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FIRST
SECTION
CASE OF SYPCHENKO v. RUSSIA
(Application
no. 38368/04)
JUDGMENT
STRASBOURG
1 March
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 Sypchenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 8 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38368/04) 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 Vladimir Vitalyevich
Sypchenko (“the applicant”), on 2 September 2004.
- The
applicant was represented by his daughter, Viktoriya Vladimirovna
Sypchenko. The Russian Government (“the Government”) were
represented by Mr P. Laptev, Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicant complained about the non-enforcement of the final judgment
in his favour and its subsequent amendment by way of supervisory
review and alleged a violation of his property rights.
- On
7 February 2006 the Court communicated the application to the
respondent 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 1955 and lives in Bataysk in the Rostov Region.
I. THE CIRCUMSTANCES OF THE CASE
- In
2004 the applicant sued the Bataysk Town Administration for provision
of housing. He had by this time for several years suffered from a
grave form of infectious tuberculosis and was entitled to housing
according to the relevant provisions of the domestic law.
- On
19 November 2004 the Batayskiy City Court allowed the applicant's
claim and ordered the town administration:
“...to grant Mr. Sypchenko, whose family comprises
five members, well-equipped housing according to the
sanitary-technical requirements, with a living surface of no less
than 70 square meters and a total surface of no less than 90 square
meters”.
- On
9 February 2005 the judgment was upheld on appeal by the Rostov
Regional Court, and entered into force. The decision was to be
implemented by way of providing the applicant with an occupancy
voucher (ордер
на жилое
помещение)
from the local municipal authority. The voucher served as the legal
basis for taking possession of the flat designated therein and for
the signing of a tenancy agreement between the landlord, the tenant
and the housing maintenance authority.
- On
9 March 2005 the enforcement proceedings were opened. However,
the judgment could not be enforced because the town administration
allegedly possessed no available housing of the indicated size or
financial resources to purchase it.
- Following
the Town Administration's request to review the case by way of
supervisory review due to the impossibility to enforce it, on
28 March 2005 the Rostov Regional Court decided to obtain the
case-file from the Batayskiy City Court and to stay the enforcement
proceedings until its examination by way of supervisory review.
- On
17 June 2005 the Rostov Regional Court granted the request for
supervisory review lodged by the Mayor of Bataysk and remitted the
matter for examination on the merits to the Presidium of the Rostov
Regional Court.
- On 7 July 2005 the Presidium of the Rostov Regional
Court amended the judgment of 19 November 2004 as upheld on 9
February 2005. It found that the previous instances had misapplied
certain provisions relating to the rules for calculating the living
surface and thus awarded the applicant the maximum possible surface
per person (12m² per person) instead of applying the minimum
standard (9m² per person) without giving any reasons. The
Presidium of the Rostov Regional Court ordered the Town
Administration:
“...to grant [the applicant] ... housing... with
the living space of no less than 45 square meters”.
- On
18 October 2005 the Mayor of Bataysk issued an order which granted
the applicant a social tenancy voucher for a three room flat with a
living surface of 50.5 square meters. The applicant contested the
order in court, expressing general discontent with the flat. On 15
March 2006 the Rostov Regional Court in final instance dismissed the
applicant's complaint.
- On
5 June 2005 the Batayskiy City Court obliged the applicant to sign
the social tenancy agreement for the awarded flat. The applicant,
however, refused to sign the agreement.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Right to a “social tenancy” and to
additional living space for certain categories of individuals
- The
RSFSR Housing Code (Law of 24 June 1983, effective until 1 March
2005) provided that Russian citizens were entitled to possess flats
owned by the State or municipal authorities or other public bodies,
under the terms of a tenancy agreement (section 10). Certain
“protected” categories of individuals (disabled persons,
war veterans, Chernobyl victims, police officers, judges, etc.) had a
right to priority treatment in the allocation of flats.
-
Flats were granted for permanent use (section 10).
