FIFTH SECTION

CASE OF SERYAVIN AND OTHERS v. UKRAINE

(Application no. 4909/04)

JUDGMENT

STRASBOURG
10 February 2011
FINAL
10/05/2011
This judgment has become final under Article 44 2 of the Convention. It
may be subject to editorial revision.

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

In the case of Seryavin and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska,
Julia Laffranque, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 18 January 2011,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 4909/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by three
Ukrainian
nationals,
Mr
Oleksandr
Valerianovych
Seryavin,
Mrs Iryna Mykolayivna Kolomiyets and Mrs Larysa Viktorivna Logvinova
(the applicants), on 29 December 2003.
2. The applicants were represented by Mrs I.Y. Cherpak, a lawyer
practising in Kyiv. The Ukrainian Government (the Government) were
represented by their Agent, Mr Y. Zaytsev.
3. The applicants alleged, in particular, that the authorities had
unlawfully commissioned renovation work on their attic and subsequently
transferred it to a third party, and that the courts had adopted arbitrary
judgments in respect of their claim in that respect.
4. On 1 April 2009 the President of the Fifth Section decided to give
notice of the application to the Government.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1960, 1960 and 1959 respectively and
live in Kyiv.
6. The applicants are owners and residents of apartments in a multiapartment building. By 1998 all but three of some fifty apartments located

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

in this building had been privatised by their residents pursuant to the Law of
Ukraine On Privatisation of the State Housing Stock. The three nonprivatised apartments remained in municipal ownership.
7. On 29 April 1998 the Kyiv City State Administration authorised
Mrs N.N. to renovate the attic of the building and construct a mansard floor
with a view to obtaining title to the renovated and newly constructed
premises on condition that the residents' consent was sought for the project.
8. On 29 May 1998 Mrs N.N. signed an investment contract for
renovation and construction works with the Radyansky District Housing
Maintenance Company (
. ) acting for the building's
owner. According to the contract, the building was municipally owned, and
the municipality was to grant Mrs N.N. title to the construction on
completion of the works. Subsequently Mrs V.G. became party to this
contract as the second investor. Neither the applicants nor the other
apartment owners were asked for their consent to the project. On a number
of occasions the apartment owners unsuccessfully contacted various
authorities to object to the construction works.
9. In July 2001 the apartment owners formed the Apartment Owners
Association (the Association), which was joined by the applicants.
10. In April 2002 the investors started the works on the building.
11. According to the applicants, their apartments suffered damage on
account of the construction works (such as cracks in the ceiling and the
walls, flooding and pieces of plaster falling off).
12. In October 2002 the Association instituted civil proceedings in
Svyatoshynsky District Court, Kyiv, seeking to annul the investment
contract and to restore the attic to its previous state, alleging, in particular,
that the municipality owned only three apartments in the building and
should have sought the consent of the other apartment owners in order to
conclude the contract. The applicants, who were represented by the
Association, subsequently also joined the proceedings on their own behalf,
along with two other apartment owners.
13. The Shevchenkivsky District State Administration (the successor of
the Radyansky District State Administration; the Administration) lodged
a counterclaim, seeking to prevent the plaintiffs from interfering with the
works and to have their refusal to consent to them declared illegitimate. By
way of reasoning, the Administration submitted that the building, and
particularly its attic and roof, were old and in very poor condition. They
urgently needed investment for renovations. The construction works were
therefore beneficial for all the apartment owners and residents of the
building.
14. On an unspecified date Svyatoshynsky Court ordered the suspension
of the construction works in connection with the dispute. Nevertheless the
works continued and were completed by 6 December 2002.

