FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 64672/01
by Vladimir Ivanovich CHERNYKH
against Russia
The European Court of Human Rights (Fifth Section), sitting on 5 June 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrA. Kovler,
MrJ. Borrego Borrego,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 October 1999,
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
The applicant, Mr Vladimir Ivanovich Chernykh, is a Russian national, who was born in 1957 and lives in Salsk, the Rostov Region. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Liquidation of the applicant’s village and relocation
The applicant lived with his wife and six-year-old son in the goldmining settlement “Leningradskiy” of Shmidtovskiy District of the Chukotskiy Autonomous Region (Chukotka), the region in the Extreme North of Russia.
In 1998 the Government decided to close down a number of industrial settlements in Chukotka, including “Leningradskiy”. On 2 February 1998 the Government issued the Decree No. 128 “On Social Protection of Residents of Goldmining Settlements to be Liquidated in the Chukotskiy Autonomous Region”. According to the conditions of the closure programme the inhabitants were entitled to replacement housing and compensation of removal expenses. In the alternative, they could apply for housing subsidies. The applicant was entitled to free shipment of up to 5,000 kg of his household possessions.
On 1 October 1998 the heating, electricity and water supply in part of “Leningradskiy” were cut off. At that time, the Administration of the Shmidtovskiy District offered the applicant to be relocated to the settlement Mys Shmidta, while the containers with the household belongings were to be shipped later by land after the seasonal winter trails were opened. The applicant refused to leave on the grounds that he could not leave the container with his household possessions behind for fear of looting. As an alternative, the applicant was offered to send his son to the boarding school in Mys Shmidta, should the applicant and his wife decide to wait in “Leningradskiy”, for the shipment, which the applicant also declined.
The applicant and his family stayed in “Leningradskiy” for another three months during which they had to stay at other people’s homes whose flats still had heating.
On 30 December 1998 the applicant and his family with their belongings were relocated to Mys Shmidta. According to the Government, the applicant’s family was given temporary dwelling at the address 16 Naberezhnaya Street, apt. 27. The applicant denies having stayed at these premises, but it appears that correspondence sent to this address reached him. His own letters of the relevant period indicated his address as 41/5 Naberezhnaya Street, Mys Shmidta.
Subsequently the applicant was offered to temporarily move with his family into a room in a former military hospital, because it allegedly had a better functioning heating system, but he refused because it would be necessary to share common sanitary facilities there.
On 8 January 1999 the Administration of the Shmidtovskiy District advised the applicant that his relocation allowance of 105,259.50 roubles (RUR) had been deposited at the cashier’s office of the municipal communal enterprise and that it would become payable upon his relocation. He was also advised that he could request an advance payment.
On 9 February 1999 the applicant filed an application for housing subsidies or a replacement dwelling in the central regions of the Russian Federation.
On 5 May 1999 the applicant was allotted a three-room flat in Salsk, a town in the Rostov Region, and he was due for relocation. However, due to an error it turned out that this flat was not available.
On 27 October 1999 the applicant was allocated a two-room flat in Mys Shmidta at the address 4 Shkolnaya Street, apt. 32.
On 17 April 2000 the applicant was allotted another three-room flat in Salsk and he accepted it. He and his family have been living there since.
B. Proceedings before the courts
1. Dispute concerning the relocation
On 19 March 1999 the applicant instituted proceedings against the Administration of the Shmidtovskiy District. He argued that he had been unlawfully deprived of his home and claimed replacement housing or housing subsidies, as well as non-pecuniary damages.
At the preparatory stage of proceedings the applicant requested the court to obtain a number of official documents for the case file. On 30 April 2000 the court ordered the applicant to provide certain evidence for the file by 1 June 2000. On 22 August 2000 the court sent the applicant a reminder thereof. On 9 November 2000 the applicant submitted his comments.
On 5 December 2000 the Shmidtovskiy District Court examined the case and dismissed the applicant’s claim having found that the applicant had already received the replacement housing. In so far as he claimed damages allegedly caused in the period before the housing was granted, the court found that the applicant had had temporary housing in Mys Shmidta and provided no details, such as dates when he was deprived of any housing at all, to substantiate his allegations.
The applicant did not attend the proceedings because he had already left for Salsk, and the judgment was posted to him on 8 December 2000. However in 2002 he claimed that he had not received it and applied to the court for a leave to appeal out of time.