- Section 14 § 5 of the Law on the Prevention of
Spread of Tuberculosis in the Russian Federation (Law no.77-FZ of 18
June 2001) provides that those suffering from infectious
tuberculosis who do not have a separate living space but share
it with other tenants (family members), shall be provided with such
by a local authority within one year from the date of
lodging their application.
B. Code of Civil Procedure of the Russian Federation
- A judicial decision becomes legally binding after the
appeal court has examined the matter (Article 209 § 1). A
judicial decision must be enforced once it became legally binding,
unless the law provides for its immediate enforcement (Article 210).
- The
relevant provisions governing the supervisory-review proceedings read
as follows:
Article 13. Binding force of judicial decisions
“1. Courts may issue judicial decisions
in the form of judicial orders, judgments and interim decisions...”
Article 376. Right to apply to a court exercising
supervisory review
“1. Judicial decisions that have become
legally binding, with the exception for judicial decisions by the
Presidium of the Supreme Court of the Russian Federation, may be
appealed against... to a court exercising supervisory review, by
parties to the case and by other persons whose rights or legal
interests have been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against
to a court exercising supervisory review within one year after they
became legally binding...”
Article 378. Contents of an application
for supervisory review
“An application for supervisory review must
contain:
(1) the name of the court to which it is
addressed;
...
(4) a reference to the first-instance, appeal
or cassation courts that examined the case and a summary of their
decisions;
(5) a reference to the judgment or decision
which is being appealed against...”
Article 381. Examination of an application for
supervisory review
“2. Having examined an application for supervisory
review, the judge issues an interim decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the
arguments in the application for supervisory review may not, in
accordance with the federal law, result in quashing of the judicial
decision.
...
6. The President of the regional Supreme
Court... may disagree with the judge's decision refusing to obtain
the case file. In such case the President issues his own decision on
obtaining the case file.”
Article 382. Examination of case files obtained
by the supervisory-review court
“2. Having examined the case file
obtained by the supervisory-review court, the judge issues an interim
decision on –
– refusing to remit the case for examination on
the merits by the supervisory-review court;
– remitting the case for examination of the
application for supervisory review on the merits by the
supervisory-review court.”
Article 383. Interim decision refusing to
remit the case for examination on the merits by the
supervisory-review court
“2. The President of the regional
Supreme Court... may disagree with the judge's decision refusing to
remit the case for examination on the merits by the
supervisory-review court. In such case the President issues his own
decision on remitting the case for examination on the merits by the
supervisory-review court.”
Article 384. Decision on remitting the case for
examination on the merits
by a supervisory-review court
“1. A judicial decision on remitting
the case for examination on the merits by a supervisory-review court
must contain:
(7) a reasoned description of the grounds for
remitting the case for examination on the merits...”
Article 387. Grounds for quashing or altering
judicial decisions
by way of supervisory review
“Judicial decisions of lower courts may be quashed
or altered by way of supervisory review on the grounds of substantial
violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review
court
“1. Having examined the case by way of
supervisory review, the court may
...
(5) quash or alter the judicial decision
issued by a court of first, second or supervisory-review instance and
issue a new judicial decision, without remitting the matter for a
fresh examination, if substantive legal provisions have been
erroneously applied or interpreted.”
C. Enforcement Proceedings Act (Law of 21 July 1997)
- Once
instituted, enforcement proceedings must be completed within two
months upon receipt of the writ of execution by the bailiff
(Section 13).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE
AMENDMENT OF THE JUDGMENT IN THE APPLICANT'S FAVOUR
- The
Court will firstly examine the applicant's complaint concerning the
amendment of the final judgment by way of supervisory-review
proceedings. The applicant complained that the review and the
amendment of the final judgment had violated his “right to a
court” under Article 6 § 1 of the
Convention and the right to the peaceful enjoyment of possessions
under Article 1 of Protocol No. 1. 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 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 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
1. Alleged violation of Article 6 of the Convention
- The
Government submitted that the amendment of the judgment of
19 November 2004 occurred on the initiative of a party to the
proceedings whose property rights and legitimate interests had been
violated as a result of a breach of the provisions of the domestic
law by the first-instance and appeal courts. In those circumstances,
the Presidium of the Rostov Regional Court had been competent,
pursuant to Article 390 § 5 of the Code of Civil Procedure,
to amend the erroneous judgment. The Government invited the Court to
find that there had been no violation of the applicant's rights under
Article 6 § 1 of the Convention.