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15. On 26 December 2002 the Shevchenkivsky District Council granted

the title to the renovated and newly constructed premises to the investors.
On an unspecified date the applicants and the Association amended their
claims, seeking to have this decision quashed.
16. On 29 January 2003 Svyatoshynsky Court dismissed the applicants'
and the Association's claims and allowed the counterclaim by the
Administration. The relevant parts of the judgment read as follows:
From the moment of privatisation of the apartments, the plaintiffs and, at the
material time, the Radyansky District Administration, which had remained the owner
of three apartments, obtained joint divided ownership to the building, including
auxiliary premises ...
According to Article 113 of the Civil Code of Ukraine, possession, use and disposal
of joint divided property shall be carried out with the consent of all the owners, while
in the absence of consent the dispute is to be decided by a court.
Consequently, the question of reconstruction of the attic and renovation of the
building had to be decided with the consent of all the co-owners of the house.
However, as established by court, the investment agreement was concluded by one of
the co-owners of the building without the consent of other co-owners, in connection
with which the present proceedings arose.
...
Regard being had to the fact that the investment agreement has been practically
completed by the material time, that this has facilitated improvement of the technical
state of the entire building and that, in addition to the plaintiffs, the Shevchenkivsky
District Administration also owns some apartments in it, the plaintiffs' refusal to
consent to the construction works under the investment agreement is unlawful and
encroaches on the rights of other co-owners; therefore the initial claim should be
dismissed and the counterclaim allowed.
...
Demands to quash the decision no. 114 of the Shevchenkivsky District Council of
26 December 2002 consenting to alienation ... of the premises constructed on the attic
... from municipal property ... shall not be allowed on the following grounds. ... The
building was owned at all times by the municipal community represented by the
Council, which, according to Article 60 of the Law of Ukraine On Local SelfGovernance, unilaterally ... executes rights of possession, use and disposal of the
objects of municipal property, including housing stock. Therefore, regard being had to
the above and that the reconstruction of the attic... was carried out at N. N.'s and
V. G.'s expense, the Shevchenkivsky District Council was empowered to take such a
decision.

17. In February 2003 the plaintiffs appealed, alleging various violations

of substantive and procedural law by the trial court. In particular, they
maintained that the Svyatoshynsky Court's reasoning concerning the District
Council's right to transfer the title to the attic had been in manifest disregard
of applicable law and in contradiction of the court's own findings that

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

according to Article 113 of the Civil Code the attic was co-owned by the
municipality and the plaintiffs.
18. On 14 April 2003 the Kyiv City Court of Appeal dismissed this
appeal. The judgment, in so far as relevant, read as follows:
... in rejecting the claim... the [district] court reasonably considered that before the
creation of the Association (on 26 July 2001) and from the moment of privatisation by
the plaintiffs of particular apartments... the building... was in the joint divided
ownership of the individual apartment owners and the District Council; the legal
status of which parties concerning possession, use and disposal of the building being
governed by Article 113 of the Civil Code of Ukraine.
Deciding the present dispute and finding ... the refusal of the plaintiffs co-owners
of the building - to consent to the reconstruction of the attic premises and construction
of the mansard floor unreasonable, the court had properly considered ... necessity to
carry out such works ... regard being had to the technical state of the roof and the attic
premises ..., [and] that ... [in the course of the reconstruction] some other works [were
carried out] for the improvement of the living conditions of all the owners and tenants
of the residential premises [as well as] the value of the building as a property.
Regard being had to the fact that a mansard floor was constructed at the investors'
expense and without the participation of the plaintiffs ... the Shevchenkivsky District
Council had lawfully decided the issue of disposal of the above premises, in
compliance with Article 119 of the Civil Code of Ukraine.

19. The plaintiffs appealed in cassation, maintaining in particular that it

was unlawful to deprive them, as they represented over 70% of the
apartment owners, of their property on the basis of a reference to its alleged
improvement by a third party, to which they had never consented. They also
submitted that the condition of the house in general had been made worse as
a result of the works.
20. On 13 August 2003 the Supreme Court rejected the plaintiffs'
request for leave to appeal in cassation.
21. Subsequently the plaintiffs unsuccessfully attempted to obtain an
extraordinary review of their claims with reference to inconsistent
jurisprudence of domestic courts in application of the law in similar cases.
II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution of Ukraine
22. Relevant provisions of the Constitution of Ukraine read as follows:

