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By J
08/12/2010

Borscht with your Royale?

Continuing the food-related nature of our posts on Art. 8, ECHR cases (see, inter alia, here and here) we’ve got a bit of cold borscht from Ukraine in the case of Kryvitska and Kryvitskyy v Ukraine App. No. 30856. Like a bowl of borscht, I’m not quite sure what to make of it.

Relevant domestic law

Under Ukrainian law:

(a) an agreement concluded by a citizen who is unable to understand the meaning of his actions is capable of being annulled by the court (Art. 55, Civil Code of 1963);

(b) where a person dies intestate then his property passes to the State (Art 555, 1963 Code); and

(c) a person who “arbitrarily” occupies residential premises “shall be” evicted without the provision of other housing (Art. 116, Housing Code).

The facts

In 1992, Mrs YB, the owner of a flat, registered the first applicant as the permanent tenant of the flat. In March 1993, Mrs YB made a will under which the flat was to pass to the first applicant. Both applicants were then registered as permanent residents of the flat.

In 1998, Mrs YB died. After her death, it transpired that Mrs YB had made two further wills, leaving the flat to other people. The first applicant sought to have those wills annulled. The District Prosecutor intervened in the proceedings, seeking to have all three wills annulled. The Prosecutor was successful, with the result that Mrs YB was deemed to have died intestate.

The local authority then sought possession against the applicants. The second applicant filed a counterclaim, seeking to be acknowledged as the lawful tenant on the basis that he and the first applicant had occupied it for a considerable period of time and had, in good faith, expended money on the property. In addition, he argued that he and his family (including two young children) would be homeless if evicted.

During the possession proceedings, the court heard expert evidence as to the capacity of Mrs YB and concluded that Mrs YB had lacked capacity to grant a tenancy to the first applicant. A possession order was made. An appeal was dismissed and, in December 2002, the applicants were evicted.

The ECtHR found a violation of Art. 8. The annulment of the first applicant’s tenancy and the eviction of both applicants amounted to an interference with their rights under Art. 8 (at [45]). In evicting the applicants, the state was pursuing a legitimate aim, namely the economic well-being of the council([46]).

The eviction had not, however, been attended by the necessary procedural safeguards. A conclusion that Mrs YB had lacked capacity to grant a tenancy required a “solid evidential basis”, particularly where, as here, Mrs YB had been dead for 10 years before this issue was raised. The evidence of lack of capacity was based on a cursory examination of the papers, totalling a few hours at most, by a single expert. When the first applicant was registered as the tenant, it was far from clear that she would eventually be regarded as an arbitrary occupant ([48]).

This all went to whether the eviction was necessary and proportionate ([49]). The court was required to balance the needs of the applicants’ family (including two minor children), against the financial interest of the State in recovering possession. ([50]). The domestic court had not referred at all to the personal circumstances of the appellants or the effect on them of being evicted.

The failure to provide adequate reasons or to assess the proportionality of the eviction amounted to a violation of Art. 8 ([51]). Damages of €6,000 per applicant ([61]-[63]). The claim under Art. 6 did not need to be considered ([53]-[56]) and the complaint under Art. 1, Protocol 1 was inadmissible as it hadn’t been raised before ([57]-[59])

There is a fly in my Borscht

Well, what to make of this? It looks to me (and to some of the other NL team, as we’ve been debating this amongst ourselves) that this isn’t so much an Art 8 case in the Kay, Connors et al line, as really being about the total lack of evidence that YB lacked capacity and the failure of the Ukrainian court to properly reason its decision.

However, there are some interesting points. Firstly, this is a statutory scheme for mandatory possession orders (see Ground 8, s.21, etc) and, as with Kay et al, the Court has no real doubt that proportionality should be available as an argument to assist occupiers. Secondly, the court expressly criticises the domestic courts for not looking at the consequences of eviction on the applicants and their wider family (at [50]) and balancing their personal interests against the desire of the state to make money via a sale of the property.

Once again, I’m not sure what to make of a bowl of borscht…

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

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