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Cite as: [2011] ECHR 1524
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THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
33666/08
by Gaļina ŅIKITINA
against Latvia
The European Court of Human Rights (Third Section), sitting on 20 September 2011 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
judges,
and Santiago Quesada, Section
Registrar,
Having regard to the above application lodged on 17 May 2008,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Gaļina Ņikitina, is a Latvian national who was born in 1965 and lives in Rīga. She was represented before the Court by Ms Z. Paulovska, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
3. The relevant historical background has been described in detail in paragraphs 2 to 9 of the Court’s decision in the case of Liepājnieks v. Latvia (no. 37586/06, 2 November 2010).
4. In addition, it should be noted in the present case that from 1985 the applicant lived in an apartment in the building located at 3 Pastendas Street, under a lease agreement concluded under Soviet law. On 29 October 1992, following the restoration of Latvia’s independence, the building was denationalised and returned to its former owners.
5. On 5 January 1994 the applicant concluded a new lease for one year. It appears that the lease was extended every year until 9 May 2000. In the meantime, according to the applicant, the owners failed to maintain the building, in breach of the lease agreement.
2. Eviction proceedings
6. It appears that, after the expiry of the seven-year non-eviction period (see Liepājnieks, cited above, § 6), the owners initiated eviction proceedings before the civil courts (see, by contrast, Liepājnieks, cited above, §§ 11 and 88).
7. On 26 May 2003 the Rīga City Zemgale District Court (Rīgas pilsētas Zemgales priekšpilsētas tiesa) ordered the eviction of the applicant and her minor daughter from the apartment without allocating them another place of residence. The applicant appealed against the judgment.
8. On 17 January 2005 the Rīga Regional Court (Rīgas apgabaltiesa) upheld that judgment and confirmed that the applicant and her daughter were to be evicted from the apartment and that no other place of residence was to be allocated to them. The regional court’s judgment took effect on the same day. The applicant lodged an appeal on points of law, in vain.
9. On an unspecified date, the applicant and her daughter were evicted from the apartment.
3. Municipal assistance
10. In December 1998 the applicant approached the local municipality with a view to receiving its assistance on matters relating to apartments. It appears that her application was examined approximately a year later: on 8 December 1999 the Rīga City Council entered the applicant’s family (the applicant and her minor daughter) in the register for receiving municipal assistance in the allocation of a place of residence (for rent). The applicant’s family were entered in the third group of the register, based on the fact that the apartment in which they were living was not suitable for permanent residence.
11. On 1 January 2002 a new law on assistance concerning issues relating to apartments took effect (see paragraph 34 below). The applicant’s family were now entered in register no. 12, keeping their initial registration date.
12. On 3 November 2004 the applicant was granted the status of a low-income person. This was subsequently extended until at least 23 October 2006.
13. On 2 February 2005 the applicant’s family were entered in register no. 7 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent), keeping their initial registration date. Register no. 7 was designed to include persons in need of the municipality’s assistance who had low-income status, were tenants in denationalised buildings and did not have any other place of residence. The applicant’s family appear to have been at the top of that list on account of their initial registration date.
14. On 23 February 2005, having received a phone call from the municipality, the applicant went to its offices to deal with the necessary formalities for receiving a lease offer, which, as it later transpired, had been issued for her. An official of the municipality required the applicant to submit the information regarding the proceedings for her eviction (see paragraphs 6 to 9 above). Having received the information, the official noted that all available lease offers had already been issued and that the applicant had to continue waiting for an offer.
15. On 29 March 2005, following an enquiry by the applicant, the municipality informed her that there was no basis on which to offer her a lease, because the eviction proceedings had resulted in a judgment against her and she no longer had a right to reside in the apartment in question. It was noted, however, that should the applicant’s appeal on points of law be upheld and the judgment of 17 January 2005 (see paragraph 8 above) be reversed, the municipality would consider that she retained the right to reside in the apartment and she would be offered a lease.
16. On 28 August 2006 the applicant was informed that she and her daughter would be struck off register no. 7 since she no longer satisfied the applicable criteria. She was invited to submit any objections within two weeks. The applicant was also informed that she could submit documents to be entered in register no. 1 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent). Register no. 1 was designed to include persons who had been evicted from their place of residence. It appears that the applicant did not submit any response to the authorities on these issues.
17. On 4 October 2006 the competent commission decided to strike the applicant’s family off register no. 7 because the applicant’s lease in a denationalised building had been terminated on 17 January 2005. The decision contained a reference to the effect that the applicant could submit a complaint with the municipality against that decision within one month.
18. On 8 November 2006 the applicant lodged a complaint against the decision. On 15 December 2006 her complaint was rejected and she was informed that she could lodge an appeal with the administrative courts within one month. She did not exercise that right.
