Постановление европейского суда по правам человека от 07.07.2005"дело "малиновский (malinovskiy) против российской федерации" [рус., англ.]
The European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Quesada, Deputy
Section Registrar,
Having deliberated in private on 16 June 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 41302/02)
against the Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms ("the
Convention") by a Russian national Mr Igor Mikhailovich Malinovskiy ("the
applicant") on 20 October 2002.
2. The Russian Government ("the
Government") were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. On 13 May 2003 the
Court decided to communicate the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility.
THE
FACTS
I. The circumstances of the case
4. The applicant was born in 1962
and lives in Staryy Oskol, Belgorod Region.
5. In 1986 the applicant was
engaged in emergency operations at the site of the Chernobyl nuclear plant
disaster. The applicant"s entitlement to certain State benefits is linked to the
category of disability assigned to him due to deterioration of his health as a
result of these events.
6. In 1999 the applicant applied for free
accommodation from the State. His housing conditions were recognised as
substandard and he was placed on a waiting list.
7. In 2001 the applicant
brought proceedings against the Belgorod Regional Administration to challenge
its failure to make accommodation available to him within three months after
placing him on a waiting list.
8. On 10 December 2001 the Starooskolskiy
Town Court of the Belgorod Region ruled in the applicant"s favour. It referred
to the Law On Social Protection of Citizens Exposed to Radiation as a Result of
the Chernobyl Nuclear Power Station Explosion, noted that the applicant"s
accommodation was substandard and ordered the Belgorod Regional Administration
to provide the applicant with a flat "in accordance with the applicable standard
conditions and in accordance with the order of precedence on the waiting list".
This judgment was not appealed against, and enforcement proceedings were
instituted on 6 February 2002.
9. On 28 June 2002 the bailiffs" service
informed the applicant about the lack of progress in the enforcement proceedings
due to the insufficient number of flats allocated to the waiting list. It
advised the applicant to ask the Starooskolskiy Town Court for replacement of
the in-kind award under the judgment of 10 December 2001 with the equivalent sum
of money.
10. On 9 October 2002 the bailiffs" service informed the
applicant that it had sought instructions from the Starooskolskiy Town Court
concerning the enforcement of the judgment of 10 December 2001. In particular,
it asked to set a time-limit, within which the authorities were to provide a
flat to the applicant.
11. On 2 December 2002 the Oktyabrskiy District
Court of Belgorod examined the applicant"s complaint about the failure of the
bailiffs" service to enforce the judgment of 10 December 2001. It found no fault
on the part of the service because the judgment had not set a time-limit for
enforcement.
12. On 31 July 2003 the Presidium of the Belgorod Regional
Court conducted supervisory review of the judgment of 10 December 2001. It held
that the statutory time-limit of three months was applicable and not amenable to
further extensions. It removed the condition that the flat was to be provided in
accordance with the order of precedence on the waiting list and upheld the
remainder of the judgment.
13. By March 2004 the applicant was still
waiting for accommodation.
14. According to the applicant, on 5 March
2004 a group of five people, including the applicant, went on a hunger strike to
protest against the poor social protection of the Chernobyl victims. The mayor
of Staryy Oskol launched a public call for donations in support of the
protestors and collected the amount necessary to provide all of them with
housing. The applicant submitted a statement signed by four other protesters in
support of his version of events.
15. According to the Government, on 2
July 2004 the mayor of Staryy Oskol decided, pursuant to the judgment of 10
December 2001, to provide the applicant with a flat measuring 86.39 sq. m valued
at 834,960 Russian roubles.
16. On 8 July 2004 the applicant received
from the mayor an occupancy voucher in respect of the flat assigned to him. He
found the flat satisfactory.
17. No decision appears to have been taken
as to the pending enforcement proceedings.
II. Relevant domestic law
A.
Entitlement to State housing
18. The Law On Social Protection of Citizens
Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station
Explosion (No. 1224-I of 15 May 1991, as amended at the material time) set out
that disabled victims of the Chernobyl explosion were to be granted social
housing within three months of submitting an appropriate application, provided
that their existing accommodation did not comply with the minimum housing
standards (section 14 (3)).
B. Enforcement proceedings
19. Section 9 of
the Enforcement Proceedings Act (Law No. 119-FZ of 21 July 1997) provides that a
bailiff"s order on institution of enforcement proceedings must fix a time-limit
for the defendant"s voluntary compliance with a writ of execution. The
time-limit may not exceed five days. The bailiff must also warn the defendant
that coercive action will follow should the defendant fail to comply with the
time-limit. Pursuant to section 13, the enforcement proceedings must be
completed within two months of the receipt of the writ of execution by the
bailiff.
C. Implementation of the right to a "social tenancy"
20. The
RSFSR Housing Code (Law of 24 June 1983, effective until 1 March 2005) provided
that Russian citizens were entitled to possess flats owned by the State or
municipal authorities or other public bodies, under the terms of a tenancy
agreement (section 10). Certain "protected" categories of individuals (disabled
persons, war veterans, Chernobyl victims, police officers, judges, etc.) had a
right to priority treatment in the allocation of flats.
21. A decision on
granting a flat was to be implemented by way of issuing the citizen with an
occupancy voucher (ордер на жилое помещение) from the local
municipal authority (section 47). The voucher served as the legal basis for
taking possession of the flat designated therein and for the signing of a
tenancy agreement between the landlord, the tenant and the housing maintenance
authority (section 51, and also Articles 672 and 674 of the Civil Code).