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Article 13
... The State ensures the protection of the rights of all subjects of the right of
property and economic management, and the social orientation of the economy. All
subjects of the right of property are equal before the law.
Article 41
Everyone has the right to own, use and dispose of his or her property, and the
results of his or her intellectual and creative activity.
...
No one shall be unlawfully deprived of the right of property. The right of private
property is inviolable.
The expropriation of objects of the right of private property may be applied only as
an exception for reasons of social necessity, on the grounds of and by the procedure
established by law, and on the condition of advance and complete compensation of
their value. The expropriation of such objects with subsequent complete compensation
of their value is permitted only under conditions of martial law or a state of
emergency.
...
Article 124
...
The jurisdiction of the courts extends to all social interactions falling within the
ambit of the law that arise in the State.
...

B. Civil Code of Ukraine of 1963 (repealed with effect of 1 January

2004)
23. Relevant provisions of the Civil Code of Ukraine in force at the
material time read as follows:
Article 113 Right of Joint Divided Ownership
Possession, use and disposal of property held in joint divided ownership shall be
carried out with the consent of all the shareholders, and, in the absence of consensus,
the dispute shall be decided by court.
...

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

Every shareholder... according to the size of his share shall be entitled to proceeds
from joint property, shall be liable before third parties for obligations regarding the
joint property and shall take part in payment of various taxes and dues, as well as in
maintenance and safekeeping expenses concerning the joint property.
Every shareholder of a joint divided property shall have right to transfer his share of
the joint property to a third person for or without remuneration.
Article 119 Consequences of construction of adds-on, annexes, or reconstruction in a
building held in joint divided ownership
In the event a person owning a share in a residential building held in joint divided
ownership increases its useful area at his own expense by constructing an annex, an
add-on or by reconstructing it with the consent of other shareholders and according to
established procedure, the shares of the joint divided owners of the building and the
use of the premises in it shall be changed accordingly.

C. Law of Ukraine On Local Self-Governance no. 28/97-VR of

21 May 1997
24. Relevant provisions of the Law of Ukraine On Local SelfGovernance read as follows:
Section 60. Right of communal (municipal) property
1. Territorial (municipal) communities of villages, towns, cities, districts in cities
shall hold the right of communal (municipal) property to movable and immovable
possessions ... including ... housing stock, non-residential premises ... and other
possessions ... determined on the basis of the law as objects of right of communal
(municipal) property, as well as proceeds obtained from their alienation.
...
5. Bodies of local self-governance shall execute, on behalf of and in the interests of
the territorial (municipal) communities and in accordance with the law, powers of
possession, use and disposal of communal (municipal) property, including all property
transactions ..., sell and purchase ..., decide on other issues related to their alienation
...

D. Law of Ukraine On Privatisation of the State Housing Stock of

1992
25. Relevant provisions of the Law of Ukraine On Privatisation of the
State Housing Stock read as follows:

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

Section 10
...
2. Owners of apartments in multi-apartment buildings shall be co-owners of the
auxiliary premises of the building... Auxiliary premises (storage rooms, storehouses
and so on) shall be transferred into the residents' ownership free of charge and shall
not be subject to privatisation separately.
3. For ensuring effective use of privatised apartments and their management,
owners of apartments (houses) may create societies or associations of individual
apartment or house owners. In a multi-apartment building whose apartments are not
fully privatised, there shall be concluded, between the society (association) of
individual owners and owners of non-privatised apartments, an agreement on joint
possession of the building and shared participation in expenses for its maintenance.

