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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 07.07.2005 ДЕЛО ШПАКОВСКИЙ (SHPAKOVSKIY) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

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                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                             FIRST SECTION
                                   
                     CASE OF SHPAKOVSKIY v. RUSSIA
                      (Application No. 41307/02)
                                   
                             JUDGMENT <*>
                                   
                       (Strasbourg, 7.VII.2005)
   
   --------------------------------
       <*>  This  judgment will become final in the circumstances  set
   out  in  Article  44 з 2 of the Convention. It may  be  subject  to
   editorial revision.
   
       In the case of Shpakovskiy v. Russia,
       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. 41307/02) 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   Yuriy
   Iosifovich Shpakovskiy ("the applicant") on 9 November 2002.
       2.   The   respondent   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
   з  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 1956 and lives in Kostroma.
       5.  In  1998, after 23 years of military service, the applicant
   was  dismissed  due  to  a  structural  reorganisation.  He  became
   eligible  for  being granted social housing and  was  placed  on  a
   waiting list.
       6. In 2001 he sued the Kostroma Town Administration, seeking to
   obtain  social accommodation by the State. He invoked his statutory
   entitlement to receive a flat within three months of the  placement
   on the waiting list.
       7.  On  29  August  2001  the Sverdlovskiy  District  Court  of
   Kostroma  granted  his  claim  and  held  that  the  Kostroma  Town
   Administration  was  to  provide  the  applicant  with  a  flat  in
   accordance   with  applicable  housing  standards.   The   judgment
   expressly  referred  to  the three-month statutory  time-limit  for
   granting the accommodation.
       8.  The  Kostroma  Town Administration requested  to  stay  the
   enforcement of the judgment for six months. On 10 January 2002  the
   Sverdlovskiy  District  Court of Kostroma dismissed  their  request
   and  held  that  the  time-limit fixed for the enforcement  of  the
   judgment was compulsory.
       9. On 10 June 2003 the Kostroma Town Administration issued the
   applicant  with  an  occupancy  voucher  in  respect  of a flat in
                             2
   Kostroma measuring 70.77 m .
   
                       II. Relevant domestic law
                                   
                    A. Entitlement to State housing
   
       10.  The  Law on the Status of the Military provides  that  the
   military   dismissed  from  the  service  due   to   a   structural
   reorganisation after at least 10 years of service are  entitled  to
   social housing to be provided within three months.
   
         B. Implementation of the right to a "social tenancy"
   
       11.  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.
       12.  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).
       13.  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).
       14.  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).
       15.  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)).
   
                       C. Rent for State housing
   
       16.  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).
   
                   D. Privatisation of State housing
   
       17.  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 з 1 of the Convention and
             Article 1 of Protocol No. 1 to the Convention
   
       18. The applicant complained that the prolonged non-enforcement
   of  the  judgment of 29 August 2001 violated his "right to a court"
   under  Article  6  з  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 з 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
   
       19.   The  Government  contested  the  admissibility   of   the
   application  on  the  ground that the applicant  was  no  longer  a
   victim.  They  submitted that the judgment  in  question  had  been
   enforced  and  that  the applicant appeared to be  fully  satisfied
   with  the  apartment  he  had  obtained.  They  asserted  that  the
   applicant had thus been afforded redress at the national level  and
   that   his   application  should  be  declared   inadmissible   or,
   alternatively, struck out of the list of cases.
       20.  The  applicant did not accept that he had lost the  victim
   status  even  though  his  award  had  finally  been  enforced.  He
   observed  that  it had taken the authorities two years  to  execute
   the  judgment, during which period his housing conditions had  been
   utterly inadequate.
       21. The Court reiterates that "a decision or measure favourable
   to  the applicant is not in principle sufficient to deprive him  of
   his  status  as  a  "victim" unless the national  authorities  have
   acknowledged,  either expressly or in substance, and then  afforded
   redress  for, the breach of the Convention" (see Amuur  v.  France,
   judgment of 25 June 1996, Reports of Judgments and Decisions  1996-
   III,  p.  846,  з 36; Dalban v. Romania [GC], No. 28114/95,  з  44,
   ECHR  1999-VI;  Rotaru v. Romania [GC], No. 28341/95,  з  35,  ECHR
   2000-V).  Only  when  these  conditions  are  satisfied  does   the
   subsidiary  nature  of the protective mechanism of  the  Convention
   preclude  examination of an application (see, for  example,  Jensen
   and Rasmussen v. Denmark (dec.), No. 52620/99, 20 March 2003).
       22.  In the instant case, the judgment remained unenforced  for
   two  years,  a  significant period which  extends  far  beyond  the
   deadline  specified  by the court. However neither  the  Government
   nor  the  domestic  authorities acknowledged that  the  applicant's
   Convention  rights had been unjustifiably restricted. Moreover,  no
   compensation for the delay was offered to the applicant.
       23.  The  Court  therefore finds that the mere  fact  that  the
   authorities  have  complied with the judgment after  a  substantial
   delay  cannot be viewed in this case as depriving him of the victim
   status  under the Convention. It rejects the Government's objection
   to the admissibility of this application.
       24. The Court notes that the application is not manifestly ill-
   founded within the meaning of Article 35 з 3 of the Convention.  It
   further notes that it is not inadmissible on any other grounds.  It
   must therefore be declared admissible.
   
