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DECISION OF THE SECOND SENATE OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 22, 2022 No. 5-r (II)/2022

On case on the constitutional claim of Abramovich Alexey Vladimirovich concerning compliance of the Constitution of Ukraine (constitutionality) of Item 2 parts two of article 40 of the Housing code of Ukraine (concerning discrimination in realization of the right to housing)

Case No. 3-39/2021(86/21)

The second senate of the Constitutional Court of Ukraine in structure:

Golovaty Sergey Petrovich (chairman of meeting),

Gorodovenko Victor Valentinovich,

Lemak Vasily Vasilyevich (speaker),

Moysik Vladimir Romanovich,

May Day Oleg Alekseevich,

Slidenko Igor Dmitriyevich,

Yurovskaya Galina Valentinovna,

considered at plenary meeting case on the constitutional claim of Abramovich Alexey Vladimirovich concerning compliance of the Constitution of Ukraine (constitutionality) of Item 2 parts two of article 40 of the Housing code of Ukraine.

Having heard the judge-speaker Lemak V. V. and having researched case papers, in particular, line items which were stated by scientists: The Kiev national university of Taras Shevchenko - the associate professor of the civil law of Institute of the right, Candidate of Law Sciences Radchenko L. I.; National legal university of Yaroslav the Wise - the head of the department of the civil law, professor, the member - the correspondent of National academy of legal sciences of Ukraine Borisova V. I.; The state higher educational institution "Uzhhorod National University" - the director of Research institution of comparative public and international law, the doctor of jurisprudence, professor Savchin M. V.; National academy of legal sciences of Ukraine - the leading researcher of Research institution of legal support of innovative development of National academy of legal sciences of Ukraine, Candidate of Law Sciences, associate professor Rozgon A. V.; National university "Lviv Polyequipment" - the head of the department of the constitutional and international law of educational and scientific institute of the right, psychology and innovative education, the doctor of jurisprudence, professor Kovalchuk V. B., the Constitutional Court of Ukraine

established:

1. Abramovich V. V. appealed to the Constitutional Court of Ukraine with the petition to consider question of Article part two compliance 24, of part two of article 47 of the Constitution of Ukraine (constitutionality) of Item 2 parts two of article 40 of the Housing code of the Ukrainian SSR according to which strike off the register the citizens needing improvement of housing conditions in case of "departure on the permanent residence in other settlement".

By decisions of Zarechny of district court of the city of Sumy of May 20, 2020 and the Sumy Appeal Court of August 12, 2020 it is determined that Abramovich A. V. during the period from 1976 to 1990 passed military service. After dismissal on March 22, 1990 from military service, remaining registered in the city of Ulan-Ude, Abramovich A. V. arrived to the city of Sumy where according to the decision of executive committee of the Sumy city council of People's Deputies of September 20, 1990 it was taken on queue for receipt of the state living space and is included in the list of persons who have the right of first-priority receipt of living space. In 1996 Abramovich A. V. left the city of Sumy on the permanent residence to the Kherson region where worked to retirement. Since August 16, 1999 the residence of Abramovich A. V. it is registered in the city of Beryozovka of Odessa region. The decision of executive committee of the Sumy city council of February 18, 2014 Abramovich A. V. it was struck off the room register as not living the city of Sumy, based on Item 2 parts two of article 40 of the Housing code of the Ukrainian SSR.

Making the decision on refusal in satisfaction of claims of Abramovich A. V. about cancellation of the decision of executive committee of the Sumy city council of February 18, 2014 No. 85 about removal from room accounting and recovery in queue on receipt of living space, courts 2 parts two of article 40 of the Housing code of the Ukrainian SSR applied Item.

According to the person of law on the constitutional claim, as a result of application by the Sumy Appeal Court of the disputed instruction of the Housing code of the Ukrainian SSR it underwent to discrimination on the basis of the residence, than its right to housing guaranteed by part two of article 47 of the Constitution of Ukraine was violated.

Proving the approvals, Abramovich A. V. refers to separate provisions of the Constitution of Ukraine, the Housing code of the Ukrainian SSR and to judgments on its case.