- The
applicant maintained his complaint.
- The
Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which
declares, in its relevant part, the rule of law to be part of the
common heritage of the Contracting States. One of the fundamental
aspects of the rule of law is the principle of legal certainty, which
requires, among other things, that where the courts have finally
determined an issue, their ruling should not be called into question
(see Brumărescu v. Romania, judgment of 28 October
1999, Reports of Judgments and Decisions 1999-VII, § 61).
- This
principle insists that no party is entitled to seek re-opening of the
proceedings merely for the purpose of a rehearing and a fresh
decision of the case. Higher courts' power to quash or alter binding
and enforceable judicial decisions should be exercised for correction
of fundamental defects. The mere possibility of two views on the
subject is not a ground for re-examination. Departures from that
principle are justified only when made necessary by circumstances of
a substantial and compelling character (see, mutatis mutandis,
Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X; and
Pravednaya v. Russia, no. 69529/01,
§ 25, 18 November 2004).
27. The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal. In this way it embodies the
“right to a court”, of which the right of access, that is
the right to institute proceedings before courts in civil matters,
constitutes one aspect. However, that right would be illusory if a
Contracting State's domestic legal system allowed a final and binding
judicial decision to be quashed by a higher court on an application
made by a State official whose power to lodge such an
application is not subject to any time-limit, with the result that
the judgments were liable to challenge indefinitely (see Ryabykh,
cited above, §§ 54-56).
- In
the present case the judgment of 19 November 2004, as upheld on
9 February 2005, was amended to the applicant's detriment by way of a
supervisory review on the ground that the first-instance and appeal
courts had incorrectly applied the substantive law. The Court has to
assess whether the power to conduct a supervisory review was
exercised by the authorities so as to strike, to the maximum extent
possible, a fair balance between the interests of the individual and
the need to ensure the proper administration of justice (see, among
other authorities, Nikitin v. Russia, no. 50178/99,
§§ 57-59, ECHR 2004 VIII).
- It
is unavoidable that in civil proceedings the parties would have
conflicting views on application of the substantive law. The courts
are called upon to examine their arguments in a fair and adversarial
manner and make their assessment of the claim. The Court observes
that before an application for supervisory review was lodged, the
merits of the applicant's claim had been examined by the
first-instance and the appeal courts. It has not been claimed that
the courts acted outside their competences or that there was a
fundamental defect in the proceedings before them. The fact that the
Presidium disagreed with the assessment made by the first-instance
and appeal courts was not, in itself, an exceptional circumstance
warranting the amendment of a binding and enforceable judgment and
re-opening of the proceedings on the applicant's claim. Moreover, it
appears that by amending the judgment of 19 December 2004, the
Presidium took into consideration the respondent's argument
concerning the impossibility to enforce it rather than its arguments
on the points of facts and law.
- The
Court has previously found a violation of the principle of legal
certainty and an applicant's “right to a court”
guaranteed by Article 6 § 1 of the Convention in many cases in
which a judicial decision that had become final and binding, was
subsequently quashed by a higher court (see, among other authorities,
Ryabykh, cited above, §§ 51–56;
Volkova v. Russia, no. 48758/99,
§§ 34-36, 5 April 2005; Roseltrans v. Russia,
no. 60974/00, §§ 27-28, 21 July 2005;
Kutepov and Anikeyenko v. Russia, no. 68029/01, §§
49-52, 25 October 2005). The Government did not put forward any
arguments which would enable the Court to reach a different
conclusion in the present case.
