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Larisa ZOLOTAREVA v. RUSSIA - 15003/04 [2011] ECHR 1188 (26 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1188.html
Cite as:
[2011] ECHR 1188
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FIRST
SECTION
CASE OF
Larisa ZOLOTAREVA v. RUSSIA
(Application
no. 15003/04)
JUDGMENT
STRASBOURG
26 July
2011
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 Larisa Zolotareva
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 15003/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Larisa Timofeyevna
Zolotareva (“the applicant”), on 23 March 2004.
The
applicant was represented by R. Zakalyuzhnyy, a lawyer practising in
Rostov-on-Don. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that the bailiff had failed to
respect her private life and home when carrying out her eviction.
On
23 October 2008 the President of the First Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1932 and lives in Moscow.
A. The decision to evict the applicant
The
applicant resided in a municipal two-roomed flat together with her
son, his ex-wife K. and their daughter, a minor at the time. On an
unspecified date the applicant brought a claim against K. seeking
K.’s eviction. K. countersued the applicant asking the court to
rehouse everyone. K. alleged that the applicant and her son had
forced her to move out of the flat and their joint residence in the
same flat had become impossible.
On
28 May 1998 the Tverskoy District Court of Moscow dismissed the
applicant’s claims and granted K.’s claim. It ordered the
applicant and her son to be rehoused in another two-room flat. At the
same time K. and her daughter were granted a room in another
building. The flat the applicant resided in was assigned to another
family. In particular, the court noted as follows:
“Pursuant to Article 68 of the [Housing
Code], if the members of a family fail to reach an agreement with
regard to re-housing, any of them may ask for the re-housing
arrangements to be determined by the court. The court must take into
consideration the relevant circumstances and the interests of the
persons to be re-housed.
The court asked repeatedly that [the applicant and her
son] justify their objection to the re-housing arrangement [proposed
by K.]. However, they did not present any written submissions... and
refused to give any [oral] explanation or answer any questions during
the court hearing...
The witnesses testified that the parties were in
conflict and provided details as to the altercations between
[them]...
The existence of a conflict between the parties is also
confirmed by the numerous complaints they have lodged against each
other with the law-enforcement agencies...
Having regard to the above, the court concludes that the
parties cannot share the flat in question. K. and her daughter are
unable to reside in the flat, which fact amounts to a violation of
their housing rights...
Pursuant to Article 98 of the [Housing Code], K.
cannot be evicted from the flat. It was established that [the
applicant and her family] had consented to K. moving into the flat.
K. had moved into the flat and, as set forth in Articles 53 and
54 of the [Housing Code], she had acquired a right to reside in
there.
The court has established that it was impossible for the
parties to share the flat due to their own behaviour ... The
conflicts between the parties underlie the housing dispute between
them.
The court further considers that K.’s eviction, if
ordered, would have an adverse effect on the housing rights of her
daughter, who lives with her.
According to K., she asked for re-housing for the first
time in 1992. However, [the applicant and her son] did not consent to
it.
K. proposed the following re-housing arrangement: [the
applicant and her son] would move into a two-room flat ... In the
flat in dispute each resident party had been afforded 7.85 sq. m
of the living area... Following the re-housing, [the applicant and
her son] would be afforded 15.2 sq. m of the living area
each ... The two would have separate rooms. The flat is located in
[Moscow]...
The court does not discern any reason why the proposed
re-housing arrangement should not be implemented ...”
On
2 September 1998 the Moscow City Court concurred with the
assessment of the matter made by District Court and upheld the
judgment of 28 May 1998 on appeal.
B. The enforcement of the eviction order
1. Institution and suspension of the enforcement
proceedings
On
1 October 1998 the bailiff initiated enforcement proceedings.
On
an unspecified date the applicant asked for supervisory review of the
judgments of 28 May and 2 September 1998.
On
27 January 1999 the Supreme Court of the Russian Federation
asked the District Court to forward the case-file for supervisory
review. As regards the applicant’s eviction, the judge in
charge of the matter noted that the execution of the judgment of
28 May 1998 “should be stayed”.
On
17 June 1999 a bailiff, P., called at the applicant’s flat
and told her that she would be evicted the following day. As regards
the stay of execution, he advised her to contact the court.