2. During consideration the Constitutional Court of Ukraine of case to the Housing code of the Ukrainian SSR the Law of Ukraine "About desovietization of the legislation of Ukraine" of April 21, 2022 No. 2215-IX which became effective on May 7, 2022 made changes, in particular, the name of the Housing code of the Ukrainian SSR is reworded as follows - the Housing code of Ukraine (further - the Code).

The constitutional court of Ukraine considers that introduction of the specified change does not influence essence of the disputed instruction of the Code, and then - regarding the constitutional control in this case.

3. Resolving the questions which are brought up in constitutional to the claim, the Constitutional Court of Ukraine recognizes that are acting in this case established by the Constitution of Ukraine the principle of the social state (Article 1), the principle of human rights protection (Article part two 3) the principle of equality (Article 21, of part one, the second Articles 24).

3.1. The principle of the social state (article 1 of the Constitution of Ukraine) belongs to the fundamental constitutional principles on which the Ukrainian state is founded.

Content and amount of the principle of the social state are determined by consecutive and past practice of the Constitutional Court of Ukraine.

The constitutional court of Ukraine in the solution of March 17, 2005 No. 1-rp/2005 noted that "according to the Constitution of Ukraine signs of Ukraine as social state is the social orientation of economy, fixing and the state sales warranties of the social rights of citizens, in particular, of their rights to social protection and sufficient living standards (Articles 46, of 48), and so forth. It obliges the state to regulate as appropriate economic processes, to establish and apply fair and effective forms of redistribution of social income for the purpose of ensuring welfare of all citizens" (the paragraph third subitem 4.1 of item 4 of motivation part).

In the Solution of October 11, 2005 No. 8-rp/2005 the Constitutional Court of Ukraine specified that "in Ukraine as the social, constitutional state of the politician it is directed to creation of the conditions providing sufficient living standards, free and all-round development of the person as the supreme social value, his life and health, honor and advantage. Approval and observance of the social standards enshrined in regulatory legal acts is the constitutional obligation of the state. Activities of its law-making and law-enforcement bodies shall be performed on concepts of justice, humanity, supremacy and direct action of regulations of the Constitution of Ukraine, and power - in the limits established by the Fundamental Law of Ukraine and according to the laws" (paragraph two of item 4 of motivation part).

Besides, the Constitutional Court of Ukraine determined that "the main objectives of the social state is creation of conditions for realization of the social, cultural and economic rights of the person, assistance of independence and responsibility of each personality for the actions, provisions of the public assistance to those citizens which owing to circumstances cannot provide sufficient level of living for themselves and the family" (paragraph two of subitem 2.1 of Item 2 of motivation part of the Decision of January 25, 2012 to No. 3-rp/2012).

3.2. The principle of protection of human rights and freedoms which is key for determination of content of the constitutional system of Ukraine is realized, in particular, in those instructions of part two of article 3 of the Constitution of Ukraine according to which "human rights and freedoms and their guarantees determine content and orientation of activities of the state", "approval and providing human rights and freedoms is the main obligation of the state".

Human rights and freedoms follow from human dignity. Human dignity which should be treated "as the right guaranteed by article 28 of the Constitution of Ukraine and as the constitutional value which fills with sense human life is the base for all other constitutional rights, criterion of determination of their essence and criterion of admissibility of possible restrictions of such rights" (the first offer of the paragraph of the sixth subitem 2.3 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine of May 22, 2018 No. 5-r/2018).

The constitutional court of Ukraine notes that the human rights and freedoms guaranteed by the Constitution of Ukraine are not reduced only to those which contain in the text of the Fundamental Law as it is specified in its part one of Article 22: "The rights and freedoms of man and citizen affirmed by this Constitution are not exhaustive".

Considering contents of instructions of article 21 of the Constitution of Ukraine according to which "all people are free and equal in the advantage and the rights", "human rights and freedoms are inaliennable and indestructible", the Constitutional Court of Ukraine came to conclusion that freedom (liberty) of the person of a priori is determining and priority for honoring by the state in general, public authorities, local government bodies, other subjects.

