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FIRST
SECTION
CASE OF MIZYUK v. RUSSIA
(Application
no. 9253/06)
JUDGMENT
STRASBOURG
12 April
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 Mizyuk v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9253/06) 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 Yuriy Vladimirovich
Mizyuk (“the applicant”), on 28 January 2006.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representaitve of the Russian Federation at the
European Court of Human Rights.
- On
4 April 2006 the Court decided to give notice of the application to
the 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
- The
applicant was born in 1953 and lives in the town of Omsk.
- On
20 July 2004 the Tsentralniy District Court of Omsk accepted the
applicant's action against the Omsk Town Council and ordered that the
Council should provide the applicant and his family members with a
well-equipped flat, taking into account that the applicant had the
right to an additional room. The judgment was upheld on appeal by the
Omsk Regional Court on 25 August 2004.
- On
16 September 2004 enforcement proceedings were instituted.
- On
28 December 2004 the Tsentralniy District Court clarified its
judgment of 20 July 2004, noting that the Council should buy a flat
at the expense of the federal budget.
- The
judgment remains unenforced because the Federal Treasury did not
provide the Council with necessary funds.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the judgment in his favour remained
unenforced. The Court considers that this complaint falls to be
examined under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 (see Burdov v. Russia, no.
59498/00, § 26, ECHR 2002 III). 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
- The Court notes that the application 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
- The
Government submitted that the judgment of 20 July 2004 remained
unenforced because there were complex arrangements between budgets of
different levels within the Russian Federation and there existed no
clear legal basis for a transfer of funds between the budgets.
- The
applicant maintained his claims.
- The
Court observes that on 20 July 2004 the applicant obtained a judgment
in his favour by which he and his family members were to be granted a
flat. The judgment was upheld on appeal on 25 August 2004 and became
enforceable on the same day. The judgment of 20 July 2004 has not
been enforced yet. It thus remains unenforced for approximately two
and a half years.
- 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 Malinovskiy
v. Russia, no. 41302/02, § 35
et seq., ECHR 2005; Teteriny v. Russia, no. 11931/03, §
41 et seq., 9 June 2005; Gizzatova v. Russia, no. 5124/03, §
19 et seq., 13 January 2005; Burdov, cited above, § 34
et seq., ECHR 2002 III).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Court notes that the judgment was not enforced because the debtor
did not have financial recourses to purchase a flat. However, the
Court reiterates that it is not open to a State authority to cite the
lack of funds or other resources, such as housing, as an excuse for
not honouring a judgment debt (see Malinovskiy v. Russia, no.
41302/02, § 35, 16 June 2005; Plotnikovy v. Russia,
no. 43883/02, § 23, 24 February 2005). The same principle
applies to difficulties experienced by the State enforcement services
and the complexity of the budgetary arrangement (see Wasserman v.
Russia, no. 15021/02, § 38, 18 November 2004 and
Chernyshov and 11 Others v. Russia, no. 10415/02, § 14,
28 September 2006).
-
The Court finds that by failing for years to comply with the
enforceable judgment in the applicant's favour the domestic
authorities impaired the essence of his right to a court and
prevented him from receiving a flat he could reasonably have expected
to receive.
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed compensation in respect of non-pecuniary damage. He
left the determination of the sum to the discretion of the Court.
- The
Government submitted that no compensation should be granted to the
applicant in respect of pecuniary damage because he had not made the
respective claim. As regards the non-pecuniary damage, the applicant
should be granted the same amount as the applicants in the cases of
Teteriny v. Russia (no. 11931/03, 30 June 2005) and
Shpakovskiy v. Russia (no. 41307/02, 7 July 2005).
- The Court reiterates that in the instant case it found
a violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in that the judicial decision in the applicant's
favour was not enforced. 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
Piersack v. Belgium (Article 50), judgment of 26 October
1984, Series A no. 85, p. 16, § 12, and,
mutatis mutandis, Gençel v. Turkey,
no. 53431/99, § 27, 23 October 2003). The Court finds
that in the present case this principle applies as well, having
regard to the violations found (cf Poznakhirina v. Russia,
no. 25964/02, § 33, 24 February 2005). The State's
outstanding obligation to enforce the judgment
in the applicant's favour is not in dispute. It therefore
considers that the Government shall secure, by appropriate means, the
enforcement of the judgment of 20 July 2004, as upheld on appeal on
25 August 2004.
- The
Court further considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to enforce the judgment in his favour. The Court takes into
account the relevant aspects, such as the length of non-enforcement
and the nature of the domestic award, and making its assessment on an
equitable basis, awards the applicant EUR 2,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on the
above amount.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and the Court.
- Accordingly,
the Court does not award anything under this head.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1;
- Holds
(a) that the respondent State, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, shall
secure, by appropriate means, the enforcement
of the judgment made by the domestic court in the applicant's favour,
and pay the applicant EUR 2,000 (two thousand 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;
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
