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FIRST
SECTION
CASE OF MAYAMSIN v. RUSSIA
(Application
no. 3344/04)
JUDGMENT
STRASBOURG
27
March 2008
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 Mayamsin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3344/04) 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 Valentin Vasilyevich
Mayamsin (“the applicant”), on 28 November 2003.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, Representative of the Russian Federation at the
European Court of Human Rights.
- On
20 March 2007 the Court decided to communicate the complaint
concerning non-enforcement of a judgment 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 1943 and lives in Khabarovsk.
- Since
1975 the applicant and his family had been living in a dilapidated
dwelling. In 1995 the police refused to certify his residence at that
address.
- On
12 July 1999 the Industrialniy District Court of Khabarovsk granted
the claim by the applicant and three family members against the
Khabarovsk Town Council and held that the Town Council should provide
them with one or more comfortable flats having an aggregate surface
of no less than 12 sq. m per each family member. On 28 September 1999
the Khabarovsk Regional Court upheld the judgment on appeal.
- On
26 November 1999 enforcement proceedings were instituted. On 10 March
2000 the proceedings were suspended for six months at the request of
the Town Council. On 28 February 2001 a further suspension was
granted for an indefinite period of time until such moment as a flat
of no less than 48 sq. m had become available. The latter decision
was quashed on 30 December 2002.
- On
27 January 2003 the Town Council offered three flats to the applicant
and his family members. They rejected the offer on the ground that
two of the flats did not meet the sanitary standards.
- The
applicant and his family members asked the court to amend the
operative part of the judgment and order the Town Council to pay them
the market value of the flat(s). On 23 May 2003 the Industrialniy
District Court rejected their request, finding that they had
unreasonably refused the three flats which the Town Council had
offered them. On 1 July 2003 the Khabarovsk Regional Court upheld
that decision on appeal.
- On 8 September 2003 the Khabarovsk Town Council asked
the court to discontinue enforcement proceedings on the ground that
the applicant and his family had unreasonably turned down their
offer. On 22 September 2004 the Industrialniy District Court rejected
the Town Council's request. It found that, pursuant to the experts'
report of 27 January 2004, the flats offered by the Town Council
did not meet the sanitary and technical requirements. On 2 November
2004 the Khabarovsk Regional Court upheld that decision on appeal.
- On
23 July 2005 the Town Council made a new offer of two flats to the
applicant and his son. The son accepted the offer but not the
applicant because the flat was in a state of disrepair.
- On
11 August 2006 the applicant accepted the flat after the repairs had
been carried out.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF NON-ENFORCEMENT OF THE
JUDGMENT OF 12 JULY 1999
- The
applicant complained about the prolonged failure to enforce the
judgment of 12 July 1999, as upheld on 28 September 2000. He invoked
Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1.
The Court considers that this complaint falls to be examined under
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1, the relevant parts of which 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 Government submitted that the applicant had lost
his status as a “victim” of the alleged violation long
before he had lodged his application with the Court because he had
been offered seven flats which had met the conditions laid down in
the judgment of 12 July 1999. They claimed that the applicant had
abused his right of individual petition.
- The applicant disagreed.
- The Court observes that the domestic courts determined
that the flats which had been offered to the applicant and his family
had not met the sanitary requirements (see paragraph 10 above). Even
though the applicant eventually received a flat in 2006, it only
happened after a substantial delay, for which no redress was granted
to him. The Court finds that the applicant may still claim to be a
“victim” of the alleged violation and rejects the
Government's objection.
- The Court notes that this 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
applicant maintained that enforcement of the judgment had taken too
long.
- The
Government submitted that the length of the enforcement proceedings
should be calculated from 25 November 1999 when the bailiffs had
received the writ of execution, to 27 January 2003 when the three
flats had been offered to the applicant and his family. From that
length they deducted the six months, during which the enforcement had
been stayed pursuant to the decision of 10 March 2000, and a further
period starting from 28 February 2001 when the proceedings had
been adjourned sine die and until that decision had been
quashed on 30 December 2002. The Government accepted their
responsibility for an overall period of non-enforcement of six
months.
- The
Court observes that on 12 July 1999 the applicant and his family
members obtained a judgment in their favour against the town council
which became enforceable on 28 September 1999. By terms of the
judgment, the council was to provide them with flats. Leaving aside
the family members who are not the applicants in the present case,
the Court notes that an acceptable flat was made available to the
applicant only on 11 August 2006, that is six years and ten
months later. The Court rejects the Government's argument that they
may only be held liable for the period of non-enforcement up to the
date when the first offer of a flat was made. As noted above, the
domestic courts were not convinced by the authorities' allegation
that the applicant's refusal of the offer had been unreasonable. They
found that the flats offered had not met the sanitary standards (see
paragraph 10 above). Likewise, the Court does not consider it
necessary to deduct the period following the judicial decision of 28
February 2001 because that decision did not become final and was
eventually quashed on appeal. Even assuming that the six-month
suspension in 2000 had a valid justification, the Russian authorities
are still responsible for the delay spanning over more than six
years, during which the judgment in the applicant's favour remained
without enforcement.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the ones in the present
case (see Reynbakh v. Russia, no. 23405/03, § 23
et seq., 29 September 2005; Gizzatova v. Russia, no. 5124/03,
§ 19 et seq., 13 January 2005; Petrushko v. Russia,
no. 36494/02, § 23 et seq., 24 February 2005; Gorokhov
and Rusyayev v. Russia, no. 38305/02, § 30 et
seq., 17 March 2005; Wasserman v. Russia, no. 15021/02, §
35 et seq., 18 November 2004; Burdov v. Russia,
no. 59498/00, § 34 et seq., ECHR 2002 III).
-
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 to comply with the enforceable judgment in the applicant's
favour the domestic authorities violated his right to a court and
prevented him from gaining possession of the asset 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 also complained under Article 6 of the Convention that the
Khabarovsk courts lacked impartiality and independence and that the
proceedings on his claims had been unfair and excessively long. He
further complained under Articles 9, 10, 14 and 17 of the Convention
and Protocol No. 12 that he had been persecuted for his beliefs and
discriminated against. Finally, he complained under Article 2 of
Protocol No. 4 that, lacking residence registration, he could not buy
a plane ticket.
- The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and
in so far as these complaints fall within the Court's competence, it
finds that those 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 §§
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 414,000 euros (EUR) in respect of pecuniary damage
and EUR 5,800,000 in respect of non-pecuniary damage.
- The
Government considered that these claims were excessive,
unsubstantiated and speculative.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court accepts that the applicant suffered
distress and frustration because of the State authorities' failure to
enforce the judgment in his favour within a reasonable time. The
particular amount claimed is, however, excessive. Making its
assessment on an equitable basis and taking into account the length
of the enforcement stage, the Court 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 also claimed compensation for costs and expenses, the
amount of which he did not specify.
- The
Government pointed out that the amount had not been specified.
- In
accordance with Rule 60 §§ 2 and 3 of the Rules of Court,
the Court makes no award in respect of costs and expenses because the
applicant failed to submit itemised particulars of his claim.
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
non-enforcement of the judgment in the applicant's favour 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 3,900
(three thousand nine hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(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 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
