FIRST SECTION

CASE OF SYPCHENKO v. RUSSIA

(Application no. 38368/04)

JUDGMENT

STRASBOURG

1 March 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 Sypchenko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Mr	 , President,
	Mr	 ,
	Mrs	 ,
	Mr	 ,
	Mr	 ,
	Mr	 	Mr	  judges,
and Mr  , Section Registrar,
Having deliberated in private on 8 February 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 38368/04) 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, Mr Vladimir Vitalyevich Sypchenko (“the applicant”), on 2 September 2004.
2.  The applicant was represented by his daughter, Viktoriya Vladimirovna Sypchenko. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant complained about the non-enforcement of the final judgment in his favour and its subsequent amendment by way of supervisory review and alleged a violation of his property rights.
4.  On 7 February 2006 the Court communicated the application to the respondent 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
5.  The applicant was born in 1955 and lives in Bataysk in the Rostov Region.
I.  THE CIRCUMSTANCES OF THE CASE
6.  In 2004 the applicant sued the Bataysk Town Administration for provision of housing. He had by this time for several years suffered from a grave form of infectious tuberculosis and was entitled to housing according to the relevant provisions of the domestic law.
7.  On 19 November 2004 the Batayskiy City Court allowed the applicant's claim and ordered the town administration:
“...to grant Mr. Sypchenko, whose family comprises five members, well-equipped housing according to the sanitary-technical requirements, with a living surface of no less than 70 square meters and a total surface of no less than 90 square meters”.
8.  On 9 February 2005 the judgment was upheld on appeal by the Rostov Regional Court, and entered into force. The decision was to be implemented by way of providing the applicant with an occupancy voucher (ордер на жилое помещение) from the local municipal authority. 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.
9.  On 9 March 2005 the enforcement proceedings were opened. However, the judgment could not be enforced because the town administration allegedly possessed no available housing of the indicated size or financial resources to purchase it.
10.  Following the Town Administration's request to review the case by way of supervisory review due to the impossibility to enforce it, on 28 March 2005 the Rostov Regional Court decided to obtain the case-file from the Batayskiy City Court and to stay the enforcement proceedings until its examination by way of supervisory review.
11.  On 17 June 2005 the Rostov Regional Court granted the request for supervisory review lodged by the Mayor of Bataysk and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court.
12.  On 7 July 2005 the Presidium of the Rostov Regional Court amended the judgment of 19 November 2004 as upheld on 9 February 2005. It found that the previous instances had misapplied certain provisions relating to the rules for calculating the living surface and thus awarded the applicant the maximum possible surface per person (12m² per person) instead of applying the minimum standard (9m² per person) without giving any reasons. The Presidium of the Rostov Regional Court ordered the Town Administration:
“...to grant [the applicant] ... housing... with the living space of no less than 45 square meters”.
13.  On 18 October 2005 the Mayor of Bataysk issued an order which granted the applicant a social tenancy voucher for a three room flat with a living surface of 50.5 square meters. The applicant contested the order in court, expressing general discontent with the flat. On 15 March 2006 the Rostov Regional Court in final instance dismissed the applicant's complaint.
14.  On 5 June 2005 the Batayskiy City Court obliged the applicant to sign the social tenancy agreement for the awarded flat. The applicant, however, refused to sign the agreement.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Right to a “social tenancy” and to additional living space for certain categories of individuals
15.  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.
16.  Flats were granted for permanent use (section 10).
  17.  Section 14 § 5 of the Law on the Prevention of Spread of Tuberculosis in the Russian Federation (Law no.77-FZ of 18 June 2001) provides that those suffering from infectious tuberculosis who do not have a separate living space but share it with other tenants (family members), shall be provided with such by a local authority within one year from the date of lodging their application.
B.  Code of Civil Procedure of the Russian Federation
18.  A judicial decision becomes legally binding after the appeal court has examined the matter (Article 209 § 1). A judicial decision must be enforced once it became legally binding, unless the law provides for its immediate enforcement (Article 210).
19.  The relevant provisions governing the supervisory-review proceedings read as follows:
Article 13. Binding force of judicial decisions
“1.  Courts may issue judicial decisions in the form of judicial orders, judgments and interim decisions...”
Article 376. Right to apply to a court exercising supervisory review
“1.  Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.
2.  Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
Article 378.  Contents of an application for supervisory review
“An application for supervisory review must contain:
(1)  the name of the court to which it is addressed;
...
(4)  a reference to the first-instance, appeal or cassation courts that examined the case and a summary of their decisions;
(5)  a reference to the judgment or decision which is being appealed against...”
Article 381. Examination of an application for supervisory review
“2. Having examined an application for supervisory review, the judge issues an interim decision on –
(1)  obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;
(2)  refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.
...
6.  The President of the regional Supreme Court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”
Article 382. Examination of case files obtained by the supervisory-review court
“2.  Having examined the case file obtained by the supervisory-review court, the judge issues an interim decision on –
– refusing to remit the case for examination on the merits by the supervisory-review court;
– remitting the case for examination of the application for supervisory review on the merits by the supervisory-review court.”
Article 383.  Interim decision refusing to remit the case for examination on the merits by the supervisory-review court
“2.  The President of the regional Supreme Court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory-review court.”
Article 384. Decision on remitting the case for examination on the merits 
by a supervisory-review court
“1.  A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain:
(7)  a reasoned description of the grounds for remitting the case for examination on the merits...”
