LVIN v. RUSSIA - 43301/07 (Judgment : Article 6 - Right to a fair trial : Third Section Committee) [2018] ECHR 981 (04 December 2018)

In the case of Lvin v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 43301/07) 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 Mikhail Yevgenyevich Lvin ("the applicant"), on 6 September 2007.

2. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. In the wake of the pilot judgment in the case of Gerasimov and Others v. Russia , on 24 November 2014 the application was communicated to the Government for settlement or resolution (see Gerasimov and Others v. Russia , nos. 29920/05and 10 others, §§ 230-31 and point 13 of the operative part, 1 July 2014). The Court adjourned for two years, that is until 1 October 2016, the proceedings in all cases concerning non-enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State authorities (ibid., § 232 and point 14 of the operative part). The remainder of the present application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. On 29 September 2016 the Government advised the Court that they were unable to settle the present application within the above time-limit, as the domestic judgment in the applicant's favour had remained unenforced.

5. Having regard to the expiry of the above-mentioned adjournment period, the Court has decided to resume the examination of the application. The Court informed the parties at the communication stage that the case, subject to settled case-law, would be allocated to the Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1950 and lives in Znamensk.

A. Judgment in the applicant's favour against the Moscow housing commission

7 . The applicant is a former military officer. He performed his military service and lived with his family in Znamensk, a closed administrative unit ( закрытое административно-территориальное образование ) of the Astrakhan Region. Since 1975 he was registered at the place of residence at 71 the 9 th May avenue, apartment 18, in Znamensk. In 1998 he was dismissed from military service and registered as a person in need of housing in the city of his choosing, Moscow.

8. In 2002 the applicant's family of two was included in the list of persons entitled to the receipt of a housing certificate. In 2004 a domestic court declared the applicant's son, his wife and their son (the applicant's grand-son) the applicant's family members. The applicant requested the housing authority to modify its earlier decision to include the above persons into the list of family members entitled to the Housing certificate. In 2006 the City Inter-Departmental Commission Responsible for the State Housing Certificates Program of the Department of the Housing Policy and Housing Fund of Moscow (the Moscow housing commission) rejected his request and annulled its decision of 2002, referring to a change of legislation concerning the financing of the resettlement from closed administrative units. The applicant challenged the refusal in court.

9 . On 9 April 2007 the Znamensk Town Court of the Astrakhan Region granted his claim, having found the reference to the legislative changes inapplicable to the applicant's case. The court confirmed the applicant's and his four family members' right to housing provision in the form of the housing certificate, to be performed at the expense of the federal budget and at the place of the claimants' registration as persons in need of housing. The court ordered the Moscow housing commission to include the applicant's family of five in an "order list" ( список-заявка ) for receipt of a State housing certificate. The judgment became final on 20 April 2007. It appears that the debtor authority's representatives were not present at the hearing and asked to examine the case in their absence, on the basis of their written submissions.

10 . According to the letter of 4 July 2017 by the Znamensk Town Court, on 6 June 2007 the court sent a copy of the judgment to the respondent authority by fax and mail. The court registry kept the transmission record stating that the fax passed "normally". The court file contained no further documents evidencing the receipt of the judgment by the respondent.

11. On 10 February 2011 the Department of the Housing Policy and the Housing Fund of Moscow conducted a campaign for re-registration of persons in need of housing and sent the applicant a letter setting out a list of eleven documents to be provided, including, among others, a duly certified copy the decision to dismiss the applicant stating the reasons for the dismissal, as well as documents confirming his title to the flat in Znamensk.

12 . According to the applicant, on 26 March 2011 he sent the requisite documents to the authority by mail. He submitted a copy of the request of 10 February 2011 and the postal receipt dated 26 March 2011 and containing the requesting authority's address in the "destination" part, in support of his submissions.

13 . On 5 May 2015 the City Property Department of the Government of Moscow informed the Representative of the Russian Federation to the Court that at some point they had examined the applicant's unspecified application concerning the housing issue. The authority established that a number of documents were missing from the applicant's, namely, a duly certified copy of the decision to dismiss the applicant stating the reasons for the dismissal, as well as documents confirming his title to the flat in Znamensk, and invited the applicant to provide the documents. The applicant's address specified in the letter read as follows: 71 the 9 th May avenue, apartment 118. Despite several reminders, the applicant had failed to provide the requisite documents. Accordingly, on 3 July 2012 the Department of Housing Policy and Housing Fund of Moscow had decided to strike the applicant's family off the lists of persons in need of housing. There had been no grounds to provide them with housing. The authority had not received a copy of the judgment of 9 April 2007 for execution.