On 18 November 2002 the Regional Court of Chukotka granted the applicant’s request and accepted his appeal for examination.
On 13 March 2003 the Regional Court of Chukotka examined the appeal and upheld it. It remitted the case for a fresh examination before the court of first instance.
On 31 March 2003 the Shmidtovskiy District Court ruled to prepare the case for examination and required the applicant to provide certain documents for the file. Pending his reply the case was not scheduled for a hearing. In December 2004 the court concluded that the applicant had failed to submit the required information and fixed a hearing for 13 January 2005.
On the latter date the court examined the case and rejected the applicant’s claims. On the point concerning the non-pecuniary damage allegedly caused to the applicant by the late provision of housing, the court found the applicant’s submissions unsubstantiated, in particular in view of his failure to indicate the periods when he was deprived of temporary housing.
The parties submitted no information as to whether an appeal was lodged against this judgment.
2. Proceedings for recovery of salary
On 28 January 1999 the applicant instituted proceedings against his former employer for recovery of his salary and damages caused by delays in its payment. On 12 February and 9 March 1999 the applicant amended his claims.
On 22 April 1999 the Shmidtovskiy District Court granted the applicant’s claims in part. The applicant appealed.
On 15 July 1999 the Regional Court of Chukotka reversed the first instance judgment and remitted the case for a rehearing.
On 21 September 1999 the Shmidtovskiy District Court granted the applicant’s claims in part. The judgment was executed on 28 November 1999.
3. Proceedings for damages against a local financial authority
On 27 December 1999 the applicant instituted proceedings for damages against a financial authority of the village Mys Shmidta (администрация расчетно-кассового центра поселка Мыс Шмидта) claiming that there had been a delay of payments for which they were responsible.
On 24 March 2000 the Shmidtovskiy District Court examined the applicant’s claims and granted them in part. The applicant lodged an appeal, however the proceedings were stayed until the applicant paid the court fees on 30 January 2001.
On 29 March 2001 the applicant’s appeal was examined and upheld. The court remitted it for a fresh examination by the first instance court.
On 24 April 2001 the District court required the applicant to provide certain information by 1 July 2001. The applicant made the necessary submissions and amended his claims on 18 July 2001. He accepted to substitute the Central Bank for the original defendant. The defendant’s observations were submitted on 13 September 2001. Then the hearing could not be scheduled, first, because for five months the court building was closed due to the heating problems in the town, then because the judge was on a five months’ leave and afterwards the court had to deal with the accrued backlog of cases.
A hearing was fixed for 27 November 2002, but the defendant requested an adjournment until February 2003.
On 21 February 2003 the Shmidtovskiy District Court examined the applicant’s claims and rejected them. The applicant appealed, but the proceedings were stayed until the applicant paid the court fees. The applicant failed to do so, and on 8 August 2003 the court ruled to discontinue the appeal proceedings.
4. First set of proceedings against the bailiffs
On 28 January 1999 a judge of the Shmidtovskiy District Court ordered the applicant’s former employer, a municipal enterprise providing public utilities, to pay him salary arrears in the amount of RUR 11,203.79. The order was executed on 12 July 1999.
On 23 August 1999 the applicant instituted proceedings against the bailiffs for damages caused by their failure to enforce the order in due time. The first instance court’s judgment was delivered on 27 December 2001. The applicant was sent a copy of this judgment by post, but in 2003 he claimed that he had not received it. Upon his request of 7 July 2003, the court granted him leave to lodge an appeal out of time.
On 22 January 2004 the Regional Court of Chukotka examined the appeal and reversed the first instance judgment. The case was remitted for a fresh examination by the first instance court.
On 16 July 2004 the court required the defendant to submit additional comments. The case was then scheduled for 12 January 2005.
On the latter date the Shmidtovskiy District Court examined the case and rejected the applicant’s claims. The parties submitted no information as to whether an appeal was lodged against this judgment.
5. Second set of proceedings against the bailiffs
On 2 December 2001 the applicant instituted proceedings against the bailiffs for damages allegedly caused by their failure to enforce the judgment of 21 September 1999 in due time. On 7 December 2001 the court declined jurisdiction over the case, but upon the applicant’s appeal, on 25 April 2002 the Shmidtovskiy District Court accepted the case for examination. On 18 July 2002 the court required the applicant to submit additional observations and evidence. On 18 September and 2 October 2002 the court reiterated the request and invited the applicant to substitute the defendant.