The constitutional court of Ukraine is guided by the fact that the constitutional presumption of human freedom causes need of reasons for its any essential restriction from the state.

Concerning it the Constitutional Court of Ukraine noted that "restrictions on realization of constitutional rights and freedoms cannot be willful and unfair, they shall be established only by the Constitution and the laws of Ukraine, to pursue the legitimate aim, to be caused by social necessity of achievement of this purpose, pro rata and reasonable, in case of restriction of constitutional right or freedom the legislator shall enter such legal regulation which will give the chance optimum to achieve the legitimate goal with the minimum intervention in implementation of this right or freedom and not to violate intrinsic content such right" (the paragraph third subitem 2.1 of Item 2 of motivation part of the Decision of June 1, 2016 No. 2-rp/2016).

The constitutional court of Ukraine considers that the state, fulfilling the main duty - approval and providing human rights and freedoms (part two of article 3 of the Constitution of Ukraine), - shall not only abstain from violations or disproportionate restrictions of human rights and freedoms, but also take proper measures for possibility of their complete realization by everyone who is under its jurisdiction; for this purpose the legislator and other bodies of the public power shall provide effective legal regulation which meets the constitutional standards and the principles and to create the mechanisms necessary for requirements satisfaction and interests of the person (the first, second offer of paragraph one of Item 3 of motivation part of the Decision of June 1, 2016 No. 2-rp/2016).

Such understanding of the principle of protection of human rights and freedoms in coordination with the international obligations which Ukraine undertook according to international treaties on human rights (pacta sunt servanda), in particular, under the International Covenant on Economic, Social and Cultural Rights of 1966, to the International Covenant on Civil and Political Rights of 1966, the Convention on human rights protection and fundamental freedoms of 1950 (further - the Convention). In preamble of the Convention it is said that the governments of state members of the Council of Europe which signed the Convention confirmed the deep belief in "those fundamental freedoms which make bases of justice and world peace and which observance is in the best way provided, on the one hand, thanks to efficient political democracy, and on the other hand, thanks to general understanding and respect for human rights on which they depend".

3.3. The constitutional principle of equality is directed to all steps of the Ukrainian law and order. Instructions of the Constitution guarantee equality of constitutional rights and freedoms of citizens and their equality before the law (Article part one 24), and also prohibition of restrictions and privileges on certain signs: "There cannot be privileges or restrictions on signs of race, skin color, political, religious and other convictions, floor, ethnic and social origin, property condition, residence, on language or other signs" (Article part two 24).

The constitutional court of Ukraine noted about it that "all distinctions in privileges or restrictions of rather different categories of individuals established by the law cannot be connected with the signs provided by part two of article 24 of the Constitution of Ukraine. The specified principle determines the general rule of inadmissibility of establishment by social or personal features of privileges or restrictions and is not absolute" (the second, third offer of paragraph two of subitem 3.3 of Item 3 of motivation part of the decision of October 16, 2007 No. 8-rp/2007).

The constitutional court of Ukraine in the practice also specified admissibility of restriction of the constitutional principle of equality, having stipulated that "such restriction has lawful, objectively reasonable purpose which methods of achievement are proper and necessary" [the paragraph the fourth Item 3 of motivation part of the Solution of the Constitutional Court of Ukraine (The first senate) of July 12, 2019 No. 5-r (I)/2019].

The constitutional principle of equality and discrimination prohibition applies the Constitutional Court of Ukraine in coordination with the international obligations of Ukraine, in particular, practice of the international judicial authorities which jurisdiction Ukraine recognized.

In article 14 of the Convention it is specified that "use of the rights and freedoms recognized in this Convention shall be provided without discrimination on any sign - floor, race, skin color, language, religion, political or other convictions, national or social origin, belonging to ethnic minorities, property status, the birth or on other sign".

In article 1 of the Protocol No. 12 to the Convention the understanding of prohibition of discrimination is specified: "Implementation of any right provided by the law is provided without discrimination on any sign, for example, on the basis of sex, races, skin colors, language, religion, political or other convictions, national or social origin, belonging to ethnic minority, property status, the birth or on other sign" (Item 1); "nobody can be discriminated by any public authority on any signs, for example, on those which are specified in Item 1" (Item 2).

