EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF TETERINY v. RUSSIA
(Application No. 11931/03)
JUDGMENT <*>
(Strasbourg, 30.VI.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 Teteriny 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 9 June 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 11931/03) 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 two Russian nationals, Mr Anatoliy
Grigoryevich Teterin and Ms Tamara Vasilyevna Teterina ("the
applicants"), on 25 February 2003. The second applicant was also
the first applicant's representative before the Court.
2. 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 6 September 2003 the Court decided to communicate to the
Government the complaint concerning non-enforcement of the
judgment of 26 September 1994. 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 applicants were born in 1954 and 1955 respectively, and
live in Syktyvkar in the Komi Republic. They are both retired
judges.
5. On 26 September 1994 the Ezhvinskiy District Court of the
Komi Republic allowed the first applicant's claim against the
Yemva Town Council for provision of State housing, for which he
was eligible as a judge. The court ordered the town council to:
"...grant or purchase for Mr Teterin, whose family comprises
five members, a separate well-equipped flat or house taking
account of the plaintiff's entitlement to one additional room or
having a habitable surface of no less than 65 square metres,
located near the Knyazhpogostskiy District Court in the town of
Yemva".
6. No appeal was brought against the judgment and it became
final and enforceable ten days later.
7. In October 1994 enforcement proceedings were instituted.
However, the judgment could not be enforced because the town
authorities did not possess any available housing or the financial
resources to purchase a flat.
8. The applicants complained to the Courts Administration
Department at the Supreme Court of the Russian Federation, the
Court Bailiffs' Department of the Ministry of Justice of the
Russian Federation and the Court Bailiffs' Department of the Komi
Republic Department of Justice. The responses received by the
applicants in 2001 and 2002 indicated that the judgment could not
be enforced as the town authorities had no available housing.
9. In 2002 the first applicant applied to the Ezhvinskiy
District Court with a request to change the method of execution of
the judgment of 26 September 1994. He asked that the value of the
flat be paid to him in cash.
10. On 24 April 2002 the Ezhvinskiy District Court closed the
proceedings for the amendment of the judgment as the first
applicant had withdrawn his request.
11. On 23 August 2002 a court bailiff reopened enforcement
proceedings and ordered the Knyazhpogostskiy District Council to
execute the judgment.
12. On 30 January 2003 the enforcement proceedings were closed
because enforcement was not possible. On the following day the
writ of execution was returned to the first applicant.
13. Further to the applicants' complaint, on 3 March 2003 the
Knyazhpogostskiy District Court quashed the bailiff's decision to
terminate the proceedings.
14. The proceedings were resumed on 7 May 2003. The bailiff
collected information on the cash flows and funds of the Yemva
Town Council.
15. On 7 July 2003 the bailiff discontinued the enforcement
proceedings on account of the town council's lack of funds for the
construction or purchase of housing. The writ of execution was
returned to the Ezhvinskiy District Court. The first applicant
submits that a copy of that decision was not served on him and
that he first became aware of it upon receipt of the Government's
memorandum of 1 December 2003, to which it was attached.
16. On 19 January 2004 the Yemva Town Council offered the first
applicant a two-room flat of 25 square metres with central
heating. It noted that no State housing had been constructed since
1994 and that it was therefore not in a position to offer a flat
with full amenities. The applicants did not accept the offer. On
17 December 2004 the enforcement proceedings were re-opened and
they are now pending.
17. The judgment of 26 September 1994 has not been enforced to
date.
II. Relevant domestic law
A. Enforcement proceedings
18. Section 9 of the Enforcement Proceedings Act (Law No. 119-
FZ of 21 July 1997) provides that a bailiff's order on institution
of enforcement proceedings must fix a time-limit for the
defendant's voluntary compliance with a writ of execution. The
time-limit may not exceed five days. The bailiff must also warn
the defendant that coercive action will follow should the
defendant fail to comply with the time-limit. Pursuant to section
13, the enforcement proceedings must be completed within two
months of the receipt of the writ of execution by the bailiff.
B. Implementation of the right to a "social tenancy"
19. 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.
20. 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).
21. 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).
22. 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).
23. 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
24. 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
25. 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 of Article 1 of Protocol No. 1
26. The applicants complained that the continued failure to
enforce the judgment of 26 September 1994 violated their "right to
a court" under Article 6 of the Convention and their right to the
peaceful enjoyment of possessions under Article 1 of Protocol No.
1. The relevant parts of Article 6 provide as follows:
"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 reads as follows:
"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
1. The Government's objection
as to the second applicant's victim status
27. The Government submitted that the second applicant was not
the victim of the alleged violation. The judgment of 26 September
1994 had been made in favour of the first applicant alone and the
second applicant had merely represented his interests in the
enforcement proceedings. She could not claim, therefore, that her
"right to a court" or her property rights had been violated.