2. Events of 18 and 19 June 1999
On
18 June 1999 the bailiff showed up at the applicant’s flat
at 10 a.m. The applicant refused to open the door. The bailiff
had to leave. He returned with the rescue service at 2 p.m. The
applicant was not in the flat. The bailiff entered the flat. The
applicant returned one and a half hours later. She claimed that she
did not feel well and was undergoing treatment in a hospital. The
bailiff left.
After
having verified that the applicant had not been admitted to any
hospital, the bailiff forced open the door to the flat at 7 p.m. and
started the eviction process. According to the applicant, the bailiff
summoned police officers, who took her to the police station where
she stayed for three hours. The bailiff completed the eviction at
1.30 a.m. Some of the applicant’s belongings were moved to her
new home and the remainder were left at the flat.
3. Subsequent events
On
22 June 1999, in the applicant’s absence, the bailiff
moved the rest of her belongings to her new home.
On
26 June 1999 the Supreme Court of the Russian Federation refused
to review the judgments of 28 May and 2 September 1998 by
way of supervisory review. In particular, the letter addressed to the
applicant stated as follows:
“I hereby inform you that your complaint against
the judgment of the Tverskoy District Court of 28 May 1998
concerning your claims against K. ... has been considered and
dismissed. The grounds for dismissal have been communicated to you
earlier at a meeting.”
C. Proceedings against the bailiff
On
17 July 1999 the applicant lodged a complaint against the
bailiff, challenging the manner in which he had conducted her
eviction.
On 6 December 2001 the Khamovnicheskiy District
Court of Moscow found the bailiff’s actions unlawful and
ordered him to provide the applicant with an access to her belongings
stored at her new home. In particular, the court found as follows:
“The court established that bailiff P. conducted
enforcement proceedings after 11 p.m. although there was no
imminent risk to anyone’s life or health ... This fact was not
denied by the representative of the [bailiff’s service]. Nor
was evidence presented to the court that [the bailiff] had obtained a
written approval from a senior bailiff to carry out the enforcement
proceedings after 10 p.m.
As it has been established by the court, [the applicant]
had asked the bailiff to suspend the enforcement proceedings arguing
that she was not feeling well and her son [who had been subject to
eviction too] had been absent. Bailiff P. refused to do so, alleging
that [such a suspension] was exclusively within a court’s
competence.
Nevertheless, Article 19 of the Federal Law on
Enforcement Proceedings provides that bailiffs may suspend
enforcement proceedings ... for a period not exceeding ten days ...
The [bailiff’s service] failed to prove that the
bailiff had notified [the applicant and her son] of the possibility
of voluntary execution of the judgment concerning their eviction. Nor
was any evidence submitted to show that the applicant’s son had
been notified of the eviction date. The list of the [applicant’s]
possessions was not properly compiled. This fact was not denied by
the [bailiff’s service]...
The court has established that the case concerning the
[applicant’s] eviction was repeatedly subject to supervisory
review. On 27 January 1999 the Deputy President of the Supreme
Court of Russia, Zh., requested the file and the execution of the
judgment was stayed. The Supreme Court of Russia dismissed the
[applicant’s] complaint only on 26 June 1999. Accordingly,
the enforcement of the judgment had been stayed until 26 June
1999...
However, bailiff P. failed to stay the enforcement
proceedings following the Supreme Court’s decision to stay the
execution of the judgment. Accordingly, the [applicant’s]
eviction was carried out during the period when the execution of the
judgment had been stayed by the Deputy President of the Supreme Court
of Russia.
Having regard to the above, the court concludes that the
actions taken by bailiff P. should be found unlawful.”
The
decision was not appealed against and took effect on 18 December
2001.
D. Action for damages
On
27 June 2002 the applicant brought an action against the
Ministry of Finance of the Russian Federation for damages resulting
from the bailiff’s unlawful actions. She sought compensation
for both pecuniary and non-pecuniary damage.
