AFFAIRE ZHURA c. UKRAINE

CourtFifth Section Committee (European Court of Human Rights)
Judgment Date22 September 2022
ECLIECLI:CE:ECHR:2022:0922JUD006619110
CounselSHEMIATKIN M. ; ZHURA V.
Date22 September 2022
Application Number66191/10
Respondent StateUcrania
Applied RulesP1-1;P1-1-1

FIFTH SECTION

CASE OF ZHURA v. UKRAINE

(Application no. 66191/10)

JUDGMENT
(Merits)

STRASBOURG

22 September 2022

This judgment is final but it may be subject to editorial revision.


In the case of Zhura v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Ivana Jelić, President,
Ganna Yudkivska,
Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 66191/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Lidiya Volodymyrivna Zhura (“the applicant”), on 5 November 2010;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 10 February 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. This application concerns, in the main, the allegedly unjustified interference with the applicant’s property rights under Article 1 of Protocol No. 1 and her related rights under Article 8 of the Convention. Allegedly, the domestic proceedings regarding those matters were conducted in an unfair manner and for an excessively lengthy period of time, in violation of Article 6 § 1 of the Convention.

THE FACTS

2. The applicant was born in 1956 and lives in Kyiv. She was represented initially by Mr M. Shemiatkin and subsequently by Ms V. Zhura, lawyers practising in Kyiv.

3. The Government were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

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

5. In 1999 the Kyiv City Council and the Kyiv City Administration expropriated a land plot and a house which belonged to the applicant’s father, K., as a new line of the underground railways was to be constructed there. As compensation for the expropriated property, the municipal authorities, inter alia, provided him with a land plot and ordered their subordinate bodies to construct a new house for him.

6. The land plot previously belonging to K. was allocated to a municipal company Kyivskyy Metropoliten (“the KM”), which, in turn, contracted a joint stock company Kyivmetrobud (“the KMB”) for the construction of a new house for K. at the expense of the municipal budget.

7. In January 2001 the house was constructed. The local authorities officially approved that it could be used for living and gave K. an owner’s certificate.

8. In November 2001 K. initiated civil proceedings against the local authorities, the KM and the KMB. Relying on several expert reports, he submitted that the new house had been built with substantial breaches of the construction norms and standards and was not suitable for living. He, inter alia, asked the court to order the KM “to ensure that the construction was in accordance with the relevant standards” and sought compensation for non-pecuniary damage.

9. In May 2002 K. died. The applicant inherited his property, including the house at issue, and was granted leave to enter the proceedings as his legal successor. She partly changed the claims and sought compensation for pecuniary and non-pecuniary damage caused by the defected construction.

10. In February 2003 the KM brought a counterclaim against the applicant and two other members of her family, who were officially registered as living in the house at issue. The KM argued that the house was in an unsatisfactory condition, that living there was dangerous, that it had to be repaired by the KMB pursuant to the warranty clauses of the house’s “technical passport” (технічний паспорт), that the applicant and her family members had refused to allow the KMB to repair the house and had not wished to move to a temporary residence which the local authorities allocated for them in Kyiv – a flat of around 39 square meters of living space. The KM sought their temporary eviction from the house for the time which would be necessary to perform repair works.

11. On 1 June 2004 the Svyatoshynskyy District Court of Kyiv (“the Svyatoshynskyy Court”) allowed the applicant’s claim in part and dismissed the KM’s counterclaim. The court awarded the applicant various sums for pecuniary and non-pecuniary damage, as well as for procedural costs and expenses. The court found that the house had been constructed with serious defects and that its condition, which was in the state of emergency, was deteriorating. The court ruled that both the KM and the KMB had been responsible for those defects and ordered them to pay 30% and 70% of the awarded amounts respectively. The court relied on, inter alia, Articles 353355, 440, 440-1, 441, 451 and 453 of the Civil Code of 1963 and section 48 of the Property Act of 1991 (see paragraphs 29, 30 and 41 below).

12. On 26 August 2004 the Kyiv City Court of Appeal (“the Court of Appeal”) allowed the appeals of the KM and the KMB, quashed the aforementioned judgment and delivered a new judgment rejecting the applicant’s claims and allowing in part the KM’s counterclaim. It held that the construction had been flawed and that the house had to be repaired by the KM and the KMB. It also noted that those entities and the local authorities had offered temporary dwelling to those who had been residing in the house in order to conduct the necessary repair works, but the latter had refused that offer. The Court of Appeal therefore ordered the applicant not to hinder the works which the KM and the KMB had to perform in order to repair the house. It also noted that at the time no person was living in the house.

13. On 7 December 2005 the Supreme Court quashed both judgments of the lower courts and remitted the case for a fresh examination to the firstinstance court....

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