                               B. Merits
   
       25. The Government did not dispute the validity of the judgment
   of   29  August  2001.  To  justify  the  two-year  delay  in   its
   enforcement, they claimed that no apartments had been available  in
   the area during that period.
       26.  The  applicant disputed the Government's  submissions.  He
   claimed that eligible apartments could have been made available  at
   the material time.
   
                  1. Article 6 з 1 of the Convention
   
       27. The Court reiterates that Article 6 з 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  judicial  decision to remain  inoperative  to  the
   detriment of one party. It would be inconceivable that Article 6  з
   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,  з 34, ECHR 2002-III, and Hornsby v. Greece, judgment  of
   19 March 1997, Reports 1997-II, p. 510, з 40).
       28. The Court further reiterates 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 з 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,  з
   35).
       29. Turning to the instant case, the Court notes that the terms
   of  the  judgment of 29 August 2001, including the  time-limit  for
   enforcement,  were sufficiently clear and required a prompt  action
   on   the   part  of  the  authorities.  Nevertheless,  it  remained
   inoperative  for  two  years, allegedly  because  of  the  lack  of
   eligible   housing.  The  Court  observes  that  the  justification
   advanced  by  the  Government for the delay is not corroborated  by
   any  evidence. In particular, they have not demonstrated  that  any
   attempts  were  made by the authorities in 2001 - 2002  to  provide
   the  applicant  with  housing compatible  with  the  terms  of  the
   judgment   or,   if  this  was  impossible,  to  make   alternative
   arrangements for accommodation or a compensation.
       30.  By  failing for such a substantial period of time to  take
   the  necessary measures to comply with the final judicial  decision
   in   the  present  case,  the  Russian  authorities  deprived   the
   provisions of Article 6 з 1 of their useful effect.
       31. There has accordingly been a violation of Article 6 з 1  of
   the Convention.
   
           2. Article 1 of Protocol No. 1 to the Convention
   
       32.  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).
       33. 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,  з
   51;  Pressos Compania Naviera S.A. and Others v. Belgium,  judgment
   of  20  November 1995, Series A No. 332, p. 21, з 31, and,  mutatis
   mutandis,  S.A. Dangeville v. France, No. 36677/97,  зз  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, з 59).
       34.  Turning to the facts of the present case, the Court  notes
   that  by  virtue of the judgment of 29 August 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 12 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.
       35.  Accordingly, from the time of the judgment  of  29  August
   2001  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.
       36. 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.
       37.  The  Court finds that the fact that it was impossible  for
   the  applicant to obtain the execution of the judgment of 29 August
   2001  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 29 above).
       38.  Accordingly, there has been a violation of  Article  1  of
   Protocol No. 1.
   
            II. Application of Article 41 of the Convention
   
       39. 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
   
       40.  The  applicant claimed 30,000 euros (EUR)  in  respect  of
   compensation for non-pecuniary damage.
       41. The Government made no comments in this respect.
       42.  The  Court  accepts that the applicant  suffered  distress
   because  of the State authorities' protracted failure to enforce  a
   judgment  in his favour. However, the amount claimed in respect  of
   non-pecuniary  damage appears excessive in view of  the  fact  that
   the  judgment  has  already been enforced in a manner  satisfactory
   for the applicant. Making its assessment on an equitable basis,  it
   awards  the applicant EUR 1,500 in respect of non-pecuniary damage,
   plus any tax that may be chargeable on that amount.
   
                         B. Costs and expenses
   
       43. The applicant made no claims under this head.
   
                          C. Default interest
   
       44.  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 з  1  of
   the Convention;
       3.  Holds  that  there has been a violation  of  Article  1  of
   Protocol No. 1 to the Convention;
       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 з 2 of the Convention,  EUR  1,500  (one
   thousand  five  hundred euros) in respect of non-pecuniary  damage,
   to  be converted into Russian roubles 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 зз 2 and 3 of the Rules of Court.
   
                                                      Christos ROZAKIS
                                                             President
                                                                      
                                                      Santiago QUESADA
                                                      Deputy Registrar
   
   

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