On
16 May 2003 the Basmanniy District Court of Moscow rejected the
applicant’s claims. In particular, the court stated as follows:
“Pursuant to [the rules of civil procedure], each
party should [substantiate its allegations]...
[The applicant] did not present to the court any
evidence to show that her property had been damaged or destroyed as a
result of illegal actions taken by [the bailiff].
As indicated on [the certificate of the delivery to the
applicant of her belongings], she did not make any comment or
complain with regard to the delivery of her property.
No damage or destruction of the [applicant’s]
property has been documented after the applicant’s re-housing
on 18-19 June 1999...
Having regard to the above, the court considers that the
damage to and destruction of the [applicant’s] property was not
a result of illegal actions on the part of the bailiff...
Accordingly, there is no causal link between the
bailiff’s illegal actions and the harm caused to the
applicant’s property ... and there is, accordingly, no reason
to award damages to the applicant ...
The applicant did not present any evidence to
substantiate her allegations that she had incurred non-pecuniary
damage as a result of the infringement of her personal non-property
rights ... through the illegal actions of the bailiff in the course
of the eviction on 18-19 June 1999.”
On
18 November 2003 the Moscow City Court upheld the judgment of
16 May 2003 on appeal.
II. RELEVANT DOMESTIC LAW
Enforcement
proceedings should be conducted on working days between 6 a.m. and 10
p.m. They can be carried out between 10 p.m. and 6 a.m. only in
the event of an “imminent risk to life or health”. In
such a case, the bailiff should obtain written permission from his
superior (Article 12 of the Federal Law on enforcement
proceedings of 21 July 1997 as amended, in force at the material
time, hereinafter “the Law”).
The
bailiff may suspend the enforcement proceedings for no more than ten
days at the debtor’s request (Article 19 of the Law).
The
enforcement proceedings should be stayed if an authorised officer
issues a relevant decision ordering the stay of the execution of the
relevant legal act (Article 20 § 6 of the Law).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that her right to respect for her private life
and home had been infringed in course of the eviction proceedings.
She referred to Article 8 of the Convention, which reads, in so far
as relevant, as follows:
“1. Everyone has the right to respect
for his private ... life, his home ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested that argument. They submitted that the bailiff
had acted in accordance with the law when evicting the applicant. In
particular, he had notified her of the date and time of the eviction.
The eviction had been carried out in accordance with a final and
enforceable judgment, it had pursued a legitimate aim, namely, it
ensured the public order and protected the interests of K. and her
minor daughter, and had been “necessary in a democratic
society”.
The
applicant maintained her complaint. She noted that the bailiff’s
actions had been in contravention of the applicable laws. In
particular, as it was established by the court decision of 6 December
2001, he had carried out the eviction while the execution of the
relevant judgment had been stayed; he had also carried out the
eviction during the night. Despite the fact that her complaint
against the bailiff had been granted and the court had found the
bailiff’s actions in the course of the eviction proceedings
unlawful, her subsequent action for damages had been dismissed.
A. Admissibility
The
Court reiterates that it falls first to the national authorities to
redress any violation of the Convention. In this regard, the question
whether an applicant can claim to be the victim of the violation
alleged is relevant at all stages of the proceedings under the
Convention (see, among other numerous authorities, Siliadin v.
France, no. 73316/01, § 61, ECHR 2005 VII). An
applicant is deprived of his or her status as a victim if the
national authorities have acknowledged, either expressly or in
substance, and then afforded appropriate and sufficient redress for,
a breach of the Convention (see, for example, Scordino v. Italy
(no. 1) [GC], no. 36813/97, §§ 178-93, ECHR
2006-V).
As
regards the first condition, namely, the acknowledgement of a
violation of the Convention, the Court notes that the domestic
judicial authorities unequivocally recognised that the manner in
which the applicant’s eviction had been conducted had fallen
short of the requirements set forth in applicable domestic
legislation.
