AS TO THE ADMISSIBILITY OF
by Stepan Aksentyevich MELNIK
The European Court of Human Rights (First Section), sitting on 8 January 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 25 December 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
applicant, Mr Stepan Aksentyevich Melnik, is a Russian national who
was born in 1929 and lives in Monino, Moscow Region. The applicant
was represented by Ms L. Alekseyeva, a lawyer practising in Moscow.
The Russian Government (“the Government”) were
Mr P. Laptev, former 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.
The applicant, a former military officer, lives in a municipal flat. In November 1998 he asked the Monino housing maintenance authority to transfer to him the title to that flat. His request was rejected because Monino was a “restricted military settlement” and Russian law prohibited the transfer of title to housing premises in such settlements.
In 2002 the applicant unsuccessfully repeated his request.
On 14 March 2002 the applicant challenged before the Supreme Court of the Russian Federation Government's decree no. 752-p by which the town of Monino was included in the list of “restricted military settlements”. He claimed that the decree infringed his right to receive title to the flat.
On 17 July 2002 the Supreme Court dismissed the claim, holding, in so far as relevant, as follows:
“By virtue of section 15 of the Federal Law “On Status of Military Personnel” particular status is given to restricted military settlements in order to assign housing premises to military authorities for subsequent distribution of housing premises among military servicemen and other persons connected to the military service...
The applicant's arguments that the disputed regulation contradicts Article 19 §§ 1 and 2 and Article 35 § 2 of the Russian Constitution [and] violates his right to acquire title to the flat where he lives are ill-founded because the contested Government's regulation sets out the list of restricted military settlements which have housing premises. The prohibition on transferring the title to housing premises in restricted military settlements was established by section 4 of the RSFSR Law no. 1541-1 of 4 July 1991 “On Privatisation of Housing Premises in the Russian Federation”..., other legal acts of the Russian Federation and the constituencies of the Russian Federation, and not by the contested regulation.”
The applicant appealed against that judgment. He also sought leave to appear before the appeal court.
On 12 August 2002 the Appellate Division of the Supreme Court notified the applicant that the appeal hearing was scheduled for 10.40 a.m. on 5 September 2002.
On 5 September 2002, at 10.30 a.m., the applicant, accompanied by two witnesses, arrived at the courthouse. According to the witnesses' statements, presented to the Court by the applicant, a clerk told them that they were third in the queue and instructed them to wait by courtroom no. 440. They had been waiting for three hours when judges leaving the courtroom for lunch told them that the applicant's case had already been examined.
The Appellate Division of the Supreme Court upheld the judgment of 17 July 2002. It noted that the town of Monino had been included in the list of restricted military settlements in 1981. By regulation no. 752-p of 1 June 2000 the Government merely confirmed that the town of Monino was a restricted military settlement which included housing premises. On 4 July 1991 the Law “On Privatisation of Housing Premises in the Russian Federation” (“the Privatisation of Housing Act”) was adopted. It granted individuals the right to acquire title to State and municipal-owned flats of which they had taken possession on the basis of a social tenancy agreement. At the same time, section 4 of that law prohibited the transfer of title to State and municipal owned flats to individuals in restricted military settlements. The Appellate Division stressed that the applicant should have challenged that legal provision in the Privatisation of Housing Act and not the Government's regulation.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government asserted that Article 6 did not apply to the proceedings in question and maintained that the applicant had been duly informed of the hearing in the Appellate Division of the Supreme Court. Examination of the case in the applicant's absence had therefore been compatible with requirements of the Code of Civil Procedure.
The applicant considered that his “civil rights”, within the meaning of Article 6 § 1, had been at stake. He maintained that he had not been provided with a real opportunity to attend the hearings, as he had not been invited into the courtroom.
The Court refers to its constant case-law to the effect that Article 6 § 1 extends only to “contestations” (disputes) over (civil) “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States” (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, § 80). The Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Roche v. the United Kingdom [GC], no. 32555/96, §§ 116-117, ECHR 2005-X). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (see Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, pp. 14-15, § 32).
In assessing whether there is a civil “right”, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327-A, p. 19, § 49). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law and by finding, contrary to their view, that there was arguably a right recognised by domestic law (see Markovic and Others v. Italy [GC], no. 1398/03, § 95, ECHR 2006).
Turning to the facts of the present case, the Court first has to decide whether a “dispute” over a “right” existed so as to attract the applicability of Article 6 § 1. A preliminary point to be resolved is whether it can be said that there was a veritable “contestation” (dispute), in the sense of “two conflicting claims or applications”. Conformity with the spirit of the Convention requires that this word should not be construed too technically and that it should be given a substantive rather than a formal meaning. In the case of Le Compte, Van Leuven and De Meyere v. Belgium (23 June 1981, § 45, Series A no. 43) the Court noted that the use of the French word “contestation” implies the existence of a disagreement between the parties. Applying this definition, the Court is not convinced that the evidence clearly shows that there was one in the present case. However, the Court does not have to resolve this issue. It will proceed to the question whether there was a “right”, civil or otherwise, at the heart of the proceedings which could arguably be said to be recognised by Russian law. In this connection, the Court must have regard to the wording of the relevant legal provisions and to the way in which these provisions were interpreted by the domestic courts.
It was not contested by the parties that since 1981 the town of Monino has been a restricted military settlement. On 1 June 2000 the Russian Government issued regulation no. 752-p by which it included Monino in the list of restricted military settlements which had housing premises. In the meantime, on 4 July 1991 the Privatisation of Housing Act had been enacted, allowing individuals to acquire title to State and municipal-owned flats. At the same time, the Act excluded housing premises in restricted military settlements from the list of property to which title could be acquired by way of privatisation.
The applicant did not argue that prior to 4 July 1991 he could obtain title to the municipal flat in which he lived, irrespective of the Monino's status as a restricted military settlement. It is likewise undisputed that although after 4 July 1991 privatisation of municipal housing was allowed, that right was not conveyed to the applicant, as an inhabitant of a restricted military settlement. Thus on the date of the adoption of the Government's regulation of 1 June 2000 the applicant could not claim to have been entitled to a flat. It thus appears that the Government's regulation no. 752-p of 1 June 2000 did not in any way change the legal situation in which the applicant had found himself before that regulation was adopted. That finding is confirmed by the judgments of the Supreme Court and its Appellate Division, both of which concluded that domestic law did not grant the applicant a “right” to acquire title to the flat in which he lived and that the contested Government's regulation thus did not interfere with or encroached on any of his rights. The domestic courts stressed that for the applicant to argue a “right” to acquire title to the flat the specific provisions in the Privatisation of Housing Act and other legal acts should be challenged.
The Court therefore finds that at no time could the applicant plausibly claim the particular right recognisable under domestic law. In view of the above considerations, the Court concludes that, whether or not the impugned proceedings involved a “dispute” for the purposes of Article 6 § 1, they did not relate to the existence of a “right” of the applicant which could be said, at least on arguable grounds, to be recognised under domestic law (see Hamer v. France, judgment of 7 August 1996, Reports 1996-III, p. 1044, §§ 75-78). Furthermore, the outcome of the proceedings was not directly decisive, for the purposes of Article 6 § 1, for any right (see, for similar reasoning, Zhigalev v. Russia, no. 54891/00, §§ 160-162, 6 July 2006 and Uskova v. Russia (dec.), no. 20116/02, 24 October 2006).
In these circumstances and having regard to its case-law cited above, the Court considers that Article 6 of the Convention was not applicable to the proceedings in the instant case. It follows that the applicant's complaints under this provision must be rejected as being incompatible ratione materiae within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
Søren Nielsen Christos Rozakis