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FIRST
SECTION
CASE OF BULYCHEVY v. RUSSIA
(Application
no. 24086/04)
JUDGMENT
STRASBOURG
8 April
2010
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 Bulychevy 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 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24086/04) 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 three Russian nationals, Mrs Vera Nikolayevna
Bulycheva, Mr Vladimir Vasilyevich Bulychev and Mr Vasiliy
Vladimirovich Bulychev (“the applicants”) on 5 June 2004,
5 June 2004 and 13 February 2006, respectively.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, the former representative of the Russian Federation
at the European Court of Human Rights.
- On
3 September 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3). The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1956, 1956 and 1983, respectively, and live
in Lipetsk.
- The
applicants are a married couple and their son.
A. Housing dispute
- The
applicants lived in a flat that in 1992 became unsuitable for living
owing to break-down of the sewage system. In July 1993 the first and
second applicants, also acting on behalf of their then underage son,
brought court proceedings seeking housing from the Lipetsk Town
Council (“Town Council”). By judgment of 21 October
1999 the Sovetskiy District Court of Lipetsk (“District Court”)
acknowledged that the applicants' flat was unsuitable for living and
ordered the Town Council to provide them with a “comfortable
housing suitable for four persons in compliance with the applicable
legislation”.
- On
17 January 2000 the Lipetsk Regional Court, acting on appeal, amended
the judgment. It specified, in particular, that “the flat
should be in a brick building situated within the town centre”.
The appeal court also awarded each applicant 1,000 Russian
roubles (RUB) in non-pecuniary damage.
B. Enforcement proceedings
- On
an unspecified date the applicants submitted a writ of execution to
the Sovetskiy District Bailiffs' Service of Lipetsk. On 28 February
2000 an authorised bailiff opened enforcement proceedings.
- Further
to the applicants' complaint, on 9 April 2001 the District Court
declared unlawful the bailiff's failure to enforce the judgment.
- On
25 September and 2 October 2001 the bailiff and officials of the Town
Council inspected two municipal flats and considered them eligible to
be offered to the applicants. The latter however refused both flats.
- By
letter of 28 August 2003 the bailiff informed the applicants that the
Town Council had allocated funds for purchasing a flat for them.
- In
November 2003 the Council offered to the applicants to buy a flat or,
in the alternative, to pay compensation.
- In
March 2004 the Council made two new offers. On 24 June 2004 the
applicants accepted resettlement into one of those flats. On 27
August 2004 they obtained an occupancy voucher and the enforcement
proceedings were terminated.
- On
6 September 2004 the applicants received keys to the flat. On the
same day the flat was inspected by the housing committee and the
applicants signed the inspection record.
- Thereafter,
the applicants complained to various authorities that the judgment of
21 October 1999 had not been properly enforced because repair works
were still required. Those were carried out in August 2005.
- On
an unspecified date the applicants brought a court action against the
Ministry of Finance and the Ministry of Justice for the loss of
profit and compensation for non-pecuniary damage incurred through the
belated enforcement of the judgment of 21 October 1999. By a judgment
of 23 August 2005 the Taganskiy District Court of Moscow
dismissed their action. It found, in particular, that the flats
offered to the applicants in September and October 2001 had met the
requirements of the housing legislation. Therefore, their refusal to
accept those offers had been ungrounded and the delays in the
enforcement occurred afterwards could not be imputed to the bailiffs'
service. On 18 July 2006 the Moscow City Court upheld the said
judgment on appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE COURT
PROCEEDINGS
- The
applicants complained that the length of the court proceedings
against the Town Council had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- Pursuant
to Article 35 § 1 of the Convention, the Court may only deal
with a matter “within a period of six months from the date on
which the final decision was taken”. The purpose of the
six-month rule is to promote security of law and to ensure that cases
raising issues under the Convention are dealt with within a
reasonable time. It also ought to protect the authorities and other
persons concerned from being under any uncertainty for a prolonged
period of time. Even if a respondent Government does not raise the
issue of compliance with the rule, the Court is to do so of its own
motion (see Blečić v. Croatia [GC], no. 59532/00, §
68, ECHR 2006 III).