E. Judgment of the Constitutional Court of Ukraine of 2 March 2004

(case no. N 1-2/2004).
26. The relevant part of the judgment reads as follows:
... the basis for consideration of the case ... is the practical necessity of ... the
official interpretation of ... paragraph 2 of Article 10 of the Law of Ukraine On
Privatisation of the State Housing Stock, existence of inconsistent interpretation of
these provisions by the State authorities, including the courts and bodies of local
self-government...
... provisions of paragraph 2 of Article 10 of the Law of Ukraine On Privatisation
of the State Housing Stock shall be understood as follows:
1.1. Auxiliary premises (basements, storehouses, storage rooms, attics, pram
storage rooms etc.) shall be transferred to the joint ownership of citizens
simultaneously with privatisation of the apartments by them... Confirmation of the
right of ownership of the auxiliary premises shall not require any additional actions, in
particular, the creation of an association of owners of a multi-apartment building, nor
shall there be a requirement to join such an association.
1.2. An owner (owners) of non-privatised apartments in a multi-apartment building
is a co-owner (are co-owners) of auxiliary premises on an equal basis with the owners
of privatised apartments...

F. Jurisprudence of the Ukrainian Courts in Cases concerning

Transactions in Auxiliary Premises of Multi-Apartment Buildings
without consent of Apartment Owners
27. By the decision of 7 August 2003 (case no. 22-3816), the Kyiv City
Court of Appeal reversed the judgment of the Pechreskyy District Court of
Kyiv of 7 April 2003, acknowledging as lawful the reconstruction of an attic
and the transfer of title to it to an investor. The Court of Appeal, in

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

particular, invalidated the reconstruction contract concluded between the

District Administration and a third-party investor without consent of the
plaintiffs owners of privatised apartments in a multi-apartment building.
On 23 December 2004 the Court of Appeal's judgment was upheld by the
Supreme Court of Ukraine and became final. In its judgment, the court
referred, in particular, to the following reasons:
... Having rejected the claim, the [first-instance] court took it that as of the time of
transfer of the title to the attic to S. [the investor], the right of joint ownership of the
attic had not been created for the owners of privatised apartments, as such a right
could have been created only upon privatisation of all apartments in the building ...
and entry [by the apartment owners] into a contract concerning joint possession of the
residential building and participation in its maintenance expenses. Since ... a contract
concerning joint possession of [the auxiliary] premises had not been concluded and
maintenance of the building was carried out by the ... municipal company, the
defendant was not obliged to obtain consent of the owners of privatised apartments for
reconstruction of the attic.
However, it is not possible to agree with these conclusions, since the court has
reached them as a result of incorrect application of substantive law provisions.
...
The law does not provide that the right of joint ownership of auxiliary premises is
created for the owners of privatised apartments of the building only after the creation
of an association of the co-owners... Namely, simultaneously with privatisation of
apartments, individuals renting an apartment obtain ownership of the apartment and
auxiliary premises and there is no need for further formalisation of the ownership of
auxiliary premises prescribed by law.
...
According to Article 113 of the Civil Code of Ukraine, possession, use and disposal
of property held in joint divided ownership shall be conducted upon consent of all
shareholders, lacking which the dispute shall be decided by court.
The multi-apartment building no. 2-4/7 on the P. street in the city of Kyiv, which
has 98 privatised apartments, is a joint divided property of the citizens owners of
privatised apartments and the competent State body, which carries out the owner's
authority in respect of the non-privatised apartments.
Consequently, the municipal authority does not have a right to sell, lease out or
decide on reconstruction, modification of auxiliary premises, in particular, the attic,
without consent of the owners of privatised apartments.
In light of the above, allegations of the plaintiffs that the investment contract ... is
invalid for the purposes of Article 48 of the Civil Code of Ukraine are well-founded,
since such a contract does not comply with the requirements of the law ...

28. Several analogous decisions, which, referring to similar reasons,

invalidated renovation, ownership transfer and other contracts concerning
attics of multi-apartment buildings concluded by the authorities without

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

consent of the privatised apartments owners, were taken by the

Shevchenkivsky District Court of Kyiv in 2003-2004 (in particular,
judgments of 30 December 2003 in case no. 2-4364; of 4 February 2004 in
case no. 2-52/2004 and of 23 March 2004 in case no. 2-170/04).