14 . According to the letter of 22 August 2016 by the Department of the Housing Policy and the Housing Fund of Moscow to the Representative of the Russian Federation to the Court, the authority has not received a copy of the judgment of 9 April 2007, and the applicant had not applied "with documents" for a housing certificate. The authority further stated that, pursuant to a Decree of the Moscow Government of 14 February 2012 No. 43-ПП On Housing Provision to Some Categories of Citizens, as of that date the provision of housing certificates had been ensured by the Housing Provision Department of the Ministry of Defence.

B. Social tenancy agreement in respect of a flat in Znamensk

15. On 1 November 2011 the administration of the closed administrative unit Znamensk of the Astrakhan Region concluded a social tenancy agreement with the applicant in respect of the three-room flat in Znamensk (see paragraph 7 above). The agreement stipulated that five applicant's family members, namely, his son, his daughter, his son's wife and their two children moved into the flat together with the applicant.

16. In 2016 the applicant's son divorced from his wife. The two children remained with her. On 6 February 2017 a domestic court granted the applicant's request to discontinue the son's ex-wife and their children's use of the flat. On 20 June 2017 the social-tenancy agreement of 1 November 2011 was amended to specify that the three family members (the applicant's wife, son and daughter) moved into the flat together with the applicant.

II. RELEVANT DOMESTIC LAW

17. Article 214 of the Code of Civil Procedure, as in force at the material time, provided that copies of a court decision were to be sent to the parties not attending the hearing not later than five days after the delivery of the court's decision in the final form.

18. Relevant provisions of the Compensation Act as in force before 1 January 2017 and applicable to cases of non-enforcement of the domestic judgment imposing monetary obligations on State authorities are summarised in Nagovitsyn and Nalgiyev v. Russia (nos. 27451/09and 60650/09, §§ 15-20, 23 September 2010). Relevant provisions of the Federal Law No. 450-FZ amending the Compensation Act of 2010, in force as of 1 January 2017 and extending the scope of the Compensation Act to cases of excessive delays in the enforcement of court judgments ordering the domestic authorities to fulfil various obligations in kind are summarised in Shtolts and Others v. Russia (dec.) (nos. 77056/14and 2 others, §§ 31-�41, 30 January 2018).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

19. The applicant complained about the non-enforcement of the judgment of 9 April 2007 in his favour referring to Article 6 of the Convention and Article 1 of Protocol No.1 to the Convention, which read as follows:

Article 6

"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."

20 . The Government initially submitted that the judgment in the applicant's favour had remained unenforced. They acknowledged their obligations under the Gerasimov and Others pilot judgment (cited above) and stated that they would deploy all means to enforce the judgments which had remained without execution or resolve the issues by any appropriate means. In their further observations they submitted that the applicant had failed to send the judgment to the debtor, had not applied for the housing certificate and had not produced documents requested from him by the Housing Department of Moscow, despite repeated notifications. They noted that the Department had not received a copy of the judgment and that the applicant had not applied for a writ of execution in respect of the judgment in his favour.

21. The applicant maintained his complaint. He argued that the domestic court had duly sent the copy of the judgment to the debtor. He had submitted the requisite documents, such as a dismissal decision and documents concerning his flat in Znamensk, on at least two occasions, in 1998 and 2002. On the basis of those documents, in 2002 the file concerning his placement on the list of persons in need of housing had been formed. As regards the numerous notifications allegedly sent to him, he noted that both the letter of 5 May 2015 (see paragraph 13 above) and the Government's respective submissions contained an error in the flat number, "118" instead of "18". He concluded that the notifications must have been sent by the authorities to a non-existent address in Znamensk. He only received one request to provide documents, sent to his correct address on 10 February 2011, and submitted his reply together with the requisite documents on 26 March 2011, that is without an undue delay. Accordingly, the decision to exclude the applicant from the list of persons in need of housing had been groundless.

A. Admissibility

22. The Court notes the Government's submission that the debtor authority did not receive a copy of the judgment, as well as their argument that the applicant had not applied for a writ of execution in respect of the judgment in his favour and had not provided requisite documents despite several "notifications".

