ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 03.11.2005<ДЕЛО КУКАЛО (kukalo) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF KUKALO v. RUSSIA
(Application No. 63995/00)
JUDGMENT <*>
(Strasbourg, 3.XI.2005)
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<*> 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 Kukalo v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 13 October 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (No. 63995/00) 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, Mikhail Mikhaylovich Kukalo ("the applicant"), on 17 October 2000.
2. The applicant was represented by Mr I.V. Kokorin, a lawyer practising in Kurgan. The Russian Government ("the Government") were represented by Mr P.A. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that a prolonged non-execution of final judgments in his favour was incompatible with the Convention.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 3 June 2004, the Court declared the application partly admissible.
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1941 and lives in Kurgan.
9. In 1986 the applicant was called up by the authorities to take part in emergency operations at the site of the Chernobyl nuclear plant disaster. As a result, the applicant suffered from extensive exposure to radioactive emissions.
10. In 1997 following an expert opinion of 14 April 1997, which established the link between the applicant"s poor health and his involvement in the Chernobyl events, the applicant was granted monthly health damage compensation.
A. Judgment of 12 May 1999 as clarified on 7 September 1999
11. On 18 February 1999 the applicant brought proceedings against the Kurgan Social Security Service (МУ "Центр социальной защиты населения г. Кургана") to challenge the amount of compensation which he considered to be erroneous.
12. On 12 May 1999 the Kurgan Town Court found for the applicant and ordered the Social Security Service to make monthly compensation payments of 1,350.58 Russian roubles (RUR) and pay outstanding amount due from 14 April 1997. The parties did not appeal, and the judgment entered into force on 25 May 1999.
13. Following the applicant"s request, the Town Court clarified, by its decision of 7 September 1999 which became final on 18 September 1999, that the amount of the outstanding compensation totalled RUR 24,495.94.
14. The judgment of 12 May 1999 was executed on 6 October 2000.
B. Judgment of 21 July 1999 as upheld on 5 October 1999
15. On an unspecified date the applicant brought proceedings against the Social Security Service for damages caused by the delay in execution of the judgment of 12 May 1999.
16. On 21 July 1999 the Town Court found that the Social Security Service had failed to comply timely with the judgment of 12 May 1999 and awarded the applicant RUR 1,000 as a penalty for the delay.
17. On 5 October 1999 the Kurgan Regional Court upheld the judgment on appeal.
18. On 18 October 1999 the Kurgan Bailiff"s Service instituted enforcement proceedings.
19. The judgment of 21 July 1999 was executed on 26 August 2002.
C. Judgment of 10 May 2000 as upheld on 22 June 2000
20. On 10 May 2000 the Town Court allowed the applicant"s claim against the Kurgan Town Council for provision of State housing, for which he was eligible as a participant of the liquidation of the Chernobyl disaster. The court ordered the Town Council to provide the applicant and his wife with separate well-equipped residential premises located in the town of Kurgan, complying with sanitary and technical standards, having total surface of no less than 52 sq. m., taking into account the applicant"s entitlement to one additional room.
21. On 22 June 2000 the Regional Court upheld the judgment on appeal.
22. On 10 July 2000 the Kurgan Bailiff"s Service instituted enforcement proceedings.
23. The Town Council requested for deferment in execution of the judgment until 1 July 2001 for the reasons of the lack of relevant provisions in the town budget for the year 2000 and big expenses incurred by the Town Council in connection with the repair of damage caused by flood. By its decision of 17 July 2000 the Town Court granted the deferment until 31 December 2000.
24. At the beginning of 2001 the Town Council asked for another deferment explaining that the town had to finance preventive measures in connection with the new threat of flood in spring 2001. As the local authority did not carry out any housing construction, the execution of the applicant"s judgment was only possible by acquiring a flat on the market. On 20 February 2001 the court granted the deferment until 1 October 2001. On 29 March 2001 this decision was upheld on appeal by the Kurgan Regional Court.
25. On 20 November 2001 the applicant lodged an application with the Town Council asking it to acquire for him a flat located at 26 Blyukher street No. 27 with a total surface of 56.2 sq. m. The applicant stated that he undertook to make a partial contribution in the amount of RUR 65,000 towards the cost of the flat. The applicant also stated in the application that he would not have any further claims to the Town Council if his request was granted.
26. By Resolution of 21 December 2001 the Mayor of Kurgan ordered to grant the applicant a flat at 26 Blyukher street No. 27 of 56.2 sq. m. total surface in execution of the judgment of 10 May 2000.
D. Judgment of 16 May 2000
27. In February 2000 the applicant brought another action against the Social Security Service to challenge the amount of the compensation.
28. On 16 May 2000 the Town Court fixed the monthly compensation at RUR 1,814.13 starting from 8 February 2000. The parties did not appeal, and the judgment came into force on 27 May 2000.
