European Court of Human Rights

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26761/03
by Aleksey Nikolayevich MERKUSHEV
against Russia

The European Court of Human Rights (First Section), sitting on 16 October 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 3 July 2003,

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 Aleksey Nikolayevich Merkushev, is a Russian national who was born in 1959 and lives in Gatchina, a town in the Leningrad Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, 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.

A retired serviceman, the applicant sued his command for the provision of a flat and discharge allowance.

By a judgment of 25 October 2000, amended on appeal on 20 November 2000, the Military Court of the Pushkin Garrison ordered the command to provide the applicant out of turn with a flat located at his last place of service and meeting statutory norms, and to pay him the discharge allowance due. This judgment became binding on 20 November 2000, but has not been fully enforced.

On an unspecified date the command paid to the applicant the discharge allowance.

On 14 March 2001 the command offered the applicant a flat of 42.4 m² in Krasnoye Selo, but the applicant refused this offer because he considered the flat too small.

On 6 September 2002 the Military Court clarified the judgment's mode of enforcement. According to the court, the command had to give to the applicant's family a flat to be allocated to the command by federal authorities, or to pay to the applicant's family a housing subsidy allocated to the command by federal or local authorities.

In November 2003 and January 2004 the command offered to the applicant two other flats, but he refused them too. In February 2006 the command offered the applicant a flat under the Programme “State Housing Vouchers”, but the applicant refused this offer.

On bailiffs' requests, in 2002–07 courts several times adjourned the enforcement because the applicant had refused the command's offers, and because no other flats were available.

B.  Relevant domestic law

Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.

COMPLAINTS

THE LAW

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.”

The Government argued that this complaint was inadmissible. The applicant had failed to exhaust domestic remedies, because he had not appealed against the authorities responsible for the enforcement. The judgment had been enforced only in part because of the applicant's behaviour. The authorities had offered the applicant the flat of 42.4 m² only three months after the judgment had become binding, but he had refused this offer for personal reasons. This flat had exceeded statutory norms: the law required 9 m² per person; hence the applicant's family of four could not have claimed more than 36 m². Besides, the applicant had been well lodged: he had retained a two-room flat in Vayalovo and a two-room flat in Garbolovo.

The applicant maintained his complaint. The flat in Vayalovo had been only a dormitory. The flat in Garbolovo had been the subject of a legal action. The authorities had delayed the enforcement by the adjournment requests and refusals to clarify the judgment. The applicant had had to refuse the Housing Voucher because it would have yielded too small a flat. The flat of 42.4 m² had been too small, because the statutory requirement had been 12 m² per person or even more, depending on his family's choice.

As to domestic remedies, the Court notes that the Government have not specified what remedies the applicant had failed to exhaust. Therefore the Court rejects this objection.

As to the merits, 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 the nature of the award was (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).

To date the enforcement has lasted for over seven years. But it is the applicant who is responsible for the bulk of this period. The State first offered him a flat as early as three months after the judgment, but he refused this and several subsequent offers. The applicant explains his refusal with the small size of the flat, but the Court notes that the judgment did not specify the size (it only required the flat to meet statutory norms), and the applicant's interpretation of these norms has not been officially confirmed.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government argued that this complaint was manifestly ill-founded, because the applicant could have made a disciplinary complaint against his command and could have sued the command for negligence and moral damages.

The applicant maintained his complaint.

The Court reiterates that Article 13 applies only where a person has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its finding above under Article 6 § 1 the Convention and Article 1 of Protocol No. 1, the Court considers that the applicant had no arguable claim for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

It follows that this complaint is 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.

Søren Nielsen Christos Rozakis
Registrar President