Article 387. Grounds for quashing or altering judicial decisions 
by way of supervisory review
“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review court
“1.  Having examined the case by way of supervisory review, the court may
...
(5)  quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”
C.  Enforcement Proceedings Act (Law of 21 July 1997)
20.  Once instituted, enforcement proceedings must be completed within two months upon receipt of the writ of execution by the bailiff (Section 13).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE AMENDMENT OF THE JUDGMENT IN THE APPLICANT'S FAVOUR
21.  The Court will firstly examine the applicant's complaint concerning the amendment of the final judgment by way of supervisory-review proceedings. The applicant complained that the review and the amendment of the final judgment had violated his “right to a court” under Article 6 § 1 of the Convention and the right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1. 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
22.  The Court notes that this 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
1.  Alleged violation of Article 6 of the Convention
23.  The Government submitted that the amendment of the judgment of 19 November 2004 occurred on the initiative of a party to the proceedings whose property rights and legitimate interests had been violated as a result of a breach of the provisions of the domestic law by the first-instance and appeal courts. In those circumstances, the Presidium of the Rostov Regional Court had been competent, pursuant to Article 390 § 5 of the Code of Civil Procedure, to amend the erroneous judgment. The Government invited the Court to find that there had been no violation of the applicant's rights under Article 6 § 1 of the Convention.
24.  The applicant maintained his complaint.
25.  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 (see Brumărescu v. Romania, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61).
26.  This principle insists that no party is entitled to seek re-opening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts' power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X; and Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004).
27.  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 and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application is not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 54-56).
28.  In the present case the judgment of 19 November 2004, as upheld on 9 February 2005, was amended to the applicant's detriment by way of a supervisory review on the ground that the first-instance and appeal courts had incorrectly applied the substantive law. The Court has to assess whether the power to conduct a supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the proper administration of justice (see, among other authorities, Nikitin v. Russia, no. 50178/99, §§ 57-59, ECHR 2004‑VIII).
29.  It is unavoidable that in civil proceedings the parties would have conflicting views on application of the substantive law. The courts are called upon to examine their arguments in a fair and adversarial manner and make their assessment of the claim. The Court observes that before an application for supervisory review was lodged, the merits of the applicant's claim had been examined by the first-instance and the appeal courts. It has not been claimed that the courts acted outside their competences or that there was a fundamental defect in the proceedings before them. The fact that the Presidium disagreed with the assessment made by the first-instance and appeal courts was not, in itself, an exceptional circumstance warranting the amendment of a binding and enforceable judgment and re-opening of the proceedings on the applicant's claim. Moreover, it appears that by amending the judgment of 19 December 2004, the Presidium took into consideration the respondent's argument concerning the impossibility to enforce it rather than its arguments on the points of facts and law.
30.  The Court has previously found a violation of the principle of legal certainty and an applicant's “right to a court” guaranteed by Article 6 § 1 of the Convention in many cases in which a judicial decision that had become final and binding, was subsequently quashed by a higher court (see, among other authorities, Ryabykh, cited above, §§ 51–56; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005; Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005; Kutepov and Anikeyenko v. Russia, no. 68029/01, §§ 49-52, 25 October 2005). The Government did not put forward any arguments which would enable the Court to reach a different conclusion in the present case.
31.  Having regard to these considerations, the Court finds that, by granting the respondent's request to amend the judgment of 19 November 2004, as upheld on appeal on 9 February 2005, the Presidium of the Rostov Regional Court infringed the principle of legal certainty and the applicant's “right to a court” under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article.
2.  Alleged violation of Article 1 of Protocol no. 1
32.  The Government claimed that there had been no violation of the applicant's property rights because the judgment had been legally enforceable for 1 month, 16 days only, that is from the date it became final on 9 February 2005 until the enforcement had been stayed, by a President's decision, on 28 March 2005. Finally, they pointed out that the applicant was finally provided with a flat in accordance with the amendments to the judgment of 7 July 2005.
33.  The Court reiterates that the existence of an obligation confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the obligation will be honoured and constitutes the beneficiary's “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing or amendment of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu, cited above, § 74; and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005).
34.  The Court observes that the domestic court awarded the applicant a flat with a living surface of no less than 70 square meters and total surface no less than 90 square meters. After the amendments introduced to the judgment by the Presidium of the Rostov Regional Court the living surface of the flat was to be no less than 45 square meters. The living surface in the flat which was later offered to the applicant was 50.5 square meters. The amendment of the enforceable judgment thus frustrated the applicant's reliance on a binding judicial decision and deprived him of an opportunity to receive a flat of a size and standard he had legitimately expected to receive.
35.  In these circumstances, the Court considers that the amendment of the judgment of 19 November 2004, as upheld on appeal on 9 February 2005, by way of supervisory review placed an excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol no. 1. There has therefore been a violation of that Article.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF NON-ENFORCEMENT OF THE FINAL JUDGMENT
