Постановление европейского суда по правам человека от 07.07.2005"дело "малиновский (malinovskiy) против российской федерации" [рус., англ.]
judicial decision to remain inoperative to the detriment of one party. It would
be inconceivable that Article 6 § 1 should describe in detail the procedural
guarantees afforded to litigants - proceedings that are fair, public and
expeditious - without protecting the implementation of judicial decisions; to
construe Article 6 as being concerned exclusively with access to a court and the
conduct of proceedings would be likely to lead to situations incompatible with
the principle of the rule of law which the Contracting States undertook to
respect when they ratified the Convention. Execution of a judgment given by any
court must therefore be regarded as an integral part of the "trial" for the
purposes of Article 6 (see Burdov v. Russia, No. 59498/00, § 34, ECHR 2002-III,
and Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and
Decisions 1997-II, p. 510, § 40).
35. The Court further recalls that it
is not open to a State authority to cite the lack of funds or other resources as
an excuse for not honouring a court award. Admittedly, a delay in the execution
of a judgment may be justified in particular circumstances, but the delay may
not be such as to impair the essence of the right protected under Article 6 §
1. The applicant should not be prevented from benefiting from the success of the
litigation on the ground of alleged financial difficulties experienced by the
State (see Burdov v. Russia, cited above, § 35).
36. The Court accepts
that the judgment of 10 December 2001, as it had been worded prior to 31 July
2003, did not require an immediate grant of a flat because its implementation
was conditional on prior allocation of flats to the persons placed on the
waiting list before the applicant. However, the amendment of 31 July 2003 left
no ambiguity as to the time-limit for enforcement of the award. The Government
have not advanced any justification for the failure to enforce it, other than a
generic reference to budgetary constraints.
37. As to the circumstances
relating to the granting of a flat by the mayor, the Court notes that the
parties" versions of events differ. Whereas the applicant points out that the
flat was provided to him as a result of the extraordinary intervention brought
about by the hunger strike, the Government claim that the flat was granted in
the framework of the enforcement proceedings. The Government, however, have not
submitted any documents concerning the enforcement proceedings to which they
refer. The applicant"s statement, by contrast, has been countersigned by his
fellow protesters. The Court therefore finds no factual basis for the
Government"s version of events and assumes that the flat was granted as a
consequence of the mayor"s extraordinary intervention.
38. The Court
observes that no attempts have been made by the authorities before the
applicant"s hunger strike to provide him with housing due to him under the
judgment, or to make alternative arrangements if this was impossible. Even
though due to the mayor"s humanitarian reaction in response to the applicant"s
demonstration, a flat has eventually been granted to him, the Court considers
that his interference could not substitute enforcement of the judgment in due
legal process.
39. Consequently, by failing for a substantial period of
time to take the necessary measures to comply with the final judicial decisions
in the present case, the Russian State authorities deprived the provisions of
Article 6 § 1 of their useful effect.
40. There has accordingly been a
violation of Article 6 § 1 of the Convention.
2. Article 1 of Protocol No.
1 to the Convention
41. The Government submitted that the flat claimed by
the applicant could not be viewed as his "possessions" for the purposes of
Article 1 of Protocol No. 1 because the judgment of 10 December 2001 required
the provision of a flat not in the applicant"s ownership but under a social
tenancy agreement, funded at the expense of the budget. The applicant made no
comments on this aspect.
42. The Court reiterates first that the right to
any social benefit is not included as such among the rights and freedoms
guaranteed by the Convention (see, for example, Aunola v. Finland (dec.), No.
30517/96, 15 March 2001). The Court further recalls that a right to live in a
particular property not owned by the applicant does not as such constitute a
"possession" within the meaning of Article 1 of Protocol 1 to the Convention
(see H.F. v. Slovakia (dec.), No. 54797/00, 9 December 2003; Kovalenok v. Latvia
(dec.), No. 54264/00, 15 February 2001, and J.L.S. v. Spain (dec.), No.
41917/98, 27 April 1999).
