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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