23. In so far as the Government may be understood to argue that the applicant's behaviour was uncooperative and constituted an obstacle to timely enforcement of a judgment, the Court reiterates its constant position that a person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece , no. 8415/02, § 19, 27 May 2004). In such cases, the defendant State authority must be duly notiﬁed of the judgment and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for execution (see Akashev v. Russia , no. 30616/05, § 21, 12 June 2008, and Burdov v. Russia (no. 2) , no. 33509/04, § 68, ECHR 2009). Consequently, the burden to ensure compliance with a judgment against the State lies primarily with the State authorities starting from the date on which the judgment becomes binding and enforceable (see Burdov , cited above, § 69).

24 . Turning first to the Government's submission that the debtor authority had not received a copy of the judgment, the Court finds it at least surprising that the defendant authority which participated in the housing proceedings and made detailed written submissions but chose not to participate in the hearing of 9 April 2007 had subsequently displayed no interest in the outcome of the proceedings. In any event, the Court notes from a certificate of 4 July 2017 by the Znamensk Town Court that on 6 June 2007 the court duly sent a copy of the final judgment by fax and mail to the debtor authority, and the fax transmission was recorded as successful by the court's registry (see paragraph 10 above). In the absence of any further comments or clarifications from the Government, the Court concludes that the defendant State authority was duly notiﬁed of the judgment and was thus well placed to take all necessary initiatives to comply with it (see Akashev , cited above, § 21).

25. Further, in the above circumstances there is no reason to depart from the Court's constant position that the applicant was not expected to bring separate enforcement proceedings (see Metaxas , cited above).

26. Finally, as regards the applicant's alleged failure to produce documents, the Court has accepted that a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt, be it during a voluntary execution of a judgment by the State or during its enforcement by compulsory means (see Shvedov v. Russia , no. 69306/01, §§ 29-�37, 20 October 2005). Accordingly, it is not unreasonable that the authorities request the applicant to produce additional documents, such as bank details, to allow or speed up the execution of a judgment (see, mutatis mutandis, Kosmidis and Kosmidou v. Greece, no. 32141/04, § 24, 8 November 2007). The requirement of the creditor's cooperation must not, however, go beyond what is strictly necessary and, in any event, does not relieve the authorities of their obligation under the Convention to take timely action of their own motion, on the basis of the information available to them, with a view to honouring the judgment against the State (see Burdov , cited above, § 69).

27. First, it is unclear whether the requests (notifications) were sent to the applicant in the context of the enforcement of the judgment of which, in the Government's submission, the debtor authority had been unaware. In any event, the Court notes that the Government did not submit copies of the respective notifications and did not provide details as to their contents or dates. The Court also notes the applicant's observation concerning a possible error in his postal address contained in the housing authority's submissions (see paragraph 13 above). In any event, the Court is only in possession of one request dated February 2011 sent to the applicant's correct address. In the absence of any evidence to the contrary, the Court accepts the applicant's argument that he had sent the required documents to the requesting authority on 26 March 2011, as supported by a copy of the postal receipt (see paragraph 12 above). The Court concludes that the applicant provided the requisite information without an undue delay (see, by way of contrast, Gadzhikhanov and Saukov v. Russia , nos. 10511/08and 5866/09, § 28, 31 January 2012).

28 . The Court therefore concludes that the applicant complied with the minimal requirement of cooperation (contrast see, by way of contrast, Gadzhikhanov and Saukov , cited above, §§ 21-30) and dismisses the objection to this effect.

29. The Court further notes that this complaint 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

30. The Court notes that the final judgment of 9 April 2007 in the applicant's favour has not been enforced to date, that is for more than ten years. According to the Court's case-�law, such delay is prima facie incompatible with the requirements of the Convention (see, among others, Gerasimov and Others , cited above, § 171, and Kozodoyev and Others v. Russia , nos. 2701/04and 4 others, § 11, 15 January 2009).

31. 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, among many others, Gerasimov and Others , cited above, §§ 171-74, with further references).

32. 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. In particular, in so far as they may be understood to argue that the non-�enforcement was due to the applicant's conduct, the Court has already rejected this argument (see paragraphs 24-28 above). In any event, in so far as the applicant's failure to provide documents could be concerned, it appears that the only request for such documents in the Court's possession was sent to the applicant in 2011, that is more than three years after the judgment's entry into force.

33. The Court finds that by failing, for a significant period of time, to comply with the enforceable judgment in the applicant's favour the domestic authorities impaired the essence of his right to a court, and that such failure constituted an unjustified interference with the applicant's right to peaceful enjoyment of possessions.

