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FIRST
SECTION
CASE OF LYKOV v. RUSSIA
(Application
no. 18557/06)
JUDGMENT
STRASBOURG
12 July
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 Lykov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
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 21 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18557/06) 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 Petrovich Lykov
(“the applicant”), on 15 March 2006.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their new Representative, Mrs V. Milinchuk.
- On
22 June 2006 the Court decided to give notice of the application 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 1949 and lives in Kostroma.
- On
11 May 2004 the Sverdlovskiy District Court of Kostroma upheld the
applicant's action against the Kostroma Town Council and ordered that
the Council should:
“...provide Mr Lykov Mikhail Petrovich and his
family members - a wife, Ms Lykova Olga
Aleksandrovna, a son, Mr Lykov Sergey Mikhailovich and Ms Shelepo
Tatiana Pavlovna, with well-equipped living premises that meet
sanitary and technical requirements, taking into consideration the
right to an additional living surface of one separate room”.
- The
judgment was upheld on appeal by the Kostroma Regional Court on 21
July 2004.
- On
20 August 2004 enforcement proceedings were instituted. The judgment
remained unenforced because the Council had no available housing or
financial resources to purchase a flat.
- The
Kostroma Regional Administration asked the Federal Treasury to
provide it with financial resources for purchasing a flat measuring
82 square metres to which the applicant and his family members were
entitled under the judgment of 11 May 2004. In December 2004 a sum of
738,000 Russian roubles was credited to an account of the Regional
Administration. Having regard to the average market property price in
the town of Kostroma, in 2005 the Regional Administration was only
able to purchase a flat measuring 57.3 square metres. The
applicant was offered that flat, but he refused to accept it because
he was entitled to a bigger flat under the judgment of 11 May 2004.
- In
January 2006 the applicant's mother-in-law, Ms Shelepo, died.
Bailiffs asked the Sverdlovskiy District Court to clarify its
judgment of 11 May 2004, having regard to Ms Shelepo's death. On
14 August 2006 the Sverdlovsk Regional Court dismissed the request.
- On
21 August 2006 the bailiffs offered the applicant the same flat which
had been purchased in 2005. The applicant again dismissed the offer,
noting the size of the flat and its dilapidated state.
- On
7 September 2006 enforcement proceedings were closed and the writ of
execution was returned to the applicant because he had rejected the
bailiffs' offer.
- On 14 November 2006 the Sverdlovsk District Court of
Kostroma quashed the decision of 7 September 2006. The District Court
held that under the judgment of 11 May 2004, as upheld on appeal on
21 July 2004, the applicant was entitled to a well-equipped flat
measuring 82 square metres and satisfying sanitary and technical
requirements. The applicant had been twice offered the smaller flat
which “had not satisfied technical and sanitary requirements,
had been in poor state, had been in need of the renovation and, thus,
had required, substantial financial resources”. The District
Court also noted that Ms Shelepo's death had not effected the
applicant's and his family's entitlement to a flat. The judgment of
14 November 2006 was not appealed against and became final.
-
In December 2006 the enforcement proceedings were re-opened. In March
2007 the Kostroma Town Council informed the applicant that it
possessed two flats, i.e. the one which had been bought in 2005 and
had already been offered to the applicant, and another one which
measured 75.6 square metres. The applicant could choose any one of
them. He again rejected the offer arguing that his was entitled to a
flat of a bigger living surface.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the judgment of 11 May 2004, as upheld on
21 July 2004, remained unenforced. The Court considers that this
complaint falls to be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 (see Burdov
v. Russia, no. 59498/00, § 26, ECHR 2002 III). 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 the application 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 11 May 2004, as upheld on 21
July 2004, remained unenforced because the Kostroma Town Council did
not have available housing or financial resources and because there
were complex budgetary arrangements. Furthermore, the applicant had
rejected a number of offers, thereby delaying the enforcement
proceedings.
- The
applicant averred that the Council's offers had fallen far short of
the requirements set out in the judgment of 11 May 2004.
- The
Court observes that on 11 May 2004 the applicant obtained a judgment
in his favour by which he and his family members were to be granted a
flat. The judgment was upheld on appeal and became enforceable on 21
July 2004. It has not been enforced yet. It thus remains unenforced
for a little less than three years.
- 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 Malinovskiy
v. Russia, no. 41302/02, § 35
et seq., ECHR 2005; Teteriny v. Russia, no. 11931/03, §
41 et seq., 9 June 2005; Gizzatova v. Russia, no. 5124/03, §
19 et seq., 13 January 2005; Burdov, cited above, § 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.
The Court notes that the judgment was not enforced because the debtor
did not possess available housing and did not have financial
recourses to purchase a flat. However, the Court reiterates that it
is not open to a State authority to cite the lack of funds or other
resources, such as housing, as an excuse for not honouring a judgment
debt (see Malinovskiy, cited above, § 35; Plotnikovy
v. Russia, no. 43883/02, § 23, 24 February 2005).
Admittedly, a delay in the execution of a judgment may be justified
in particular circumstances, but the delay may not be such as to
impair the essence of the right protected under Article 6 § 1.
The applicant should not be prevented from benefiting from the
success of the litigation on the ground of alleged financial
difficulties experienced by the State (see Burdov, cited
above, § 35). The same principle applies to difficulties
experienced by the State enforcement services and the complexity of
the budgetary arrangement (see Wasserman v. Russia, no.
15021/02, § 38, 18 November 2004 and Chernyshov and
Others v. Russia, no. 10415/02, § 14, 28 September
2006).
- The
Court also is not convinced that the applicant contributed to delays
in the enforcement proceedings by refusing offers of the Council. On
three occasions the applicant refused to accept the flats which had
not satisfied conditions set out in the judgment of 11 May 2004.
According to the judgment of 11 May 2004 the applicant and his three
family members were entitled to a flat having a satisfactory sanitary
condition. On 14 November 2006 the District Court confirmed the
applicant's entitlement to a flat measuring no less than 82 square
metres. The offers by the Council fell short of those requirements.
The domestic authorities admitted that the applicant had rightfully
dismissed offers made by the Council (see paragraph 12 above). The
Court considers that the applicant cannot be blamed for refusing to
settle for less than he was entitled to, under the judgment of 11 May
2004, as upheld on 21 July 2004 (cf. Kornev v. Russia,
no. 26089/02, § 40, 28 September 2006).
-
The Court finds that by failing for years to comply with the
enforceable judgment in the applicant's favour the domestic
authorities impaired the essence of his right to a court and
prevented him from receiving a flat he could reasonably have expected
to receive.
23. There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. 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 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that the applicant's claims were excessive and
unreasonable.
- The Court reiterates that in the instant case it found
a violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in that the judicial decision in the applicant's
favour was not enforced. 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 violations found (cf. Poznakhirina v. Russia,
no. 25964/02, § 33, 24 February 2005). The State's
outstanding obligation to enforce the judgment
in the applicant's favour is not in dispute. It therefore
considers that the Government shall secure, by appropriate means, the
enforcement of the judgment of 11 May 2004, as upheld on appeal on 21
July 2004.
- The
Court further considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to enforce the judgment in his favour. The Court takes into
account the relevant aspects, such as the length of non-enforcement
and the nature of the domestic award, and making its assessment on an
equitable basis, awards the applicant EUR 2,300 in respect of
non-pecuniary damage, plus any tax that may be chargeable on the
above amount.
B. Costs and expenses
- The
applicant did not make any claims for the costs
and expenses incurred before the domestic courts and before the
Court.
- Accordingly,
the Court does not award anything 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 application admissible;
- 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, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, shall
secure, by appropriate means, the enforcement
of the judgment made by the domestic court in the applicant's favour,
and pay the applicant EUR 2,300 (two thousand and three 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 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