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
29. The applicants first complained that the local authorities had
unlawfully interfered with their possession of the attic by concluding an
investment contract for its renovation and the construction of a mansard
floor without their consent.
30. They also complained that they had been unlawfully deprived of
their shares in the attic by the District Council's unilateral decision to
transfer them to the investors.
31. The applicants relied on Article 1 of Protocol No. 1 in respect of the
above complaints, which reads as follows:
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.

A. Admissibility
32. The Government submitted no observations concerning admissibility
of the above complaints.
33. The Court considers that these complaints are not manifestly
ill-founded within the meaning of Article 35 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.

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SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

B. Merits
1. The submissions of the parties
(a) The applicants

34. The applicants submitted that the municipal authorities had

unlawfully interfered with their right of ownership of a share in the attic by
concluding the investment contract without their consent. These authorities
had further unlawfully deprived them of their shares in the attic by
transferring them to the investor without the applicants' consent.
35. In support of their arguments the applicants submitted several
decisions given by domestic courts in other proceedings, unrelated to the
present case, in which similar unilateral actions by the public authorities
concerning reconstruction of auxiliary premises in multi-apartment
buildings without the consent of the apartment owners had been recognised
as unlawful.
36. The applicants further stated that the actions by the authorities in
their case were not only unlawful but also unfair and unjustified, as the
investors had regard only to their own interests. Contrary to the courts'
findings, the investors had completed only those works which were
necessary for construction of the mansard floor, and had not carried out
renovation works on the building itself. Moreover, the actual state of the
building had deteriorated as a result of the construction works.
(b) The Government

37. The Government objected to this view. They stated that the
applicants had unreasonably objected to the reconstruction of the attic by
the investors, as the project was beneficial to all parties concerned. The
building having been very old and in poor condition, renovation of the attic
was an urgent necessity. As the applicants, who were co-owners of the attic,
resisted the renovation, the municipality, as the owner of three apartments in
the building and consequently a co-owner of the attic, disputed the
applicants' refusal in court and obtained a reasoned judgment endorsing the
investment project. The subsequent transfer to the investors of the mansard,
which replaced the attic, was also lawful and fair, as confirmed by the same
court decisions adopted at the close of adversary proceedings.
2. The Court's assessment
(a) General principles

38. The Court reiterates that Article 1 of Protocol No. 1 in substance

guarantees the right of property and comprises "three distinct rules": the

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11

first rule, set out in the first sentence of the first paragraph, is of a general
nature and enunciates the principle of the peaceful enjoyment of property;
the second rule, contained in the second sentence of the first paragraph,
covers deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, is concerned, amongst other
things, with the right of a State to control the use of property. The three
rules are not "distinct" in the sense of being unconnected: the second and
third rules are concerned with particular instances of interference with the
right to peaceful enjoyment of property and should therefore be construed in
the light of the general principle enunciated in the first rule (see, among
other authorities, Lithgow and Others v. the United Kingdom, 8 July 1986,
106, Series A no. 102).
39. In order to be compatible with the general rule set out in the first
sentence of the first paragraph of Article 1, any interference by a public
authority with the protected right must strike a fair balance between the
demands of the general interest of the community and the requirements of
the protection of the individual's fundamental rights. The issue of whether a
fair balance has been struck becomes relevant only once it has been
established that the interference in question satisfied the requirement of
lawfulness and was not arbitrary (see Beyeler v. Italy [GC], no. 33202/96,
107, ECHR 2000-I).
40. The requirement of lawfulness, within the meaning of the
Convention, demands compliance with the relevant provisions of domestic
law and compatibility with the rule of law (see Hentrich v. France,
judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, 42).
While it is primarily for the national authorities, notably the courts, to
resolve problems of interpretation of domestic legislation, the role of the
Court is to ascertain whether the effects of such interpretation are
compatible with the Convention (see Kushoglu v. Bulgaria, no. 48191/99,
50, 10 May 2007). Therefore, even though it has only limited power to
review compliance with domestic law, the Court may draw appropriate
conclusions under the Convention where it observes that the domestic
courts have applied the law in a particular case manifestly erroneously or so
as to reach arbitrary conclusions (see Anheuser-Busch Inc. v. Portugal
[GC], no. 73049/01, 83, ECHR 2007-I; Kuznetsov and Others v. Russia,
no. 184/02, 70-74 and 84, 11 January 2007; Pduraru v. Romania, no.
63252/00, 98, ECHR 2005-... (extracts); Sovtransavto Holding v. Ukraine,
no. 48553/99, 79, 97 and 98, ECHR 2002-VII; Beyeler v. Italy, cited
above, 108, ECHR 2000-I; Kushoglu, cited above, 50-52 and, mutatis
mutandis, Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1997,
Reports of Judgments and Decisions 1997-III, 59-63).

