Communicated on 6 July 2015
FIRST SECTION
Application no. 71444/13
Rifkat Maksumovich BIGASHEV
against Russia
lodged on 21 October 2013
STATEMENT OF FACTS
The applicant, Mr Rifkat Maksumovich Bigashev, is a Russian national, who was born in 1927 and lives in Izhevsk, Republic of Udmurtiya.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Background to the case
The applicant is a retired person with a category 2 disability.
He is the owner of two-thirds of a house with outbuildings and an adjacent plot of land located in the vicinity of a public highway in Izhevsk. His wife lived there with him from 1958 until her death in 2011. They cultivated their garden to grow their own fruit and vegetables.
Between 2000 and 2002 the municipal authorities repaired the highway and raised the road surface.
Since the repair works the applicant’s house and plot of land have been submerged by flood and sewage water every year. The house has been seriously damaged and, according to the applicant, is no longer habitable.
B. First set of proceedings against the municipal authorities and ensuing enforcement proceedings
In 2004 the applicant brought proceedings against the municipal authorities and the municipal company that had repaired the road. He claimed that the sewage pipe had been installed in breach of technical requirements and in the absence of any specific project documentation. The authorities had not properly supervised the works and validated them, despite numerous technical shortcomings. This had resulted in his house being inundated by flood and sewage water in May 2002. Since then it had been regularly flooded. The applicant claimed compensation for the pecuniary and non-pecuniary damage sustained as a result of the flooding. He also considered that the municipal authorities had to develop specific project documentation for the installation of a new sewage pipe and carry out necessary works to the road.
On 19 March 2007 the Industrialnyy District Court of Izhevsk examined the applicant’s claims. It established that between 2001 and 2002 the municipal authorities had carried out repair works to the road. In particular, in 2002 they had installed a sewage pipe. Regarding the flooding of the applicant’s house in May of that year, the court held that there had been no evidence to support the applicant’s allegations and, accordingly, there had been no grounds to award him compensation for pecuniary and non‑pecuniary damage. The court further held that an expert report issued in October 2006 had established that the applicant’s house had been inundated by flood and sewage water. It concluded that the authorities were therefore under an obligation to organise works related to wastewater collection from the road and from the land near the applicant’s house.
On 5 July 2007 the Supreme Court of the Republic of Udmurtiya (“the Supreme Court”) quashed the part of the judgment of 19 March 2007 refusing to award the applicant compensation for pecuniary damage and adopted a new decision to that effect. It held, in particular, that the case material had confirmed that since 2000 the applicant’s house had been regularly inundated by surface water coming from the road, which had not been properly maintained by the town administration. As a result, the applicant’s property had been damaged. The court awarded the applicant 68,900 Russian roubles (RUB) in compensation for the pecuniary damage sustained as a result of his house being flooded. It upheld the remainder of the judgment of 19 March 2007.
On 12 May 2009 the bailiffs’ service initiated enforcement proceedings. On an unspecified date the town administration engaged the services of the municipal highways to clear the sewage pipe. According to the certificate of acceptance, the highways service finished the works in July 2009.
On 23 November 2009 the bailiffs’ service terminated the enforcement proceedings. The applicant did not lodge an appeal against that decision.
C. Second set of proceedings against the municipal authorities
In April 2007 the applicant’s house and plot of land were again flooded. The applicant sued the municipal authorities claiming that his home and property had been flooded because the town administration had not complied with its obligation to install a wastewater collection system for the road. He also claimed compensation for pecuniary and non-pecuniary damage.
On 20 October 2008 Oktyabrskiy District Court of Izhevsk (“the District Court”) terminated the proceedings in respect of the applicant’s claims regarding the municipal authorities’ obligation to repair the road, since such a claim had already been examined and decided by the Industrialnyy District Court on 19 March 2007.
On 30 October 2008 the District Court examined the remainder of the applicant’s claims. It established that since 2000 the applicant’s house had been regularly flooded because the town administration had not carried out the necessary repairs to the road. It further established that the town administration had not enforced the final judgment of 19 March 2007 and therefore the applicant’s house had been regularly flooded since the adoption of that judgment. Having regard to the above, the court concluded that the flooding of the applicant’s house in spring 2007 had been the fault of the town administration, which had not properly maintained the road. The court awarded the applicant RUB 132,017 in compensation for pecuniary damage and dismissed his claim for non-pecuniary damage.