About it the European Court of Human Rights according to the past practice noted that discrimination means the unequal relation which is not based on any objective and reasonable reasons, to persons under approximately similar circumstances [the decision in the matter of Fedorchenko and Lozenko against Ukraine of September 20, 2012 (the statement No. 387/03), §62]. This court also focused attention that discrimination means the treatment of persons by different methods, without objective and reasonable reasons, in rather similar situations; distinction in the relation if it has no objective and reasonable reasons that is if it does not pursue the legitimate aim or if there is no reasonable ratio between the applied means and particular purpose [the decision on case Pichkur against Ukraine of November 7, 2013 (the statement No. 10441/06), §48, §49].

4. In this case the Constitutional Court of Ukraine finds out content and value of the right to housing and its interrelation with other rights and freedoms of man and citizen guaranteed by the Constitution.

4.1. According to article 47 of the Constitution of Ukraine "everyone has the right to housing. The state creates conditions under which each citizen will have opportunity to build housing, to acquire it in property or to lease" (part one); "housing is provided to citizens who need social protection by the state and local government bodies gratuitously or for payment, available to them, according to the law" (part two).

Besides, according to article 48 of the Constitution of Ukraine everyone has the right to sufficient living standards for himself and the family, covering sufficient nutrition, clothes, housing.

Therefore, the right to housing guaranteed by article 47 of the Constitution of Ukraine is connected with the right to sufficient living standards (article 48 of the Constitution of Ukraine) which, except sufficient nutrition and clothes, covers also sufficient housing for everyone.

The constitutional court of Ukraine in the Solution of December 20, 2019 No. 12-r/2019 generalized the previous practice concerning the right to housing, having emphasized:

"Follows from the analysis of provisions of the second offer of part one, part two of Article 47 of the Fundamental Law that the right to housing can be exercised by construction of housing, its acquisitions in property or leasings, and citizens who need social protection, in receipt of social housing from the state or local government bodies it is non-paid or for payment, available to them, according to the law.

Proceeding from stated the Constitutional Court of Ukraine noted that the Constitution of Ukraine establishes, in particular, in Article 47, different methods of realization of the right to housing and are not connected by sales opportunity of this right with permanent residence of person in this or that settlement (at the place of residence)" (paragraphs the third, fourth subitem 2.1 of Item 2 of motivation part).

4.2. Communication between the right to housing and the right to sufficient living standards is reflected also in the international acts on human rights.

So, in the Universal Declaration of Human Rights of 1948 it is specified that everyone has the right to living standards which are sufficient for maintenance of health and material welfare for him and his family, including food, clothes, the dwelling, medical care and required social servicing, and the right to providing in case of unemployment, diseases, disability, widowhood, approaches of old age or other case of loss of means of livelihood owing to circumstances (Item 1 of Article 25).

In Item 1 of article 11 of the International Covenant on Economic, Social and Cultural Rights of 1966 it is noted: "The states which take part in this Pact recognize the right of everyone to sufficient living standards for it and his families, including sufficient nutrition, clothes and the dwelling, and on steady improvement of living conditions. The State Parties will take proper measures on ensuring implementation of this right, recognizing importance in this respect of the international cooperation based on free consent".

Article 11 of the International Covenant on Economic, Social and Cultural Rights of 1966 which determines the right to proper level of living including the right to appropriate housing, it is necessary to perceive in interrelation with its Article 4, which establishes conditions and admissibility of restriction by the state of use of the rights: "The states which take part in this Pact recognize that concerning use of those rights which this or that state provides according to this Pact the specific state can set only such restrictions of the rights determined by the law, and only so far as it is compatible to the nature of the specified rights, and is exclusive with the purpose to promote general welfare in democratic society".

