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FIRST
SECTION
CASE OF GORLOVA v. RUSSIA
(Application
no. 29898/03)
JUDGMENT
STRASBOURG
15
February 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 Gorlova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, 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 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29898/03) 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, Ms Anna Nikolayevna Gorlova
(“the applicant”), on 9 July 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
1 March 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 1942 and lives in the town of Yakutsk in the
Sakha (Yakutiya) Republic.
A. Proceedings for provision of housing
- On
4 October 2002 the Yakutsk Town Court ordered that the Yakutsk Town
Council should provide the applicant with a well-equipped one-room
flat. The judgment was not appealed against and became final on
19 October 2002.
- On
13 January 2003 the Yakutsk mayor's office took over the functions of
the Town Council because the latter had ceased to exist as a legal
entity.
- The
applicant asked the Yakutsk Town Court to impose on the Yakutsk
mayor's office the obligation to enforce the judgment of 4 October
2002. On 26 August 2003 the Yakutsk Town Court dismissed the request
because she had not provided any evidence that the mayor's office was
the successor to the Town Council. The applicant did not appeal
against that judgment.
- On
10 October 2003 the Yakutsk Town Court dismissed the applicant's
request for immediate enforcement of the judgment of 4 October 2002.
The judgment was upheld on appeal on 17 November 2003.
- On
30 March 2004 the Yakutsk Town Court, upon the applicant's request,
amended the judgment of 4 October 2002 and ordered that the Yakutsk
mayor's office should enforce it.
- On
28 December 2004 the Yakutsk Town Court once again amended the
judgment of 4 October 2002 and ordered that the Yakutsk mayor's
office should pay the applicant 700,000 Russian roubles in lieu of
the flat. The judgment was not appealed against and became final.
- On
7 April 2006 the Yakutsk mayor's office credited RUR 700,000 to the
bailiffs' account. In June 2006 the bailiffs sent a letter to the
applicant informing her about the transaction and asking to provide
details of her bank account. According to the Government, the
applicant did not respond. The bailiffs also attempted to personally
serve the applicant with the letter, but she could not be found at
her place of residence.
- On
an unspecified date the bailiffs learned the details of the
applicant's bank account and on 4 September 2006 they credited
RUR
700,000 to it.
B. Proceedings concerning restoration of the
heating supply
- In
1994 a housing maintenance company cut off the heating in the
applicant's flat. The applicant sued the company seeking restoration
of the heating supply and compensation for damage.
- On
8 December 1999 the Supreme Court of the Sakha (Yakutiya) Republic,
in the final instance, partly accepted the action. The maintenance
company restored the heating.
- The
judgment of 8 December 1999 was quashed by way of a supervisory
review on 25 October 2001 and the case was remitted for a fresh
examination.
- On
18 November 2002 the Yakutsk Town Court awarded the applicant RUR
1,845 in compensation. The judgment was upheld on appeal on
11 December 2002.
C. Tort proceedings
- The
applicant sued the Yakutsk Town Council claiming compensation for
damage caused to her flat due to the absence of the heating.
- On
28 August 2002 the Yakutsk Town Court dismissed the action because
the municipal authorities had not been responsible for the damage.
The judgment was upheld on appeal on 7 October 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE
JUDGMENT OF 4 OCTOBER 2002
- The
applicant complained that the judgment of 4 October 2002, as amended
on 30 March and 28 December 2004, was not timeously enforced. 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 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 stated that the judgment of 4 October 2002 had been
enforced on 4 September 2006. However, the domestic authorities
should not be held responsible for a delay in the enforcement
proceedings after 7 April 2006 because the applicant had not
co-operated and showed no diligence, which could be reasonably
expected, thereby delaying the proceedings. In any event, the Yakutsk
Town Council and then the Yakutsk mayor's office had not had the
necessary resources to enforce the judgment.
- The
applicant maintained her complaints.
- The
Court observes that on 4 October 2002 the applicant obtained a
judgment by which the Town Council was to provide her with a flat.
The judgment became final and enforceable on 19 October 2002. On 30
March 2004 the Yakutsk Town Court ordered that the Yakutsk mayor's
office should enforce the judgment of 4 October 2002. On 28 December
2004 the Town Court further amended the judgment of 4 October 2002
and awarded the applicant a sum of money in lieu of the flat. On 4
September 2006 the judgment of 4 October 2002, as amended on 30 March
and 28 December 2004, was enforced in full when the applicant
received the money. Thus, it has remained unenforced for
approximately three years and eleven months.
- 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).
- 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 v. Russia, no. 41302/02, § 35,
16 June 2005; Plotnikovy v. Russia, no. 43883/02, §
23, 24 February 2005).
- The
Court is not convinced by the Government's argument that the
applicant contributed to the length of the enforcement proceedings by
failing to provide details of her bank account. The Court observes
that the bailiffs had inquired the applicant about the account almost
two years after the Town Court had awarded her the money in lieu of
the flat. The Government did not provide any explanation for such a
delay. Moreover, the Government did not produce any evidence showing
that after the applicant had, in fact, been notified about the money
transfer she had failed to indicate the details of her account.
-
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 her right to a court and
prevented her from receiving a flat, or subsequently the sum of
money, she could reasonably have expected to receive.
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 1, 6 § 1, 8 and 13 of
the Convention that in 1994 the heating supply had been cut off in
her flat, that the judgment of 8 December 1999 had not been enforced
and had been quashed on supervisory review, that the tort proceedings
and proceedings concerning the restoration of the heating supply had
been unfair because the courts had incorrectly applied the law and
assessed the facts and that on 26 August and 17 November 2003
the courts had dismissed her claims.
- Having
regard to all the materials in its possession, and in so far as these
complaints fall within the Court's competence ratione temporis and
ratione personae, it finds that they 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.
III. 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 43,000 euros (EUR) in respect of pecuniary damage,
of which EUR 40,000 represented the market price of a one-room flat
in Yakutsk and EUR 3,000 represented the reduction of maintenance
charges in respect of her old flat which she had not obtained due to
the absence of registration in that flat. She further claimed EUR
100,000 in respect of non-pecuniary damage.
- The
Government argued that on 28 December 2004 the Yakutsk Town Court had
awarded the applicant the sum representing the cost of a one-room
flat. She had already received that money. They further stated that
the applicant could have registered at her old flat and could have
asked the authorities to reduce the maintenance charges. However, she
had not done it. In any event, the claims were excessive and
irrelevant.
- As
regards the claim for compensation in respect of pecuniary damage,
the Court observes that on 28 December 2004 the Town Court awarded
the applicant the money in lieu of a flat which she was to receive
under the judgment of 4 October 2002. It appears that the awarded sum
satisfied the applicant as she did not appeal against the judgment of
28 December 2004. The sum has already been paid to her. The
Court therefore rejects that claim. As regards the pecuniary damage
claimed by the applicant in respect of reduction of maintenance
charges, the Court observes that the applicant's calculations are
speculative. She did not submit any evidence to substantiate her
calculations. The Court therefore rejects her claim in respect of
pecuniary damage.
- The
Court considers that the applicant must have suffered certain
distress and frustration resulting from the State's failure to
enforce a judgment in her favour. However, the amount claimed appears
excessive. The Court takes into account the relevant aspects, in
particular, the length of the enforcement proceedings and the nature
of the domestic award. Making its assessment on equitable basis, it
awards the applicant EUR 3,100 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that 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 complaint concerning delay in
enforcement of the judgment of 4 October 2002, as amended on 30 March
and 28 December 2004, 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;
- 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 3,100
(three thousand and one 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 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