43. However pecuniary assets, such as debts, by
virtue of which the applicant can claim to have at least a "legitimate
expectation" of obtaining effective enjoyment of a particular pecuniary asset
(see Pine Valley Developments Ltd and Others v. Ireland, judgment of 29 November
1991, Series A No. 222, p. 23, § 51; Pressos Compania Naviera S.A. and Others
v. Belgium, judgment of 20 November 1995, Series A No. 332, p. 21, § 31, and,
mutatis mutandis, S.A. Dangeville v. France, No. 36677/97, §§ 44 - 48, ECHR
2002-III) may also fall within the notion of "possessions" contained in Article
1 of Protocol No. 1. In particular, the Court has consistently held that a
"claim" - even concerning a particular social benefit - can constitute a
"possession" within the meaning of Article 1 of Protocol No. 1 if it is
sufficiently established to be enforceable (see Burdov v. Russia, cited above,
§ 40, and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A No. 301-B, p. 84, § 59).
44. Turning to the
facts of the present case, the Court notes that by virtue of the judgment of 10
December 2001 the town council was to put at the applicant"s disposal a flat
with certain characteristics. The judgment did not require the authorities to
give him ownership of a particular flat, but rather obliged them to issue him
with an occupancy voucher in respect of any flat satisfying the court-defined
criteria. On the basis of the voucher, a so-called "social tenancy agreement"
would have been signed between the competent authority and the applicant, acting
as the principal tenant on behalf of himself and the members of his family (see
paragraph 21 above). Under the terms of a "social tenancy agreement", as
established in the RSFSR Housing Code and the applicable regulations, the
applicant would have had a right to possess and make use of the flat and to
privatise it in accordance with the Privatisation of State Housing Act.
45. Accordingly, from the time of the judgments of 10 December 2001 and 31 July
2003 the applicant had an established "legitimate expectation" to acquire a
pecuniary asset. The judgment was final as no ordinary appeal lay against it,
and enforcement proceedings were instituted.
46. The Court is therefore
satisfied that the applicant"s claim to a "social tenancy agreement" was
sufficiently established to constitute a "possession" falling within the ambit
of Article 1 of Protocol No. 1.
47. The Court finds that the fact that it
was impossible for the applicant to obtain the execution of the judgment of 10
December 2001 as amended by the judgment of 31 July 2003 for a substantial
period of time constituted an interference with his right to peaceful enjoyment
of his possessions, for which the Government have not advanced any plausible
justification (see paragraph 36 above).
48. Accordingly, there has been a
violation of Article 1 of Protocol No. 1.
II. Application of Article 41 of
the Convention
49. 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."
A. Damage
50. The applicant claimed
50,000 euros (EUR) in respect of compensation for non-pecuniary damage.
51. The Government submitted that the applicant"s claims were excessive, arguing
that if the Court decided to make an award it should not exceed the amount
awarded in the Burdov v. Russia case.
52. The Court considers that the
applicant must have suffered certain distress and frustration resulting from the
State authorities" failure to enforce a judgment in his favour. However, the
amount claimed appears excessive. The Court takes into account the award made by
the Court in the Burdov v. Russia case (cited above, § 47), the nature of the
award whose non-enforcement was at stake in the present case, namely a benefit
linked to the applicant"s disability as a Chernobyl-victim, the length of the
enforcement proceedings and other relevant aspects. Making its assessment on an
equitable basis, it awards the applicant EUR 3,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and
expenses
53. The applicant made no claims under this head.
C. Default
interest
54. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Declares the application admissible;
2. Holds that
there has been a violation of Article 6 § 1 of the Convention;
3. Holds
that there has been a violation of Article 1 of Protocol No. 1;
4.
Holds
(a) that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final according to Article 44
§ 2 of the Convention, EUR 3,000 (three thousand euros) in respect of
non-pecuniary damage, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement, plus any tax
that may be chargeable on that amount;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
5.
Dismisses the remainder of the applicant"s claim for just satisfaction.
Done
in English, and notified in writing on 7 July 2005, pursuant to Rule 77 §§ 2
and 3 of the Rules of Court.
Christos ROZAKIS
President
Santiago
QUESADA
Deputy Registrar