In accepted by Committee of the United Nations on the economic, social and cultural rights (further - Committee) the General comment No. 4 (1991) (further - the General comment No. 4) concerning the right to appropriate housing according to Item 1 of article 11 of the International Covenant on Economic, Social and Cultural Rights of 1966 it is specified that "the right to the proper dwelling belongs to everyone <...> individuals, and also families have the right to the sufficient dwelling, irrespective of age, economic situation, belonging to any group or other accessory, or the status and other factors. In particular, according to Article 2 (2) the International Covenant on Economic, Social and Cultural Rights of 1966, implementation of this right shall not be subject to any discrimination".

The committee in the general Comment No. 4 also notes that the right to housing should not be interpreted in confined or limited sense that would be equivalent, for example, with the provided roof that means only that someone has tent. It should be considered rather how the right to live anywhere in safety, rest and advantage. This note is pertinent, at least, for two reasons. First, the right to housing fully concerns other human rights and the fundamental principles which make basis of the International Covenant on Economic, Social and Cultural Rights of 1966. Thus, "advantage inherent in the human person" from which as it is declared, the rights affirmed in this pact follow means that the term "housing" shall be interpreted so that to consider other reasons, and mainly, the right to housing shall be guaranteed to all without difference in the income or any other economic resources. Secondly, the reference containing in Item 1 of article 11 of the International Covenant on Economic, Social and Cultural Rights of 1966 shall be interpreted as concerning not only housing as such, and sufficient housing (Items 6, 7 General comments No. 4).

The committee developed criteria of "appropriate housing" for the purposes of the International Covenant on Economic, Social and Cultural Rights of 1966 among which: (a) legal support of accommodation, (b) availability of services, equipment, conveniences and infrastructure, (c) solvency; the financial expenses of any person or family concerning housing shall be such size not to threaten satisfaction of other basic needs and not to create obstacle for their satisfaction, (d) suitability to accommodation; sufficient housing shall be suitable for accommodation in sense of protection of residents against cold, dampness or other threats for health, structural dangers and carriers of diseases; physical safety of residents, (e) availability shall be guaranteed; sufficient housing shall be available to those who have the right to it; the groups which are in adverse provision shall get full and continuous access to proper housing stock; the access to the earth fixed as the right (f) of location; sufficient housing shall be in such place which allows to have access to opportunities concerning employment, medical attendance, schools and other social organizations, (g) respect for the cultural circle (Item 8 of the General comment No. 4) [Sixth session (1991). Contained in document E/1992/23. General comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant)].

Ukraine, having ratified the European social charter (reviewed) 1996 by the Law of Ukraine "About ratification of the European social charter (reviewed)" of September 14, 2006 No. 137-V with changes, undertook obligations for the purpose of ensuring effective implementation of right to social insurance to make efforts for gradual raising of social security system to higher level.

The right to housing is determined by Item 31 of part I of the European social charter (reviewed) 1996 and concretized in Article 31 of its part II according to which the states shall take the measures directed on: assistance to access to housing of proper level; establishment on housing of the prices available to needy persons.

Based on given the Constitutional Court of Ukraine came to conclusion that the right to housing guaranteed by article 47 of the Constitution of Ukraine follows from the right of everyone to sufficient living standards (Article 48 of the Fundamental Law of Ukraine) as only such conditions for accommodation of the person which provide for it opportunity to be in safety, rest and advantage can be recognized as housing.

5. Realization of the right to housing (Article 47 of the Fundamental Law of Ukraine) has key value not only for realization of other economic and social rights of the person through which, first of all, the constitutional value of providing worthy living conditions for each person, but also for effective implementation by everyone of the rights and freedoms of personal and political nature is realized.

The constitutional court of Ukraine notes especially close connection which exists between guaranteed by the Constitution of Ukraine the right to housing, on the one hand, and freedom of travel and the free choice of the residence (Article part one 33), on the other hand.

5.1. According to part one of article 33 of the Constitution of Ukraine to everyone who on legal causes is in the territory of Ukraine, freedom of travel, the free choice of the residence are guaranteed.

The constitutional court of Ukraine notes that the Constitution of Ukraine guarantees freedom of travel, the free choice of the residence that is inseparable component of wider context of freedom of person, namely general freedom of person and its activities in all spheres of life.

