The ECHR judgment of 13 October 2016 on the case of Irina Smirnova v. Ukraine (application No. 1870/05).
In 2005, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Ukraine.
In the case, the complaint on the lack of a proper legal basis for protecting the apartment owner from attacks on his co-owners of the apartment was successfully considered. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, an elderly woman, lived in a one-room apartment for many years and recently privatized it in ownership in equal shares with an adult son. Her son transferred his share to a third party, V.S., who, together with A.N. began to insult, intimidate and attack the applicant, to spoil her property in an attempt to force her to sell her share in the apartment. Fearing for her safety, the applicant eventually left the apartment.
Her attempts to claim an apartment in civil courts were unsuccessful, because according to the legislation of Ukraine her son was not supposed to receive her consent to conclude a gift agreement in favor of VS, and the co-owner could not be deprived of the property right on the grounds to which the applicant referred (antisocial behavior, unsuitability of an apartment for joint use and denial of maintenance costs).
The applicant also filed a number of complaints to the police. V.S. and A.N. were convicted of extortion and sentenced to imprisonment about 10 years after the first complaint.
ISSUES OF LAW
Concerning compliance with Article 3 of the Convention. The systematic and deliberate nature of the verbal attacks to which the applicant was subjected, exacerbated by cases of physical violence by a group of persons against a lone elderly woman, has reached the threshold of severity required for referring to the scope of Article 3 of the Convention and the emergence of a positive duty of the State to enact a protective legislative and administrative framework.
Although the main offenders were prosecuted and sentenced to significant prison terms, nevertheless, state authorities took more than 20 years to resolve the issue. In view of the exceptional delays in initiating and conducting criminal proceedings, the Government of the respondent State did not fulfill their positive obligation under Article 3 of the Convention.
The violation of the requirements of Article 3 of the Convention (unanimously) was committed in the case.
Concerning compliance with Article 8 of the Convention. In accordance with this provision of the Convention, the applicant complained that she was obliged to tolerate the presence in her home of strangers to her household and their unpleasant, though mostly unreliable, behavior, including unceremonious use of the applicant's flat and property, equipment damage, noise and other disturbances.
The Court has established that the criminal proceedings in which V.S. and A.N. was charged with the obligation to pay compensation and they were deprived of a share in the apartment, subsequently removed some aspects of the applicant's complaint. However, owing to exceptional delays in the proceedings, the applicant's rights guaranteed by Article 8 of the Convention were diminished for a very significant period.
As to whether the respondent Government had an adequate non-criminal legal basis to provide the applicant with an acceptable level of protection against incursions into her privacy and the use of housing, the Court noted that the separation of a home from strangers, no matter how they behave, creates very important consequences for the privacy of the person and other interests protected by Article 8 of the Convention. Accordingly, if a Member State adopts the legal framework that obliges private individuals to share a home with persons who are alien to their household, it must introduce clear rules and necessary procedural safeguards to allow interested persons to protect their convention interests.
However, in the present case, the Ukrainian legislation did not provide the applicant with significant opportunities (i) to object to cohabitation with A.N., V.S. and their acquaintances on the grounds that this cohabitation creates disproportionate consequences for their rights under Article 8 of the Convention and (ii) to receive expedient and immediate protection against uninvited intrusions into her personal space and home, including, if necessary, taking preliminary measures.
While the European Court was prepared to recognize that civil remedies, such as a claim for damages, a request for termination and abstention from interference with the use of property by another person, or a claim for establishing the use of a shared property object, could be useful in situation where legal cohabitants need to resolve specific differences in the use of a common apartment, in the present case the situation was much less standard. The applicant complained that her apartment was unfit for use by more than one family and that V.S. and A.N. invaded her and took her against her will. The authorities of the respondent State did not demonstrate how the aforementioned means could ensure consideration of this complaint and the removal of its essence.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 4,000 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.
See also, mutatis mutandis, McCann v. The United Kingdom, judgment of 13 May 2008, application no. 19009/04, Cicic v. Croatia, ) of 15 January 2009, application No. 28261/06 and the judgment of the European Court in the case "B. v. Republic of Moldova", application No. 61382/09.
Mutatis mutandis (lat.) - with appropriate modifications.