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(b) Alleged unlawfulness of the conclusion of the investment contract without

the applicants' consent

41. The Court notes that it is common ground between the parties that
prior to its reconstruction the disputed attic had been owned jointly by all
the owners of the apartments in the building, including the applicants.
Article 1 of Protocol No. 1 is therefore applicable in the present case. The
municipality's decision to enter into a contract for reconstruction of the attic
by a third party constituted, accordingly, interference with the applicants'
right to enjoy their possessions within the meaning of the first sentence of
the above Article.
42. The Court observes that in resolving the applicants' (and other coowners') dispute with the municipality, the domestic judicial authorities
noted expressly that according to the provisions of the Civil Code in force at
the material time the applicants' consent had to be sought for the conclusion
of the investment contract, absent which it remained open to the authorities
to apply for judicial authorisation of their project (see paragraphs 16 and 23
above). In the meantime, the district administration did not fulfil these
requirements, having concluded the contract without seeking either. As
follows from the domestic courts' reasoning, the authorities have therefore
not complied with the conditions provided for by law for entering into the
investment contract.
43. The Court notes that eventually the domestic courts validated the
contract upon its completion, having found it beneficial for all co-owners of
the building. It finds, however, that it is not necessary to assess whether the
domestic courts' decision in this regard struck a fair balance.
44. In this respect the Court notes that for the purposes of Article 1 of
Protocol No. 1 the fairness analysis becomes appropriate only when the
interference in question complies with applicable rules established by law. It
does not appear either from the case-file materials or from the Government's
observations that the municipality was in any way precluded from obtaining
the consent for the reconstruction either directly from the attic co-owners or
by way of a court order before entering into the investment contract.
Further, it does not follow from the available materials that any provision of
domestic law authorised the municipality to enter into the contract without
such a consent or, in the event of a dispute, without its judicial resolution.
The conclusion of the investment contract constituted therefore interference,
which was not in accordance with the law.
45. Article 1 of Protocol No. 1 was accordingly breached in this regard.
(c) Alleged unlawfulness of deprivation of the applicants' share in the attic

46. In light of the above findings that the applicants had initially been
entitled to a share in the attic, the Court deems it established that, following
its reconstruction into a mansard floor, which was transferred to the
investors, the applicants lost their property. They were therefore deprived of

