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FIRST
SECTION
CASE OF PRIVALIKHIN v. RUSSIA
(Application
no. 38029/05)
JUDGMENT
STRASBOURG
12 May
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Privalikhin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38029/05) 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 Nikolay Petrovich
Privalikhin (“the applicant”), on 21 October 2005.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights, and
subsequently by Ms V. Milinchuk, former
Representative of the Russian Federation at the European Court
of Human Rights.
- On
10 November 2005 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- On 2 May 2007 the President of the Chamber decided,
under Rule 54 § 2 (c) of the Rules of Court, that the
Government should be invited to submit further written observations
in respect of applicability of Article 6 of the Convention to
the proceedings that the applicant had brought against the
authorities in the present case. The Government did not submit any
submissions in this respect.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Berdsk, a town in the
Novosibirsk Region.
A. Court proceedings
- The
applicant is a public prosecutor.
- On
an unspecified date in early 2003 he applied for a free housing
provided by law for this category of state officials.
- By
judgment of 21 April 2003 the Tsentralny District Court of
Novosibirsk ruled in favour of the applicant and ordered the local
and regional authorities jointly
“...to provide [the applicant] with a flat in a
State or municipal housing for a family of four people with a living
surface measuring 36 sq. metres, and taking into account the
applicant's right to an additional living area of not less than 20
sq. metres or in the form of a separate room...”
- Upon
the respondent's appeal, the judgment was upheld by the Novosibirsk
Regional Court on appeal on 17 June 2003. On that day the judgment
became binding.
B. Enforcement proceedings
- The
respondents did not enforce the judgment immediately.
On 28 and
30 July 2003, the Bailiff's Office (“the bailiffs”)
initiated enforcement proceedings.
- According
to the Government, the Novosibirsk Regional Administration was unable
to execute the judgment as, pursuant to Decree of 27 December 1991,
the property rights in respect of all State housing in the
Novosibirsk Region had been transferred to municipal authorities.
- On
20 April 2004 the Tsentralny District Court of Novosibirsk rejected
the authorities' request to adjourn the execution of the final
judgment.
- On
24 September 2004 and 19 November 2004 the same court rejected the
applicant's requests to award him compensation which would allow him
to purchase a flat.
- The
prosecutor refused to initiate criminal proceedings against the
bailiff on 11 December 2004. On 19 January 2005, in response to the
applicant's complaint, the Berdsk Town Court found the acts of the
bailiff in the applicant's enforcement proceedings arbitrary and
unlawful and ordered the prosecutor to institute criminal proceedings
in this respect. On 25 May 2005 the Sovetskiy District Court once
again urged the prosecutor to open criminal proceedings.
- On
1 February 2006 the Berdsk Town Council sent a letter to the
applicant, offering to provide him with a three-room flat of 77.5 sq.
metres in total surface.
- By
letter of 2 February 2006 the applicant sent a letter to the bailiffs
in which he agreed to this offer.
- On
13 February 2006 the Novosibirsk Regional Administration allocated
1,500,000 Russian roubles (RUB) for acquisition of a flat for the
applicant.
- By
decision of 17 May 2006 the bailiffs terminated the proceedings in
the case as the judgment of 21 April 2003, as upheld on 17 June 2003,
had been enforced.
- According
to the parties, the applicant was granted a three-room flat of 77.5
sq. metres in total surface under a social tenancy agreement.
II. RELEVANT DOMESTIC LAW
- Under
Section 13 of the Federal Law on Enforcement Proceedings of
21 July 1997, the enforcement proceedings should be
completed within two months upon receipt of the writ of
enforcement by the bailiff.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that despite the judgment he had not been
provided with housing in good time. The Court will examine this
complaint under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 Insofar as relevant, these Articles read 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
- The
Government noted that the judgment in question had already been
enforced. They further accepted that the delay in the enforcement of
the judgment in the applicant's favour had taken place but argued
that it had been justified in view of a great number of large-scale
welfare programmes administered by the State at the material time.
- The
applicant maintained his complaints. The applicant admitted that the
authorities had granted him a flat under a social tenancy agreement
but argued that he ought to have received property rights to the flat
instead.
- The
Court observes that the Government did not contest applicability of
Article 6 of the Convention owing to the applicant's status as a
civil servant (see Vilho Eskelinen and Others v. Finland [GC],
no. 63235/00, § 62, ECHR 2007 IV). The Court further
notes that the proceedings brought by the applicant against the State
concerned provision of a flat. The Court has no doubts that the
proceedings in question were civil within the meaning of Article 6.
Accordingly, the Court concludes that Article 6 is applicable in the
present case.
- The
Court notes that this complaint 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
- The Court reiterates that an unreasonably long delay
in the enforcement of a binding judgment may breach the Convention
(see Burdov v. Russia, no. 59498/00, ECHR
2002-III). To decide if the delay was reasonable, the Court will look
at how complex the enforcement proceedings were, how the applicant
and the authorities behaved, and what the nature of the award was
(see Raylyan v. Russia, no. 22000/03, § 31,
15 February 2007).
- Turning
to the case at hand, the Court notes that, by virtue of the judgment
of 21 April 2003, as upheld on 17 June 2003, the authorities were to
put at the applicant's disposal a flat with certain characteristics
in a State or municipal housing. Contrary to the applicant's
allegations, the judgment did not require the authorities to grant
him ownership of a particular flat, but rather to conclude a tenancy
agreement between the competent authority and the applicant, acting
as the principal tenant on behalf of himself and the members of his
family.
- In
the present case the enforcement lasted two years and eleven months:
from the day the judgment became binding (17 June 2003) to the day
when the bailiffs declared, upon the applicant's consent to accept
the flat, that the judgment had been executed and terminated the
enforcement proceedings (17 May 2006).
- The
Court considers that this period is in itself incompatible with the
requirements of the Convention. The Government did not put forward
any argument that might lead the Court to a different conclusion. The
Court reiterates that lack at the material time of resources (such as
housing, in particular) cannot by itself justify the authorities'
failure to honour the judgment debt in good time (see Burdov
v. Russia (no. 2), no. 33509/04, § 70,
ECHR 2009 ...).
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 1,718,000 Russian roubles (RUB) and 20,000 euros
(EUR) in respect of pecuniary and non-pecuniary damage respectively.
- The
Government submitted that the applicant's claims were excessive and
groundless.
- The
Court does not discern any causal link between the violation found
and the extensive amount of the pecuniary damage alleged; it
therefore rejects this claim. On the other hand, the Court accepts
that the applicant must have suffered distress because of the State
authorities' failure to enforce the judgment in good time. However,
the amounts claimed in respect of non-pecuniary damage appear
excessive. Making its assessment on an equitable basis, the Court
awards the applicant EUR 2,300 in respect of non-pecuniary
damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
- The
applicant did not submit any claims under this head and the Court
accordingly makes no award in respect of costs and expenses.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- 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 2,300 (two
thousand three hundred euros) to be converted into Russian
roubles on the date of settlement in respect of non-pecuniary damage,
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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
