ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 05.04.2005<ДЕЛО ВОЛКОВА (volkova) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
FOURTH SECTION
CASE OF VOLKOVA v.
RUSSIA
(Application No. 48758/99)
JUDGMENT <*>
(Strasbourg,
5.IV.2005)
In the case of Volkova v. Russia,
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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.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R.
Maruste,
Mr A. Kovler,
Mr S. Pavlovschi,
Mr L. Garlicki,
judges,
and Mr M. O"Boyle, Section Registrar,
Having deliberated
in private on 15 March 2005,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an application
(No. 48758/99) 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, Mrs. Lyubov Alekseyevna
Volkova ("the applicant"), on 28 December 1998.
2. The applicant, who had
been granted legal aid, was represented by Mr K.N. Koroteyev, a lawyer
practising in Moscow, and Mr. Philip Leach, a lawyer practising London. The
Russian Government ("the Government") were represented by Mr. P.A. Laptev, the
Representative of the Russian Federation at the European Court of Human
Rights.
3. The applicant alleged, in particular, that a judgment rendered
in her favour was quashed by way of supervisory review and that these
proceedings were unfair.
4. The application was allocated to the Fourth
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 18 November
2003 the Court declared the application partly admissible and partly
inadmissible.
6. The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other"s observations.
7. On 1 November
2004 the Court changed the composition of its Sections (Rule 25 § 1). This case
was assigned to the newly composed Fourth Section (Rule 52 § 1).
THE
FACTS
A. The circumstances of the case
8. The facts of the case, as
submitted by the parties, may be summarised as follows.
1. The initial
housing dispute
9. The applicant and her family (her husband and two
children, born in 1982 and 1987) moved into a dormitory in Volgograd in 1985.
They occupied two rooms in the dormitory, with shared kitchen, shower and toilet
facilities. They were registered as living in the dormitory permanently, which
was their sole residence. In 1993 the ownership of the dormitory was transferred
to a company called "VNIITMASH".
10. In 1995 the applicant, along with
other residents, was ordered by the District Prosecutor of the Sovetskiy
district of Volgograd to vacate the premises because the building required
urgent structural renovation. The applicant was provided with temporary housing
in another dormitory in Volgograd, although smaller and of inferior quality. In
August 1995 the applicant was forcibly evicted from the building and her
belongings were transferred.
11. The applicant, along with other
residents, brought an action against VNIITMASH and the administration of the
Sovetskiy district for provision of permanent housing and compensation for
non-pecuniary damage. They alleged that though the status of the building was a
dormitory, their contracts were not for dormitory-type accommodation, but for
proper flats. On 24 April 1996 the Volgograd Regional Court confirmed in the
final instance the judgment of the Sovetskiy District Court to reject the
applicants" claim. VNIITMASH undertook to allow the applicants to return to the
dormitory after the renovation, which was scheduled to be completed in September
1996.
12. The building was not renovated on time, and the applicant
applied to the court again. The district administration accepted her claims. The
Sovetskiy District Court by its judgment of 22 June 1999 ordered the
administration to provide the applicant with "comfortable"
(благоустроенное) housing. Neither of the parties appealed, and
the judgment entered into force and was forwarded to the bailiff in July
1999.
13. On 8 September 1999 the renovation in the original building was
completed and the ownership of it was transferred to the district
administration, with the status of a dormitory.
14. On 24 September 1999
the administration of the Sovetskiy district issued a voucher (ордер) to
the applicant"s family for two rooms of 34 square metres in the newly renovated
dormitory building. It appears that the bailiff closed the enforcement
procedures on 11 October 1999.
15. The applicant refused to accept the
accommodation offered, as she believed that the housing in the dormitory did not
correspond to the definition of "comfortable", as ordered by the court on 22
June 1999. She also alleged that the conditions had become worse since the
renovation. In particular, the applicant and her family would only be able to
register as temporary occupants of the building and the rooms offered to them
were separated from each other and were connected by a corridor shared with
other rooms. Further, they were required to share the toilet and kitchen
facilities with a larger number of families, and the quality of the building
remained very poor, even after the renovation.
16. On her complaint, the
bailiff reopened the enforcement procedures and on 23 February 2000 prohibited
the issuing of housing vouchers by the district administration.
17. On 27
April 2000 the Sovetskiy District Court, on the administration"s complaint,
quashed the bailiff"s order of 23 February 2000. On 28 June 2000 the Volgograd
Regional Court confirmed this decision. The courts found that the judgment of
the Sovetskiy District Court of 22 June 1999 had been executed by the
administration which had provided her with "comfortable" housing in the
dormitory, and the applicant"s refusal to accept it did not warrant continuation
of enforcement procedures.
18. On 18 July 2000 the administration offered
three rooms in the dormitory to the applicant, totalling 53,5 square metres. The
applicant and her family did not accept the places in the dormitory and refused
to move in.
2. Procedure in the supervisory instance
19. On 6 June 2000
the rapporteur, under Rule 49 § 1 of the Rules of Court, asked the Russian
Government the following questions:
"1. What is the current situation
with respect to enforcement of the decision of the Sovetskiy District Court of
Volgograd of 22 June 1999?
2. To what type of accommodation is the
applicant entitled, according to the above-mentioned judicial decision?"
20. The Government responded on 18 September 2000. They informed the Court that
on 17 July 2000 the Presidium of the Volgograd Regional Court, acting by way of
supervisory review upon a request (протест) lodged by its president, had
quashed the judgment of the Sovetskiy District Court of 22 June 1999 and
returned the case for a new consideration at first instance.
21. The
applicant later informed the Court that she had not been aware of the session of
the Presidium of the Volgograd Regional Court of 17 July 2000, as the
information notice had been sent to her only on 13 July when she was out of
town. The representatives of the administration and the District Prosecutor"s
Office had attended the hearing and presented their arguments.
