ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 30.06.2005<ДЕЛО ТЕТЕРИНЫ (teteriny) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF TETERINY v.
RUSSIA
(Application No. 11931/03)
JUDGMENT <*>
(Strasbourg,
30.VI.2005)
--------------------------------
<*> 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 Teteriny
v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S.
Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having deliberated in private on 9 June
2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 11931/03)
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 two Russian nationals, Mr Anatoliy Grigoryevich Teterin and Ms
Tamara Vasilyevna Teterina ("the applicants"), on 25 February 2003. The second
applicant was also the first applicant"s representative before the Court.
2. The Russian Government ("the Government") were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of Human
Rights.
3. On 6 September 2003 the Court decided to communicate to the
Government the complaint concerning non-enforcement of the judgment of 26
September 1994. 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
I. The circumstances of the case
4. The
applicants were born in 1954 and 1955 respectively, and live in Syktyvkar in the
Komi Republic. They are both retired judges.
5. On 26 September 1994 the
Ezhvinskiy District Court of the Komi Republic allowed the first applicant"s
claim against the Yemva Town Council for provision of State housing, for which
he was eligible as a judge. The court ordered the town council to:
"...grant or purchase for Mr Teterin, whose family comprises five members, a
separate well-equipped flat or house taking account of the plaintiff"s
entitlement to one additional room or having a habitable surface of no less than
65 square metres, located near the Knyazhpogostskiy District Court in the town
of Yemva".
6. No appeal was brought against the judgment and it became
final and enforceable ten days later.
7. In October 1994 enforcement
proceedings were instituted. However, the judgment could not be enforced because
the town authorities did not possess any available housing or the financial
resources to purchase a flat.
8. The applicants complained to the Courts
Administration Department at the Supreme Court of the Russian Federation, the
Court Bailiffs" Department of the Ministry of Justice of the Russian Federation
and the Court Bailiffs" Department of the Komi Republic Department of Justice.
The responses received by the applicants in 2001 and 2002 indicated that the
judgment could not be enforced as the town authorities had no available
housing.
9. In 2002 the first applicant applied to the Ezhvinskiy
District Court with a request to change the method of execution of the judgment
of 26 September 1994. He asked that the value of the flat be paid to him in
cash.
10. On 24 April 2002 the Ezhvinskiy District Court closed the
proceedings for the amendment of the judgment as the first applicant had
withdrawn his request.
11. On 23 August 2002 a court bailiff reopened
enforcement proceedings and ordered the Knyazhpogostskiy District Council to
execute the judgment.
12. On 30 January 2003 the enforcement proceedings
were closed because enforcement was not possible. On the following day the writ
of execution was returned to the first applicant.
13. Further to the
applicants" complaint, on 3 March 2003 the Knyazhpogostskiy District Court
quashed the bailiff"s decision to terminate the proceedings.
14. The
proceedings were resumed on 7 May 2003. The bailiff collected information on the
cash flows and funds of the Yemva Town Council.
15. On 7 July 2003 the
bailiff discontinued the enforcement proceedings on account of the town
council"s lack of funds for the construction or purchase of housing. The writ of
execution was returned to the Ezhvinskiy District Court. The first applicant
submits that a copy of that decision was not served on him and that he first
became aware of it upon receipt of the Government"s memorandum of 1 December
2003, to which it was attached.
16. On 19 January 2004 the Yemva Town
Council offered the first applicant a two-room flat of 25 square metres with
central heating. It noted that no State housing had been constructed since 1994
and that it was therefore not in a position to offer a flat with full amenities.
The applicants did not accept the offer. On 17 December 2004 the enforcement
proceedings were re-opened and they are now pending.
17. The judgment of
26 September 1994 has not been enforced to date.
II. Relevant domestic
law
A. Enforcement proceedings
18. 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"
19. 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.
20. 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).
21.
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).
22. 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).
23. 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
24. 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
25. 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. Alleged
violation of Article 6 § 1
of the Convention and of Article 1 of
Protocol No. 1
26. The applicants complained that the continued failure to
enforce the judgment of 26 September 1994 violated their "right to a court"
under Article 6 of the Convention and their right to the peaceful enjoyment of
possessions under Article 1 of Protocol No. 1. The relevant parts of Article 6
provide as follows:
"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 reads as follows:
"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
1. The Government"s objection
as to the second
applicant"s victim status
27. The Government submitted that the second
applicant was not the victim of the alleged violation. The judgment of 26
September 1994 had been made in favour of the first applicant alone and the
second applicant had merely represented his interests in the enforcement
proceedings. She could not claim, therefore, that her "right to a court" or her
property rights had been violated.
28. The applicants submitted in reply
that the continued failure to enforce the judgment concerning the provision of
housing for the entire family had an adverse impact on each family member.
Moreover, this situation had hindered the second applicant"s professional
activities as she had been challenged in other proceedings by the district
council on the ground that she could not be impartial.
29. The Court
observes that the claim for housing was lodged by the first applicant and that
the judgment of 26 September 1994 was made in his favour. That judgment did not
determine the second applicant"s civil rights and obligations and did not confer
any entitlement on her.
30. The Court therefore considers that the
complaints lodged by the second applicant on her own behalf are incompatible
ratione personae with the provisions of the Convention within the meaning of
Article 35 § 3 and must be rejected in accordance with Article 35 § 4. The
Court will henceforth refer to the first applicant as "the applicant".
2.
The Government"s objection
as to the exhaustion of domestic
remedies
31. The Government submitted that the applicant had failed to
exhaust the domestic remedies available to him. Firstly, he had not appealed to
a court against the court bailiff"s decision of 7 July 2003 in which the
enforcement proceedings had been terminated. Secondly, he had not applied for an
interest-free loan for the purchase or construction of housing, for which
federal judges with not less than ten years" professional experience were
eligible. Thirdly, he had not submitted a request to be placed on the waiting
list of persons needing improved housing, which could have been examined by the
housing commission of the Courts Administration Department of the Komi
Republic.
32. The applicant submitted that he had not been able to appeal
against the decision of 7 July 2003, since it had not been served on him. The
writ of execution had been returned to the District Court and not to him as the
creditor, as required by section 73 of the Enforcement Proceedings Act.
Furthermore, on 24 December 2003 the court had again forwarded the writ of
execution for enforcement. As regards the interest-free loan, the applicant
noted that, pursuant to section 19 of the Status of Judges Act, free housing was
to be provided to a judge by the local authorities within six months of his or
her appointment. A loan could be granted as an alternative to free housing at
the initiative of the authorities. However, in his case the authorities had not
made such an offer. Finally, the applicant indicated that the proposal by the
Courts Administration Department that he apply to be put on the housing waiting
list had been made in disregard of the existing judgment that had already
confirmed his right to a flat.
33. The Court must first examine whether
the applicant has complied with the rule of exhaustion of domestic remedies as
required under Article 35 § 1 of the Convention.
34. The Court
reiterates that Article 35 § 1 of the Convention, which sets out the rule on
exhaustion of domestic remedies, provides for a distribution of the burden of
proof. It is incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in practice
at the relevant time, that is to say, that it was accessible, was one
