EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MIKRYUKOV v. RUSSIA
(Application No. 7363/04)
JUDGMENT <*>
(Strasbourg, 8.XII.2005)
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<*> 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 Mikryukov 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. Nielsen, Section Registrar,
Having deliberated in private on 17 November 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 7363/04) 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 Yevgeniy
Aleksandrovich Mikryukov, on 6 January 2004.
2. The applicant was represented before the Court by Mr K.
Krakovskiy, a lawyer practising in the Rostov Region. 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 30 September 2004 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
4. The applicant was born in 1957 and lives in Rostov-on-Don.
5. The applicant was engaged in emergency operations at the
site of the Chernobyl nuclear plant disaster. As a consequence, he
was entitled to certain social benefits.
6. In 2001 the applicant was placed on a waiting list for free
housing. As the Kirovskiy District Administration did not provide
him with a flat within three months, the applicant sued the
administration.
7. On 19 December 2001 the Kirovskiy District Court of Rostov-
on-Don allowed the applicant's claim against the Kirovskiy
District Administration for the provision of housing. It ordered
that the administration:
"...provide [the applicant's] family of five - [the applicant],
his wife, his son, his daughter and his mother - with other
comfortable living premises within three months after the entry of
the judgment into force".
8. No appeal was brought against the judgment and on 4 January
2002 it became final.
9. On 24 January 2002 the bailiffs' service opened enforcement
proceedings. However, the judgment could not be enforced because
the town administration possessed no available housing or
financial resources to purchase a flat.
10. On 10 August 2003 the applicant's mother died.
11. On 28 October 2004 the Mayor of Rostov-on-Don issued an
order allocating a three-room flat measuring 81.7 square metres in
the Blagodatnaya Street to the applicant's family of four.
12. The bailiffs asked the Kirovskiy District Court to stay the
enforcement proceedings until the completion of the construction
works on the block of flats in the Blagodatnaya Street. In the
alternative, they requested to amend the method of enforcement and
to order that the Kirovskiy District Administration should pay the
applicant the monetary value of the flat.
13. On 1 December 2004 the Kirovskiy District Court dismissed
the bailiffs' request.
14. On 24 January 2005 the Rostov Regional Court quashed that
decision and remitted the matter for a new examination. The
proceedings are now pending.
15. By a letter of 14 December 2004 the Chief Bailiff of the
Kirovskiy District bailiffs' service informed the applicant that
the bailiffs had fined the Kirovskiy District Administration five
times for their failure to execute the judgment of 19 December
2001. It was not possible to collect the fines because the
administration's funds were allocated for specific purposes.
16. The applicant has not yet received an occupancy voucher in
respect of either the flat in the Blagodatnaya Street or any other
flat.
17. It appears that the judgment of 19 December 2001 remains
unenforced to date.
THE LAW
I. Alleged violation of Article 6 of the Convention
and Article 1 of Protocol No. 1
18. The applicant complained that the continued non-enforcement
of the judgment of 19 December 2001 violated his right of access
to a court enshrined in Article 6 of the Convention and his right
to peaceful enjoyment of possessions guaranteed by Article 1 of
Protocol No. 1. The relevant parts of these provisions read 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 State responsibility for the
debts of the Kirovskiy District Administration. They submitted
that the Kirovskiy District Administration of Rostov-on-Don was a
local self-government agency which, according to Article 132 of
the Constitution, enjoyed independence in management of its
budget. In the alternative, they argued that the proceedings
concerning the amendment of the method of enforcement were
pending, therefore the applicant had not exhausted domestic
remedies.
20. The applicant submitted that the State was liable for the
debts of the Kirovskiy District Administration. He further
maintained that in 2001 he had obtained a judgment in his favour,
which had become final and enforceable. He submitted the writ of
execution to the competent enforcement agency. The only purpose of
the pending proceedings was to find a solution to the long-
standing enforcement problem and they did not affect the finality
of the judgment in his favour.
21. The Court notes that the debtor in the instant case has
been a local self-government agency. According to the established
case-law of the Convention organs, agencies of local self-
government are State organisations in the sense that they are
governed by public law and exercise public functions vested in
them by the Constitution and the laws. The Court reiterates that
under the international law the term "State organisation" is not
limited only to organs of the central Government. In cases where
State power is decentralised it extends to any national authority
which exercises public functions (see Gerasimova v. Russia (dec.),
No. 24669/02, 16 September 2004; see also Zhovner v. Ukraine, No.
56848/00, з 37, 29 June 2004; Piven v. Ukraine, No. 56849/00, з
39, 29 June 2004). Accordingly, the Court finds that the State has
been responsible for the debt arising from the judgment of 19
December 2001.
22. As to the exhaustion of domestic remedies, the Court notes
that in January 2002 the applicant submitted the writ of execution
to the bailiff's service. In the framework of enforcement
proceedings, the bailiffs asked the domestic courts to amend the
method of enforcement or, in the alternative, to stay the
enforcement proceedings. The Court cannot accept that the stay of
the enforcement proceedings could have provided redress in respect
of the applicant's complaints. Nor did the Government explain how
the amendment of the method of enforcement would improve the
situation of the applicant, who had already obtained an
enforceable judgment as a result of successful litigation, by the
terms of which a State authority was to grant him a flat within
three months. The Court finds that the Government have failed to
substantiate their contention that the remedy at issue was an
effective one (see, e.g., Yavorivskaya v. Russia (dec.), No.
34687/02, 13 May 2004; Kranz v. Poland, No. 6214/02, з 23, 17
February 2004).