The hearing was scheduled for 6 November 2002 but it was adjourned until 25 November 2002 because the defendant could not attend and due to the applicant’s filing additional submissions. On the latter date the court adjourned the hearing on the ground that there had been no confirmation of the applicant’s notification of the new date of the hearing.
On 27 January 2003 the Shmidtovskiy District Court examined the case and rejected the applicant’s claims.
On 8 April 2003 the applicant lodged an appeal, but the proceedings were stayed until the applicant filed a request for leave to appeal out of time. The applicant’s request reached the court on 29 July 2003 and was granted on 4 August 2003.
On 3 November 2003 the Regional Court of Chukotka began the examination of the appeal. However it held to remit the case to the district court for an additional judgment concerning the court fees. The additional judgment was delivered by the Shmidtovskiy District Court on 27 March 2004.
On 11 May 2004 the applicant filed an appeal against the additional judgment of 27 March 2004, which was stayed because the applicant lodged his appeal out of time and did not request leave for appeal out of time. On 18 June 2004 the applicant made such a request, and on 21 July 2004 the court granted it and accepted the appeal for examination.
On 21 October 2004 the Regional Court of Chukotka upheld the additional judgment of 27 March 2004.
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 and Article 8 of the Convention about having been deprived of his home and the failure of the authorities to provide him with another dwelling for a year and a half.
2. The applicant also complained under Article 6 of the Convention about the length of civil proceedings instituted by him before the domestic courts.
3. Under Article 2 of Protocol No. 4 the applicant alleged that he was forced to move to another region which violated his freedom to choose his residence.
THE LAW
1. The applicant alleged that his resettlement from Chukotka involved a violation of his right to respect for his home and his right to the peaceful enjoyment of his possessions. He referred in particular to the delay in providing him and his family with a substitute dwelling, a period during which they were allegedly deprived of any housing. He invoked Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provide as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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.”
The Government contested the applicant’s allegations. They submitted that the applicant and his family were resettled as part of the State programme for closing down the unsustainable industrial settlements in the Chukotka. Therefore the applicant, among all implicated residents, was required to leave his home, but he was entitled to be provided with a substitute accommodation in one of the mainland regions of the Russian Federation. They admitted that there had been an administrative mistake which caused a delay in granting him the housing in the Rostov Region, but they pointed out that in the meantime the applicant was provided with temporary accommodation. First, he was granted a temporary flat in Mys Shmidta at the address 16 Naberezhnaya Street, apt. 27 and then in the same village at the address 4 Shkolnaya Street, apt. 32. At one stage the applicant was also offered to stay at the premises of a former military hospital, but he chose not to do so. The Government also claimed that the applicant had received a relocation allowance to which he was entitled in accordance with the resettlement scheme.
The Government therefore claimed that the applicant’s resettlement did not constitute a violation of his right to respect for his home or his right to the peaceful enjoyment of his possessions because this measure was implemented in accordance with the law, pursued the legitimate aim of maintaining public safety and social and economic well-being of the country and that it was proportionate to the legitimate aim pursued.
The applicant maintained his complaints that he and his family suffered from the lack of housing and money until they could finally move to the Rostov Region. He claimed that between 1 October 1998 and 31 December 1998 there had been no accommodation at his disposal. He also contested that in the following period he was living at 16 Naberezhnaya Street, apt. 27, claiming that he had only been offered a room in the military hospital which he could not but reject.
The Court, first, notes that the authorities’ decision to wind up the settlement where the applicant and his family lived constituted an interference with the applicant’s right to respect for his home.
The Court further notes that the implementation of the general scheme for closing the settlement and the specific order to the applicant to vacate his flat were in accordance with the Government Decree No. 128 of 2 February 1998 “On Social Protection of Residents of Goldmining Settlements to be Liquidated in the Chukotskiy Autonomous Region”. Moreover, the applicant did not claim that the authorities’ order to vacate his flat in the “Leningradskiy” settlement was unlawful. It is also a common ground between the parties, and shared by the Court, that the liquidation of the settlements in the Extreme North which were considered unsustainable pursued the legitimate aim of public safety and economic well-being of the country.
It therefore remains for the Court to examine whether the measure at issue was implemented so as to strike a fair balance between the applicant’s rights and the general interest in implementing the resettlement programme. In this respect the Court notes that in the process of resettlement there have allegedly been periods when he and his family were left without housing and means of survival in the extreme conditions of Chukotka.
