AS TO THE ADMISSIBILITY OF
Application no. 62439/00
by Vladimir Pavlovich BELENKIY
The European Court of Human Rights (First Section), sitting on 11 May 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Ms S. Nielsen, Section Registrar,
Having regard to the above application lodged on 24 December 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 applicant, Mr Vladimir Pavlovich Belenkiy, is a Russian national who was born in 1930 and lives in Moscow. He was represented before the Court by Ms D. Vedernikova, Ms N. Kravchuk, Mr Kirill Koroteev, Mr Philip Leach and Mr William Bowring, lawyers of EHRAC/Memorial, a human rights NGO with offices in London, as well as in Moscow and in the Northern Caucasus. The Government are represented by Mr P. Laptev, the 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.
1. Background of the case
The applicant and his parents lived in Leningrad (now St Petersburg).
In 1937 the applicant’s parents were subjected to repression for political reasons. The applicant’s aunt became his official tutor. The applicant was registered at the aunt’s flat and moved there.
In 1941 the applicant and his aunt were evacuated to the Kostroma Region because of the war. Following the evacuation, the applicant was de-registered from his aunt’s flat.
In 1945 the applicant returned to Leningrad but did not re-register at the aunt’s flat because it was occupied by another family.
From 1945 to 1950 the applicant studied in the Leningrad engineering school and lived in its dormitory. Later he found a job in Angarsk, the Irkutsk Region, and moved there.
In 1958 the applicant’s parents were posthumously rehabilitated.
In 1991 the Law on rehabilitation of victims of political repressions came into force. According to that law the relatives of victims of repressions were entitled to return to live in the places where they had lived before the repressions and to be put on a waiting list for accommodation.
2. Housing proceedings
On 12 November 1991 the applicant applied to be put on the St Petersburg housing list as he wanted to move from Moscow to St Petersburg.
In 1994 he was informed that he needed to establish that he had lived with his parents in the flat in question before he could be put on the housing list. The Kuzminskiy District Court of Moscow established the joint habitation on 27 January 1995, and the decision became final. The applicant was not put on the housing list.
In March 1997 the applicant was informed that he also needed to establish that the housing had been lost as a result of repressions before he could be put on the housing list. On 17 April 1997 the Kuzminskiy District Court duly found that the applicant had lost accommodation as a result of repressions, and the decision became final.
On 18 July 1997 the Housing Committee refused to put the applicant on the housing list because, after his parents had suffered repressions, he had been registered as living with his aunt. He had not therefore lost accommodation as a result of the repressions, but rather because he had been evacuated in 1941. The decision was not challenged before the courts.
The decision of 17 April 1997 was, however, quashed by the Presidium of the Moscow City Court on 28 January 1999, and remitted for fresh consideration, on the ground that the Kuzminskiy District Court had not determined whether the proceedings related to the factual issue of whether the applicant had lived in the flat in question, or the substance of his right to be put on the housing list.
On 20 October 2000 the Kuzminskiy District Court again found that the applicant had lost housing in Leningrad in the 1930s due to political repressions against his parents. The judgment was not challenged, and became final.
On 10 July 2001 the applicant was duly put on the housing list, with effect from that date. The applicant’s challenge to that decision, on the ground that he should have been put on the housing list from 1991, when he first applied, was initially rejected by the Kuzminskiy District Court, but subsequently allowed after the applicant appealed and the case was remitted to the Kuzminskiy District Court. That court found, on 8 July 2002, that the refusal to put the applicant on the housing list from the earlier date had been unlawful, and it ordered the Housing Committee to put the applicant on the list with effect from 1991. The judgment entered into force on 19 July 2002, and on 10 September 2004 the applicant was put on the housing list with effect from 1991.
On 18 March 2004, in supervisory review proceedings, the Presidium of the Moscow City Court again quashed the Kuzminskiy District Court’s judgment (of 20 October 2000) on the ground that the Kuzminskiy District Court had not clarified the issue to be determined.
On 24 June 2004, the Kuzminskiy District Court declined to give a decision on the question of the loss of housing in the 1930s because, by then, it had already found, in its decision of 8 July 2002, that the applicant was to be put on the housing list and the proceedings lost their subject-matter. On 22 September 2004 the Moscow City Court upheld the decision on appeal.
3. Damages proceedings
On 16 December 1995 the applicant sued the Housing Committee in the Oktyabrskiy District Court of St Petersburg for non-pecuniary damages as it had failed to put him on the housing list, even though he had established that he had been living with his parents until 1937. In April 1998 the applicant was informed that the proceedings had been suspended in the light of the Housing Committee’s application for supervisory review of the Kuzminskiy District Court’s decision of 17 April 1997.
On 20 November 2000 the Oktyabrskiy District Court requested the applicant to provide the latest information on the state of proceedings before the Kuzminskiy District Court concerning the establishment of loss of housing and to send copies of relevant decisions. The court fixed the examination of the applicant’s case on the merits for 20 February 2001. By letter of 6 February 2001 the applicant requested the court to examine the case in his absence because of his poor health. The court remitted the examination of the case to 24 April 2001. On 24 March 2001 the applicant asked the court to examine the case in his absence because his state of health had deteriorated. By letter of 16 May 2001 the applicant again requested the court to examine the case in his absence. On 28 May 2001 the court informed the applicant that the examination of the case was remitted to 30 May 2001 because of the Housing Committee’s failure to appear before the court. On an unspecified date the court informed the Housing Committee that its appearance before the court was obligatory and that the failure to appear would result in a fine.
On 29 October 2001 the Oktyabrskiy District Court of St Petersburg dismissed the applicant’s claim. In his observations submitted to the Court in reply to the Government’s observations, the applicant contended that on 30 November 2001 he had filed an appeal against the decision of 29 October 2001. He submitted a copy of the decision of 13 March 2002 by which his appeal was rejected.
1. The applicant complained under Article 6 § 1 of the Convention of a violation of his right to a fair trial since the final decisions of the Kuzminskiy District Court which confirmed the loss of accommodation were quashed by the Moscow City Court (first the decision of 17 April 1997, which was quashed on 28 January 1999, and then the decision of 20 October 2000, which was quashed on 18 March 2004, after the case had been communicated to the respondent Government).
2. The applicant also complained under Article 6 § 1 and Article 13 of the Convention about the length of the proceedings for damages which he brought against the Housing Committee.
3. The applicant further alleged that his right, as guaranteed by Article 8 of the Convention, to respect for private and family life was breached by the State, in particular by the refusal of the St Petersburg Housing Committee to put him on the housing list.
1. The applicant initially complained about the quashing on 28 January 1999 of the judgment of 17 April 1997. He referred to Article 6 of the Convention, which provides so far as relevant as follows:
“1. In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Government contended that the ruling of 28 January 1999, by which the judgment of 17 April 1997 had been quashed, had been compatible with Article 6 as its aim was to reverse a material violation of procedural rules. In particular, the first instance court had not given proper notice of the time or venue of the hearing, and had failed to clarify certain factual details of the case. The applicant disagreed and replied that he had been unable effectively to take part in the supervisory review proceedings.
The Court notes that subsequent to the quashing of 28 January 1999, on 20 October 2000 the Kuzminskiy District Court of Moscow gave judgment in the applicant’s favour. On 18 March 2004 the judgment of 20 October 2000 was also quashed by way of supervisory review. At that point, therefore, the situation was similar to that in other cases in which a judgment was quashed by way of supervisory review: the principle of legal certainty had been undermined by the supervisory review, and the question arose of whether that undermining was compatible with Article 6 of the Convention.
The Court must, however, consider the quashing of the judgments of 17 April 1997 and 20 October 2000 in the light of the subsequent events in the case.
The Court first notes that those judgments both addressed a preliminary question in the context of proceedings to ascertain whether the applicant was entitled to be placed on the housing list. On 8 July 2002 the Kuzminskiy District Court of Moscow found that the refusal to put the applicant on the housing list had been unlawful and granted the applicant’s underlying claim in full, that is, it ordered the Housing Committee to put him on the housing list for accommodation with effect from 1991. Then, or at the latest on 10 September 2004, when the applicant was actually put on the housing list with effect from 1991, the proceedings in the present complaint – the request for confirmation of loss of accommodation in order to be put on the housing list – had no subject matter. This was confirmed by the decision of the Kuzminskiy District Court of 24 June 2004, by which it declined, referring to its judgment of 8 July 2002, to give a decision on the question of the loss of housing in the 1930s.
