FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 19891/04
by Ayshat GOCHAYEVA
against Russia
The European Court of Human Rights (First Section), sitting on 9 November 2010 as a Chamber composed of:
Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 21 April 2004,
Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 1 of the Convention),
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, Ms Ayshat Azretovna Gochayeva, is a Russian national who was born in 1936 and lives in the town of Tyrnyauz in the Kabardino-Balkaruya Republic. She is represented before the Court by Mr I. Kuchukov, a lawyer practising in Nalchik. The respondent Government were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the owner of a flat in a block of flats in Elbrusskiy Avenue in the town of Tyrnyauz in the Kabardino-Balkaruya Republic. She lived in the flat with her family.
In July 2000 some of the residential quarters of Tyrnyauz were flooded as a result of a powerful mudslide. Many buildings were destroyed or damaged and many people were killed or injured. The mudslide also destroyed a bridge in the vicinity of the applicant’s block of flats.
On 28 August 2003 the Tyrnyauz Town Council decided to build a new bridge. The municipal land on which the applicant’s block of flats was situated was allocated for that purpose. The Town Council sued the residents for eviction.
On 12 September 2003 the Elbrusskiy District Court of the Kabardino-Balkariya Republic ordered that the applicant’s family be evicted from their flat and that the Tyrnyauz Town Council provide them with other comfortable housing of an equal value. Eviction of other 31 families from the same block of flats or from the neighbouring blocks of flats was ordered by the same judgment. On the same day the court issued a writ of execution.
The applicant appealed.
On 2 October 2003 the bailiffs’ service opened enforcement proceedings. On 10 October 2003 the bailiffs forcibly evicted the applicant’s family from the flat. No substitute housing was provided.
On 11 November 2003 the applicant’s block of flats was demolished.
On 3 December 2003 the Supreme Court of the Kabardino-Balkariya Republic quashed the judgment of 12 September 2003. It held that the District Court had unlawfully joined the proceedings concerning 32 families and had ordered their eviction without taking into account particular circumstances of each family, that it had not informed some of the defendants about the date of the hearing, that the defendants had not been offered a choice between monetary compensation and substitute housing. It further held that the District Court should have identified a specific flat for the applicant’s family and that the eviction should have been made conditional on making that flat available or on payment of monetary compensation.
The case was remitted before the District Court for a new examination.
On 20 May 2004 the applicant lodged a counterclaim for damages. She submitted that the eviction of her family and the demolition of her flat had been unlawful for the following reasons. Firstly, at the time of the eviction the eviction order had not yet been enforceable because an appeal had been pending against the judgment of 12 September 2003. Secondly, no substitute housing had been provided. She argued that she had been unlawfully deprived of her home and property and claimed 420,230 Russian roubles (RUB) in respect of pecuniary damage representing the cost of a flat of an equal value. She also claimed RUB 500,000 in respect of non-pecuniary damage against the Elbrusskiy District Court and the bailiffs’ service.
On 9 December 2004 the Nalchik Town Court of the Kabardino-Balkariya Republic allowed the applicant’s claims in part. The court found that the expropriation of the applicant’s flat and the eviction of her family had been necessary for the purpose of bridge construction. However, the eviction had been carried out unlawfully as the applicant had not received any prior compensation or been offered substitute housing. It ordered that the construction company that had demolished the applicant’s block of flats pay her RUB 420,230 in respect of pecuniary damage. It further rejected the applicant’s claim in respect of non-pecuniary damage, finding that there had been no evidence of unlawfulness in the acts of the Elbrusskiy District Court and the bailiffs’ service. The fault belonged to the Tyrnyauz Town Council against which no claim for non-pecuniary damage had been lodged.
The applicant did not appeal against that judgment and it became final and enforceable ten days later.
The construction company lodged an application for supervisory review of the judgment which was examined on 23 June 2005 by the Presidium of the Supreme Court of the Kabardino-Balkariya Republic. The Presidium amended the operative part of the judgment of 9 December 2004, ordering that the award in respect of pecuniary damage should be payable by the Tyrnyauz Town Council.
The applicant received the award on 14 November 2006.
B. Relevant domestic law
No one shall be deprived of his property except on the basis of a court order. Expropriation of property in the public interest shall be conditional on prior and full compensation (Article 35 § 3 of the Constitution).
A judgment of the first-instance court becomes final and enforceable after the expiry of the time-limit for lodging an appeal or after it has been upheld by the appeal court (Articles 209 § 1 and 210 of the Russian Code of Civil Procedure of 14 November 2002).
In exceptional cases, where a delay in enforcement can cause considerable damage or impossibility of enforcement, a court may order, at the plaintiff’s request, immediate enforcement of the judgment. Such an order shall be made in the operative part of the judgment or in a separate decision which is amenable to appeal. The decision shall be taken after a hearing and the parties shall be appraised of its date (Articles 204 and 212).
A writ of execution is issued by a court after the judgment has become final or an order for immediate enforcement has been made (Article 428).
COMPLAINTS
The applicant complained under Article 8 of the Convention and Article 1 of Protocol No. 1 about the allegedly unlawful eviction and destruction of her flat. The applicant also complained under Article 6 of the Convention that the eviction proceedings had been unjust.
THE LAW
The Government submitted that the applicant could no longer claim to be a victim of the alleged violations. The domestic courts had acknowledged the breach of the applicant’s rights and awarded her compensation. If she had been unsatisfied with the amount of compensation, she could have appealed against the judgment of 9 December 2004. She however had not lodged an appeal.
The applicant maintained her claims and argued that she retained her victim status. She submitted that she had been unlawfully evicted from her flat without prior compensation or substitute housing. For more than a year her family had no housing and the compensation had been paid more than three years after the eviction.
The Court will examine, firstly, the Government’s argument that the applicant did not appeal against the judgment of 9 December 2004. It reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them (see, among many other authorities, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII).
The Court notes that in the judgment of 9 December 2004 the Town Court confirmed the necessity of the expropriation of the applicant’s flat and the eviction of her family. It however found that the authorities had carried out the eviction in an unlawful manner. It awarded the applicant compensation in respect of pecuniary damage, but rejected her claim for non-pecuniary damage. The applicant did not appeal against that judgment to a higher-instance court in order to obtain redress in respect of the finding that the expropriation and eviction had been necessary or in respect of the dismissal of her claim for non-pecuniary damage. The Court further notes that the applicant did not argue that there had been special circumstances which had absolved her from the obligation to exhaust domestic remedies at her disposal.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy