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You are here: BAILII >> Databases >> European Court of Human Rights >> KURUSHINA AND OTHERS v. RUSSIA - 19388/07 (Judgment : Violation of Right to a fair trial (Enforcement proceedings - Access to court) Violation ...) [2017] ECHR 1075 (30 November 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1075.html Cite as: ECLI:CE:ECHR:2017:1130JUD001938807, CE:ECHR:2017:1130JUD001938807, [2017] ECHR 1075

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THIRD SECTION

 

 

 

 

 

CASE OF KURUSHINA AND OTHERS v. RUSSIA

(Applications nos. 19388/07 and 7 others -

see appended list)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

30 November 2017

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Kurushina and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Luis López Guerra, President,
          Dmitry Dedov,
          Jolien Schukking, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 9 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2.  The applications were communicated to the Russian Government (“the Government”).

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.

THE LAW

I.  JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

6.  The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which 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 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

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.”

7.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997-II).

8.  In the leading case of Gerasimov and Others v. Russia, no. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case.

9.  Having regard to the nature of the judicial awards in the applicants’ favour (see the appended table for details of court orders), the Court considers that the applicants had, by virtue of these judgments, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.

10.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour, as indicated in the appended table below.

11.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

12.  The applicants also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non-enforcement. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no. 35555/05 and 6 others, 2 May 2017). Even though the remedy was - or still is - available to the applicants, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230).

13.  However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Korotyayeva and Others v. Russia, nos. 13122/11 and 2 others, §§ 36-40, 27 June 2017; Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no. 44387/04 and 11 others, §§ 21-24, 25 October 2011). This ruling is without prejudice to the Court’s future assessment of the new remedy.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  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.”

15.  The applicants in the present cases did not submit claims for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

16.  At the same time, the Court notes from the Government’s submissions that the domestic judgments in the applicants’ favour have remained unenforced to date (see the appended table). The State’s obligation to enforce those judgments is not in dispute. The Court considers that the respondent State has an outstanding obligation to secure, by appropriate means, enforcement of the judgment in the applicants’ favour (see Pridatchenko and Others v. Russia, nos. 2191/03 and 3 others, § 68, 21 June 2007, and Salikova v. Russia, no. 25270/06, § 83, 15 July 2010).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions, as indicated in the appended table, admissible;

 

3.  Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1;

 

4.  Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention;

 

5.  Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table.

Done in English, and notified in writing on 30 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

        Liv Tigerstedt                                                             Luis López Guerra

Acting Deputy Registrar                                                            President




APPENDIX

List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1
(non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law)

No.	Application no. Date of introduction	Applicant name Date of birth	Relevant domestic decision	Start date of non-enforcement period	End date of non-enforcement period Length of enforcement proceedings	Domestic order
1.	19388/07 01/03/2007	Lyudmila Viktorovna Kurushina 03/08/1968	Dubrovskiy District Court of the Bryansk Region, 04/11/2003	04/11/2003	pending More than 13 year(s) and 9 month(s) and 25 day(s)	..."to oblige the commander of military unit 52678 of Moscow... to issue [the applicant] with a State housing certificate for provision of her family with housing at a place of residence of her choice according to the norms set out in [relevant laws]"...
2.	46656/09 14/08/2009	Dmitriy Iosifovich Kapuza 10/01/1964	Novorossiysk Garrison Military Court, 08/05/2009	19/05/2009	pending More than 8 year(s) and 3 month(s) and 10 day(s)	"... the Commander of the Black Sea Navy to provide [the applicant] ... with an apartment ..."
3.	47394/10 18/06/2010	Tatyana Aleksandrovna Kuzmina 20/12/1950	Vuktyl Town Court of the Republic of Komi, 30/04/2009   Vuktyl Town Court of the Republic of Komi, 06/05/2010	10/05/2009         16/05/2010	pending More than 8 year(s) and 3 month(s) and 19 day(s)     pending More than 7 year(s) and 3 month(s) and 13 day(s)	"... [the Administration of the Municipal District] to clean and repair the four cesspools for collecting liquid waste, located near [the applicant]’s apartment ..."   "... [the Administration of the Municipal District] to perform a complete overhaul of [the applicant]’s apartment ..."
4.	59298/11 01/08/2011	Anna Iosifovna Denkovich 07/04/1962 Olga Iosifovna Denkovich 22/07/1960	Tsentralniy District Court of Khabarovsk, 04/06/2010	21/07/2010	pending More than 7 year(s) and 1 month(s) and 8 day(s)	"... the Administration of Khabarovsk to provide [the applicants] with housing ..."
5.	64943/11 22/09/2011	Aleksey Pavlovich Gorev 03/05/1972	Tambov Garrison Military Court, 01/03/2011	28/04/2011	pending More than 6 year(s) and 4 month(s) and 1 day(s)	"... [the military unit no. 24815] to provide the applicant with all clothing and equipment allowance, 52 objects in total ..."
6.	44953/12 24/05/2012	Zinaida Ivanovna Yevsina 20/06/1953	Sokolskiy District Court of the Vologda Region, 17/03/2011	20/04/2011	pending More than 6 year(s) and 4 month(s) and 9 day(s)	"... the Administration of the town of Sokol to provide [the applicant] with housing ..."
7.	72964/12 27/10/2012	Sergey Fedorovich Semikin 13/04/1971	Yakutsk Town Court of the Sakha (Yakutiya) Republic, 19/06/2008	18/05/2009	pending More than 8 year(s) and 3 month(s) and 11 day(s)	"... the Yakutsk Town District Administration to provide [the applicant] with housing ..."
8.	40790/14 12/05/2014	Tatyana Yuryevna Mitina 23/04/1977	Kondopoga Town Court of the Republic of Karelia, 03/10/2013	25/01/2013	pending More than 4 year(s) and 7 month(s) and 4 day(s)	"... the Administration of Kondopoga to carry out reparation works in the [applicant’s] block of flats, in particular of the roof, isolation, water supply, and sewerage system, by 01/07/2013 ..."