THIRD SECTION
DECISION
Application no. 22961/06
Yelena Konstantinovna MATVEYEVA
against Russia
The European Court of Human Rights (Third Section), sitting on 30 June 2020 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above application lodged on 25 March 2006,
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, Ms Yelena Konstantinovna Matveyeva, is a Russian national who lives in St Petersburg. She was represented before the Court by Mr V. P. Anisimov, a lawyer practising in St Petersburg.
2. The Russian Government (“the Government”) were represented initially by Ms V. Milinchuk, then by Mr G. Matyushkin, former Representatives of the Russian Federation to the European Court of Human Rights, and subsequently by their successor in that office, Mr M. Galperin.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 27 September 2001 the Kuybyshevskiy District Court of St. Petersburg (“the District Court”) partly upheld the applicant’s civil action. The court ordered the state institution “Housing Agency of the Central Administrative District of St Petersburg” (ГУ “Жилищное агентство Центрального административного района” г. Санкт‑Петербурга) to establish and to eliminate the cause of dampness of the wall in the applicant’s apartment, to ensure heating of required quality in the apartment, and to pay the applicant 3,547.3 Russian roubles (RUB). The judgment became final on 6 December 2001.
5. On 14 March 2002 the bailiffs initiated the enforcement proceedings. On 28 March 2002 the amount ordered by the judgment was transferred to the applicant’s account.
6. On 25 June and 31 July 2002 the bailiffs fined the debtor institution for non-enforcement of the judgment of 27 September 2001 in the remaining part.
7. On 14 August 2002 the debtor institution informed the bailiffs that they requested an engineering opinion of an expert organisation (“the first expert organisation”) with a view to establish the cause of the dampness and to determine the works to be performed.
8. On 11 November and 10 December 2002 the bailiffs yet again fined the institution.
9. In December 2002 the debtor institution obtained the requested technical opinion. The opinion attested that the dampness of the wall was due to demolition of an adjacent building, a dump site, a defect in sewer outfall in respect of an apartment located under the applicant’s apartment, and due to a bad condition of the side wall. It followed that major overhaul of the building was required in order to deal with the causes of the dampness. The expert opinion also indicated that the works had to be carried out in accordance with the design documentation prepared for that purpose.
10. On 4 March 2003 the debtor institution asked the bailiffs’ service to determine if the works could be carried out while the apartment was still occupied. The bailiffs replied that the question could not be answered in the absence of the relevant design documentation.
11. In August 2003 the institution requested another expert organisation (“the second expert organisation”) to prepare the design documentation with a view to eliminate the dampness. The experts visited the apartment in December 2003 and in June 2004. They found no signs of humidity and, thus, they did not proceed with the request.
12. It appears that on 4 October 2004 the State Housing Inspectorate of St Petersburg, when inspecting the apartment, did not find signs of excessive humidity.
13. On 27 August 2004 the first expert organisation was requested to prepare the design documentation.
14. On 14 April 2005 the District Court granted the applicant’s claims as regards the non-pecuniary damage in respect of her daughter and a compensation for poor heating services. The payments were executed in May 2005.
15. On 7 March 2006 the first expert organisation explained to the debtor institution that it was impossible to prepare the design documentation in respect of one defect, such as the dampness of the wall. The company further explained that the apartment had to be emptied in order to examine the premises in detail, and for development of the requested project. They submitted that major overhaul of the room or of the entire apartment were required.
16. On 3 May 2006 the bailiffs terminated the enforcement proceedings due to actual enforcement. They based their decision on the institution’s explanations that the dump site was cleaned in 2000. Further, in 2002 and in April 2006, the side wall of the building was repaired. The institution also submitted that the problem with the sewer outfall was addressed in July 2002, and in 2004 they carried out a re-planning of the apartment located under the applicant’s apartment. The debtor institution also submitted that a commission of experts that visited the applicant’s apartment several times starting from December 2003 found no signs of dampness.
17. On 6 September 2006 the Smolninskiy District Court of St Petersburg overturned the decision of 3 May 2006. The court considered that the recommendations of the first expert organisation had not been taken into account (see paragraph 9 above). In particular, the major overhaul had not been carried out.