23. The Court concludes that the Government's objections must
be rejected. It considers that this part of 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
24. The Government accepted that the judgment 19 December 2001
had not been enforced. By way of justification, they claimed that
no flats satisfying the court-defined criteria had been available
in the area. However, on 28 October 2004 a three-room flat was
allocated to the applicant's family of four. A flat for five
persons was not provided because the applicant's mother had died.
25. The applicant disputed the Government's submissions that
there had been no available housing. He submitted certificates,
issued by the Rostov-on-Don City Council, according to which 4,069
new flats had been built in Rostov-on-Don in 2002, the Mayor of
Rostov-on-Don had granted housing to 555 families in 2003, and to
more than 1,500 families in 2004. The applicant accepted that in
October 2004 the Mayor had offered a flat in the Blagodatnaya
Street to the family of four. However, pursuant to the judgment of
19 December 2001, the authorities were to grant him a flat for
five persons. Moreover, he has not yet received an occupancy
voucher in respect of either the flat in the Blagodatnaya Street
or any other flat.
26. The Court observes that on 19 December 2001 the applicant
obtained a final and enforceable judgment, by which his family of
five was to be granted a comfortable flat. The judgment has not
been enforced to date.
27. The Court notes that the judgment has not been enforced
because there has been no available housing in the area. However,
the Court reiterates that it is not open to a State authority to
cite the lack of funds or other resources, such as housing, as an
excuse for not honouring a judgment debt (see Malinovskiy v.
Russia, No. 41302/02, з 35, 16 June 2005; Plotnikovy v. Russia,
No. 43883/02, з 23, 24 February 2005). 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, No. 59498/00, з
35, ECHR 2002-III). In the present case, the judgment has remained
without enforcement to date, that is for more than three years
since it was issued. The Government did not offer a plausible
justification for that omission. There is no evidence that the
Kirovskiy District Administration has taken any measures to comply
with the judgment.
28. As regards the offer made by the Mayor of Rostov-on-Don in
October 2004, it did not meet the terms of the judgment of 19
December 2001. In particular, the flat was not appropriate for
accommodating five persons, as required by the judgment. The Court
does not accept the Government's argument that after the death of
the applicant's mother a flat for four persons would have been
sufficient. It clearly follows from the operative part of the
judgment of 19 December 2001 that the Kirovskiy District
Administration was to allocate a flat for five persons. The new
determination of the current number of the applicant's family
members would amount to re-examination by a State agency of the
matter already settled by a final and binding court judgment. In
any event, the applicant's mother died more than a year and seven
months after the judgment of 19 December 2001 had become final.
29. The Court has frequently found violations of Article 6 з 1
of the Convention and Article 1 of Protocol No. 1 in cases raising
issues similar to the ones in the present case (see Malinovskiy,
cited above, з 35 et seq.; Teteriny v. Russia, No. 11931/03, з 41
et seq., 9 June 2005; Gizzatova v. Russia, No. 5124/03, з 19 et
seq., 13 January 2005; Burdov, cited above, з 34 et seq., ECHR
2002-III).
30. Having examined the material submitted to it, the Court
notes that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion
in the present case. Having regard to its case-law on the subject,
the Court finds that by failing for years to comply with the
enforceable judgment in the applicant's favour the domestic
authorities prevented him from receiving a flat he could
reasonably have expected to receive.
31. There has accordingly been a violation of Article 6 of the
Convention and Article 1 of Protocol No. 1.
II. Other alleged violations of the Convention
32. The Court has examined the complaints as submitted by the
applicant. However, having regard to all the material in its
possession, it finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 зз 3 and 4 of the Convention.
III. Application of Article 41 of the Convention
33. 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
34. As regards the pecuniary damage, the applicant asked the
Court to require the State to enforce the judgment. He claimed
8,000 euros ("EUR") in respect of non-pecuniary damage.
35. The Government considered that the claim was excessive and
unsubstantiated. They believed that, in any event, the award
should not exceed the amount awarded by the Court in the Burdov
case.
36. The Court notes that the State's outstanding obligation to
enforce the judgment at issue is undisputed. Accordingly, the
applicant is still entitled to recover the judgment debt in the
domestic proceedings. The Court reiterates that the most
appropriate form of redress in respect of a violation of Article 6
is to ensure that the applicant as far as possible is put in the
position in which he would have been had the requirements of
Article 6 not been disregarded (see Poznakhirina v. Russia, No.
25964/02, з 33, 24 February 2005, with further references). The
Court finds that in the present case this principle applies as
well, having regard to the violation found. It therefore considers
that the Government should secure, by appropriate means, the
enforcement of the award made by the domestic courts.
37. 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 case (cited above, з
47), the nature of the award at stake in the present case, notably
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 4,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
38. The applicant asked for reimbursement of the legal fees.
However, he did not specify the amount, nor did he submit any
receipts or vouchers on the basis of which such amount could be
established. Accordingly, the Court does not make any award under
this head.
C. Default interest
39. 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 complaint concerning non-enforcement of the
judgment of 19 December 2001 admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article 6 з 1 of
the Convention and Article 1 of Protocol No. 1;
3. Holds
(a) that the respondent State, within three months from the
date on which the judgment becomes final according to Article 44 з
2 of the Convention, is to secure, by appropriate means, the
enforcement of the award made by the domestic court, and, in
addition, to pay the applicant EUR 4,000 (four thousand 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;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 8 December 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} <*> NIELSEN
Registrar
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<*> Слово на национальном языке набрано латинским шрифтом и
выделено фигурными скобками.
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