Such legal line item was repeatedly confirmed with the previous practice by the Constitutional Court of Ukraine. In particular, in the solution of June 1, 2016 No. 2-rp/2016 the Constitutional Court of Ukraine noted that "among fundamental values of efficient constitutional democracy freedom which availability at person is one of premises of its development and socialization is. The right to liberty is the inherent and inaliennable constitutional right of the person and provides possibility of the choice of the behavior for the purpose of free and all-round development, to be effective independently according to own decisions and intentions, to determine priorities, to do everything that is not forbidden by the law, freely and to move at own discretion on the territory of the state, to choose the residence and so forth" (the first, second offer of paragraph two of subitem 2.3 of Item 2 of motivation part).

The given understanding of article 33 of the Constitution of Ukraine is approved with accomplishment of the international obligations by Ukraine which, in particular, follow from Item 1 of Article 13 of the Universal Declaration of Human Rights of 1948, article 12 of the International Covenant on Civil and Political Rights of 1966, article 2 of the Protocol No. 4 to the Convention.

According to Item 1 of article 12 of the International Covenant on Civil and Political Rights of 1966 "belongs to everyone who legally is in the territory of any state, within this territory, the right to free movement and liberty of choice of the residence".

In the General comment of Human Rights Committee No. 27: Article 12 (Freedom of travel), accepted on November 2, 1999 (CCPR/C/21/Rev.1/Add. 9) (further - the General comment No. 27), it is specified that freedom of travel is one of inseparable conditions of ensuring free development of the personality. It interacts with some other the rights proclaimed in the International Covenant on Civil and Political Rights of 1966. The right to liberty of movement concerns all territory of the state. According to Item 1 of article 12 of the International Covenant on Civil and Political Rights of 1966 persons have the right to move from one place on another and to be located in any place at their choice. Implementation of this right by person wishing to move or remain on the specific place shall not be caused by availability of any specific purpose or reason. The State Party shall provide that the rights guaranteed in article 12 of the International Covenant on Civil and Political Rights of 1966 were protected from intervention from outside both the states, and individuals (Items 1, of 5, of 6) [CCPR General Comment No. 27: Article 12 (Freedom of Movement). Adopted at the Sixty-seventh session of the Human Rights Committee, on 2 November 1999 CCPR/C/21/Rev.1/Add.9].

It is told about freedom of travel also in documents of the Council of Europe. In particular, according to article 2 of the Protocol No. 4 to the Convention implementation of right to liberty of movement and the choice of the residence, freely to leave any country, including the territory of the country, cannot experience any restrictions, except those which are established by the law and are necessary in democratic society for the benefit of homeland security or public tranquility, for maintenance of public order, prevention of crimes, health protection or morality or for protection of the rights and freedoms of other persons.

The European Court of Human Rights repeatedly emphasized value of freedom of travel and the choice of the residence for democratic society in interrelation with other human rights. In the decision in the matter of Garib v. the Netherlands of November 6, 2017 (the European Court of Human Rights emphasized the statement No. 43494/09) "the interrelation between liberty of choice of the residence and the right to respect of "housing" and "private life" (article 8 of the Convention) is obvious" (§140).

Taking into account given the Constitutional Court of Ukraine came to conclusion that the right to housing guaranteed by the Constitution of Ukraine (Article 47) and its effective implementation are significantly interconnected with realization of other constitutional rights of person, in particular, of freedom of travel and the free choice of the residence (Article part one 33).

Follows from specified that person, performing constitutional rights and freedoms, can have several places of residence, including at the same time in several settlements, and it cannot lead to preventing of effective realization of other constitutional rights.

6. The constitutional court of Ukraine takes into account that the paragraph the fifth preambles of the Constitution of Ukraine confirms "the European identity of the Ukrainian people and irreversibility of the European and Euro-Atlantic rate of Ukraine". According to instructions of Item 5 parts one of Article 85 of the Fundamental Law of Ukraine one of powers of the Verkhovna Rada of Ukraine are determination of its principles "realization of strategic rate of the state on finding of full membership of Ukraine in the European Union and in the North Atlantic Treaty Organization". Besides, by part three of article 102 of the Constitution of Ukraine it is determined that "The president of Ukraine is guarantor of realization of strategic rate of the state on finding of full membership of Ukraine in the European Union and in the North Atlantic Treaty Organization".