22. On 26
July 2000 the Sovetskiy District Court again considered the case and rejected
the applicant"s claim, stating that she was only entitled to housing in the
renewed dormitory. The decision was confirmed on 30 August 2000 by the Volgograd
Regional Court. On 27 September 2000 the bailiff closed the enforcement
proceedings because the court decision of 22 June 1999 had been quashed.
23. The applicant on several occasions attempted to challenge the court decision
by way of supervisory review, but was unsuccessful.
24. On 12 April 2001
the district administration confirmed the offer of three rooms in the dormitory
to the applicant, but she did not accept it.
3. Communication of the
complaint
to the Russian Government and new supervisory
proceedings
25. On 5 October 2001 the complaint was communicated to the
Russian Government.
26. On 4 February 2002 a request for supervisory
review was lodged with the Supreme Court by the Deputy President of the Supreme
Court. On 4 March 2002 the Supreme Court, acting by way of supervisory review,
quashed the following judicial decisions: the decision of the Presidium of the
Volgograd Regional Court of 17 July 2000, the judgment of the Sovetskiy District
Court of 26 July 2000, the decision of the Volgograd Regional Court of 30 August
2000. It has thus restored the judgment of the Sovetskiy District Court of 22
June 1999.
27. On 12 April 2002 the Presidium of the Volgograd Regional
Court, acting by way of supervisory review upon a request by the President of
the Regional Court, again quashed the judgment of the Sovetskiy District Court
of 22 June 1999 and returned the case for a new consideration. The new
proceedings are still pending.
B. Relevant domestic law and practice
28.
Article 11 of the Code of Civil Procedure of 1964 (CCP) then in force provided
that regional and higher courts may conduct "supervisory review" of the
activities of the lower courts. This meant, according to Articles 319, 320 and
327, that certain senior judicial officers could, at any time, on the request by
the person concerned or on their own motion, lodge with a higher court an
"application for supervisory review" (протест) against a final decision
of a lower court on all questions of fact and law. If an "application for
supervisory review" was lodged, the proceedings recommenced and execution of the
judgment could be adjourned (Article 323). The "supervisory review" procedure
was separate from proceedings whereby a case could be reviewed on grounds of new
facts (Articles 333 - 337).
THE LAW
1. Alleged violation of Article 6 of
the Convention
29. The applicant complained under Article 6 § 1 of the
Convention that the judgment of 22 June 1999 was quashed following the
supervisory review, and that this procedure was unfair. Article 6 § 1, in so
far as relevant, reads as follows:
"In the determination of his civil
rights and obligations..., everyone is entitled to a fair... hearing... by [a]
... tribunal..."
A. Supervisory review procedure: legal certainty
1.
Arguments of the parties
30. The Government submitted that the decision of
the Presidium of the Volgograd Regional Court had been quashed by the Supreme
Court by way of supervisory review in March 2002. These proceedings served to
correct the alleged violations, the applicant"s case has not been finally
determined at the national level and the application could not therefore be
examined by the Court.
31. The applicant requested that her application
should proceed. Referring to the judgments in {Brumarescu} <*> v. Romania,
Sovtransavto Holding v. Ukraine and Ryabykh v. Russia, the applicant submitted
that the setting aside of a judgment in her favour over one year after its
coming into force had infringed the principle of legal certainty and deprived
her of her right of access to court (see {Brumarescu} v. Romania [GC], No.
28342/95, 28 October 1999; Sovtransavto Holding v. Ukraine, No. 48553/99, ECHR
2002-VII; Ryabykh v. Russia, No. 52854/99, 24 July 2003). She also submitted
that the subsequent decisions of the Supreme Court of 4 March 2002 and of the
Presidium of the Volgograd Regional Court of 12 April 2002, also adopted by way
of supervisory review, which quashed the interim judicial proceedings, were
further in breach of the principle of legal certainty.
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<*> Здесь и далее по
тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными
скобками.
2. The Court"s assessment
32. As regards the
Government"s argument, the Court notes that the applicant"s complaint under
Article 6 § 1 concerns the quashing of an earlier judgment in the applicant"s
favour. The issue is whether such procedure, permitting a final judgment to be
quashed, can be considered compatible with Article 6 and, in particular, whether
the principle of legal certainty was thereby infringed.
33. The fact that
the decision of the Presidium of the Regional Court was subsequently quashed on
a further application for supervisory review could not be said to improve legal
certainty in the applicant"s case and this position is not affected by the
proceedings which are pending at the national level.
34. The Court
considers that this case is similar to the above-mentioned case of Ryabykh v.
Russia, where it was said, in so far as relevant to the instant case:
"51. ... the Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be interpreted in the
light of the Preamble to the Convention, which declares, in its relevant part,
the rule of law to be part of the common heritage of the Contracting States. One
of the fundamental aspects of the rule of law is the principle of legal
certainty, which requires, among other things, that where the courts have
finally determined an issue, their ruling should not be called into
question...
54. The Court notes that the supervisory review of the
judgment... was set in motion by the President of the Belgorod Regional Court -
who was not party to the proceedings... As with the situation under Romanian law
examined in {Brumarescu}, the exercise of this power by the President was not
subject to any time-limit, so that judgments were liable to challenge
indefinitely.
55. The Court reiterates that Article 6 § 1 secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way it embodies the
"right to a court", of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect. However,
that right would be illusory if a Contracting State"s domestic legal system
allowed a final, binding judicial decision to remain inoperative to the
detriment of one party. It would be inconceivable that Article 6 § 1 should
describe in detail procedural guarantees afforded to litigants - proceedings
that are fair, public