- Having
regard to these considerations, the Court finds that, by granting the
respondent's request to amend the judgment of 19 November 2004, as
upheld on appeal on 9 February 2005, the Presidium of the Rostov
Regional Court infringed the principle of legal certainty and the
applicant's “right to a court” under Article 6 § 1
of the Convention. There has accordingly been a violation of that
Article.
2. Alleged violation of Article 1 of Protocol no.
1
- The
Government claimed that there had been no violation of the
applicant's property rights because the judgment had been legally
enforceable for 1 month, 16 days only, that is from the date it
became final on 9 February 2005 until the enforcement had been
stayed, by a President's decision, on 28 March 2005. Finally, they
pointed out that the applicant was finally provided with a flat in
accordance with the amendments to the judgment of 7 July 2005.
- The
Court reiterates that the existence of an obligation confirmed by a
binding and enforceable judgment furnishes the judgment beneficiary
with a “legitimate expectation” that the obligation will
be honoured and constitutes the beneficiary's “possessions”
within the meaning of Article 1 of Protocol No. 1. Quashing
or amendment of such a judgment amounts to an interference with his
or her right to peaceful enjoyment of possessions (see, among other
authorities, Brumărescu, cited above, § 74; and
Androsov v. Russia, no. 63973/00, § 69,
6 October 2005).
- The
Court observes that the domestic court awarded the applicant a flat
with a living surface of no less than 70 square meters and total
surface no less than 90 square meters. After the amendments
introduced to the judgment by the Presidium of the Rostov Regional
Court the living surface of the flat was to be no less than 45 square
meters. The living surface in the flat which was later offered to the
applicant was 50.5 square meters. The amendment of the enforceable
judgment thus frustrated the applicant's reliance on a binding
judicial decision and deprived him of an opportunity to receive a
flat of a size and standard he had legitimately expected to receive.
- In
these circumstances, the Court considers that the amendment of the
judgment of 19 November 2004, as upheld on appeal on 9 February 2005,
by way of supervisory review placed an excessive burden on the
applicant and was therefore incompatible with Article 1 of
Protocol no. 1. There has therefore been a violation of
that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF
NON-ENFORCEMENT OF THE FINAL JUDGMENT
- The
applicant complained that the non-enforcement of the judgment of 19
November 2004, as upheld on appeal on 9 February 2005, violated his
rights under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1, both cited above.
A. Admissibility
- The
Government claimed that the application should be declared
inadmissible in accordance with Article 35 § 4 of the Convention
because the judgment in the applicants' favour had been amended and
enforced on 18 October 2005.
- The
Court observes that the issue to be examined is whether the judgment
in the applicant's favour was enforced within a “reasonable
time”. Accordingly, it is necessary to ascertain that the
judgment was “enforceable”. In the instant case, once the
Rostov Regional Court on 9 February 2005 had dismissed the appeal
against the judgment of 19 December 2004, in accordance with the
Code of Civil Procedure the judgment became legally binding and
enforceable. From that moment on, it was incumbent on the debtor, the
Town Administration, to comply with it. Enforcement proceedings were
initiated. The launching of the supervisory-review procedure could
not, in itself, extinguish the debtor's obligation to comply with the
enforceable judgment which obligation existed at least until 7 July
2005 when the judgment was amended by way of supervisory review.
- It
follows that at least from 9 February 2005 to 7 July 2005 the
judgment in the applicant's favour was “enforceable” and
it was incumbent on the State agency to abide by its terms. The Court
reiterates that the quashing or amendment of a judgment in a manner
which has been found to have been incompatible with the principle of
legal certainty and the applicant's “right to a court”
cannot be accepted as justification for the failure to enforce that
judgment (see Sukhobokov v. Russia, no. 75470/01, § 26,
13 April 2006). Accordingly, the Government's objection must be
dismissed.
