CASE OF Larisa ZOLOTAREVA v. RUSSIA
(Application no. 15003/04)
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:
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The decision to evict the applicant
“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 ...”
B. The enforcement of the eviction order
1. Institution and suspension of the enforcement proceedings
2. Events of 18 and 19 June 1999
3. Subsequent events
“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
“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.”
D. Action for damages
“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.”
II. RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
II. OTHER ALLEGED VIOLATIONS 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 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;
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