With regard to the second condition, namely,
appropriate and sufficient redress, the Court must ascertain whether
the measures taken by the authorities, in the particular
circumstances of the instant case afforded the applicant appropriate
redress in order to determine whether she can still claim to be a
victim. The Court considers that this issue is closely linked to the
merits of her complaint under Article 8 of the Convention.
Accordingly, the Court finds it necessary to join it to the merits of
the applicant’s complaint and will return to it subsequently.
The
Court notes that this complaint 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.
B. Merits
The
Court notes that it is common ground between the parties that the
applicant’s eviction constituted an interference with her right
to respect for her private life and home as protected by
Article 8 § 1 of the Convention. The Court sees
no reason to hold otherwise. The Court’s task is, accordingly,
to determine whether the interference was justified within the
meaning of paragraph 2 of this Article, that is, whether it was
“prescribed by law”, pursued a legitimate aim and was
“necessary in a democratic society”.
The
Court observes that the compliance of the applicant’s eviction
with the applicable domestic laws was in fact subject to domestic
judicial review. On 6 December 2001 the Khamovnicheskiy District
Court of Moscow granted the applicant’s complaint and found the
bailiff’s actions in connection with the applicant’s
eviction unlawful. The Court does not see a reason to depart from the
domestic court’s findings.
The
Court takes note of the District Court’s finding that the
applicant’s eviction took place while the execution of the
judgment ordering the eviction had been stayed by the Supreme Court
of Russia. In the absence of any evidence to the contrary, the Court
finds without merit the Government’s argument that both the
applicant and the District Court had simply erred in defining the
period during which the execution of the judgment had been stayed.
The
Court further observes that, contrary to domestic regulations, the
bailiff failed to justify his decision to continue the eviction
during the night.
The
Court also takes into account the District Court’s finding that
the bailiff had failed to grant the applicant an opportunity to
voluntarily vacate the flat. When removing the applicant’s
property from her former flat, he had not prepared a detailed list of
her possessions. Nor did he promptly provide for their return to the
applicant.
Lastly,
the Court notes that, while the domestic authorities declared the
bailiff’s actions unlawful, they did not offer any compensation
to the applicant on the ground that she had failed to show a causal
link between the bailiff’s actions and the compensation for
pecuniary and non-pecuniary damage sought.
The Court considers that, in such circumstances, the
applicant was not afforded appropriate and sufficient redress for a
breach of the Convention. She may therefore still claim to be a
victim within the meaning of Article 34 of the Convention.
Accordingly, there has been a violation of Article 8 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Articles 3 and 5 of the
Convention that she had been forcefully removed from her flat during
the eviction and taken into police custody, and under Articles 6
and 13 of the Convention that the length of the proceedings
against the bailiff had been excessive and that they had been unfair.
Relying on Article 1 of Protocol No. 1, she complained
about the loss of her property and the damage resulting from the
eviction.
However,
having regard to all the material in its possession, the Court finds
that there is no appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols in respect of those
complaints. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 8,599,694 Russian roubles (RUB) in respect of
pecuniary damage. She alleged that that was the value of the property
she had lost and which had been damaged in the course of the
eviction. The applicant also claimed RUB 2,000,000 in respect of
non-pecuniary damage.
The
Government considered the applicant’s claims excessive and
unsubstantiated.
Having
regard to the particular violation found, the Court does not discern
any causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. On the other hand, it
awards the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant also claimed RUB 195,300 for the costs and expenses
incurred before the domestic courts and the Court. She submitted
copies of receipts to confirm photocopying, postal and other
expenses, housing and utilities, repairs done in the flat, laundry
and dry cleaning services, her medical costs, including the purchase
of medicine, and legal and translation fees.
The
Government contested the applicant’s claims.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,540 under all
heads.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the manner in
which the bailiff carried out the applicant’s eviction
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
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 5,000
(five thousand euros), in respect of non-pecuniary damage, plus any
tax that may be chargeable;
(ii) EUR 1,540
(one thousand five hundred and forty euros), in respect of costs and
expenses, plus any tax that may be chargeable to the applicant.
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 July, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