- The Court notes that the 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
Government claimed that the judgment of 19 November 2004, as amended
on 7 July 2005, was enforced.
- The
applicant maintained his claims.
- The Court observes that the judgment of 19 November
2004 became enforceable on 9 February 2005. From that day on and at
least until 7 July 2005 when it was amended by the Presidium of the
Rostov Regional Court, it was incumbent on the Town Administration to
comply with it, but it failed to do so. In fact, the judgment has
never been enforced.
- 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, e.g., Burdov
v. Russia, no. 59498/00, ECHR 2002-III; and, more recently,
Poznakhirina v. Russia, no. 25964/02, 24 February 2005;
Wasserman v. Russia (no. 1), no. 15021/02, 18 November
2004).
- Having examined the material submitted to it, the
Court considers that the Government did not advance any acceptable
justification for the failure to enforce the original judgment.
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 receiving the flat of a size and standard which
the applicant was entitled to receive (see Teteriny v. Russia,
no. 11931/03, 30 June 2005). Accordingly, there has been a
violation of Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 on account of non-enforcement of the judgment of 19
December 2004, as upheld on 9 February 2005.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 2, 3, 6 § 1 and
Article 1 of Protocol no.1 that his life and the life of his
relatives are in danger due to the authorities' failure to execute
the judgment; that he was deprived of the opportunity to privatise
the flat to which he became entitled through the judgment of 19
December 2004; that the refusal to initiate criminal proceedings
against the Town Mayor was unlawful and that the proceedings
concerning his request for acknowledgment of the “breach of his
rights and freedoms” were unfair.
- Having
regard to all the material in its possession, and insofar as these
complaints come within the Court's competence, it 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 must be rejected 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
applicant claimed 60,507 euros (EUR) in respect of pecuniary damage
(equivalent to the flat's value) and EUR 65,000 in respect of
non-pecuniary damage in connection with his suffering and
deterioration of his health.
- The
Government considered that no pecuniary damage should be awarded
because the judgment had been enforced, and that the claim for
non-pecuniary damage was excessive and not justified.
- The
Court recalls that in the instant case it found violations of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1, in that the final judicial decision in the applicant's favour
had remained unenforced and had been subsequently amended. The
applicant was thereby prevented from receiving the flat he had
legitimately expected to receive. Accordingly, the Court considers
that the applicant is still entitled to
receive a flat of a size and standard provided by the judgment of 19
November 2004, as upheld on appeal on 9 February 2005. The Court
recalls 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 had the
requirements of Article 6 not been disregarded (see Piersack
v. Belgium (Article 50), judgment of 26 October 1984,
Series A no. 85, p. 16, § 12, and, mutatis
mutandis, Gençel v. Turkey, no. 53431/99,
§ 27, 23 October 2003). 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 shall
secure, by appropriate means, the enforcement of the judgment of 19
November 2004, as upheld on appeal on 9 February 2005.
- The
Court further considers that the applicant suffered distress and
frustration resulting from the non-enforcement of the final judgment
and its amendment by way of supervisory-review proceedings. However,
the particular amount claimed is excessive. Making its assessment on
an equitable basis, the Court awards the applicant EUR 1,500 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on this amount.
B. Costs and expenses
- The
applicant did not claim costs or expenses and there is accordingly no
call to make an 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 concerning the
non-enforcement of the final judgment in the applicant's favour and
its amendment by way of supervisory review 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 on account of the
amendment of the judgment of 19 November 2004, as upheld on appeal on
9 February 2005, by way of supervisory review;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
non-enforcement of the judgment of 19 November 2004, as upheld on
appeal on 9 February 2005;
- Holds
(a)
that the respondent State shall secure, by appropriate means, the
enforcement of the judgment of 19 November 2004, as upheld on appeal
on 9 February 2005, and 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 1,500 (one thousand five
hundred euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of the
settlement, plus any tax that may be chargeable;
(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 1 March 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
