FIFTH SECTION
Application no. 1870/05
Irina Trofimovna SMIRNOVA
against Ukraine
STATEMENT OF FACTS
THE FACTS
The applicant, Mrs Irina Trofimovna Smirnova, is a Ukrainian national who was born in 1940 and lives in Donetsk.
A.  The circumstances of the case
1.  Background information
In March 2001 the applicant and Y.S., her adult son, privatised in equal shares a flat in which the applicant had lived for some forty years. This flat, which measured 43.3 square metres in total, consisted of a bedroom, a living room, a kitchen, a WC, a hallway and a balcony.
On 18 December 2001 Y.S., who lived elsewhere, transferred his share of the flat as a gift to V.Sh.
In 2004-05 V.Sh. transferred half his share to A.N. as a gift and the other half to V.P. in exchange for another property. Within one week of the exchange, V.P. transferred her share in the flat as a gift to A.N.
According to the applicant, on numerous occasions from 2002 onwards V.Sh. and A.N. attempted to force her into exchanging her share in the flat for a much cheaper residence or selling it to them at a disadvantageous price. As she refused, they constantly harassed the applicant and created intolerable living conditions, as a result of which she was forced to move out. In particular, they rarely lived in the flat, but most of the time installed two to six tenants there without asking the applicant’s permission. All the inhabitants of the flat threw parties; used, damaged and stole the applicant’s belongings; created insanitary conditions; broke new locks and left the flat open; used electricity, gas and appliances carelessly and refused to pay the maintenance charges on the flat. On a number of occasions they harassed the applicant verbally (swore at and insulted her) as well as attacking her physically in response to the objections she raised against their conduct. On four occasions (23 November and 15 December 2002, 30 July 2004 and 5 August 2005) the applicant had to seek medical assistance for her injuries. In particular, in December 2002 and July 2004 she was hospitalised and underwent in-patient treatment for concussion and other injuries.
2.  Criminal proceedings
On numerous occasions between January 2002 and July 2007 the applicant complained to the Voroshylivsky District Police, Donetsk (“the District Police”) about various instances of verbal and physical harassment, damage to and disappearance of her property and attempts by V.Sh. and A.N. to extort her share in the flat from her.
On various dates (22 January, 7 February and 24 December 2002; 5 and 22 March 2003; 23 July, 6 August and 13 December 2005; and 7 February, 31 March and 16 July 2006) the police refused to institute criminal proceedings in connection with the applicant’s allegations, for want of evidence that her complaints warranted public criminal prosecution. In their refusals they noted that criminal prosecution was unwarranted, since the applicant was involved in a chronic conflict of a domestic nature; the hostilities took place inside the household and did not breach the public peace; the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals. The police further recommended that the applicant resolve the dispute in civil proceedings and assured her that “pre-emptive conversations” had been had with the purported offenders, to foster respectful conduct on their part.
On 30 January 2003 the Prosecutors’ Office revoked a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on 15 December 2002. On several occasions the applicant inquired about the status of these proceedings and received no reply. In 2006 the applicant was informed that the investigation had been suspended, with reference to lack of leads as to the identity of the perpetrator.
On 28 February 2006 the Donetsk Department of the Ministry of Interior acknowledged, in response to the applicant’s complaint, that her allegations concerning A.N.’s interference with her home had been substantiated. They further assured the applicant that her address had been placed on the police register for frequent visits, to prevent unauthorised tenants from taking up residence there. Similar assurances were given to the applicant by the District Police on 4 September 2006 and 19 February and 6 March 2007.
On 18 July 2006 the applicant lodged a private criminal complaint against V.Sh., A.N. and A.L. (one of their tenants) with the District Court, alleging that they had beaten and verbally harassed her, damaged her property and extorted the other half of the flat from her. There is no further information concerning the development of these proceedings.
On 15 August 2007 the police instituted criminal proceedings against A.N. and V.Sh. on suspicion of extortion of the applicant’s share in her flat. On the same day these proceedings were joined to those instituted in July 2007 in respect of a similar episode of extortion from A.Ch., who had also allegedly been forced to abandon the property on account of intolerable living conditions created by the offending co-owners.
On 26 December 2007 the case was transferred to the Donetsk Prosecutors’ Office for the indictment to be finalised and for committal of the accused for trial.
3.  Civil proceedings for revocation of the gift deed
On 16 October 2003 the Voroshylivsky District Prosecutor instituted civil proceedings in the applicant’s interests, seeking revocation of the gift deed between Y.S. and V.Sh. and the eviction of the latter on the ground that the gift deed had been executed without the applicant’s consent.
On 12 November 2003 the Voroshylivsky District Court, Donetsk (hereafter “the District Court”) allowed this claim, having found that Article 113 of the Civil Code of Ukraine of 1963 obliged co-owners to seek the consent of their counterparts before carrying out transactions in shared property.
On 5 February 2004 the Donetsk Regional Court of Appeal (hereafter “the Regional Court”) quashed this judgment and dismissed the prosecutor’s claim, having found that gift deeds were exempt from the Article 113 requirement and could be executed without co-owners’ consent.
