Last Updated on May 7, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 60432/13
Viktor Borisovich LEBEDENKO
against Russia
The European Court of Human Rights (Third Section), sitting on 4 December 2018 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 4 September 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Viktor BorisovichLebedenko, is a Russian national, who was born in 1963 and lives in Fokino, the Primorskiy Region.
2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. In the wake of the pilot judgment in the case of Gerasimov and Others v. Russia, on 24 November 2014 the application was communicated to the Government for settlement or resolution (see Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 230-31 and point 13 of the operative part, 1 July 2014). The Court adjourned for two years, that is until 1 October 2016, the proceedings in all cases concerning non-enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State authorities (ibid., § 232 and point 14 of the operative part).
4. On 29 September 2016 the Government advised the Court that they were unable to settle the present application within the above time-limit.
5. Having regard to the expiry of the above-mentioned adjournment period, the Court has decided to resume the examination of the application. The Court informed the parties at the communication stage that the case, subject to settled case-law, would be allocated to the Committee.
A. The circumstances of the case
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant was born in 1963 and lives in Fokino, the Primorskiy Region. He is a former military serviceman. In 2000 his name was put on the list of persons in need of housing (нуждающихсявпредоставлениижилья).
1. The applicant’s dismissal from military service and the purchase of a flat
8. In 2008 the applicant was dismissed from military service without being provided with housing. He challenged lawfulness of his dismissal. On 3 June 2008 the Fokinskiy Garrison Military Court rejected his complaint. The court noted that the applicant’s right to receive housing on dismissal had not been breached, as the applicant had been included in the 2008 housing provision plan for the Pacific Fleet servicemen. It appears that the applicant did not appeal.
9. On 10 March 2010 the housing commission of the applicant’s military unit (“the housing commission”) decided to allocate a one-room flat of 36,4 sq.m. at a specific address in Vladivostok for a family of one to the applicant.
10. In the meantime, on 23 September 2010 the applicant bought a different flat of 37.2 sq.m. inFokino. He took out a mortgage at a private bank to pay for it. On 4 October 2010 his title to a flat was recorded by a local registration authority. It appears that he did not inform the authorities thereof of his own motion.
2. Two judgments in the applicants’ favour
11. In September 2011 the Head of the Federal State Institution “Eastern Regional Housing Provision Department” of the Ministry of Defence (“the Head of the State Institution”) requested the applicant to submit additional documents. The applicant complied with the request in October 2011, but the above officer did not grant the flat specified in the decision of 10 March 2010 to him. The applicant challenged his inaction in court.
12. By judgment of 20 December 2011 the Fokinskiy Garrison Military Court established that the housing commission had decided to allocate the flat to the applicant but the Head of the State Institution had failed to take further action within more than one month of the date of receipt of the documents from the applicant. The court declared that inaction unlawful and ordered the Head of the Federal State Institution “Eastern Regional Housing Provision Department” “to take a decision on allocation” (принятьрешениеопредоставлении) of the above flat for a family of one to the applicant, within one month. The judgment entered into force on 31 December 2011.
13. On 24 January 2012 the Head of the State Institution issued a formal refusal to provide the applicant with that flat, as since 2 June 1994 the applicant’s wife had owned a ½ of a flat at a different address.
14. On 19 September 2012 the Fokinskiy Garrison Military Court declared the refusal unlawful, having noted that the applicant’s wife had acquired the title to housing prior to marriage. The court further reiterated that the applicant had been found in need of housing for a family of one and had not received any housing from the State during his military service. Accordingly, there were no grounds to refuse the allocation of the relevant flat to him. Therefore, the court ordered the Head of the State Institution to “take a decision on allocation” of the disputed flat to the applicant within one month from the date of the judgment’s entry into force. The judgment became final ten days later.
3. Exclusion from the list of persons in need of housing, refusal to allocate the flat and subsequent court proceedings
15. According to the applicant, at some point in the meantime the flat referred to in paragraph 9 above was distributed to other persons.
16. On 10 October 2012 the housing commission decided to allocate to the applicant a flat of 53 sq.m. at a different address in Vladivostok, for a family of two.
17. On an unspecified date the authorities received a reply to their request for information from the Consolidated State Register of Real Estate Titles and Transactions stating that since 2010 the applicant had owned a flat in Fokino (see paragraph 10 above).
18. On 26 October 2012 the Head of the Federal Treasury Institution “Vostokregionzhilye” established that since 2010 the applicant had owned a flat compliant with the housing norms (see paragraphs 10 and 30 above) and decided to remove his name from the list of persons in need of housing.
19. On 4 December 2012 he issued a formal refusal to allocate to the applicant the flat in Vladivostok initially distributed to him in March 2010.
