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FIRST SECTION
CASE OF MAKAROV v. RUSSIA
(Application no. 21074/03)
JUDGMENT
STRASBOURG
25 January
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 Makarov v. Russia,
The European Court of Human Rights (First
Section), sitting as a Chamber composed of:
Mr C.L.
Rozakis, President,
Mr L. Loucaides,
Mrs F.
Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and
Mr S.
Nielsen,
Section Registrar,
Having deliberated in private on 4 January
2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 21074/03) 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 a Russian national, Nikolay Fedorovich Makarov, (“the
applicant”), on 4 June 2003.
- The Russian Government (“the
Government”) were represented by Mr P. Laptev, Representative
of the Russian Federation at the European Court of Human Rights.
- On 24 October 2005 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 CIRCUMSTANCES OF THE CASE
- The applicant was born in 1944
and lives in Tambov.
- He was engaged in emergency
operations at the site of the Chernobyl nuclear plant disaster. As a
consequence, he was entitled to certain social benefits.
- In 1998 the administration of
Tambov placed the applicant on a special “waiting list”
for getting free accommodation.
- As the town administration did
not provide him with a flat within three months after placing him on
a waiting list, the applicant brought a court action against the
administration.
- By judgment of 2 March 1999 the
Leninskiy District Court of Tambov ordered that:
“...the Mayor of Tambov
should allocate to the Administration of the Leninskiy District of
Tambov well equipped dwelling premises having a living surface of no
less than 27 square metres and comprising additional dwelling
premises in the form of a separate room for the further allocation to
Mr Makarov.
The head of the administration of
the Leninskiy District of Tambov should provide Mr Makarov, whose
family comprises three members, a well equipped flat having a living
surface of no less than 27 square metres and comprising additional
dwelling premises in the form of a separate room in the boundaries of
Tambov”.
- No appeal was brought against the
judgment and it entered into force on 13 March 1999.
- Enforcement proceedings were
initiated by the bailiffs' service of the Leninskiy District of
Tambov. However, the judgment could not be enforced because the town
administration possessed no available housing or financial resources
to purchase a flat.
- On 12 March 2001, 31 March and
30 October 2003 the bailiffs' service fined the Mayor of Tambov for
the failure to provide the applicant with accommodation. Those
decisions were quashed by the Leninskiy District Court, upon the
mayor's appeal. The District Court held that the Mayor of Tambov
could not enforce the judgment due to the lack of available
accommodation.
- Following those decisions the
bailiff returned the writ of execution to the applicant.
- On 22 January 2004 the writ of
execution was again forwarded to the bailiffs' service and new
enforcement proceedings were instituted.
- In December 2004 the town
administration unsuccessfully applied to a court seeking to change
the method of the enforcement of the judgment of 2 March 1999.
- On 24 January 2006 the bailiff
fined the town administration for the failure to provide the
applicant with a flat. The Leninskiy District Court of Tambov upheld
the decision and confirmed that the town administration had taken no
steps to enforce the judgment.
- The judgment of 2 March 1999
remains unenforced to date.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF
THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The applicant complained that
the judgment of 2 March 1999 has not been enforced. The Court
considers that these complaints fall 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 ... 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
- The Court notes that the
application 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 acknowledged that
the judgment of 2 March 1999 had not been enforced. They further
conceded that the applicant's rights set out in Article 6 of the
Convention and Article 1 of Protocol No. 1 had been violated as a
result of the non-enforcement of the final judgment.
- The applicant maintained his
claims.
- The Court observes that on 2
March 1999 the applicant obtained a binding and enforceable judgment,
by which he and his family members were to be granted a flat. The
judgment has remained without enforcement to date, i.e. for more than
seven years since it entered into force. No justification was
advanced by the Government when acknowledged a violation of the
Convention.
- The Court has frequently found
violations of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in cases raising similar issues to the ones in the
present case (see Malinovskiy v. Russia, no. 41302/02, ECHR
2005 ..., Mikryukov v. Russia, no. 7363/04, 8 December
2005).
- Having examined the material
submitted to it, the Court sees no reason for reaching 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 impaired the essence of his right to a court and
prevented him from receiving a flat he had reasonably expected to
receive.
- There has accordingly been a
violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1.
II. 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
- As regards pecuniary damage, the
applicant considered that the Russian authorities were under
obligation to enforce the judgment. He also claimed 100,000 euros
(EUR) in respect of non-pecuniary damage.
- The Government submitted that no
compensation should be awarded in respect of pecuniary damage since
the applicant was still entitled to receive a flat in the domestic
enforcement proceedings. As regards non-pecuniary damage, the
Government considered that the applicant's claim was excessive and
unreasonable. They believed that the award should not exceed the
amount awarded in the Malinovskiy case (cited above, §
22).
- The Court notes that the State's
outstanding obligation to enforce the judgment at issue is
undisputed. Accordingly, the applicant is still entitled to receive a
flat 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, § 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 court.
- The Court considers that the
applicant must have suffered certain distress and frustration
resulting from the State's 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, § 17), the nature of the award at stake in
the present case, namely a benefit linked to the applicant's
disability as a Chernobyl victim, length of the enforcement
proceedings and other relevant aspects. Making its assessment on an
equitable basis, it awards the applicant EUR 3,900 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The applicant did not claim
reimbursement of his costs and expenses incurred before the domestic
authorities and the Court. Accordingly, the Court considers that
there is no call to award him any sum on this account.
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 application
admissible;
- Holds that there has been
a violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No.1;
- Holds
(a) that the respondent State,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 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 3,900 (three thousand and nine 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;
- Dismisses the remainder of
the applicant's claim for just satisfaction.
Done in English, and notified in writing on 25
January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
Søren Nielsen Christos
Rozakis
Registrar President