In Convention terms, as regards the quashing which occurred on 28 January 1999, the Court considers that the judgment of 8 July 2002 constituted an acknowledgment that the refusal to put the applicant on the housing list had been unlawful and that the quashing of the judgment of 17 April 1997 had been unlawful. The Court also considers that given the unusual circumstances of the case – the limited subject matter of the proceedings at issue and the fact that the applicant had been put on the housing list as he wished – the applicant was afforded appropriate redress for the alleged violation of the Convention (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, § 36).
Accordingly, assuming the proceedings to determine the factual issue - of whether the applicant had been the victim of repressions - determined civil rights and obligations independently of the proceedings as to a place on the housing list, and further assuming that the applicant complied with the six months requirement, he is in any event no longer a victim of an alleged violation of the Convention.
As regards the quashing occurred on 18 March 2004, the Court notes that on 24 June 2004 the Kuzminskiy District Court declined, referring to its decision of 8 July 2002, to give a decision on the question of the loss of housing in the 1930s. The Court interprets this decision as a finding that the quashing on 18 March 2004 of the decision of 20 October 2000 was a quashing which had no effect on the applicant’s civil rights and obligations. It follows that by 8 July 2002 the dispute over the applicant’s civil rights and obligations had been settled, and to his satisfaction, and the subsequent decisions (of 18 March 2004 and 24 June 2004) did not affect his rights under Article 6 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
2. The applicant also complained about the length of the proceedings he brought for damages against the Housing Committee, referring to Articles 6 and 13 of the Convention. Article 6 of the Convention provides, 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...”
The Government contended that the applicant had not exhausted domestic remedies, as he had not appealed against the decision of 29 October 2001, pursuant to Article 283 of the RSFRS Code of Civil Procedure. The applicant replied that on 30 November 2001 he had filed an appeal against the decision of 29 October 2001, and submitted a copy of the appeal decision of 13 March 2002.
At the outset, the Court notes that the complaint is made under both Articles 6 and 13. However, as regards a complaint about the length of the proceedings, Article 6 is the lex specialis, and the complaint will henceforth be considered under that provision.
As to the Government’s contention that the applicant failed to exhaust domestic remedies in respect of the length complaint, the Court notes that an appeal was made and rejected on 13 March 2002. If follows that, assuming the appeal to have been an effective remedy in respect of the length complaint, the applicant has exhausted it. The Court therefore rejects the Government’s objection.
The Court recalls that the “reasonableness” of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: 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 Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The applicant initiated his action, which was a form of collateral challenge to the Housing Committee’s failure to put him on the housing list, on 16 December 1995. The proceedings were suspended in April 1998 on the request of the Housing Committee as the proceedings relating to the applicant’s request to be put on the housing list were pending. The proceedings had resumed by 20 November 2000 and ended on 13 March 2002, with the appeal decision of 13 March 2002. It follows that the proceedings lasted a total of six years, two months and 28 days of which three years, ten months and nine days fall within the Court’s competence ratione temporis because the Convention came into force in respect of Russia on 5 May 1998. On that date, the proceedings had been suspended because the underlying issue (the applicant’s eligibility for a place on the housing list) was pending before other courts. In the period between 5 May 1998 and 13 March 2002, the proceedings were dealt with by two instances, after having been suspended from April 1998 until November 2000. The Court considers that, even taking into account the time the proceedings had been pending on 5 May 1998, the overall time of a little under four years since that date was compatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.
The Court concludes that the length of damages proceedings did not exceed the “reasonable time” set out in Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
3. Finally, the applicant complained under Article 8 of the Convention of an alleged violation of his right to respect for his home and family life.
The Court notes in this respect that the applicant retained his pre-existing accommodation in Moscow, and has not explained how, if at all, his home or family life were affected by the proceedings at issue. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
BELENKIY v. RUSSIA DECISION
BELENKIY v. RUSSIA DECISION