18. On 16 March 2007 another department of the bailiffs’ service initiated the enforcement proceedings in respect of the obligations in kind.
19. In July 2007 the debtor institution engaged a contractor to repair the central heating system, which was done by November 2007.
20. On 13 August and 5 September 2007 the bailiffs fined the debtor institution for non-enforcement. In their complaint against these acts of the bailiffs the debtor institution submitted that it was impossible to perform the required major repairs without relocating the residents which went beyond the institution’s competence. On 29 October 2007 the District Court found the institution’s arguments unfounded.
21. On 27 November 2007 the act of acceptance of works performed at the building was issued. The document attested that a contractor repaired the sides of the building.
22. Between 1 April 2008 and 27 May 2008 the enforcement proceedings were stayed as the debtor applied for clarification of the method of execution of the judgment. On 22 April 2008 the District Court dismissed the request for clarification finding that the institution was not entitled to lodge such a request. The court further considered that the institution did not provide any evidence of their compliance with the recommendations of the first expert organisation.
23. On 1 April 2008 a multiagency commission concluded that the wall in the applicant’s apartment had no signs of humidity or dampness, and that the respective room satisfied the requirements for residential premises.
24. In the meantime, in April 2008 the second expert organisation issued an additional technical statement concerning the state of the apartment. The company had no access to the applicant’s apartment. However, its specialists confirmed that in the apartments at other floors in the building the side wall was not excessively humid. They further defined the works to be performed in order to prevent the dampness of the wall. In particular, they recommended that the chimney holes be plugged. Such works were completed in May and in summer 2008.
25. In June-July 2008 the debtor institution, the bailiffs and the second expert organisation attempted to visit the applicant’s apartment in order to review the enforcement. However, the applicant refused to give access to the apartment. On 13 August 2008 a similar visit was organised with a commission of five construction experts. The commission confirmed that the works were performed in accordance with the recommendations of the expert organisation concerned, and that they should be sufficient to prevent dampness.
26. On 10 June 2009, following the bailiffs’ request, the District Court terminated the enforcement proceedings finding that since July 2008 the applicant obstructed the enforcement. On 4 August 2009 the St Petersburg City Court upheld the decision. As regards the non-enforcement argument the court considered that the following documents confirmed the enforcement: the opinion of the commission of 1 April 2008, the act of 27 November 2007, and the findings of the second expert organisation (see paragraph 24).
COMPLAINTS
27. The applicant complained that the judgment of 27 September 2001 remained unenforced. She further complained under Article 2 of the Convention that the alleged non-enforcement caused an imminent risk to her and her family members’ lives. The applicant also argued that the bailiffs unlawfully demanded access to her apartment in violation of Article 8 of the Convention, and of the authorities’ refusal to grant her a new apartment.
THE LAWComplaint about non-enforcement
28. The non-enforcement complaint falls to be examined under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read as follows:
Article 6 § 1
“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.”
29. The Government argued that the judgment was fully enforced, and that the debtor institution and the bailiffs at no stage were passive. They took all the necessary steps with a view of enforcement. In particular, the Government submitted that in order to execute the judgment an engineering opinion had been obtained in 2002 which determined the scope of future works. According to the Government, since 2003-2004 the specialists examining the building and the apartment found no signs of dampness in the side wall. Nevertheless, various works were carried out in the subsequent years, and the experts continued to be involved in clarifying the scope of the required works and assessment of their quality. The Government further claimed that the applicant’s failure to cooperate with the enforcement authorities and the debtor institution by blocking access to the apartment significantly delayed the enforcement. Finally, the Government argued that the applicant did not exhaust the domestic remedies as she neither challenged the bailiffs’ work nor claimed compensation for non-pecuniary damage before the domestic courts.
30. The applicant reiterated her complaint, arguing that the judgment was not fully enforced, and that the conduced works were of poor quality. She argued that in order to execute the judgment there was no need to enter her apartment, and that she used all the available domestic remedies, in particular, complained against the bailiffs and claimed non-pecuniary damage for non-enforcement of the judgment.
31. The Court will not establish whether the judgment in the present case should be regarded as issued against the State and to examine the Government’s non-exhaustion objection as the complaint is anyway inadmissible for another reason.
32. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III). To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what was the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007, and Kunashko v. Russia, no. 36337/03, §§ 38-40, 17 December 2009 as regards non-enforcement by private debtors).
33. Turning to the present case, the Court notes that the question of whether the judgment of 27 September 2001 was issued against the State has remained open (see paragraph 31 above). It further notes that the judgment came into force on 6 December 2001 (see paragraph 4 above). It is not disputed between the parties that the amount awarded by the judgment was paid to the applicant in March 2002 (see paragraph 5 above). This period in itself does not appear to raise any questions under the Convention.
34. As to the obligations in kind, in particular, the renovations of premises, the Court notes that the enforcement mechanism is different from cases of monetary obligations (see, mutatis mutandis, Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 167-74, 1 July 2014). In the present case the works in accordance with the judgment were finalised in spring-summer 2008. Indeed, on 13 August 2008 a commission of experts confirmed the execution of the judgment in the part concerning prevention of dampness of the wall. That was confirmed by a final decision of 10 June 2009 (see paragraphs 22-26 above). Thus, in the light of all the materials in its possession, the Court considers that the judgment was fully enforced by August 2008.
35. The Court further notes that the judgment of 27 September 2001 ordered the debtor institution to perform certain works. However, the actual scope of those works was not determined in the text of the judgment. The institution had to, in particular, establish and eliminate the cause of the dampness of the wall. Thus, only in the course of enforcement of the judgment it would become clear what was required to fully comply with the judgment. The institution was bound to rely on external experts and various contractors throughout the enforcement process.
36. As regards the complexity of the enforcement proceedings, the Court notes that the enforcement of the judgment calling for, inter alia, performance of “major repairs”, was technically complex. First, the execution required several expert opinions to be prepared (see paragraphs 7, 11 and 13 above). Such opinions were produced by external contractors and, thus, their production was beyond the debtor’s control. Second, the enforcement was complicated by some objective difficulties, in particular, the need to repair the premises belonging to the applicant’s neighbours.
37. As regards the debtor’s behaviour, the Court observes that the institution continuously carried out works required under the judgment and dealt with various requests and issues raised by the applicant. The Court observes that the debtor institution obtained the first expert opinion in December 2002 and carried out some relevant repairs, including re-planning of the apartment located under the applicant’s apartment. Between March 2003 and March 2006 the debtor sought to clarify how the required works could be organised and to acquire the necessary project documentation in order to proceed (see paragraphs 9-15 above).
38. In 2006 the institution submitted to the bailiffs the information on the progress in enforcement and on 3 May 2006 the bailiffs decided to terminate the enforcement proceedings. Following the reversal of that decision, the debtor organised further repairs, such as those of the heating system. However, it remained unclear until April 2008, when the second expert organisation issued an additional technical statement, what specific works should be performed to complete the enforcement in the part related to the dampness of the wall (see paragraphs 15-24 above).
39. Indeed, the first expert organisation had initially concluded that “major repairs” were required in order to prevent the dampness. The domestic courts referred to that recommendation when overturning the bailiffs’ decision of 3 May 2006. The debtor requested the District Court to clarify the judgment in the relevant part. In reply, the court mentioned lack of evidence showing compliance with the previous recommendation of the first expert organisation, however, it did not rule on the alleged ambiguity of the initial judgment finding that the debtor was not entitled to lodge such a request (see paragraph 24 above). The debtor institution proceeded by requesting an additional opinion of another expert company and followed their recommendations.
40. The Court further notes that the bailiffs in the present case took the measures in their power in order to enforce the judgment. By contrast, the Court takes note of the domestic courts’ finding that the applicant obstructed the enforcement since summer 2008 onwards (see paragraphs 25 and 26 above).
41. In view of the particular circumstances of the present case, the complexity of the enforcement proceedings, the parties’ behaviour, as well as the scope and nature of the works that were ordered by the judgment, the Court considers that the delay in enforcement was not unreasonable. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.Other complaints
42. As regards other complaints raised by the applicant, 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.
43. Accordingly, 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.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 3 September 2020.
Olga ChernishovaAlena Poláčková
Deputy RegistrarPresident
Full & Egal Universal Law Academy