The Court notes that in October 1998 when the goldmining settlement “Leningradskiy” was closing down, the applicant was offered relocation to Mys Shmidta, but he refused to leave because he believed that he needed to supervise the container with household belongings. While he alleged that his belongings were otherwise to be looted there is nothing to support the seriousness of that risk. Moreover, the applicant did not explain why his whole family had to stay in “Leningradskiy” in the conditions which they knew were bound to be difficult. The Court therefore concludes that the applicant’s complaints in relation to the period before he left “Leningradskiy” for Mys Shmidta (October-December 1998) are unsubstantiated.
After the applicant was relocated to Mys Shmidta, there was a period when he was waiting for the provision of substitute housing elsewhere in Russia. The facts relating to the initial part of this period, i.e. between 30 December 1998 and 27 October 1999, are in dispute between the parties. In particular, the Government submitted that the applicant had at his disposal a temporary flat at 16 Naberezhnaya Street. The applicant claimed that this address was not true, but gave no further explanations where he lived at the material time. It follows from the copies of the applicant’s correspondence with the local authorities that throughout 1999 he indicated 41/6 Naberezhnaya Street as his address and received his mail there. The applicant, on his part, made no mention of this flat in his submissions leaving it unclear whether it was state-provided or privately rented. However, it is certain that during the same period the applicant declined the authorities’ offer to move into a room at the former military hospital on the grounds of his unwillingness to have shared sanitary facilities. Therefore even assuming that between 30 December 1998 and 27 October 1999 the applicant rented privately, it was in the exercise of his choice for better living conditions and not because the authorities had failed to offer him any temporary accommodation.
Finally, from 27 October 1999 and until his departure for the permanent place of residence in the Rostov Region the applicant lived in a state-provided flat in Mys Shmidta at 4 Shkolnaya Street.
The Court therefore has no basis to conclude that during the period of resettlement the applicant was deprived of any housing as he claimed. The Court finds no indication that in the implementation of the resettlement programme the national authorities failed to take the applicant’s housing needs into account or otherwise exceeded their margin of appreciation in this respect. Consequently, the Court finds that the applicant’s complaints disclose no appearance of a violation of Article 8 of the Convention.
Turning to the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention, the Court considers that even assuming that the implementation of the resettlement programme interfered with the applicant’s right to the peaceful enjoyment of his possessions, this interference was justified in terms of Article 1 of Protocol No. 1 for the reasons as adduced under Article 8. The Court thus finds no appearance of a violation of Article 1 of Protocol No. 1 to the Convention.
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.
2. The applicant complained about the excessive length of five sets of civil proceedings brought by him against various State authorities. He alleged a violation of Article 6 of the Convention, which provides in so far as relevant as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
1. The parties’ submissions
The Government submitted a detailed account of events in respect of each set of proceedings, as set out in Chapter B, subsections 2-6 of the “Facts” above. In respect of each set they claimed, first, that the length of proceedings did not exceed what could be regarded as reasonable time within the meaning of Article 6 of the Convention. In particular, they referred to the fact that the applicant had to participate in the proceedings by correspondence because by then he had left Chukotka for the Rostov Region and the courts accordingly allowed the parties sufficient time for the exchange of observations etc. Secondly, in each set of proceedings the applicant applied for leave to appeal out of time alleging that he had not received the first instance judgments. On every occasion the courts granted his request.
The applicant maintained his complaints.
2. The Court’s assessment
(a) General considerations
The Court observes at the outset that during the period at issue the applicant instituted at least five concurrent sets of civil proceedings before the Shmidtovskiy District Court. It notes, next, that none of these proceedings concerned a particularly complex dispute. However, in all cases the proceedings were complicated by the fact that the applicant, who at the material time lived in Salsk of the Rostov Region litigated in the courts of Chukotka, a region in the Extreme North with limited accessibility, about 7,000 km from his new place of residence. The proceedings therefore largely relied on the postal exchange between the parties and the courts.
The Court will examine each set of proceedings having regard to its established case‑law according to which the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of 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).
(b) Individual sets of proceedings
(i) Proceedings concerning the relocation
The applicant seized the court with a claim on 19 March 1999. On 13 January 2005 the Shmidtovskiy District Court delivered a judgment. In the absence of any information to the contrary the Court assumes that this was the final decision in the case. Accordingly these proceedings lasted for four years and ten months, less two years when no proceedings were pending, which makes it two years and four months.