20. The applicant lodged a court action challenging the decisions of 26 October and 4 December 2012. He argued, in particular, that they amounted to a refusal to enforce the judgments of 20 December 2011 and 19 September 2012 in his favour, and that the authorities were under obligation to provide him with housing in Vladivostok.
21. On 28 December 2012 the Federal Treasury Institution “Vostokregionzhilye” informed the court that the judgment of 19 September 2012 could not be enforced because of newly‑established circumstances. According to the Consolidated State Register of Real Estate Titles and Transactions, the applicant owned a flat in Fokino. However, he had stated in his housing application that he had not owned any housing. Further, he had omitted to inform the court of the flat and, accordingly, the court could not have taken that information into consideration.
22. On 20 February 2013 the Fokinskiy Garrison Military Court dismissed his application. The court observed that since 2010 the applicant had owned a flat in Fokino, charged with mortgage. When deciding to remove the applicant’s name from the housing list the authorities had duly considered the fact that the flat was in compliance with the applicable housing norms as set out in Section 15.1 of the Law on the Status of Military Servicemen. He had purchased it before the allocation of the State housing to him but had not informed the authorities about it. The Housing Code provided that citizens were struck of the housing list if the grounds for their entitlement to housing under a social-tenancy agreement no longer existed. In the applicant’s case, having obtained all relevant information, the authorities lawfully decided that there had no longer been any ground to keep the applicant’s name on the list and to allocate the flat to him.
23. On 18 April 2013 the Military Court of the Pacific Fleet upheld the judgment on appeal, as the respondent authority had acted in accordance with law (see paragraph 27 below). The appeal court further reiterated that, in accordance with Section 15 of the Status of Military Servicemen Act, in order to be entitled to receipt of a flat at the place of their own choosing and prior to moving to a new place of residence, military servicemen and their family members had to give up their existing housing. However, the flat in Fokino was subjected to mortgage and could not be given up. Accordingly, there were no circumstances giving rise to a right to housing in Vladivostok. Finally, the court rejected the applicant’s reference to a judgment of 19 September 2012 in his favour, as that case concerned a different subject‑matter. According to the appeal decision, at the time of the events the domestic court had not been aware of the applicant’s title to the flat acquired in 2010, and that fact had not been established in those proceedings. However, that circumstance was decisive for the determination of case at hand.
24. On 8 August 2013 the Military Court of the Pacific Fleet refused to grant the applicant leave to bring a cassation appeal against the judgment of 20 February 2013.The applicant did not request a leave to bring a cassation appeal with the Supreme Court.
25. After the communication of the application the Government advised the Court that the authorities were working on an application for the termination of the enforcement proceedings in respect of the judgments of 20 December 2011 and 19 September 2012 in accordance with an unspecified sub-section of Section 43 of the Enforcement Act (see paragraph 31 below).
B. Relevant domestic law
1. Housing Code of the Russian Federation
26. Under the Russian Housing Code of 29 December 2004, in force as of 1 March 2005, certain persons could be declared in need of housing under social-tenancy agreements if they satisfied the conditions established by law (Article 51). In particular, tenants under social tenancy agreements or their family members, as well as owners of the living premises or their family members are considered in need of better housing if a total size of their housing per family member is less than provided for in the applicable housing norm (Article 51 § 1(2)).
27. Citizens are struck off the list of persons in need of better housing if the grounds for entitlement to housing under a social-tenancy agreement no longer exist (Article 56 § 1(2) of the Code).
2. Federal Law on the Status of Military Servicemen
28. Federal Law no. 76-FZ of 27 May 1998 on the Status of Military Servicemen grants them the right to housing (section 15(1)(1)). That provision has been subject to numerous amendments over the years. According to the text in force as from 8 May 2006 (Law no. 66-FZ of 8 May 2006), the State was to ensure that servicemen be provided with housing or monetary funds to allow them to purchase housing in accordance with the procedure and under the conditions set by the federal laws and regulations. Construction and purchase of housing for servicemen was performed by the federal executive authorities at the expense of the federal budget. Criteria for being considered a person in need of better housing were set out in the relevant provisions of the Housing Code of the Russian Federation (see paragraph 26 above).
29. Section 23 of the Law as in force at the material time provided that servicemen who had served ten years and more and whose housing needed to be improved, could not be discharged against their will without the provision of such housing. If they wished, they were granted housing at the place of residence of their choosing, within the procedure set out in Section 15 § 4 of the Law.
30. According to section 15.1 § 1 of the Act, as in force at the material time, the standard of housing was 18 sq.m per person.
3. Enforcement act
31. Article 43 of the Enforcement Act sets out various grounds for termination of the enforcement proceedings. In particular, enforcement proceedings are discontinued by a court in case where it is no longer possible to enforce the enforcement document or in other cases provided by law ((Section 43 § 1 (2 and 4)). A bailiff discontinues the enforcement proceedings, in particular, pursuant to a relevant court’s order, as well as in cases of annulment of the judicial decision on the basis of which the writ was issued, or the annulment of the writ (Section 43 § 2)
4. Instruction No. 1280 of the Ministry of Defence
32. Instruction of the Ministry of Defence of 30 September 2010 No. 1280 sets out rules governing provision of housing to military servicemen under social tenancy agreements.
33. To be declared a person in need of better housing, a military serviceman provides, inter alia, information from the Consolidated State Register of Real Estate Titles and Transactions on any real estate transaction in Russia since 31 January 1998 performed by him- or herself, as well as his or her family members (§ 1(e) of the Instruction).
34. Military servicemen in need of better housing are obliged to inform competent authorities about any change of the circumstances referred to in documents confirming their right to housing, within thirty days (§ 9).
35. Military servicemen are removed from the list of persons in need of better housing, in particular, if the circumstances giving rise to their entitlement to housing cease to exist (§ 10(b)) or if the information they provide to a competent authority is incorrect (§ 10(d)).
36. A competent authority notifies a military serviceman of an allocation of specific living premises within a ten-day period (§ 12). On receipt of such notification, and where a serviceman in need of housing agrees to the allocation of these premises, he or she obtains and submits an extract from the Consolidated State Register of Real Estate Titles and Transactions on any transaction on the entire Russian territory, and submits, within thirty days, all relevant documents to a competent authority. In case of a change of the place of residence after having been declared in need of housing, the serviceman and his family members have to produce the relevant records (§ 13).
37. Housing is granted in accordance with norms set out in Section 15.1 of the Federal Law on the Status of Servicemen (see paragraph 30 above). The size of housing is to be determined with regard to the applicable housing norms, less the size of the living premises already owned by the servicemen and their family members (§ 14 of the Instruction).
38. If there are no grounds to exclude a serviceman from the housing list, a decision to allocate the housing is taken within ten days of receipt of the documents and should be executed within two months (§ 16). Where the documents submitted do not allow a competent authority to take a decision on the provision of the living premises allocated to a claimant, that authority issues a reasoned refusal and informs the serviceman thereof (ibid.).
39. A social tenancy agreement cannot be concluded with military servicemen if the grounds for their entitlement to receive housing cease to exist (§ 18 of the Instruction).
COMPLAINTS
40. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about his unlawful dismissal in 2008, about the non-enforcement of the judgments in his favour and about unfairness of the proceedings in 2013. He may further be understood to complain about the lack of the effective domestic remedy in respect of the non-enforcement complaint.
THE LAW
A. Non-enforcement complaint under Article 6 of the Convention and Article 1 of Protocol No. 1
41. The applicant complained about the non-enforcement of the judgments of 20 December 2011 and 19 September 2012 in his favour referring to Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read as follows:
Article 6
“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
“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.”
1. The parties’ submissions
42. The Government argued that the judgments of 20 December 2011 and 19 September 2012 could not be enforced because the applicant’s name had been struck off the housing list, as he had already owned a flat. By the date of the Government’s latest submissions of 31 March 2017, the authorities had been working on the termination of the enforcement proceedings (see paragraph 25 above).
43. The applicant maintained his claim. He stressed that the initial judgments in his favour had not been amended or quashed on the ground of newly discovered circumstances, and therefore they had remained binding on the authorities. Domestic courts incorrectly applied the law in the proceedings of 2013 concerning his exclusion from the housing list. He had been unlawfully dismissed from military service in 2008 without having been granted a flat. He had had no other choice but to buy a flat in 2010 as since 2008 he had had no housing. His title to the flat in Fokino had not resolved his housing problem as it was subjected to a mortgage and he was unable to freely dispose of it and move to Vladivostok.
2. The Court’s assessment
44. Before addressing the substance of the applicant’s complaint, the Court notes that, contrary to the applicant’s submissions, the circumstances of the applicant’s dismissal in 2008 fall outside the scope of the present non-enforcement complaint in respect of two judgments issued in 2011 and 2012 (see further paragraph 58 below).
45. The Court further agrees that the judgments of 20 December 2011 and 19 September 2012 in the applicant’s favour have not been quashed by way of a supervisory-review procedure or otherwise set aside by the domestic courts, nor have they been amended by a court.
46. Turning to the scope of the domestic judicial orders, the Court notes that the judgments obliged the respondent officer to “take a decision on allocation” of a specific flat to the applicant (see paragraphs 12 and 14, as well as, for the relevant domestic rule, paragraph 38 above). They obliged the authorities to deal with the applicant’s housing claim within specific time-limits and, by operation of law, on the basis of the information and documents available at the material time.