29. On 5 June 2000 the Kurgan Bailiff"s Service instituted enforcement proceedings.
30. The judgment of 16 May 2000 was enforced on 26 August 2002.
II. Relevant domestic law
A. Enforcement proceedings
31. Section 9 of the Enforcement Proceedings Act (Law No. 119-FZ of 21 July 1997) provides that a bailiff"s order on institution of enforcement proceedings must fix a time-limit for the defendant"s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time-limit. Pursuant to section 13, the enforcement proceedings must be completed within two months of the receipt of the writ of execution by the bailiff.
B. Implementation of the right to a "social tenancy"
32. 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.
33. A decision on granting a flat was to be implemented by way of issuing the citizen with an occupancy voucher (ордер на жилое помещение) from the local municipal authority (section 47). 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 (section 51, and also Articles 672 and 674 of the Civil Code).
34. Members of the tenant"s family (including the spouse, children, parents, disabled dependants and other persons) had the same rights and obligations under the tenancy agreement as the tenant (section 53). The tenant had the right to accommodate other persons in the flat (section 54). In the event of the tenant"s death, an adult member of the tenant"s family succeeded him or her as a party to the tenancy agreement (section 88).
35. Flats were granted for permanent use (section 10). The tenant could terminate the tenancy agreement at any moment, with the consent of his or her family members (section 89). The landlord could terminate the agreement on the grounds provided for by law and on the basis of a court decision (sections 89 - 90). If the agreement was terminated because the house was no longer fit for living in, the tenant and family were to receive a substitute flat with full amenities (section 91). Tenants or members of their family could be evicted without provision of substitute accommodation only if they "systematically destroyed or damaged the flat", "used it for purposes other than residence" or "systematically breached the [generally accepted rules of conduct] making life with others impossible" (section 98).
36. The tenant had the right to exchange the flat for another flat in the State or municipal housing, including across regions (section 67). An exchange involved reciprocal transfer of rights and obligations under the respective tenancy agreements and became final from the moment of issuing new occupancy vouchers (section 71). "Speculative" or sham exchanges were prohibited (section 73(2)).
C. Rent for State housing
37. The Federal Housing Policy Act (Law No. 4218-I of 24 December 1992) provides that the payments for a flat comprise (i) a housing maintenance charge, (ii) a housing repair charge, and, in the case of tenants only, (iii) rent (section 15). The maintenance and repair charges do not depend on the flat"s ownership, whether private or State. Rent is fixed by regional authorities, taking into account the surface area and quality of the housing. It is usually considerably lower than free-market rent. For example, the highest monthly rent for municipal housing in Moscow is 80 kopecks (0.02 euro) per square metre (Resolution of the Moscow Government No. 863-PP of 7 December 2004).
D. Privatisation of State housing
38. In 1991, the Privatisation of Housing Act (Law No. 1541-I of 4 July 1991) was adopted (it will remain effective until 31 December 2006). It grants Russian citizens the right to acquire title to State and municipal-owned flats of which they have taken possession on the basis of a social tenancy agreement (section 2). The acquisition of title does not require any payment or fee (section 7). The right to privatisation can be exercised once in a lifetime (section 11) and requires the consent of all adult family members.
THE LAW
I. The Government"s preliminary objection
39. In their observations of 1 September 2004 the Government submitted that by a judgment of the Kurgan Town Court of 6 June 2003 the amounts due to the applicant under judgments of the Kurgan Town Court of 26 April 2000, 16 May 2000 (RUR 5,188) and 6 February 2001 were index-linked in line with inflation in view of the delay in execution of those judgments. The Government further submitted that as a part of their friendly settlement efforts the applicant was offered compensation of non-pecuniary damage caused by the delay in execution of the judgments, on condition that he would withdraw his application from the Court. The applicant refused. The Government concluded that the applicant"s rights were restored and invited the Court to discontinue the examination of the complaint in accordance with Article 37 § 1 of the Convention.
40. In their letter of 1 March 2005 the Government further reiterated that since the applicant had refused to accept the settlement of the case on the terms proposed by the Government, he lost his victim"s status. Therefore his application should be struck out of the Court"s list of cases.
41. The applicant disagreed and invited the Court to proceed with the examination of the case.
42. The Court notes first that the judgment of 6 June 2003, to which the Government referred, concerned judgments of the Kurgan Town Court of 26 April 2000 and 6 February 2001 which are not within the scope of the Court"s examination in the present case. It also concerned a judgment of the Kurgan Town Court of 16 May 2000 by which the applicant was awarded RUR 5,188. The present case however concerns only the judgment of the same date by which the Kurgan Town Court ordered the payment of the monthly compensation in the amount of RUR 1,814.13 starting from 8 February 2000 (see paragraph 28 above). In the absence of any explanations by the Government about those inconsistencies, the Court does not find it necessary to examine their objection in this respect.
43. As regards the applicant"s refusal to accept the settlement of the case proposed by the Government, the Court recalls that under certain circumstances an application may indeed be struck out under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey [GC], No. 26307/95, § 76, ECHR 2003-...). It notes, however, that this procedure is an exceptional one and is not, as such, intended to circumvent the applicant"s opposition to a friendly settlement. Furthermore, it observes that the Government failed to submit with the Court any formal unilateral declaration capable of offering a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case

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