On 10 August 2004 the Supreme Court of Ukraine dismissed the applicant’s and the prosecutor’s requests for leave to appeal in cassation against the Regional Court’s judgment and it became final.
4.  Civil proceedings for dispossession of V.Sh. and A.N. and their eviction
On an unspecified date the applicant instituted civil proceedings seeking the dispossession of V.Sh., and subsequently A.N., of their shares in the flat, regard being had to their unlawful conduct towards her, the impossibility of joint use of the flat, and refusal to pay their share of the maintenance costs. She further sought their eviction and compensation for the share of the costs she had borne on the flat. The defendants lodged a counterclaim, alleging, in particular, that the applicant had interfered with their personal life and belongings.
On 21 June 2005 the District Court allowed the applicant’s claim in part and dismissed her opponents’ counterclaim. In particular, referring to Article 365 of the new Civil Code of Ukraine of 2003, it dispossessed A.N. (by then the owner of half the flat) of his share in the flat against a compensatory payment by the applicant. The court noted, in particular, that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat; the applicant had been harassed; and the flat’s appliances and the applicant’s belongings had been misused and damaged. It further concluded that it was not possible for the co-owners to use the flat jointly in a harmonious manner; the expert assessment determined that the flat could not reasonably be divided into two separate halves for each of them to use separately, while A.N.’s dispossession in return for fair compensation would not put him at a substantial disadvantage, since he had another registered residence and used the disputed flat for subletting most of the time. The court next found that, since A. N. had received the flat as a gift, fair compensation would be the payment of the indicative price (5,602 Ukrainian hryvnias (UAH)) declared in the gift deeds. Finally, the court evicted A.N. and V.Sh. from the flat and ordered partial reimbursement of the costs incurred by the applicant for the flat.
On 20 October 2005 the Regional Court upheld the judgment with respect to the eviction of V.Sh. and reimbursement of the costs, and quashed the ruling to dispossess and evict A.N. It noted that:
“Neither the provisions of the Housing Code of Ukraine nor those of the Civil Code of Ukraine of 2003, which the applicant cites as the basis for her claims, nor the Law of Ukraine “On Property” envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant.”
The applicant appealed in cassation. She noted in particular that A.N. and V.Sh. had acquired shares in a number of Donetsk flats and had deliberately created intolerable living conditions for their co-owners in order to obtain the flats in their entirety. She further alleged that, having no other residence and being a victim of constant harassment, she had abandoned the flat and had been requesting refuge from various acquaintances.
On an unspecified date the District Prosecutor also lodged an appeal in cassation in the applicant’s interests.
On 11 January 2006 the Supreme Court of Ukraine refused the applicant’s request for leave to appeal.
On 22 January 2006 it likewise rejected the prosecutor’s request.
B.  Relevant domestic law
Relevant provisions of the Constitution of Ukraine and of Article 113 of the Civil Code of Ukraine 1963 can be found in the Court’s judgment in the case of Seryavin and Others v. Ukraine (no. 4909/04, §§ 22-23, 10 February 2011).
Relevant provisions of the Civil Code of Ukraine of 2003 read as follows:
Article 365. Termination of title to a share in a joint property on demand of other co-owners
“1.  Title to a share in a joint property may be terminated upon a court decision on the basis of a legal action by other co-owners in the event that:
1)  the share is insignificant and cannot be allocated in kind;
2)  the property is indivisible;
3)  joint possession and use of the property is impossible;
4)  such termination will not cause significant harm to the interests of the co-owner and members of his family.
2.  The court shall decide on the termination of a person’s title to a share in a joint property on condition of advance deposit by the plaintiff of the value of this share with the court’s deposit account.”
COMPLAINTS
The applicant complains under Article 6 of the Convention that the Regional and Supreme Court incorrectly interpreted the law and dismissed her claims in two sets of civil proceedings.
She further complains that by dismissing her claims the judicial authorities failed to account for her right to respect for home, private and family life and that the State in general has failed to put in place an effective legal and administrative framework to protect her personal integrity from harassment by her co-habitants. The applicant referred to Article 8 of the Convention in this regard.
QUESTIONS TO THE PARTIES
1.  Did the State authorities have a positive duty under Article 8 of the Convention to protect the applicant from violent conduct of and nuisances created by co-owners of her flat and their tenants?

2.  If so, did they comply with this duty? In particular,

(a)  Did the legal and administrative framework contain sufficient safeguards to protect the applicant’s rights under Article 8 of the Convention in the present case? The Government are invited, in particular, to comment on the availability of preventive (such as injunctions and restraining orders, revocation of title or eviction) and retrospective remedies (such as compensatory remedies or fines).

(b)  Was the existing legal and administrative framework functioning properly in the applicant’s situation? In particular:
	i.  Did the domestic courts strike a fair balance between the rights of the parties in dismissing the applicant’s civil claims?
	ii.  Did the law-enforcement authorities take all actions that could be reasonably expected from them to enjoin the flat’s co-owners and their tenants from interfering with the applicant’s rights protected by Article 8 of the Convention?