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

13

their possessions within the meaning of the second sentence of Article 1 of

Protocol No. 1.
47. According to the documents in the case file, the decision to assign
the mansard floor to the investors was taken by the District Council
unilaterally, on the basis of the law authorising it to conduct transactions in
municipal property. On 29 January 2003 Svyatoshynsky Court upheld this
decision, relying on section 60 of the Law of Ukraine On Local
Self-Governance (see paragraph 24 above) and noting that the building at
issue in the present case was municipal property.
48. It does not follow from the Government's observations or other
materials in the case file that the court's findings under section 60 of the
above statute can be reconciled with its references to section 10 of the Law
of Ukraine On Privatisation of the State Housing Stock and to Article 113
of the Civil Code (see paragraphs 23 and 25 above). Specifically, relying on
these articles, the court had stated that the building and its attic were held in
joint divided ownership by all apartment owners and the municipality's
authority in management of the attic was, therefore, limited to a share
corresponding to the three non-privatised flats.
49. It does not appear from the text of the Svyatoshynsky Court's
judgment that at some point of time after the conclusion of the investment
contract analysed under Article 113 of the Civil Code and before the
assignment of the mansard floor to the investors under section 60 of the
Law On Local Self-Governance the applicants or other apartment owners
had transferred their title to the attic to the municipality or at least delegated
to it their right to its management. On the contrary, the applicants insisted in
their appeal that they had considered themselves co-owners of the attic until
the moment it was transferred to the investors.
50. The Kyiv City Court of Appeal upheld the Svyatoshynsky Court's
judgment. However, while not formally disputing its reasoning, instead of
clarifying the applicability of section 60 of the Law On Local SelfGovernance to the transfer of the attic, this court found that the
municipality's ownership of it was based on a different Civil Code provision
(Article 119, see paragraph 23 above) governing increases in the size of a
shareholder's possession in the event he invests in the increase of a joint
property. According to this article the increase of the share was
preconditioned on the co-owners' consent to the reconstruction works and
the investment of the acquiring co-owner's own funds in them. The Court of
Appeal did not state how these preconditions were met in the present case,
where the investment contract had been concluded by the public authority
claiming to be the sole owner of the building (see paragraph 8 above) and
the reconstruction was carried out at the expense of a third party.
51. The Court notes that divergent practice existed for some period of
time after the adoption of the new privatisation legislation, as witnessed, for
instance, by the examples of judgments presented by the applicants (see

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paragraphs 27-28 and 35 above). The Court further appreciates that the
authorities, notably the national courts, needed some time to develop
practice concerning the maintenance of auxiliary premises in the new
situation. It notes that difficulties in interpreting applicable law during the
transitional period became subject to consideration and eventual
clarification by the Constitutional Court, which endorsed automatic
entitlement of owners of privatised apartments to a share in auxiliary
premises (see paragraph 26 above).
52. It remains the case, however, that in the present application there
appears to be no clear legal basis for the applicants' rights to a share in the
attic of their house to be extinguished.
53. The applicants were therefore unlawfully deprived of their
possessions.
54. There was, accordingly, a breach of Article 1 of Protocol No. 1 in
this respect.
II. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION
55. The applicants also complained that the court decisions dismissing
their claims were arbitrary, in particular as no clear reasons were adduced
for justification of the transfer of the title to the attic. They relied on
Article 6 1 of the Convention, which, in so far as relevant, reads as
follows:
In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal established by law ...

56. The Government, who presented no observations concerning

admissibility of this complaint, submitted that the claim was unmeritorious,
as the domestic courts had provided extensive reasoning for their decisions
and their assessment was not arbitrary.
57. The Court considers that this complaint is linked to the complaint
concerning lack of legal grounds for the applicants' ownership of a share in
the attic to be extinguished, and must likewise be declared admissible.
58. The Court reiterates that, according to its established case-law
reflecting a principle linked to the proper administration of justice,
judgments of courts and tribunals should adequately state the reasons on
which they are based. Article 6 1 obliges courts to give reasons for their
judgments, but cannot be understood as requiring a detailed answer to every
argument. The extent to which this duty to give reasons applies may vary
according to the nature of the decision (see Ruiz Torija v. Spain, judgment
of 9 December 1994, Series A no. 303-A, 29). Even though a domestic
court has a certain margin of appreciation when choosing arguments in a
particular case and admitting evidence in support of the parties'
submissions, an authority is obliged to justify its activities by giving reasons