36.  The applicant complained that the non-enforcement of the judgment of 19 November 2004, as upheld on appeal on 9 February 2005, violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, both cited above.
A.  Admissibility
37.  The Government claimed that the application should be declared inadmissible in accordance with Article 35 § 4 of the Convention because the judgment in the applicants' favour had been amended and enforced on 18 October 2005.
38.  The Court observes that the issue to be examined is whether the judgment in the applicant's favour was enforced within a “reasonable time”. Accordingly, it is necessary to ascertain that the judgment was “enforceable”. In the instant case, once the Rostov Regional Court on   9 February 2005 had dismissed the appeal against the judgment of     19 December 2004, in accordance with the Code of Civil Procedure the judgment became legally binding and enforceable. From that moment on, it was incumbent on the debtor, the Town Administration, to comply with it. Enforcement proceedings were initiated. The launching of the supervisory-review procedure could not, in itself, extinguish the debtor's obligation to comply with the enforceable judgment which obligation existed at least until 7 July 2005 when the judgment was amended by way of supervisory review.
39.  It follows that at least from 9 February 2005 to 7 July 2005 the judgment in the applicant's favour was “enforceable” and it was incumbent on the State agency to abide by its terms. The Court reiterates that the quashing or amendment of a judgment in a manner which has been found to have been incompatible with the principle of legal certainty and the applicant's “right to a court” cannot be accepted as justification for the failure to enforce that judgment (see Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006). Accordingly, the Government's objection must be dismissed.
40.  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
41.  The Government claimed that the judgment of 19 November 2004, as amended on 7 July 2005, was enforced.
42.  The applicant maintained his claims.
43.  The Court observes that the judgment of 19 November 2004 became enforceable on 9 February 2005. From that day on and at least until 7 July 2005 when it was amended by the Presidium of the Rostov Regional Court, it was incumbent on the Town Administration to comply with it, but it failed to do so. In fact, the judgment has never been enforced.
44.  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, e.g., Burdov v. Russia, no. 59498/00, ECHR 2002-III; and, more recently, Poznakhirina v. Russia, no. 25964/02, 24 February 2005; Wasserman v. Russia (no. 1), no. 15021/02, 18 November 2004).
45.  Having examined the material submitted to it, the Court considers that the Government did not advance any acceptable justification for the failure to enforce the original judgment. Having regard to its case-law on the subject, the Court finds that by failing to comply with the enforceable judgment in the applicant's favour the domestic authorities violated his right to a court and prevented him from receiving the flat of a size and standard which the applicant was entitled to receive (see Teteriny v. Russia, no. 11931/03, 30 June 2005). Accordingly, there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of non-enforcement of the judgment of 19 December 2004, as upheld on 9 February 2005.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
46.  The applicant also complained under Articles 2, 3, 6 § 1 and Article 1 of Protocol no.1 that his life and the life of his relatives are in danger due to the authorities' failure to execute the judgment; that he was deprived of the opportunity to privatise the flat to which he became entitled through the judgment of 19 December 2004; that the refusal to initiate criminal proceedings against the Town Mayor was unlawful and that the proceedings concerning his request for acknowledgment of the “breach of his rights and freedoms” were unfair.
47.  Having regard to all the material in its possession, and insofar as these complaints come within the Court's competence, it finds that these complaints 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.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
48.  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
49.  The applicant claimed 60,507 euros (EUR) in respect of pecuniary damage (equivalent to the flat's value) and EUR 65,000 in respect of non-pecuniary damage in connection with his suffering and deterioration of his health.
50.  The Government considered that no pecuniary damage should be awarded because the judgment had been enforced, and that the claim for non-pecuniary damage was excessive and not justified.
51.  The Court recalls that in the instant case it found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the final judicial decision in the applicant's favour had remained unenforced and had been subsequently amended. The applicant was thereby prevented from receiving the flat he had legitimately expected to receive. Accordingly, the Court considers that the applicant is still entitled to receive a flat of a size and standard provided by the judgment of 19 November 2004, as upheld on appeal on 9 February 2005. The Court recalls that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been had the requirements of Article 6 not been disregarded (see  (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, , , no. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the violation found. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment of 19 November 2004, as upheld on appeal on 9 February 2005.
52.  The Court further considers that the applicant suffered distress and frustration resulting from the non-enforcement of the final judgment and its amendment by way of supervisory-review proceedings. However, the particular amount claimed is excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.
B.  Costs and expenses
53.  The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head.
C.  Default interest
54.  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
1.  Declares the complaint concerning the non-enforcement of the final judgment in the applicant's favour and its amendment by way of supervisory review admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the amendment of the judgment of 19 November 2004, as upheld on appeal on 9 February 2005, by way of supervisory review;

3.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the non-enforcement of the judgment of 19 November 2004, as upheld on appeal on 9 February 2005;

4.  Holds
(a) that the respondent State shall secure, by appropriate means, the enforcement of the judgment of 19 November 2004, as upheld on appeal on 9 February 2005, and 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 1,500 (one thousand five 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;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 1 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	Søren Christos Rozakis
	Registrar	President