- Turning
to the facts of the present case, the Court observes that the court
proceedings ended on 17 January 2000 when the judgment of
21
October 1999, as amended by the appeal court, became final. The
application by the first and second applicants was submitted on 5
June 2004 and by the third applicant on 13 February 2006, that is
more than four and six years respectively after the civil dispute had
been solved. The Court considers that the enforcement period does not
fall within the period to be taken into account in respect of the
applicants' complaint of the lengthy court proceedings because they
have made a separate complaint about the non-enforcement proper (see
Veretennikov v. Russia, no. 8363/03, §
31,
12 March 2009 and Finkov v.
Russia, no. 27440/03, § 94, 8
October 2009). It follows that the applicants' complaint of the
excessive length of the court proceedings was introduced after the
expiry of the six months time-limit and must be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION ON
ACCOUNT OF THE DELAYED ENFORCEMENT OF THE FINAL JUDGMENT
- The
applicants complained under Article 6 of the Convention and Article 1
of Protocol No. 1 about non-enforcement of the judgments of
21
October 1999 and 17 January 2000. Insofar as relevant, these Articles
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 argued that the final judgment could have already been
executed in September or October 2001, if the applicants had accepted
the flats offered by the authorities at the time. By domestic court
decisions of 19 November and 17 December 2001, unsubmitted by
Government, it had been established that the flat offered by the Town
Council in October 2001 had met the requirements set in the final
judgment in question. The applicants' unreasonable refusal to accept
it had deprived them of victim status in respect of their complaint
of the delayed enforcement. The Government further claimed that the
applicants had missed the six month time-limit as they had complained
to the Court two years and eight months after the Town Council had
made them the above offer. Accordingly, they requested the Court to
dismiss the applicants' complaint as lodged out of time.
- The
applicants maintained their complaints.
- The
Court observes from the material submitted that the enforcement
proceedings were officially terminated on 27 August 2004. The
relevant complaint by the first and the second applicants was lodged
on 5 June 2004 and by the third applicant on 13 February 2006. It
follows that in respect of the complaint by the first and the second
applicants the Government's argument should be dismissed. However, it
should be upheld in respect of the third applicant's complaint that
was introduced after expiry of the six months time-limit and must be
rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
- The
Court notes that the application by the first and the second
applicants 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
Court reiterates that an unreasonably long delay in the enforcement
of a binding judgment may breach the Convention (see Burdov v.
Russia, no. 59498/00, ECHR 2002-III). To decide if the delay
was reasonable, the Court will look at the complexity of the
enforcement proceedings, the applicant's own behaviour and that of
the competent authorities, the amount and the nature of court award
(see Raylyan v. Russia, no. 22000/03, § 31, 15 February
2007).
- In
the case at hand the enforcement proceedings lasted for four years,
seven months and eleven days: from 17 January 2000, when the judgment
became binding, to 27 August 2004, when these proceedings were
terminated.
- The
enforcement proceedings were officially opened on 28 February 2000.
On an unspecified date the applicants brought a court action
complaining about the bailiffs' failure to enforce the judgment of
21 October 2000. By the competent court's judgment of 9 April
2001 their action was upheld.
- The
first two flats were offered to the applicants by the bailiff in
September and October 2001.
- The
Court takes cognisance of the fact that by a judgment of
23
August 2005, as upheld on 18 July 2006, the Taganskiy District Court
of Moscow dismissed the applicants' action for compensation for the
delayed enforcement, having found that the flats offered to them in
September and October 2001 had met the requirements of the housing
legislation and that their refusal to accept these flats had been
unjustified.
- The
Court also observes that the applicants failed to adduce sufficient
evidence which could convince it that the above said flats had been
unsuitable for living, had not satisfied housing standards or had
been otherwise ineligible.
- The
Court reiterates that the domestic courts are in a better position to
assess evidence before them, establish facts and interpret domestic
law. Hence, it accepts the Government's argument that the delays in
the enforcement proceedings occurred after October 2001 were
attributable to the applicants' conduct.
- However,
it should be noted that by failing to take adequate measures to
enforce the binding judgment, the State authorities prevented the
applicants from enjoying its benefits during a period of one year and
seven months, that is from 28 February 2000, the date when the
enforcement proceedings officially started, to October 2001, the
moment when the applicants refused to accept the eligible flats
offered by the authorities. The Court also observes that the
Government have not put forward any fact or argument in order to
justify this period of non-enforcement.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants raised various other complaints under Articles 2, 3, 6 §
1, 8, 13 and 14 of the Convention.
- Having
considered their submissions in the light of all the material in its
possession, the Court finds that, in so far as the matters complained
of are within its competence, they do not disclose any appearance of
a violation of the rights and freedoms set out in the Convention.
- It
follows that these parts of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
IV. 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
applicants claimed 800,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim as unsubstantiated.
- Making
an assessment on an equitable basis, the Court awards the applicants
jointly EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants did not claim reimbursement of their
costs and expenses incurred before the domestic authorities and the
Court. Accordingly, the Court does not make any award 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 by the first and second
applicants concerning the non-enforcement of the judgment of 21
October 1999, as upheld on 17 January 2000, admissible and the
remainder of the application inadmissible;
- 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 is to pay the first and second applicant
jointly, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 3,000 (three thousand 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