34. There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in the present case on account of the non-enforcement of the domestic judgment of 9 April 2007 in the applicant's favour.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

35. The applicant may be understood to complain about the lack of an effective domestic remedy in respect of the non-enforcement. Relevant Convention provision reads as follows:

Article 13

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

36. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment by Federal Law No. 450-FZ amending the Compensation Act of 2010. That statute, which entered into force on 1 January 2017, enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments ordering the domestic authorities to fulfil various obligations in kind (see Kamneva and Others v. Russia (dec.), nos. 35555/05and 6 others, 2 May 2017). The Court has found that the amended Compensation Act in principle meets the criteria set out in the Gerasimov and Others pilot judgment and provides the applicants with a potentially effective remedy for their non-enforcement complaint (see Shtolts and Others , cited above, §§ 87-116 and 123).

37. Even though the remedy was - and still is - available to the applicant, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others , cited above, § 230).

38. However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicant's complaint under Article 13 in the present case (see, mutatis mutandis , Korotyayeva and Others , nos. 13122/11and 2 others, § 40, 18 July 2017, and Tkhyegepso and Others v. Russia, nos. 44387/04and 11 others, §§ 21-24, 25 October 2011).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. 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

40. The applicant claimed 500,000 Russian roubles, that is approximately 7,278 euros (EUR) as converted into euros at the rate applicable on the date of the submission of the observations, in respect of non-pecuniary damage. He also insisted that the Government were under an obligation to provide him with housing in Moscow free of charge, in accordance with the domestic law, and submitted that he and his wife, old-�age pensioners of fragile health, did not have time and physical strength to undergo the procedure for the implementation of the housing certificate. He noted in this respect that since 2007 his health had deteriorated and he had acquired a right to additional housing on account of his second-degree disability.

41. The Government disputed the claims as excessive and unfounded.

42. The Court notes that it has found a violation of the Convention on account of the non-enforcement of the judicial award as specified in the operative part of the final judgment of 9 April 2007. Accordingly, any outstanding aspects of the applicant's right to housing, including the evolution of his personal situation and any subsequent entitlement to additional housing, fall outside the scope of the present case. The Court further observes that the judgment in the applicant's favour has not been enforced and also notes the Government's acknowledgment of their obligations under the Gerasimov and Others pilot judgment and their intention to deploy all means to enforce the judgment which had remained without execution or resolve the issue by any appropriate means (see paragraph 20 above). Indeed, in so far as the judgment of 9 April 2007 remains in force, 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 he would have been in had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). Having regard to the violation found, the Court finds that in the present case this principle applies as well. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment of 9 April 2007.

43. In this connection, the Court points out that its judgments are essentially declaratory in nature. In general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention (see Shofman v. Russia , no. 74826/01, § 53, 24 November 2005, with further references). By finding a violation of Article 6 § 1 and Article 1 of Protocol No. 1 in the present case, the Court has established the Government's obligation to take appropriate measures to remedy the applicant's individual situation, that is to ensure compliance with the applicant's enforceable claim under the judgment of 9 April 2007 (see, for instance, Humbatov v. Azerbaijan , no. 13652/06, § 38, 3 December 2009, with further references). The decision on appropriate measures to enforce the judicial award, or, if this proves impossible, granting the applicant reasonable compensation, or a combination of these and other measures, falls to the respondent State (see, mutandis mutadis , Tarverdiyev v. Azerbaijan , no. 33343/03, § 66, 26 July 2007). The Court, however, emphasises that any measures adopted must be compatible with the conclusions set out in the Court's judgment (see Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II, with further references).

44. The Court further awards the applicant EUR 6,000 in respect of non-�pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his claims for just satisfaction.

B. Costs and expenses

45. The applicant did not make a claim in respect of costs and expenses. Accordingly, there is no call to make an award under this head.

C. Default interest

46. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the judgment of 9 April 2007 admissible;

2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-�enforcement of the judgment of 9 April 2007;

3. Holds that there is no need to examine the admissibility and merits of the complaint under Article 13 of the Convention;

4. Holds that the respondent State must secure without delay and by appropriate means the enforcement of the domestic judgment of 9 April 2007 in the applicant's favour;

5. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 4 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Branko Lubarda
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LVIN v. RUSSIA - 43301/07 (Judgment : Article 6 - Right to a fair trial : Third Section Committee) [2018] ECHR 981 (04 December 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/981.html Cite as: [2018] ECHR 981, ECLI:CE:ECHR:2018:1204JUD004330107, CE:ECHR:2018:1204JUD004330107