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FIRST
SECTION
CASE OF NEVOLIN v. RUSSIA
(Application
no. 38103/05)
JUDGMENT
STRASBOURG
12
July 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nevolin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 21 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38103/05) 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 Valentin Georgiyevich
Nevolin (“the applicant”), on 23 September 2005.
- The
applicant was represented by Mr V. Kutkin, a lawyer practising in
Syktyvkar. The Russian Government (“the Government”) were
represented by Mr P. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
- On
22 June 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
- The
applicant was born in 1960 and lives in the town of Syktyvkar in the
Komi Republic.
A. Housing proceedings
- On 28 January 2004 the Syktyvkar Town Court upheld the
applicant's action against the Syktyvkar Town Council and ordered
that the Council should:
“...provide Mr Nevolin Valentin Georgiyevich,
whose family comprises one member, with well-equipped living premises
in Syktyvkar, having a living surface of no less than 9 square metres
that meet sanitary and technical requirements”.
- The
judgment was not appealed against and became final. Enforcement
proceedings were instituted.
- In
July 2004 the applicant was offered a room in a hotel. He refused the
offer. On 7 September 2004 bailiffs fined the Council because it had
failed to enforce the judgment of 28 January 2004. On 25 February
2005 the Council offered the applicant a flat which he agreed to
accept. However, in May 2005 the Council withdrew the offer because
the flat was occupied.
- On
24 May 2005 the Council offered the applicant and his mother a
two-room flat which they agreed to accept and moved into. The
enforcement proceedings were closed.
B. Tort action
- On
16 January 2005 the applicant lodged an action
against the Syktyvkar Town Council and
municipal housing maintenance authorities seeking compensation for
non-pecuniary damage caused by the fact that for years he had been
forced to live in a dilapidated house.
- On
9 February 2005 the Syktyvkar Town Court dismissed his claim against
the Council but accepted the action against the housing maintenance
authority and awarded him 1,000 Russian roubles. That judgment was
upheld on appeal on 24 March 2005 by the Supreme Court of the Komi
Republic.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF LONG NON-ENFORCEMENT OF THE
JUDGMENT OF 28 JANUARY 2004
- The
applicant complained that the judgment of 28 January 2004 was not
timeously enforced. The Court considers that this complaint falls to
be examined under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 (see Burdov v. Russia,
no. 59498/00, § 26, ECHR 2002 III). The relevant parts
of these provisions read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time... 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...”
A. Admissibility
- The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government claimed that the judgment of 28 January 2004 had remained
unenforced until 24 May 2005 because the Town Council had not had
necessary resources to enforce it. However, they further argued that
the authorities had taken steps to ensure the enforcement. For
example, in July 2004 the Council had offered the applicant a room in
a hotel and in September 2004 the bailiffs had fined the Council.
- The
applicant averred that the Council had offered him a flat which had
been occupied and a room in a hotel. Those offers had not met
requirements of the judgment of 28 January 2004.
- The
Court observes that on 28 January 2004 the applicant obtained a
judgment by which he was to receive a flat. The judgment became final
and enforceable as it was not appealed against. It was enforced in
full on 24 May 2005 when the applicant accepted a two-room flat
into which he moved with his mother. Thus, the judgment of 28 January
2004 remained unenforced for approximately sixteen months.
- The
Court has frequently found violations of Article 6 § 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
v. Russia, no. 41302/02, § 35
et seq., ECHR 2005; Teteriny v. Russia, no. 11931/03, §
41 et seq., 9 June 2005).
- 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.
The Court notes that the judgment was not enforced because the debtor
did not possess available housing and did not have financial
recourses to purchase a flat. 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, cited above, § 35; Plotnikovy
v. Russia, no. 43883/02, § 23, 24 February 2005).
- The
Court is not convinced by the Government's argument that the Council
had taken necessary steps to ensure the prompt enforcement of the
judgment of 28 January 2005 by offering the applicant a room in a
hotel in July 2004 and an occupied flat in February 2005. The Court
notes that these offers by the Council fell short of the conditions
set out in the judgment of 28 January 2004 (see paragraph 5 above).
The Court considers that the applicant cannot be blamed for refusing
to settle for less than he was entitled to under the judgment of 28
January 2004 (see Kornev v. Russia, no. 26089/02, § 40,
28 September 2006).
- The
Court therefore finds that by failing for months to comply with the
enforceable judgment in the applicant's favour the domestic
authorities impaired the essence of his right to a court and
prevented him from receiving a flat he could reasonably have expected
to receive.
- 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
- The
applicant complained under Articles 6, 8 and 13 of the Convention
that the tort proceedings had been unfair in that his action had only
been accepted in part, that for many years he had been unable to live
in a new flat, that for more than eight years he had unsuccessfully
asked authorities to repair his house and that he had to share the
flat with his mother and his wife.
- Having
regard to all the materials in its possession, and in so far as these
complaints fall within its competence ratione temporis, the
Court finds that they 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 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed compensation in respect of non-pecuniary damage,
leaving the determination of the sum to the Court's discretion.
- The
Government averred that there were no grounds for accepting the
applicant's claims as his rights had not been violated.
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the State authorities' failure to enforce
the judgment in his favour. The Court takes into account the relevant
aspects, such as the length of the non-enforcement and the nature of
the domestic award, and making its assessment on an equitable basis,
awards the applicant EUR 1,200 in respect of non-pecuniary damage,
plus any tax that may be chargeable on the above amount.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and the Court.
- Accordingly,
the Court does not award anything under this head.
C. Default interest
- 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
- Declares the complaint concerning a delay in
enforcement of the judgment of 28 January 2004 admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand and two hundred euros) in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the
date of the settlement, plus any tax that may be chargeable;
(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;
Done in English, and notified in writing on 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
