(Application no. 10856/03)
17 December 2009
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 Volnykh v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 November 2009,
Delivers the following judgment, which was adopted on that date:
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF THE CONVENTION
“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 judgment could not have been enforced because the apartment house had still not been completed, and because in the meantime the building enterprise had undergone liquidation proceedings. The judgment had not specified a time frame of its enforcement. The authorities had not been responsible for the building enterprise’s slow construction of the apartment house. As the judgment had been given against the Town Authority, there had been no legal possibility to urge the enterprise to comply with the judgment.
The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
13. The Court recalls that its original finding of a violation in respect of non-enforcement of judgments in Russia concerned debts of pecuniary nature (see Burdov, cited above, § 34). This finding was later extended to include debts related to assets, e.g. flats (see, for example, Sladkov v. Russia, no. 13979/03, § 20, 18 December 2008).
14. It would hence appear logical at first sight to read the present case in the light of the aforementioned case-law. There exists, however, one crucial difference that sets the present case apart. The judgment of 24 November 1997 entitled the applicant not to a fungible good, e.g. money or a property of generic characteristics that the State may be expected to have in sufficient supply, but to an individual thing – a flat in a specific apartment house. Since the building enterprise had never completed the construction of the house, there apparently was no way for the bailiffs or the Town Authority to provide the applicant with the flat.
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Malinverni is annexed to this judgment.
DISSENTING OPINION OF JUDGE MALINVERNI
I am unable to join the conclusion reached by my colleagues that there has not been a violation of the Convention in this case.
Admittedly, as correctly stated in the judgment, “since the building enterprise had never completed the construction of the house, there was ... no way for the bailiffs or the Town Authority to provide the applicant with the flat” (see paragraph 14).
However, I would like to point out that the building enterprise that had undertaken to build an apartment block was a municipal enterprise and therefore a public one (“enterprise of the Kropotkin Town Authority” – see paragraph 5). That public enterprise had entered into a contractual undertaking with the applicant’s military unit. Failure to execute that contract had the effect of directly engaging the responsibility of the State, which could and should have taken measures to ensure that the contract was honoured.
Frustrated with the delay, the applicant finally asked the court to make him a lump-sum payment of 250,000 Russian roubles in lieu of the flat.
Surprisingly, the court, which on 24 November 1997 had given judgment ordering the Town Authority to provide the applicant with a flat, refused to pay him the amount sought because, among other reasons, “a lump-sum payment would have prejudiced other public expenditure” (see paragraph 8).
I find this reason entirely unacceptable. In my opinion, the delay by the public enterprise in honouring the contract and the refusal by the court, without giving valid reasons, to convert the municipality’s initial obligation into payment of a sum of money had the effect of engaging the responsibility of the public authorities.