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FIRST
SECTION
CASE OF YERKIMBAYEV v. RUSSIA
(Application
no. 34104/04)
JUDGMENT
STRASBOURG
23
October 2008
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 Yerkimbayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Registrar,
Having
deliberated in private on 2 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34104/04) 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 Adilbek
Omirbekovich Yerkimbayev (“the applicant”), on 19 August
2004.
- The
Russian Government (“the Government”) were first
represented by Mr P. Laptev and subsequently by Ms V. Milinchuk,
former Representatives of the Russian Federation at the European
Court of Human Rights.
- On
18 October 2006 the
President of the First Section decided to communicate the complaint
concerning the length of the proceedings to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Moscow.
- The applicant and his wife obtained an occupation
certificate for a municipal flat where another family, (“Family
X”), lived at the material time. Family X had, in turn,
received an occupation certificate for another flat. As the flat
offered to Family X did not meet their expectations, the family
refused to move out of the old flat.
- On 15 October 1998 the applicant instituted proceedings
in the Lyublinskiy District Court of Moscow seeking the eviction of
Family X.
- On 12 November 1998 the Municipal Housing Department of
Moscow, who owned the flat at the material time, also lodged a claim
for the eviction of Family X.
- On 22 December 1998 the Lyublinskiy District Court in
the absence of the defendants passed judgment in default, granting
the applicant’s request and ordering the eviction of Family X.
However, the latter appealed against the above judgment which was
annulled as a result on 8 February 1999.
- On 10 March 1999 the defendants lodged a counter claim,
requesting, inter alia, that the applicant’s occupation
certificate be declared void.
- Meanwhile, in April 1999 the applicant and his wife
privatised the flat in dispute and registered their property right in
the State’s Register.
- As regards the twelve hearings fixed between 18 May
1999 and 26 May 2000, two were adjourned following requests by
the defendants and four were adjourned because the representative of
the Municipal Housing Department of Moscow failed to attend. The
remaining six hearings were adjourned in view of the non-attendance
of the Ministry of Finance, which was responsible for the allocation
of municipal housing to the defendants and whose attendance was
required to verify the issue of the lawfulness of the provision to
the defendants’ family of new housing and the taking away of
the flat in dispute. It was not until the District Court imposed a
fine on the Ministry amounting to 3,000 Russian roubles for
non-attendance at the hearings that a representative of the Ministry
finally appeared before the court.
- On
26 May 2000 the Lyublinskiy District Court of Moscow granted the
applicant’s claim and dismissed that of the defendant.
- On
26 October 2000 the judgment was upheld on appeal by the Moscow City
Court and entered into force.
- On
14 December 2000 the bailiffs opened enforcement proceedings.
- On
20 December 2000 and 15 May 2001 the enforcement proceedings were
suspended until 9 April 2001 and 13 July 2001 respectively, pending
the examination of the request filed by the defendants for
supervisory review of the judgment of 26 May 2000, as upheld on
appeal on 26 October 2000.
- On
17 August 2001 the enforcement proceedings were again suspended
following the subsequent request from the defendants for supervisory
review of the above judgment.
- On
19 April 2002 the Deputy President of the Supreme Court of Russia
brought an application for supervisory review of the judgment to the
Presidium of the Moscow City Court.
- On
13 June 2002 the Presidium of the Moscow City Court quashed the
judgment by way of supervisory review and remitted the case for fresh
examination by a differently composed bench.
- On
4 November 2002 the Lyublinskiy District Court granted the
defendants’ counter claim and declared the occupation
certificate issued to the applicant void. The court further obliged
the Municipal Housing Department of Moscow to provide the applicant
and his family with another flat.
- Following
the appeal lodged against the above judgment by the Municipal Housing
Department of Moscow, on 18 March 2003 the Moscow City Court quashed
the above judgment on appeal and remitted the case for fresh
examination.
- As
regards the six hearings fixed between 14 May 2003 and 8 October
2003, one was adjourned because the judge was involved in another
case, two were adjourned because of the non-attendance of the
defendants and on their request, and three were adjourned because of
the non-attendance of the Municipal Housing Department of Moscow.
- On
8 October 2003 the Lyublinskiy District Court granted the applicant’s
claim and dismissed that of the defendants.
- On
26 February 2004 the Moscow City Court upheld the judgment on appeal.
- On
23 March 2004 the bailiffs opened the enforcement proceedings.
- On
29 June 2004 the defendants were evicted. The applicant and his
family moved into the flat.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument and submitted that the proceedings
had not breached the reasonable time requirement of Article 6.
A. Admissibility
- 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. The period to be taken into consideration
- The
Government submitted that the proceedings had begun on 15 October
1998 and ended on 26 February 2004 with the final judgment of the
Moscow City Court.
- The
applicant maintained that the duration of the enforcement proceedings
should also be included in the overall length.
- The
Court is of the view that the period between 15 October 1998 and
29 June 2004 should be regarded as a whole because it was
incumbent on the State to enforce the judgment once it was issued.
Therefore the periods when the enforcement proceedings were pending
must be regarded as an integral part of the “trial” for
the purposes of Article 6 and should be included in the overall
length (see Di Pede v. Italy and Zappia v. Italy
judgments of 26 September 1996, Reports of Judgments and Decisions
1996-IV, pp. 1383-84, §§ 20-24, and pp. 1410-11, §§
16-20, respectively; and, more recently, Sokolov v. Russia,
no. 3734/02, § 32, 22 September 2005, and Romanenko
and Romanenko v. Russia, no. 19457/02, § 26, 19 October
2006). The Court considers, therefore, that the proceedings lasted
from 15 October 1998 to 29 June 2004 when Family X was evicted from
the flat in dispute and the applicant’s family was able to move
in.
- The
proceedings therefore lasted over five years and eight months for
three levels of jurisdiction.
2. Reasonableness of the length of the proceedings
- The
Government argued that the proceedings in the applicant’s case
were complex given the number of persons involved and the nature of
the dispute. The applicant averred that the parties involved in the
case were limited to himself, the defendants’ family and the
Municipal Housing Department of Moscow, which was not a high number.
The Ministry of Finance was neither a party to the proceedings nor
had the status of an intervenor in the proceedings. It was not the
owner of the flat in question or lay any claim in respect of it.
Neither could it provide the court with any information as to the
lawfulness of the provision to the defendants’ family of the
new housing and the taking away of the disputed flat. Therefore, the
delays caused by the non-attendance of the representative of the
Ministry of Finance should be attributed to the domestic authorities.
The applicant further maintained that the case was of no particular
complexity. The task of the courts was limited to determining the
legalities relating to the provision of municipal housing in Moscow
at the material time, evaluating whether or not the new flat provided
to the defendants’ family complied with the above legalities
(simple arithmetical calculation) and whether the defendants’
claims could be granted in accordance with the law.
- The Government submitted that except for the delay
from 17 August 2001 to 19 April 2002 caused through the fault of the
domestic authorities, the hearings had been scheduled at regular
intervals and the courts had not remained idle. The applicant agreed
that the above delay had been attributable to the domestic
authorities since he had had no means of speeding up the examination
of the defendants’ request to initiate supervisory review
proceedings in the Supreme Court.
- The Government further noted that courts at three
levels of jurisdiction had been actively involved in the applicant’s
case.
- The
applicant finally submitted that throughout the whole period during
which the proceedings were pending he and his wife had had nowhere to
live and had had to move in with their daughter’s family in the
latter’s communal flat. Consequently, the daughter’s
family had been forced to rent another flat. The rental payments had
been shared between the two families.
- The
Court observes that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court observes that the proceedings relating to the dispute between
the applicant and the defendants over a municipal flat were not
particularly complex. It furthermore considers that the applicant’s
conduct did not noticeably contribute to the length of the
proceedings.
- As
regards the conduct of the domestic authorities, the Court notes that
it led to some substantial delays in the proceedings. In particular,
the Court observes that in the period from 18 May 1999 to 26 May 2000
the case was adjourned on twelve occasions, ten of which were as a
result of the State bodies involved in the proceedings – the
Municipal Housing Department of Moscow and the Ministry of Finance –
failing to appear before the court. The Court notes further in this
respect that it was not until the Ministry of Finance had failed to
attend six times in a row that the domestic court imposed a fine on
them for non-attendance.
- The
Court further observes that the Government accepted the
responsibility of the domestic authorities for the eight months’
delay in the period from 17 August 2001 to 19 April 2002 when the
enforcement proceedings were suspended due to examination of the
request for supervisory review filed by the defendants before the
Supreme Court.
- The
Court is mindful of the Government’s argument as regards the
fact that the case spanned three levels of jurisdiction.
Nevertheless, this alone cannot justify the overall length of the
proceedings (see Angelova v. Russia, no. 33820/04, § 46,
13 December 2007).
- Finally,
the Court considers that the subject matter of the case called for
particular diligence on the part of the domestic courts. As is
apparent from the applicant’s submissions, he had no other
place of residence, and therefore the outcome of the proceedings, as
well as their promptness, was of crucial importance to him.
- Having
regarded to the above, and to the fact that the proceedings lasted
more than five years and eight months in a relatively simple case,
the Court considers that the length of the proceedings did not
satisfy the “reasonable-time” requirement. Accordingly,
there has been a breach of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 of the
Convention about the quashing of the judgment of 26 May 2000, as
upheld on appeal 26 October 2000, by way of supervisory review, and
under Article 1 of Protocol No. 1 that, being the owner of the
disputed flat, he could not benefit from it for five years.
- The
Court has examined the remainder of the applicant’s complaints
and considers that, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, they 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 should be declared
inadmissible pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered these claims excessive. They considered that a
token amount of EUR 30 would constitute equitable satisfaction for
the non-pecuniary damage suffered by the applicant.
- Making
its assessment on an equitable basis, the Court awards the applicant
2,900 euros in respect of non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and before 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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is 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 2,900 (two
thousand nine hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 23 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
