that it would be possible for the first applicant to privatise the apartment (see, mutatis mutandis, Malinovskiy v. Russia, no. 41302/02, § 44, ECHR 2005 VII (extracts), and Ivan Panchenko v. Ukraine, no. 10911/05, § 51, 10 December 2009), in the absence of any comments in this respect from the applicants, the Court cannot conclude to what extent such possibility is tangible. Moreover, the Court reiterates that Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see Van der Mussele v. Belgium, 23 November 1983, § 48, Series A no. 70, and Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II).

The Court finally notes that the national law provides for the right to be provided with an apartment only in respect of the first applicant.

The Court accordingly concludes that the applicants have not shown that they had a “possession” within the meaning of Article 1 of Protocol No. 1.

It follows that the complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Andrey Grigoryevich BABENKO and Andrey Andreyevich BABENKO v Ukraine - 68726/10 [2012] ECHR 145 (4 January 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/145.html Cite as: [2012] ECHR 145