47. The applicant may be understood to argue that the domestic orders to “take a decision on the allocation of the flat” were intrinsically linked to his entitlement to receive a specific flat in Vladivostok and confirmed his title to that flat. However, the Court considers that the judgments obliging the authorities to take relevant decisions cannot be interpreted as imposing an unconditional obligation on them to provide a specific flat to the applicant. The Court cannot but agree with the domestic courts that by operation of law allocation of the flatwas conditional on the applicant’s placement on the list of people in need of housing. Any such decision was to be taken after the assessment of the serviceman’s situation, on the basis of the information available at the material time (see, for instance, paragraphs 38 and 39 above). A change of situation could, under certain conditions, lead to his removal from the list of people in need of housing (ibid.).
48. It was established by the domestic courts in 2013 – and not disputed by the applicant – that he had not informed the authorities about his title to the flat in Fokino in the relevant proceedings in 2011 and 2012. This information was essential for the determination of his entitlement to State housing at a place of his choosing (see paragraphs 26, 27, 30, 33, 35, 37 and 39 above), and he was clearly required to provide the updates on his situation by virtue of the applicable domestic provisions (see paragraphs 34, 35 and 36 above). However, this information only became available to the authorities after the judgment of 19 September 2012 entered into force and thus triggered a fresh inquiry into the applicant’s situation at the material time. Once in possession of the requisite information, in late 2012 the authorities assessed all elements of his case once again. They found, with reference to the size of his flat in Fokino, that he was no longer entitled to housing and accordingly refused to allocate housing to him. In 2013 the domestic courts reviewed the latest refusal, considered the applicant’s arguments in detail and rejected them with reference to the relevant domestic law provisions. The Court does not detect any “flagrant inconsistency” in the courts’ findings (see, mutatis mutandis, Gerasimov and Others, cited above, § 173) and agrees with them.
49. Accordingly, in so far as the applicant’s right to receive State housing could be at stake, the Court finds that the applicant at the material time did not have a legitimate expectation to be provided with the flat in Vladivostok as he no longer fulfilled the requirements of the Law on the Status of Military Servicemen and the Housing Code, nor did he have a “civil right” in that respect recognisable under domestic law (see paragraphs 22 and 23 above; see further, mutatis mutandis, Uskova v. Russia, no. 20116/02, 24 October 2006; and Samun v. Russia (dec.), no. 11538/05, § 21, 7 February 2017, with further references).
50. However, it still remains to be ascertained whether the domestic authorities complied with the domestic judgments of 20 December 2011 and 19 September 2012 ordering to assess the applicant’s housing situation and to issue relevant decisions within the time-limits compatible with the Convention requirements.
51. The Court notes that within one month of the date of each of the respective judgments the respondent authority issued the required decisions, which were, in the present case, negative for the applicant. Whilst the first refusal was successfully challenged by the applicant in the proceedings which ended with the judgment of 19 September 2012 (see paragraph 14 above) and was declared unlawful, the second refusal, dated 4 December 2012, was reviewed by the domestic court and upheld in the 2013 proceedings (see paragraphs 22 and 23 above).
52. Accordingly, by 4 December 2012, the date of the latest decision, the delay of the non-enforcement of the judgment of 20 December 2011 amounted to approximately eleven months and four days, and that in respect of the judgment of 19 September 2012 to less than two months. The Court considers that the periods attributable to the authorities in the present case were compatible with the Convention requirements (see Gerasimov and Others, cited above, § 171, and, mutantis mutandis, Belkin and Others v. Russia (dec.), nos. 14330/07 and 15 others, 5 February 2009).
53. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaint about the lack of an effective remedy
54. The applicant may be understood to complain about the lack of the effective domestic remedy in respect of the non-enforcement. Relevant Convention provision reads as follows:
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
55. The Court has found above that the non-enforcement complaint did not give rise to an arguable claim of a breach of a Convention right. Accordingly, Article 13 of the Convention does not apply.
56. It follows that this part of the application is manifestly ill-founded incompatible rationemateriae and must be rejected in accordance with Article 35 § § 3 (a) and 4 of the Convention.
C. Other complaints
57. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that had been unlawfully dismissed from military service in 2008 without the provision of housing.
58. The Court notes that the latest domestic decision on the matter was taken on 3 June 2008 (see paragraph 8 above). The Court accordingly considers that this part of the application was introduced out of time and that it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
59. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about unfair outcome of the proceedings which ended with the judgment of 18 April 2013 and about incorrect application of the domestic law by the courts in those proceedings.
60. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that 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 the application in this part is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 January 2019.
FatoşAracı BrankoLubarda
Deputy Registrar President
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