22. Members of the tenant"s family (including the spouse, children, parents,
disabled dependants and other persons) had the same rights and obligations under
the tenancy agreement as the tenant (section 53). The tenant had the right to
accommodate other persons in the flat (section 54). In the event of the tenant"s
death, an adult member of the tenant"s family succeeded him or her as a party to
the tenancy agreement (section 88).
23. Flats were granted for permanent
use (section 10). The tenant could terminate the tenancy agreement at any
moment, with the consent of his or her family members (section 89). The landlord
could terminate the agreement on the grounds provided for by law and on the
basis of a court decision (sections 89 - 90). If the agreement was terminated
because the house was no longer fit for living in, the tenant and family were to
receive a substitute flat with full amenities (section 91). Tenants or members
of their family could be evicted without provision of substitute accommodation
only if they "systematically destroyed or damaged the flat", "used it for
purposes other than residence" or "systematically breached the [generally
accepted rules of conduct] making life with others impossible" (section
98).
24. The tenant had the right to exchange the flat for another flat
in the State or municipal housing, including across regions (section 67). An
exchange involved reciprocal transfer of rights and obligations under the
respective tenancy agreements and became final from the moment of issuing new
occupancy vouchers (section 71). "Speculative" or sham exchanges were prohibited
(section 73(2)).
D. Rent for State housing
25. The Federal Housing
Policy Act (Law No. 4218-I of 24 December 1992) provides that the payments for a
flat comprise (i) a housing maintenance charge, (ii) a housing repair charge,
and, in the case of tenants only, (iii) rent (section 15). The maintenance and
repair charges do not depend on the flat"s ownership, whether private or State.
Rent is fixed by regional authorities, taking into account the surface area and
quality of the housing. It is usually considerably lower than free-market rent.
For example, the highest monthly rent for municipal housing in Moscow is 80
kopecks (0.02 euro) per square metre (Resolution of the Moscow Government No.
863-PP of 7 December 2004).
E. Privatisation of State housing
26. In
1991, the Privatisation of Housing Act (Law No. 1541-I of 4 July 1991) was
adopted (it will remain effective until 31 December 2006). It grants Russian
citizens the right to acquire title to State and municipal-owned flats of which
they have taken possession on the basis of a social tenancy agreement (section
2). The acquisition of title does not require any payment or fee (section 7).
The right to privatisation can be exercised once in a lifetime (section 11) and
requires the consent of all adult family members.
THE LAW
I. Alleged
violation of Article 6 § 1
of the Convention and Article 1 of Protocol
No. 1
to the Convention
27. The applicant complained that the
prolonged non-enforcement of the judgment of 10 December 2001, as amended on 31
July 2003, violated his "right to a court" under Article 6 § 1 of the
Convention and his right to the peaceful enjoyment of possessions as guaranteed
in Article 1 of Protocol No. 1 to the Convention. These Articles, in so far as
relevant, provide as follows:
Article 6 § 1
"In the determination
of his civil rights and obligations..., everyone is entitled to a fair...
hearing... by [a]... tribunal..."
Article 1 of Protocol No. 1
"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
28. The Government considered the application manifestly
ill-founded, claiming that, pursuant to the judgment of 10 December 2001, the
applicant was to be provided with accommodation "in accordance with the order of
precedence on the waiting list". As of 1 July 2003 the applicant had been No.
193 on the waiting list. The Government referred, in particular, to budgetary
constraints inherent in providing State-funded accommodation. They finally
claimed that the judgment had been duly enforced.
29. The applicant did
not accept that the budgetary constraints had justified the non-enforcement of
the judgment. He also claimed that the Government"s interpretation of the
judgment of 10 December 2001 would have required him to wait indefinitely for
his turn on the waiting list. He considered that the need to preserve the order
of precedence did not absolve the authorities from the obligation to respect the
statutory time-limit of three months. In this connection he noted that the
judgment of the Presidium of the Belgorod Regional Court dated 31 July 2003 had
removed a reference to the order of precedence on the waiting list from the
judgment of 10 December 2001. As to the current situation, the applicant
considered that, even though the mayor provided him with a flat, he was still a
victim of the State"s failure to enforce a judgment in his favour.
30.
The Court notes that the judgment of 10 December 2001 imposed a condition on
provision of housing to the applicant, and notably that the "order of precedence
on the waiting list" be respected. The applicant"s view that it was also subject
to the statutory time-limit of three months has no explicit ground in the
judgment. It was not until 31 July 2003 that the Presidium of the Belgorod
Regional Court clarified that the applicant was entitled to receive a flat
within three months. Thus, leaving aside the alleged discrepancy between the
operative part of the judgment of 10 December 2001 and the relevant statutory
provisions, it is clear that at least after the decision of 31 July 2003 the
authorities had no legitimate ground to delay its enforcement proceedings for
more than three months.
31. Nevertheless, between July 2003 and July 2004
no steps appear to have been taken by the authorities to enforce the award.
Moreover, even after the flat had been granted by the mayor, no formal
acknowledgment has been made that the judgment could now be deemed enforced, or
that the applicant no longer had any outstanding entitlement. Thus, as there
remains uncertainty as to the state of the once instituted execution
proceedings, the Court considers that the applicant retains his victim
status.
32. The Court concludes, based on the parties" submissions, that
the application is not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1.
Article 6 § 1 of the Convention
33. The parties did not make separate
comments on the merits of the complaint under Article 6 § 1 of the
Convention.
34. The Court reiterates that Article 6 § 1 secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it embodies the
"right to a court", of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect. However,
that right would be illusory if a Contracting State"s domestic legal system
allowed a final, binding
