(Application no. 33548/04)
18 September 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lyatskaya v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 28 August 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“eliminate the cause of the leak in [the applicant’s flat] in the third quarter of 2002 by way of reconstructive repairs of the end wall and roof according to the estimate for selective repairs of the house.”
This judgment became binding on 6 June 2002, but was not enforced immediately.
II. RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
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.”
First, the applicant had failed to exhaust domestic remedies because she had not complained about the non-enforcement to competent authorities, had not sued the bailiffs, had not applied for the cost-of-living adjustment of the award, and had not requested a replacement of the liquidated defendants.
Second, the State had not been responsible for the debt because the planning department was as a local self-government body, and because the maintenance company was a private enterprise. Besides, the judgment could not have been enforced due to the defendants’ liquidation. The delay had been partly caused by the applicant, because from August 2002 to February 2003 she had retained enforcement papers.
First, the suggested domestic remedies would have been futile.
Second, the State had been responsible for the debt because local self-government had been regulated by federal laws. The bailiffs had idled. The repairs of 2005 had failed to eliminate the leak.
It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies.
It follows that this complaint cannot be rejected as incompatible ratione personae with the provisions of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
However, 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.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 18 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis