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You are here: BAILII >> Databases >> European Court of Human Rights >> FILONENKO v. RUSSIA - 22094/04 [2008] ECHR 756 (31 July 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/756.html Cite as: [2008] ECHR 756

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FIRST SECTION

CASE OF FILONENKO v. RUSSIA

(Application no. 22094/04)

JUDGMENT

STRASBOURG

31 July 2008

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 Filonenko v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 3 July 2008,

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

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

“provide the applicant’s family of four with a dwelling by way of, among other means, State housing vouchers valid for acquisition and construction of dwellings and financed by the Federal budget, and also by way of off-budget financial sources.”

II.  RELEVANT DOMESTIC LAW

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

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

First, Article 6 had not applied to the proceedings in question, because the applicant had been a serviceman, and hence his dispute with the authorities had not been “civil”.

Second, the applicant had not exhausted domestic remedies, because he had not complained to bailiffs, prosecutors, or courts.

Third, the applicant had obstructed the enforcement of the judgment. He had been a serviceman, and his social benefits had been subject to special regulations. Under these regulations, servicemen’s dwelling conditions could have been improved by means of “State housing vouchers”. From 2003 to 2007 the Town Council had several times proposed to the applicant to apply for the voucher, but he had persistently refused.

First, Article 6 had applied to the proceedings in question, because at the material time the applicant had been retired.

Second, the applicant had complained about the non-enforcement, but his complaints had been futile. A complaint against the bailiffs would have been ineffective.

Third, the applicant had refused the voucher, because of slim chances that the voucher would have been provided promptly, because the voucher had not covered the price of a flat, and because the applicant would have been struck off the waiting list for an in-kind provision of a flat.

B.  Merits

FOR THESE REASONS, THE COURT

1.  Declares the application admissible unanimously;

2.  Holds by six votes to one that there has been no violation of Article 6 § 1 of the Convention or Article 1 of Protocol No. 1.

Done in English, and notified in writing on 31 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Kovler is annexed to this judgment.

C.L.R.
S.N.

DISSENTING OPINION OF JUDGE KOVLER

I cannot share the conclusion of the Chamber. On 12 May 2003 the Tsentralnyi District Court of Kemerovo ordered the Town Council to provide the applicant’s family with a dwelling (“zhiloe pomeschenie” in Russian) in strict conformity with the provisions of section 15(14) of the Law on the Status of Servicemen: to provide retired servicemen who have served in the army for more than ten years with a dwelling within three months. Taking into account the fact that the Town Council did not provide the applicant with a dwelling “for a long time”, the District Court specified that enforcement could be secured “by way, among other means, of State housing vouchers ... and also by way of off-budget financial sources” (paragraph 7). To my mind, the proposed alternative did not deprive the applicant of his right to have a council flat within the time fixed by the above-mentioned Law, as its purpose was to find a solution to that end.

The applicant refused the voucher “because of slim chances that the voucher would have been provided promptly, because the voucher had not covered the price of a flat and because the applicant would have been struck off the waiting list for in-kind provision of a flat” (paragraph 15). The Government did not show that the voucher was an effective mode of enforcement of the District Court’s judgment, nor did it give any example of this means of enforcement, at least in the Kemerovo region. I regret the lack of any concrete information regarding the implementation of the Federal Programme on “State Housing Vouchers” of 20 January 1998. Unfortunately, there are several examples of non-enforcement of national courts’ judgments ordering the provision of citizens with flats (see, among other authorities, Sypchenko v. Russia, no. 38368/04, 1 March 2007) in which the Court has held that the enforcement of these judgments should be secured by appropriate means.

The only possible alternative in the absence of “real” flats was a cash payment permitting the applicant to buy a flat, as was decided in other Russian cases (see, among other authorities, Malinovskiy v. Russia, no. 41302/02, ECHR 2005 VII; Tarasov v. Russia, no. 13910/04, 28 September 2006; and Gorlova v. Russia, no. 29898/03, 15 February 2007). It was not the applicant’s fault that he had to insist on a really effective mode of enforcement of a judgment in his favour.

To my great regret, the reasoning of the present judgment took into account only the formal context of the situation, regardless of the specific circumstances of the case.