June 22, the Second Senate of the Constitutional Court of Ukraine adopted the Decision No. 5-р(ІІ)/2022 in the case upon the constitutional complaint of Oleksiy Abramovych on conformity of Article 40.2.2 of the Housing Code of Ukraine (hereinafter - the Code) with the Constitution of Ukraine (the case on discrimination in the implementation of the right to housing) and declared the impigned rule of the Code to be unconstitutional.
The Judge Rapporteur in the case is Vasyl Lemak.
The applicant appealed to the Constitutional Court with a request to consider the constitutionality of Article 40.2.2 of the Code according to which citizens in case of «change of their permanent place of residence to the other settlement shall be removed from the register of citizens who need improvement of housing conditions».
The petitioner considers that the disputed provision is discriminatory and violates his right to housing guaranteed by Article 47.2 of the Constitution of Ukraine.
In adopting the Decision, the Court took into account its own legal positions as well as international acts and the European Court of Human Rights case-law.
When deliberating this case, the Court clarified the content and meaning of the right to housing and its interrelation with other human and citizens' rights and freedoms guaranteed by the Constitution. The Court reached a conclusion that the right to housing guaranteed by Article 47 of the Constitution emerges from the right of everyone to sufficient standard of living (Article 48 of the Basic Law) as one may admit only such conditions for residence of a person to be a housing which provide for a possibility for him or her to be in security, safety and dignity.
The Decision reads that the implementation of the right to housing has a key meaning not only for the implementation of other economic and social human rights but for the effective implementation of rights and freedoms of private and political nature by everyone.
The Court stressed the special close connection existing between the right to housing on the one hand and the freedom of movement and free choice of the place of residence on the other hand both guaranteed by the Constitution of Ukraine. The European Court of Human Rights has also repeatedly noted the significance of the freedom of movement and choice of the place of residence for the democratic society in connection with other human rights. A person, in exercising his or her constitutional rights and freedoms, can have several places of residence, in particular in several localities and this may not hinder the effective implementation of other constitutional rights.
The Decision reads that «Ukraine aims at acquiring the full-fledged membership in the European Union, by consistent implementation of the relevant constitutional values into its legislation with account of the fact that the European Union is founded «on the values of respect to human dignity, equality, rule of law and obsevance of human rights, including the rights of individuals belongong to minorities» as well as the fact that «these values are common for member-states in the society where pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men reign».
Given the above, the Court emphasises the constitutional meaning, content and scope of the principles of equality and prohibition of discrimination, observance of the rights and freedoms, in particular the protection of the right to housing, freedom of movement, in the light of common European values.
The Court drew attention to the fact that apart from the Code, the legislator had regulated the issue of implementation of the constitutional right to housing by the citizens who need social protection by the Law of Ukraine «On Housing Fund of Social Purpose». In particular, the said law determined the housing fund of social purpose as well as implemented social apartment register of the citizens of Ukraine who use the right to social housing and are in the waiting list to obtain it. At the same time, having established that one of the grounds to remove a citizen from the register of those who are in need of improvement of housing conditions is his or her departure for a permanent place of residence to another locality, the legislator made a connection between availability of interrelation between implementation of the right to housing in a locality in which he or she was registered and the observance of the criterion «permanent place of residence» as well as introduced different legal regulation as to two categories of individuals: those who left to the other permanent place of residence from the locality in which they were registered as such who need improvement of housing conditions and those who have not changed the place of permanent residence. The difference which is manifested in limitations on the persons of the first category may not be recognised to be objectively justified and therefore is discriminatory.
Given the above, the Court concluded that in Article 40.2.2 the legislator admitted for a violation of the constitutional prohibition as to privileges or restrictions established in Article 24.2 of the Basic Law of Ukraine which is also inconsistent with Article 33.1 of the Constitution of Ukraine.
Therefore, the Court concluded that the disputed clause of the Code is inconsistent with the provisions of Articles 24.2 and 33.1 of the Basic Law of Ukraine.
The provision of the Code declared unconstitutional shall lose its effect from the day of adoption of this Decision by the Constitutional Court of Ukraine.