During this period the case was examined before three judicial instances. The first judgment by the first instance court was given after one year and nine months from the date of lodging the claims. For nearly two years after that the case was considered finished as no party lodged an appeal. It was on the applicant’s request that on 18 November 2002 the court resumed the proceedings having granted his application for leave to appeal out of time. The only delay in the proceedings after that date – between March 2003 and December 2004 – was the time given to the applicant to submit additional information and observations. In this respect, the responsibility of the judicial authorities to expedite the proceedings overlaps with the applicant’s failure to submit the requested information. On the whole, having found no substantial periods of inactivity attributable to the domestic authorities, the Court does not consider that the length of proceedings in this dispute failed to meet the requirement of “reasonable time” guaranteed by Article 6 § 1 of the Convention.
(ii) Proceedings for recovery of salary
The applicant lodged his claim on 28 January 1999, and the final judgment in the case was taken on 21 September 1999. The proceedings therefore lasted less than eight months. During that period the case was examined before three judicial instances and resulted in a final judgment. The Court does not consider that the length of proceedings in this dispute failed to meet the requirement of “reasonable time” guaranteed by Article 6 § 1 of the Convention.
(iii) Proceedings for damages against a local financial authority
The applicant lodged his claim on 27 December 1999. On 8 August 2003 the court ruled to discontinue the appeal proceedings. Accordingly the proceedings at issue lasted three years and eight months.
During this time the case was considered before two judicial instances and the third examination was pending when the court discontinued the proceedings for the applicant’s failure to pay the court fees. In the proceedings, the courts were active, fixing the hearings at regular intervals and requesting the parties to provide necessary documents for the file, with the exception of the period between 13 September 2001 and 27 November 2002 when the court encountered technical problems, i.e. the lack of heating in the winter period, the judges’ absence, and the ensuing backlog. This period of inactivity was rather long, and the domestic authorities were responsible for it. However, the Court takes into account the authorities’ diligence outside this period, the fact that for the last six months the proceedings in the case were stayed, and finally discontinued, because of the applicant’s failure to pay the court fees.
It also notes that what the dispute concerned the claim of penalties for the alleged fault in the bank transfer, thus what was at stake for the applicant was not a matter of particular urgency or requiring the court’s special diligence.
In view of the foregoing Court concludes that the length of proceedings in the present dispute did not exceed the “reasonable time” guaranteed by Article 6 § 1 of the Convention.
(iv) First set of proceedings against the bailiffs
The applicant instituted the proceedings on 23 August 1999. On 12 January 2005 the Shmidtovskiy District Court held a judgment. In the absence of any information to the contrary the Court assumes that this was the final decision in the case. Accordingly these proceedings lasted for nearly four years and five months, less one year and six months when no proceedings were pending, which makes it two years and eleven months.
The first judgment of the first instance court was delivered two years and four months after the claim was lodged. For nearly one year and a half after that the case was considered finished as no party lodged an appeal. It was on the applicant’s request of 7 July 2003 that the court resumed the proceedings having granted his application or leave to appeal out of time. After that date the proceedings before two instances lasted one year and a half during which the court was active fixing the hearings at regular intervals and requesting the parties’ additional information.
In these circumstances the Court does not consider that the length of proceedings in this dispute failed to meet the requirement of “reasonable time” guaranteed by Article 6 § 1 of the Convention.
(v) Second set of proceedings against the bailiffs
The applicant seized the court with a claim on 2 December 2001, and the final decision was taken on 21 October 2004. Accordingly these proceedings lasted two years and nearly eleven months.
The Court observes that during that period the courts were constantly dealing with the case. The claim was examined on the merits by two judicial instances and the final decision was taken. In addition to that, the court of the first instance made a separate ruling concerning the court fees. The hearings were fixed at regular intervals and on the occasions when the hearings were adjourned (on 6 November 2002 and 25 November 2002) or stayed (on 8 April 2003) the courts appear to have acted reasonably and resumed the proceedings without undue delays.
In these circumstances the Court concludes that the length of proceedings in the present dispute did not exceed the “reasonable time” guaranteed by Article 6 § 1 of the Convention.
(c) Overall conclusion
Having regard to the conclusions above, the Court finds that the applicant’s complaints concerning the allegedly excessive length of civil proceedings in the above disputes must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. Lastly, the applicant complained under Article 2 of Protocol No. 4 that he was forced to move to another region which violated his freedom to choose his residence. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy