The CCU declared unconstitutional the provision of the law on the transfer of dormitories to the ownership of territorial hromadas without the consent of its owner by court decision

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The Second Senate of the Constitutional Court of Ukraine deliberated the case upon the constitutional complaint of the Private Joint-Stock Company “Chernihivoblbud” on the compliance of the provisions of subparagraph “b” of Article 14.3.1 of the Law of Ukraine “On Ensuring the Realisation of Housing Rights of Dormitory Residents” of September 4, 2008 No. 500–VI (hereinafter referred to as the Law) with the Constitution of Ukraine (constitutionality).

The impugned provisions stipulate that dormitory included in the authorised capital of companies are transferred to the ownership of territorial hromadas without the consent of the dormitory owner by a court decision.

Such forced transfer of a dormitory to communal ownership is carried out in court at the request of local self-governments in case of refusal of the dormitory owner to transfer it on a voluntary (contractual) basis (Article 5.4 Article 18.19 of the Law).

Based on the results of deliberation of this case, the Constitutional Court of Ukraine adopted a Decision recognising subparagraph “b” of Article 14.3.1 of the Law as inconsistent with the Basic Law of the State. The impugned provision shall cease to be effective from the date of adoption of the Decision by the Constitutional Court of Ukraine.

In its decision, the Constitutional Court of Ukraine took into account the legal positions of the Court relevant to this case, as well as the case law of the European Court of Human Rights, according to which in case of unjustified interference of the state in the right of a person to peacefully own his property, the state has an obligation to compensate such a person for the damage caused to him. The court took into account, in particular, the judgments of the European Court of Human Rights in the cases: Maksymenko and Gerasymenko v Ukraine, Batkivska Turbota Foundation v. Ukraine, Kryvenkyy v. Ukraine, Ukraine-Tyumen v. Ukraine, James and Others v. The United Kingdom.

The Constitutional Court of Ukraine stated that the method established by the Verkhovna Rada of Ukraine of exercising the constitutional right to housing for dormitory residents and the state's efforts to minimize certain financial costs for compensation to dormitory owners at the level of national legislation led to a disproportion between the socially significant goal (ensuring the housing rights of dormitory residents) and the legal mechanisms that were applied to achieve it.

In the Decision, the Court stated that the legislator is obliged to take into account that a person and decent living conditions are the goal and core of the constitutional order of Ukraine, are recognized as the highest value (preamble, Article 3.1 of the Constitution of Ukraine).

“The legislator cannot resort to such legislative regulation, which would allow forcible deprivation of housing only through a change of dormitory owner, which could put individuals and their families in an extremely difficult social situation, incompatible with their human dignity - one of the fundamental values of constitutional system of “ as it is emphasized in the Decision of the Court.

It should be emphasized that the Verkhovna Rada of Ukraine, which introduced these legislative amendments, noted in its letter that “change in the legislation on the transfer of ownership of dormitories included in the authorised capital of companies to territorial hromadas, which introduced the possibility of transfer on a non-compensatory basis, led to a violation of the essential content of the right to property”, “such restriction contains signs of interference with the right to property and is subject to constitutional review in the context of the most important sovereign powers of the state to legitimately interfere with the right to property, given the existence of public (hromada’s) interests, as well as the right to regulate the use of property “.

The decision of the Constitutional Court of Ukraine is binding, final and cannot be appealed.

 

 

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