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By SJM
29/02/2012

“Tenting on the Old Camp Ground”

Babenko v Ukraine Appn No 68726/10 of 4/1/12 is an ECHR Chamber decision which looks at the relationship between an applicant’s right to social housing from the state and Art 1 of the ECHR First Protocol.

The Applicant was a WWII veteran who registered in 2004 for social housing with the local housing executive. By 2007 he was still on the waiting list for an apartment and he began court proceedings, alleging that the Council had breached Art 46 of the Ukrainian Housing Code by failing to provide him with housing.

Art 46 is a curious amalgam of what we would understand to be homelessness and allocations law: it states that WWII veterans/WWII disabled persons (whoever they might be) shall receive housing prior to all other persons eligible for priority housing. The Council argued that Mr B was not entitled to an apartment yet because he was no 71 in the queue and he could not expect an out-of-turn allocation.

Mr B was unsuccessful in the domestic courts and so he petitioned the ECHR, contending that his Art 1 rights had been violated and that his case was analogous to that of an welfare benefit applicant, whose right to a benefit could amount to an Art 1 right. The Chamber gave a succinct and unanimous judgement: the difference between Mr B’s case and the benefits cases was that Mr B could not show a proprietary interest in the property he expected to acquire. Although state law gave Mr B the right to privatise his home in the future, after he acquired it, there was no evidence before the Court to show how Mr B could achieve this aim.

Art 1 did not give the Applicant the right to acquire property and the case was accordingly declared inadmissible.

 

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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