28. The applicants submitted in reply that the continued
failure to enforce the judgment concerning the provision of
housing for the entire family had an adverse impact on each family
member. Moreover, this situation had hindered the second
applicant's professional activities as she had been challenged in
other proceedings by the district council on the ground that she
could not be impartial.
29. The Court observes that the claim for housing was lodged by
the first applicant and that the judgment of 26 September 1994 was
made in his favour. That judgment did not determine the second
applicant's civil rights and obligations and did not confer any
entitlement on her.
30. The Court therefore considers that the complaints lodged by
the second applicant on her own behalf are incompatible ratione
personae with the provisions of the Convention within the meaning
of Article 35 з 3 and must be rejected in accordance with Article
35 з 4. The Court will henceforth refer to the first applicant as
"the applicant".
2. The Government's objection
as to the exhaustion of domestic remedies
31. The Government submitted that the applicant had failed to
exhaust the domestic remedies available to him. Firstly, he had
not appealed to a court against the court bailiff's decision of 7
July 2003 in which the enforcement proceedings had been
terminated. Secondly, he had not applied for an interest-free loan
for the purchase or construction of housing, for which federal
judges with not less than ten years' professional experience were
eligible. Thirdly, he had not submitted a request to be placed on
the waiting list of persons needing improved housing, which could
have been examined by the housing commission of the Courts
Administration Department of the Komi Republic.
32. The applicant submitted that he had not been able to appeal
against the decision of 7 July 2003, since it had not been served
on him. The writ of execution had been returned to the District
Court and not to him as the creditor, as required by section 73 of
the Enforcement Proceedings Act. Furthermore, on 24 December 2003
the court had again forwarded the writ of execution for
enforcement. As regards the interest-free loan, the applicant
noted that, pursuant to section 19 of the Status of Judges Act,
free housing was to be provided to a judge by the local
authorities within six months of his or her appointment. A loan
could be granted as an alternative to free housing at the
initiative of the authorities. However, in his case the
authorities had not made such an offer. Finally, the applicant
indicated that the proposal by the Courts Administration
Department that he apply to be put on the housing waiting list had
been made in disregard of the existing judgment that had already
confirmed his right to a flat.
33. The Court must first examine whether the applicant has
complied with the rule of exhaustion of domestic remedies as
required under Article 35 з 1 of the Convention.
34. The Court reiterates that Article 35 з 1 of the Convention,
which sets out the rule on exhaustion of domestic remedies,
provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and
in practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see Selmouni v. France [GC], No. 25803/94, з
76, ECHR 1999-V, and Mifsud v. France (dec.), No. 57220/00, з 15,
ECHR 2002-VIII). The Court further emphasises that the domestic
remedies must be "effective" in the sense either of preventing the
alleged violation or its continuation, or of providing adequate
redress for any violation that had already occurred (see {Kudla}
<*> v. Poland [GC], No. 30210/96, з 158, ECHR-XI).
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
35. As regards the possibility of complaining against the
bailiff's decision to terminate the proceedings, the Court notes
that the Government failed to provide any explanation as to how
such a complaint could have put an end to the continued violation
or to the kind of redress which the applicant could have been
afforded as a result of the complaint. In any event, the Court
observes that the applicant did not complain about any unlawful
act on the part of a bailiff but, rather, about the fact that the
judgment was not enforced. Even if the applicant had brought a
complaint against the bailiff and obtained a decision confirming
that the decision to terminate the enforcement proceedings had
been unlawful in domestic terms, such an action would only have
produced repetitive results, namely a writ of execution enabling
the bailiffs to proceed with the enforcement of the judgment of 26
September 1994 (see Yavorivskaya v. Russia (dec.), No. 34687/02,
15 May 2004, and {Jasiuniene} v. Lithuania (dec.), No. 41510/98,
24 October 2000). The Court concludes that such an action would
have been ineffective.
36. In so far as the Government suggest that the applicant
should have applied for an interest-free loan or for placement on
the housing waiting list, the Court fails to see how such an
application could have contributed to the enforcement of the
judgment. In fact, the pursuit of this "remedy" would have
required the applicant either to purchase a flat at considerable
personal expense, albeit with borrowed money, or to wait his turn
indefinitely on the housing list. This could not have improved 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 without
additional charges or undue delay. Furthermore, the decision to
grant a loan or place a person on the waiting list depended on the
discretionary powers vested in the Courts Administration
Department. The Court does not accept that the applicant was
required to exhaust these remedies in order to comply with the
requirements of Article 35 з 1 of the Convention.