Follows from given that Ukraine sets as the purpose finding of full membership in the European Union, consistently realizing the corresponding constitutional values in the legislation taking into account that the European Union is founded on "values of respect of human dignity, freedom, democracy, equality, supremacy of law and observance of the human rights, including the rights of persons belonging to minorities" and also that "these values are general for state members in society where pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men dominates" (article 2 of the Agreement on the European Union of February 7, 1992).

Instructions about equality before the law, prohibition of discrimination and freedom of travel and the free choice of the residence contain in Articles 20, of 21, 45 Charters of the European Union by the fundamental rights of December 7, 2000.

In the Agreement on association between Ukraine, on the one hand, and by the European Union, European Atomic Energy Community and their state members, on the other hand, which was ratified with the statement the Law of Ukraine "About ratification of the Agreement on association between Ukraine, on the one hand, and the European Union, European Atomic Energy Community and their state members, on the other hand" of September 16, 2014 No. 1678-VII, it is specified that respect of democratic principles, human rights and fundamental freedoms, and also respect for the principle of supremacy of law "shall create fundamentals of domestic and foreign policy of the Parties and are basic elements of this Agreement".

Taking into account given the Constitutional Court of Ukraine notes the constitutional value, content and amount of the principles of equality, prohibition of discrimination, observance of human rights and freedoms, in particular, of protection of the right to housing, freedom of travel, in the light of the all-European values.

7. In this case, providing assessment of content of legislative regulation of Item 2 parts two of article 40 of the Code, the Constitutional Court of Ukraine checks it for compliance of the Constitution of Ukraine, considering not only textual method of statement, but also context of its value for realization of the right to housing and other constitutional rights.

7.1. The constitutional court of Ukraine pays attention to what in part two of article 47 of the Constitution of Ukraine is established: "to the citizens needing social protection, housing is provided by the state and local government bodies free of charge or for payment, available to them, according to the law".

Considering it, the Constitutional Court of Ukraine states that, in addition to the Code, the legislator settled questions of realization of constitutional right on the dwelling citizens who need social protection, the Law of Ukraine "About housing stock of social appointment" which is the special legal act in this question in the context of lex specialis derogat generalі. In particular, the specified law determines housing stock of social appointment as set of social housing which is provided to citizens of Ukraine who according to the law need social protection and also social room accounting - accounting of citizens of Ukraine who have the right to social housing is entered and are in queue on its obtaining.

Thus, the state for the purpose of realization by citizens of the right to housing according to part two of article 47 of the Constitution of Ukraine creates conditions of access to housing of proper (sufficient) level by provision of the right in use of premises in houses of the state or utility housing stock to the citizens needing social protection.

The constitutional court of Ukraine once again emphasizes that the solution of questions does not belong to its constitutional powers, as concerning establishment of the actual circumstances of the social status of person, in particular, in aspect of its belonging to category of persons needing social protection and concerning correctness of application of the right by vessels of system of judicial system of Ukraine.

So, the Constitutional Court of Ukraine decides that the disputed instruction of article 40 of the Code concerning removal from accounting of the citizens needing improvement of housing conditions based on "departure on the permanent residence in other settlement" separately from content of special legislative regulation of realization of the right to housing by citizens who need social protection on the bases specified in the constitutional claim cannot be acknowledged contradicting the instruction of part two of article 47 of the Constitution of Ukraine.

7.2. Constitutional court of Ukraine, estimating Item 2 parts two of article 40 of the Code, is also guided by the fact that introduction of legislative restrictions in implementation of constitutional rights and freedoms of man and citizen cannot contradict the principle of equality established by Articles 21, 24 Constitutions of Ukraine.

In particular, according to part two of Article 24 of the Fundamental Law of Ukraine among criteria by which there cannot be privileges or restrictions the residence of person is specified.