On 21 January 2009 the Supreme Court upheld that judgment.
D. Third set of proceedings against the municipal authorities and ensuing enforcement proceedings
In September 2010 the applicant brought a new set of proceedings against the municipal authorities. He submitted that since 2000 his house had been regularly flooded because of the authorities’ failure to install a wastewater collection system. The flooding had continued after the enforcement of the judgment of 19 March 2007. As a result of regular flooding his house had been almost destroyed. He also claimed compensation for the pecuniary and non-pecuniary damage.
In March 2011 the applicant’s wife died.
On 21 January 2013 the District Court examined the applicant’s claims. It held that it was competent to do so in so far as they concerned the flooding of his house which occurred after enforcement of the judgment of 19 March 2007.
The District Court granted the applicant’s claims in part. It established, in particular, that after enforcement in 2009 of the judgment of 19 March 2007 the applicant’s house had been regularly flooded as a result of the authorities’ failure to comply with their obligation to properly maintain the applicant’s street and the road near his house. The court ordered the town administration to commission a project with a specialist firm for the construction of a sewage pipe on the part of the road adjacent to the applicant’s house, and to carry out construction works in accordance with that project by 1 July 2013. It dismissed the applicant’s claims for pecuniary and non-pecuniary damage as unfounded.
On 22 April 2013 the Supreme Court upheld the judgment of 21 January 2013. It appears that the applicant did not lodge any further appeal against that decision.
On 16 August 2013 the District Court issued a writ of execution.
On 4 September 2013 the bailiffs’ service instituted enforcement proceedings.
In spring 2014 the applicant’s house was again flooded.
On 5 November 2014 the bailiff terminated the enforcement proceedings on the grounds that the judgment of 21 January 2013 had been fully enforced.
The applicant appealed against that decision to a court, complaining that the judgment in question had not been fully enforced.
On 4 February 2015 the District Court dismissed his complaint, finding that the judgment had been fully enforced.
On 29 April 2015 the Supreme Court quashed that decision and adopted a new decision in the case, allowing the applicant’s complaint regarding the bailiff’s decision. It held, in particular, that the bailiff’s decision to terminate the proceedings had been unlawful and ordered the reopening of the enforcement proceedings.
E. Proceedings before the municipal authorities seeking to declare the applicant’s house unfit for habitation
On 16 September 2013 the applicant applied to the Interdepartmental Commission (“the Commission”) attached to the Industrialnyy District administration with a request to declare his house unfit for habitation on account of the damage caused by regular flooding.
On 11 October 2013 the Commission held that over the years the applicant’s house had lost a number of its features. However, it was still possible to recover them by carrying out structural repairs.
On 18 October 2013 the head of the Industrialnyy District administration approved these conclusions and held that the applicant’s house was in need of structural repairs, that it had been possible to carry out those repairs and that they should be carried out by the owner.
On 26 December 2014 the Industrialnyy District Court dismissed the applicant’s complaint regarding the Commission’s decision. On an unspecified date the Supreme Court upheld that decision on appeal.
F. The applicant’s attempt to apply forsocial housing
On 10 January 2011 the applicant and his wife applied to the municipal authorities with a request to be placed on the municipal housing list. It appears that up to the present date the applicant has not been provided with any accommodation.
COMPLAINTS
The applicant complains under Article 8 of the Convention and Article 1 of Protocol No. 1 that the domestic authorities failed to take due measures to protect his home and property from regular inundation by flood and sewage water, and that the courts refused to award him adequate compensation for the damage caused to his house and plot of land.
He complains, without referring to any particular Article of the Convention or its Protocols, that the judgment of 21 January 2013 was not fully enforced.
QUESTIONS TO THE PARTIES
1. Has the judgment of the Oktyabrskiy District Court of Izhevsk of 21 January 2013, as upheld on 22 April 2013, been enforced fully and in time? If not, was there a violation of Article 6 § 1 of the Convention?
2. Has the applicant exhausted effective domestic remedies in respect of his complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, as required by Article 35 § 1?
3. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in respect of his complaints under Article 8 and Article 1 of Protocol No. 1?
4. Did the authorities discharge their positive obligation to protect the applicant’s right to respect for his home secured by Article 8 of the Convention and his right to peaceful enjoyment of his possessions secured by Article 1 of Protocol No. 1?
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