37. The Court notes that the complaint 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
38. The Government made no comments on the merits of the
complaint. They claimed, however, that the applicant and his
family no longer needed improved living conditions as he had
purchased a one-room flat in 2001 and his spouse had bought a
three-room flat in Syktyvkar in 2003.
39. The applicant contended that the State authorities had had
ample opportunities to comply with the judgment. Over the last ten
years several new blocks of flats had been built, including a
twenty-flat block on Pushkin Street in 1997. If no flat of the
required surface area was available, the authorities could have
granted him two flats having the same aggregate surface area, as
they had done in other cases. He submitted that he had
persistently complained about the failure to enforce the judgment,
but to no avail.
1. Alleged violation of Article 6 з 1 of the Convention
40. 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; Hornsby v. Greece, judgment of 19
March 1997, Reports of Judgments and Decisions 1997-II, p. 510, з
40).
41. The Court further 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.
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, cited above, з
35).
42. Turning to the instant case, the Court notes that the
judgment of 26 September 1994, by which the applicant was to be
granted a comfortable flat measuring no less than 65 square
metres, has remained unenforced in its entirety to date. The offer
made by the Yemva Town Council in 2004 did not meet the terms of
that judgment.
43. By failing for years to take the necessary measures to
comply with the final judicial decision in the present case, the
Russian authorities have deprived the provisions of Article 6 з 1
of all useful effect.
44. There has accordingly been a violation of Article 6 з 1 of
the Convention.
2. Alleged violation of Article 1 of Protocol No. 1
45. The Court reiterates at the outset that the concept of
"possessions" in the first part of Article 1 of Protocol No. 1 has
an autonomous meaning which is not limited to ownership of
physical goods and is independent from the formal classification
in domestic law: certain other rights and interests constituting
assets can also be regarded as property rights, and thus as
"possessions" for the purposes of this provision (see Beyeler v.
Italy [GC], No. 33202/96, з 100, ECHR 2000-I, and Iatridis v.
Greece [GC], No. 31107/96, з 54, ECHR 1999-II).
46. The Court further recalls 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 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 No. 1 (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).
47. 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 may also fall within the notion of "possessions"
contained in Article 1 of Protocol No. 1 (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). In particular,
the Court has consistently held that a "claim" - even to 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,
з 40, and Stran Greek Refineries and Stratis Andreadis v. Greece,
judgment of 9 December 1994, Series A No. 301-B, p. 84, з 59).
48. Turning to the facts of the present case, the Court notes
that by virtue of the judgment of 26 September 1994 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 20 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, under certain conditions,
to privatise it in accordance with the Privatisation of State
Housing Act.
49. Accordingly, from the moment the judgment of 26 September
1994 was issued, the applicant has 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.
50. 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.
51. The Court finds that the fact that it was impossible for
the applicant to obtain the execution of the judgment of 26
September 1994 for more than ten years constituted an interference
with his right to peaceful enjoyment of his possessions, for which
the Government have not advanced any plausible justification (see
paragraph 41 above).
52. Accordingly, there has been a violation of Article 1 of
Protocol No. 1.
II. Application of Article 41 of the Convention
53. 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
54. The applicant claimed 40,000 euros (EUR) by way of
compensation for non-pecuniary damage. He did not make any claim
for pecuniary damage.
55. 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 v.
Russia case. Alternatively, they submitted that the finding of a
violation constituted in itself sufficient just satisfaction for
the non-pecuniary damage sustained by the applicant.
56. 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 Piersack v. Belgium (Article
50), judgment of 26 October 1984, Series A No. 85, p. 16, з 12;
and, mutatis mutandis, {Gencel} v. Turkey, No. 53431/99, з 27, 23
October 2003). 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.
57. Furthermore, the Court accepts that the applicant suffered
distress, anxiety and frustration because of the State
authorities' failure to enforce a judgment in his favour. It
further observes that, in contrast to the aforementioned Burdov
case, the judgment in question has not yet been enforced and no
effective measures appear to have been taken in order to comply
with it. Making its assessment on an equitable basis, it awards Mr
Teterin EUR 3,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
58. The applicant did not make any claims for costs and
expenses incurred before the domestic courts or the Court.
59. Accordingly, the Court does not award anything under this
head.
C. Default interest
60. 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 complaints concerning the continued failure to
enforce a final judgment in Mr Teterin's favour admissible and the
remainder of the application inadmissible;
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;
4. 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 Mr Teterin EUR 3,000 (three 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;
5. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 30 June 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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