At the same time the legislator, determining that in Item 2 parts two of article 40 of the Code one of the bases for removal of the citizen from accounting of those who need improvement of housing conditions, are its departure on the permanent residence to other settlement, caused communication availability between realization of the right to housing in the settlement in which he stayed on the registry of those who need improvement of housing conditions, and respect for criterion "permanent residence". Thus the legislator entered different legal regulation concerning two categories of persons: those from them which came out to other permanent residence from the settlement in which they stayed on the registry such who needs improvement of housing conditions, and those which did not change the place of permanent residence. Difference which is expressed in provision of restrictions to persons of the first category cannot be acknowledged objectively justified, and, therefore is discrimination.

Considering stated, the Constitutional Court of Ukraine came to conclusion that the legislator in Item 2 parts two of article 40 of the Code allowed violation of the constitutional prohibition concerning privileges or the restrictions set in part two of Article 24 of the Fundamental Law of Ukraine.

7.3. Proceeding from understanding of constitutional rights and human freedoms as single and complete system, the Constitutional Court of Ukraine notes that establishment by the legislator in Item 2 parts two of article 40 of the Code of communication between realization by the citizen of the right to housing in the settlement in which he stayed on the registry of the housing conditions needing improvement and departure on the permanent residence to other settlement will not be approved with guaranteed by the Constitution of Ukraine to everyone who legally is in the territory of Ukraine, freedom of travel, the choice of the residence (part one of Article 33 of the Fundamental Law of Ukraine).

Guaranteed by the Constitution of Ukraine freedom of travel, the free choice of the residence cannot be effectively implemented under condition if legislative regulation of behavior of person on their implementation allows approach of effects, adverse for person, which cannot be justified, considering the constitutional values.

Decrease in internal mobility of the person in modern society significantly complicates realization by person of number of its other rights guaranteed by the Fundamental Law of Ukraine, in particular, of the rights: participate in administration of state affairs, in All-Ukrainian and local referenda, to choose and be freely elected to public authorities and local government bodies, on the equal right of access to public service, and also to service in local government bodies (Article 38), on implementation of business activity which is not prohibited by the law (Article 42), on work which includes opportunity to earn to itself living by work which it freely chooses or to which freely agrees (Article 43), to social protection (Article 46), to health protection, medical care and medical insurance (Article 49), to education (Article 53).

The constitutional court of Ukraine at the same time considers that freedom of travel, the free choice of the residence can be limited to the law which is determined by part one of article 33 of the Constitution of Ukraine. However such legislative regulation (establishment of exceptions of this freedom) cannot be willful, and on the contrary - it shall be in coordination with the constitutional values and is justified, considering public interest.

The constitutional court of Ukraine notes that restriction of the constitutional freedom of travel, the free choice of the residence which contains in Item 2 parts two of article 40 of the Code is deprived of the legitimate purpose and is not justified.

Therefore the Constitutional Court of Ukraine came to conclusion that the Item 2 parts two of article 40 of the Code will not be approved with part one of Article 33 of the Fundamental Law of Ukraine.

So, the Constitutional Court of Ukraine considers that the Item 2 parts two of article 40 of the Code contradicts instructions of part two of Article 24, of part one of article 33 of the Constitution of Ukraine.

Considering stated and being guided by Articles 55, of 147, of 150, 151-1, 151-2, 152, 153 Constitutions of Ukraine, based on Articles 7, of 32, of 36, of 65, of 67, of 74, of 84, of 88, of 89, of 91, of 92, 94 Laws of Ukraine "About the Constitutional Court of Ukraine"

Constitutional court of Ukraine

decided:

1. Recognize not answering to the Constitution of Ukraine (is unconstitutional), Item 2 parts two of article 40 of the Housing code of Ukraine.

2. The Item 2 parts two of article 40 of the Housing code of Ukraine recognized as unconstitutional voids from the date of acceptance by the Constitutional Court of Ukraine of this Decision.

3. The solution of the Constitutional Court of Ukraine is obligatory, final and such which cannot be appealed.

The solution of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine".

 

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