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

15

for its decisions (see Suominen v. Finland, no. 37801/97, 36, 1 July 2003).
A further function of a reasoned decision is to demonstrate to the parties
that they have been heard. Moreover, a reasoned decision affords a party the
opportunity to appeal against it, as well as the opportunity to have the
decision reviewed by an appellate body. It is only by giving a reasoned
decision that there can be public scrutiny of the administration of justice
(see Hirvisaari v. Finland, no. 49684/99, 30, 27 September 2001).
59. Turning to the facts of the present case, the Court reiterates that in its
judgment of 29 January 2003 Svyatoshynsky Court found that prior to the
beginning of the reconstruction works the applicants, along with other
apartment owners, had co-owned their building with the municipality. At
the same time it stated that the municipality was entitled to dispose,
unilaterally and without the applicants' consent, of its mansard floor, as it
was the sole owner of the building. It is not apparent from the judgment text
that after the reconstruction the applicants had either forfeited their rights of
co-ownership or lost them on any ground. No explanation is provided why
the applicants were considered co-owners of the building in the context of
the attic reconstruction, but not in the context of the mansard floor transfer.
60. The judgment of 14 April 2003 given by the Kyiv City Court of
Appeal does not appear to add any clarity. Even assuming, on the basis of
the court's reference to Article 119 of the Civil Code, that the mansard floor,
as a part of the building constructed without the applicants' involvement,
was exempt from co-ownership, it is not apparent on which legal ground the
applicants' property rights to the attic were extinguished. The Court of
Appeal did not elaborate on the fact that, while Article 119 referred to the
works done at one co-owner's expense and with the consent of the other
co-owners, in the present case the reconstruction was performed at the
expense of a third party, who was given a unilateral advance promise of title
to the reconstructed premises by one co-owner (the municipality) against the
will of the others. Moreover, it is not apparent from this reasoning whether
the Court of Appeal endorsed the first-instance court's statement under
section 60 of the Law On Local Self-Governance concerning the
municipality's title to the building as such, or decided that the applicants coowned the building, but not the mansard floor.
61. In these circumstances, the Court finds that the domestic courts have
failed to adduce adequate reasoning for their decisions.
62. There was, accordingly, a breach of Article 6 1 of the Convention
in this respect.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
63. The applicants next complained that by virtue of the same issues
which had given rise to their complaint under Article 6 1 of the
Convention they had been deprived of an effective remedy for their

16

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

complaints under Article 1 of Protocol No. 1. They invoked Article 13 of

the Convention in this respect, which reads as follows:
Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.

64. The Court does not consider it necessary to rule on this submission,
because, where the right claimed is a civil one, the requirements of
Article 13 are less strict than, and are absorbed by, those of Article 6 1
(see, among many other authorities, British-American Tobacco Company
Ltd v. the Netherlands, judgment of 20 November 1995, Series A no. 331,
p. 29, 89; Baumann v. France, no. 33592/96, 39, 22 May 2001; Crian
v. Romania, no. 42930/98, 32, 27 May 2003; and Capital Bank AD
v. Bulgaria, no. 49429/99, 121, 24 November 2005).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
65. Lastly, the applicants complained under Article 8 of the Convention
that they had been subjected to intolerable living conditions during the
works, which had also caused damage to their apartments.
66. Independently of questions of whether the responsibility for any
damage lay with the State or with the private contractor, the Court notes that
the applicants did not present any material in evidence that they had
properly raised a relevant claim, in form or in substance, in domestic
proceedings and exhausted the available domestic remedies in its respect.
67. This part of the application should therefore be rejected as
inadmissible in accordance with Article 35 1 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
68. Article 41 of the Convention provides:
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

69. The applicants did not submit a claim for just satisfaction within the
time-limit allotted to them for this purpose. Accordingly, the Court
considers that there is no call to make any award under this head.

SERYAVIN AND OTHERS v. UKRAINE JUDGMENT

17

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning interference with and deprivation of
the applicants of their possessions and fairness of civil proceedings in
this regard admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 of the
Convention on account of the conclusion by a public authority of the
investment contract for reconstruction of the attic without the applicants'
consent;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the
Convention on account of the applicants' deprivation of the attic;
4. Holds that there has been a violation of Article 6 1 of the Convention;
5. Holds that there is no need to examine the complaint under Article 13 of
the Convention.
Done in English, and notified in writing on 10 February 2011, pursuant
to Rule 77 2 and 3 of the Rules of Court.

Claudia Westerdiek
Registrar

Peer Lorenzen
President