THIRD SECTION
DECISION
Application no. 11538/05
Igor Iosifovich SAMUN
against Russia
The European Court of Human Rights (Third Section), sitting on 7 February 2017 as a Committee composed of:
Branko Lubarda, President,
Dmitry Dedov,
Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 March 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Igor Iosifovich Samun, is a Russian national, who was born in 1962 and lives in Smolensk.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was a military prosecutor. He resided together with his family in Smolensk in an apartment put at his disposal by the State.
5. On 31 March 2002 he was ordered to be transferred to the Moscow Military Prosecutor’s Office.
6. On 28 August 2002, before the applicant could have had an opportunity to take up effectively his duties in Moscow, he was dismissed.
7. In October and December 2002 the applicant sued the Moscow Military Prosecutor’s Office, seeking to be provided with military housing in Moscow and challenging the lawfulness of his dismissal.
8. After the first round of proceedings, the applicant’s case came back again before the Moscow Garrison Military Court.
9. On 24 May 2004 the Moscow Garrison Military Court found the applicant’s dismissal to be unlawful, ordered his reinstatement in a previous position and his subsequent dismissal in accordance with the procedure provided by law. It further considered that the applicant’s right to free housing in Moscow had not been sufficiently established and rejected his claim in this part.
10. On 9 July 2004 the Military Court of the Moscow Command, after the examination of the applicant’s appeal, partly changed that decision quashing the part ordering the applicant’s subsequent dismissal. It further ordered the Moscow Military Prosecutor to provide the applicant with housing in Moscow once the latter is reinstated in his position. The Court, in particular, stated:
“Dismissal of the applicant has been unlawful and he, consequently, will be reinstated to military service in the Moscow Military Prosecutor’s Office for becoming entitled to a flat.”
11. On 30 July 2004 the Moscow Military Prosecutor lodged a supervisory review appeal with the Military Court of the Moscow Command.
12. On 6 October 2004 the Presidium of the Military Court of the Moscow Command quashed the judgment of 9 July 2004 and rejected the applicant’s claims. It upheld the first-instance court’s findings concerning the applicant’s reinstatement and subsequent dismissal. As regards his housing claim, the Presidium found that although the applicant had been appointed as a military prosecutor for the Moscow Military District he had never been effectively transferred to Moscow for the purposes of his military service and, therefore, Moscow could not be considered as a permanent place of his residence.
B. Relevant domestic law
13. Articles 15 § 1 of the Law on the Status of Military Servicemen as in force at the material time provided inter alia (no. 76-FZ of 27 May 1998) that the military servicemen and their families are entitled to the military housing within three months after their arrival to a new place of military service.
14. Articles 8 § 3 of the Law on Military Duty and Military Service as in force at the material time provided that the registration of citizens for military purposes is carried out based on their place of residence.
COMPLAINTS
15. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the quashing by way of supervisory review of the judgment of 9 July 2004 and in particular about the State authorities’ failure to provide him with housing in Moscow.
16. The applicant further complained about the excessive length of the proceedings and impartiality of the courts.
THE LAW
A. Alleged violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention
17. The applicant complained that the quashing by way of supervisory review of the final judgment delivered in his favour had not been justified by circumstances of a substantial and compelling character, and therefore violated the principle of legal certainty and infringed his right to the peaceful enjoyment of his possessions.
18. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. Both provisions, insofar as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time 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 ...”
19. The Government argued that the applicant had not had a “legitimate expectation” and thus a “possession” since he had not fulfilled conditions prescribed in the national law.
20. The Court reiterates that where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004‑IX). A conditional claim which lapses as a result of the non-fulfilment of the condition cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 82-83, ECHR 2001‑VIII, and Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, ECHR 2002‑VII).
21. Turning to the facts of the present case, the Court observes that by operation of law the provision of the flat was conditional on the applicant’s effective transfer to his new place of military service. The judgment of the Military Court of the Moscow Command of 9 July 2004 did not provide the applicant with unconditional right to housing. While ordering the authorities to provide the applicant with housing in Moscow, the Military Court only drew the consequences from its finding that his dismissal was unlawful and that consequently the applicant, by virtue of his reinstatement to the previous position had become entitled to a flat provided that his effective transfer to Moscow is completed (see paragraph 10 above). However, his effective transfer to Moscow has never been completed. Nor did he apply in accordance with the domestic law for housing in Moscow as his place of residence (see paragraphs 13 and 14 above). It therefore appears that the applicant, at the time of lodging application with the courts could not have had legitimate expectation to be provided with the military housing since he failed to fulfill the requirements of the Law on the Status of Military Servicemen (see, for similar reasoning, Uskova v. Russia, no. 20116/02, 24 October 2006). In this context, the Court does not lose sight of the fact that the applicant had already been provided with housing for the purposes of his military service in Smolensk, prior to his dismissal (see paragraph 4 above). He did not argue that this apartment had been taken from him.
22. It follows that at the time of the events complained of – that is, quashing of the judgment by way of supervisory review – the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. The complaint under Article 1 of Protocol No. 1 is therefore incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4.
23. Having regard to the Court’s findings under Article 1 of Protocol No. 1 to the Convention, it considers that for the purpose of Article 6 of the Convention at the time of the quashing of the judgment of 9 July 2004 by way of supervisory review the applicant did not have a “civil right” recognisable under domestic law (see, for similar reasoning, OAO Plodovaya Kompaniya v. Russia, no. 1641/02, §§ 34-35, 7 June 2007).
B. Other alleged violations of the Convention
24. Relying on Article 6 of the Convention, the applicant further complained about the excessive length of proceedings conducted in his case and the lack of impartiality of the Presidium of the Military Court of the Moscow Command on account of its failure to substantiate its decision of 6 October 2004.
25. As regards his claim about the excessive length of proceedings, the Court notes that they lasted two years when the case was examined at three levels of jurisdiction. Such period cannot be considered as incompatible with the requirements of Article 6 of the Convention (see Biryukov v. Russia (dec.) no. 63972/00, 9 December 2004).
26. As for the complaint about impartiality of the supervisory review court the Court notes that the applicant failed to substantiate his complaint.
27. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 March 2017.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy