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FIRST
SECTION
CASE OF LAPIN v. RUSSIA
(Application
no. 16152/03)
JUDGMENT
STRASBOURG
20
September 2011
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 Lapin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13296/03) 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, Mr Igor Aleksandrovich
Lapin, on 25 April 2003.
- The
Russian Government (“the Government”) were represented by
the former Representatives of the Russian Federation at the European
Court of Human Rights, Mr P. Laptev and Mrs V. Milinchuk.
- The
applicant alleged initially that the competent domestic authorities
had failed to comply with a final and binding judgment in his favour
and that he had been unsuccessful in various court proceedings
against the Ministry of the Defence. Subsequently the applicant also
complained that the military prosecution authorities had put pressure
on him in connection with his application to the Court.
- On
5 September 2006 the President of the First Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in the town of Yaroslavl.
A. The court proceedings concerning the applicant’s
housing rights
- The
applicant is a retired serviceman. On an unspecified date in 2002 he
applied to the commander of military unit no. 19689 and requested
documents confirming his priority rights to housing at the place of
his choice in connection with his retirement. The applicant also
asked for relevant documents which would enable him to get a State
housing certificate. This document would allow him to claim a
pecuniary compensation from the State partly covering the cost of
acquiring the housing of the applicant’s choice.
- Having faced the refusal, the applicant then applied to
the courts in this connection. By final judgment of the Moscow
Regional Military Court of 20 January 2004 the applicant’s
claim was granted. The court decided that:
“... the commander of military unit [no. 19689]
must prepare the relevant documents and make an application to the
competent official for the applicant to be put on the priority list
of persons in need of housing ... and ... prepare the relevant
documents so that [the applicant] could subsequently receive the
State housing certificate for acquisition of housing at the place of
his choice ...”
- On 10 March 2004 the Yaroslav Garrison Military Court
issued the applicant with an enforcement writ and by decision of 6
April 2004 the competent bailiffs instituted enforcement proceedings
and demanded military unit no. 19689 to comply with it.
- By
decision of 4 June 2004 the bailiffs considered the court judgment in
question had been enforced and discontinued the proceedings
accordingly.
- On
25 August 2004 the Souzdal District Court of the Vladimir Region
quashed the bailiffs’ decision of 4 June 2004 as premature.
- On
9 September 2004 the enforcement proceedings were again resumed.
- On
25 August 2005 the applicant’s family was entered into the list
of priority housing of military unit no. 19689.
- On
5 June 2006 the applicant and his family of five was entered as the
first candidate into the waiting list of the recipients of the State
housing certificate of military unit no. 19689 for the year 2006 with
the city of Moscow as the chosen place of future residence.
- On
15 November 2006 the enforcement proceedings were terminated, since
the judgment in question has been complied with in full.
- On 27 November 2006 the applicant was issued with the
State housing certificate. He refused to receive it, claiming that
the certificate did not cover the entire cost of the flat and that
the Ministry of Defence should now resolve his housing problem at its
own expense in full.
B. Alleged
interference by the authorities with
the applicant’s right of individual
petition
- By letters of 11 May, 5 June, 19 July 2007 the
applicant submitted that on 17 April 2007 he had been invited to the
Military Prosecutor’s Office for “explanations”.
- The
respondent Government submitted that this had been unrelated to the
proceedings before this Court, since the competent military
authorities had been under the impression that the applicant, an
active serviceman, evaded his work-related duties.
- In relation to those allegations, on 30 March 2007 an
investigator of the Tver Military Prosecutor’s office issued a
decision not to institute criminal proceedings.
- This decision was quashed on 28 May 2007 and,
following an additional investigation, the investigator again decided
not to institute criminal proceedings in this connection for the lack
of evidence of any crime.
C. Other
court proceedings brought by the applicant against various military
authorities and the Ministry of Defence
- The
applicant was also unsuccessful in three sets of court proceedings
against various military authorities and the Ministry of Defence,
which ended with final judgments dated 4 February, 4 March 2003 and
18 January 2005 respectively.
II. Relevant
domestic law
- According
to Articles 13, 209 and 338 of the Code of Civil Procedure
(Гражданский
процессуальный
кодекс
РСФСР),
in force at the material time, a court judgment, which has become
final, is binding and must be executed.
- Section
9 of the Law on Enforcement Proceedings of 21 July 1997
(Закон
об исполнительном
производстве)
provides that a bailiff’s order on the institution of
enforcement proceedings shall fix a time-limit for the defendant’s
voluntary compliance with the writ of execution. The time-limit
cannot exceed five days. The bailiff shall also warn the defendant
that coercive action will follow, should the defendant fail to comply
within the time-limit.
- Government’s Decree no. 168 dated 19 March 2002
defined a State housing certificate as an official document
confirming personal entitlement of a participant of the relevant
State programme to receive a social benefit in the form of a sum of
money from the Federal budget for the acquisition of a
residence/housing.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The applicant complained about the non-enforcement of
the court judgment of 20 January 2004 in his favour. He relied on
Article 6 of the Convention and Article 1 of Protocol No. 1, which,
in so far as relevant, provide 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
Government accepted that there had been a delay in the enforcement of
the judgment of 20 January 2004 in favour of the applicant, but
argued that the Convention provisions relied on had been
inapplicable, because the court judgment had ordered the authorities
merely to assist the applicant, as opposed to issuing him with the
certificate or the housing straight away. They also maintained that
the applicant had had an uncooperative attitude, which contributed to
the supplementary delays in the enforcement proceedings.
- The
applicant maintained his complaints and argued that the court
judgment had not been properly enforced, because the military
authorities ought to resolve his housing problem by buying him an
apartment in Moscow.
- As regards the Government’s objection, the Court
observes that the ruling of the court judgment dated 20 January 2004
consisted of two parts (see paragraph 7). Though it indeed appears
questionable whether an obligation to assist the applicant to be put
on the priority housing list could be viewed as affecting his “civil”
rights within the meaning of Article 6 of the Convention, let alone
as constituting his “possessions” in the sense of Article
1 of Protocol No. 1, the Court has little doubt that the second part
of the ruling which compelled the commander of military unit “to
prepare the relevant documents so that [the applicant] could
subsequently receive the State housing certificate for acquisition of
housing at the place of his choice” did affect his “civil”
rights and constituted his “possessions” within the
meaning of the Convention.
- The valid certificate would enable the applicant to
claim a monetary compensation from the State partly covering the cost
of acquiring the housing of his choice, which represented a clear and
immediate pecuniary interest to the applicant (see paragraph 23
above). As it is clear from the circumstances of the enforcement
proceedings, the ruling was understood and followed by the competent
authorities as imposing on them an obligation to secure the
availability of such a certificate to the applicant (see paragraphs
8-15). In such circumstances, the Court concludes that the court
judgment in question determined the applicant’s Article 6
“civil” rights and constituted his “possession”
within the meaning of Article 1 of Protocol No. 1. Accordingly,
the Court rejects the Government’s objection.
- The Court further notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
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 first notes that the judgment in the applicants’ favour
dated 20 January 2004 became final and binding on the date of its
adoption. It remained without enforcement until 15 November 2006,
which is the date on which the bailiffs established that the judgment
had been complied with and terminated the enforcement proceedings. It
follows that the judgment remained without enforcement for the period
of two years and ten months.
- The Court has found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in many cases
raising issues similar to the ones in the present case (see, among
other authorities, Burdov v. Russia, no. 59498/00, ECHR
2002-III; and, more recently, Petrushko v. Russia,
no. 36494/02, 24 February 2005, or Poznakhirina v. Russia,
no. 25964/02, 24 February 2005).
- Having
regard to its case-law on the subject, the Court finds that by
failing for such substantial period to comply with the enforceable
judgment in the applicant’s favour the domestic authorities
prevented him from receiving a State housing certificate which he was
entitled to receive under the final and binding judgment.
- There
has accordingly been a violation of Articles 6 § 1 of the
Convention and 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
so far as the applicant generally claimed that the military
authorities ought to resolve his housing problem by buying him an
apartment in Moscow instead of providing him with a State housing
certificate and also complained about the unsuccessful outcome of his
other court proceedings against various authorities and the Ministry
of Defence, the Court finds that these
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 should be rejected pursuant
to Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGATION OF HINDRANCE OF THE RIGHT OF INDIVIDUAL
PETITION UNDER ARTICLE 34 OF THE CONVENTION
- Lastly,
the applicant complained that the authorities had put pressure
on him in connection with proceedings before the Court by summoning
him to an interview with a military prosecutor on 17 April 2007. The
Court will examine this complaint under Article 34 of the
Convention, which provides as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government disagreed with the applicant and argued that the
applicant’s summons on 17 April 2007 had been totally unrelated
to the proceedings before the Court. According to them, the military
prosecution authorities had had reason to believe that the applicant
evaded his work-related duties and asked him to appear for an
interview on that date to determine the relevant circumstances in
more detail.
- The
applicant maintained his complaints.
- The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 that applicants or potential applicants should be
able to communicate freely with the Court without being subjected to
any form of pressure from the authorities to withdraw or modify their
complaints (see, among other authorities, Akdivar and Others v.
Turkey, 16 September 1996, § 105, Reports and
Judgments 1996 IV, and Aksoy v. Turkey, 18 December
1996, § 105, Reports 1996-VI). In this context,
“pressure” includes not only direct coercion and flagrant
acts of intimidation but also other improper indirect acts or
contacts designed to dissuade or discourage applicants from pursuing
a Convention remedy (see Kurt v. Turkey, 25 May 1998, §
159, 1998 III).
- Furthermore,
whether or not contacts between the authorities and an applicant are
tantamount to unacceptable practices from the standpoint of Article
34 must be determined in the light of the particular circumstances of
the case. In this respect, regard must be had to the vulnerability of
the complainant and his or her susceptibility to influence exerted by
the authorities (see Akdivar and Others and Kurt, both
cited above, § 105 and § 160 respectively).
- The
Court notes that from the materials in its possession it follows that
the applicant was contacted by the authorities on 17 April 2007 (see
paragraph 16). The Government explained, and in the absence of any
indication to the contrary the Court is satisfied with this
explanation, that the interview took place within the framework of a
criminal complaint lodged by the applicant’s former employer
(see paragraphs 18 and 19). From the case file it is clear that the
applicant ignored the summons and that the relevant complaint was
eventually rejected for lack of evidence of any crime without the
applicant being disturbed further in any other way. In such
circumstances, there is insufficient factual basis to enable the
Court to conclude that any undue pressure or any form of coercion was
put on the applicant as a result of the case before the Court.
- In
the light of the above facts and considerations, the Court finds that
a breach of the State’s obligation under Article 34 of the
Convention has not been established.
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.”
- The
applicant claimed 102,500 euros (EUR) in respect of the damage
suffered.
- The
Government considered that the claims had been excessive and
unsubstantiated.
- The
Court observes that the applicant must have suffered a certain degree
of stress and frustration as a result of the delayed enforcement of
the judgment at issue. The actual amount claimed is, however,
excessive. Making its assessment on an equitable basis, it awards the
applicant the sum of EUR 2,400 in respect of non-pecuniary
damage.
A. Costs and expenses
- The applicant did not seek reimbursement of his costs
and expenses incurred before the domestic authorities and the Court.
Accordingly, the Court does not make any award under this head.
B. 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 about the lengthy
non-enforcement of the judgment of 20 January 2004 admissible and the
remainder of the case inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 to the
Convention;
- Holds that there has been no breach of the
respondent Government’s obligation under Article 34 of the
Convention;
- 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 2,400 (two
thousand four hundred euros), in respect of non-pecuniary damage,
plus any tax that may be chargeable to the applicant, to be converted
into the 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 20 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić Registrar President