19. On 17 December 2006 the applicant complained to the municipality that her complaint of 8 November 2006 had not been examined, adding that she had been called on an unspecified date to participate in a meeting with the municipality but had not understood the purpose of that meeting.
20. On 4 January 2007 the applicant received a reply to her complaint of 17 December 2006. It was explained that her complaint against the decision of 4 October 2006 had been rejected on 15 December 2006 and that she could lodge an appeal with the administrative courts within one month. The system of registers and their scope was also explained and the applicant was informed that her family could be eligible for inclusion in register no. 1 for priority treatment. She was encouraged to contact the competent division in the municipality and was given the relevant contact details. The applicant did not proceed as suggested.
4. Administrative proceedings against the Rīga City Council
21. On 1 November 2005 the applicant lodged a complaint with the Rīga City Council about an action of a public authority (faktiskā rīcība). On 9 January 2006 the Rīga City Council rejected the applicant’s complaint.
22. On 6 February 2006 the applicant brought proceedings in the Administrative District Court (Administratīvā rajona tiesa), asking it to compel the Rīga City Council to issue a favourable administrative act (labvēlīgs administratīvs akts) and conclude a lease with her.
23. On 10 August 2006 the district court partly ruled in the applicant’s favour. On the one hand, the district court concluded that an action of a public authority – namely the municipality’s refusal to offer a lease to the applicant – had been unlawful. On the other hand, the district court did not compel the municipality to issue a favourable administrative act or to conclude a lease with the applicant.
24. As concerns the action of a public authority, the district court noted that the parties did not dispute that on 23 February 2005 the applicant’s family had been entered in register no. 7, that the applicant’s turn had come to receive the municipality’s assistance and that at least one apartment was available for lease. It was the municipality’s duty under domestic law to offer every available apartment to the applicant. The district court ruled that the applicant had a right to request that a certain action be taken, that is, that a lease offer be given to her. The responsible official did not have the right to refuse to make such an offer as on 23 February 2005 the applicant’s entry in register no. 7 had still been effective.
25. As regards the applicant’s request to compel the municipality to issue a favourable administrative act and to conclude a lease, the district court held that it could not compel the municipality to issue such an act before it had offered a lease and the applicant had accepted it.
26. The municipality appealed against the district court’s ruling in so far as it concerned the action of a public authority. The applicant did not lodge an appeal. Thus, the district court’s ruling regarding the request for a favourable administrative act and a lease offer remained uncontested.
27. On 15 May 2007 the Administrative Regional Court (Administratīvā apgabaltiesa) upheld the district court’s ruling. The regional court found that, in fact, on 23 February 2005 the municipality had already prepared a lease offer and that the official had not handed it over to the applicant on that date. Under domestic law, only a special commission had the necessary powers to strike the applicant’s family off register no. 7. Since this had not been done on 23 February 2005, the applicant had not lost the right to receive municipal assistance.
28. The regional court concluded that an action of a public authority – namely the refusal to issue a lease offer – had been unlawful. As the applicant had not contested the district court’s finding concerning the request for a favourable administrative act and a lease offer, the regional court and later also the Senate of the Supreme Court, did not rule on this issue.
29. On 3 January 2008, following an appeal on points of law by the municipality, the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) fully concurred with the regional court’s reasoning. The municipality argued before the Supreme Court that the applicant had lost the right to reside in the apartment on the grounds of the judgment of 17 January 2005 and, accordingly, the issuance of a lease offer would not be effective in the circumstances. The Supreme Court agreed that with the judgment of 17 January 2005 the applicant’s family had lost the right to reside in the apartment. However, only the competent commission could have examined the situation and decided whether or not to strike the applicant’s family off the register. Since on 23 February 2005 such a decision had not been taken, the applicant had not lost the right to receive the municipality’s assistance in resolving the issue of her apartment. The Supreme Court thereby upheld the lower court’s judgment.
B. Relevant domestic law
1. The right to receive compensation
30. Under Article 92 of the Constitution (Satversme), everyone has a right to receive commensurate compensation if his or her rights have been violated.
31. Under section 92 of the Law of Administrative Procedure (Administratīvā procesa likums), in force since 1 February 2004, everyone has the right to receive commensurate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority.
32. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful, or to the public authority concerned following a judgment adopted in such proceedings.
33. The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority is prescribed by the Law on Compensation for Damage caused by Public Authorities (Valsts pārvaldes iestāZu nodarīto zaudējumu atlīdzināšanas likums), in force since 1 July 2005. Chapter III of the Law provides for the procedure to follow when an individual claims damages from a public authority. Under section 15, an individual is entitled to lodge an application with the public authority that was responsible for the damage. Pursuant to section 17, such an application must be lodged not later than within one year of the date when the individual became aware of the damage and, in any event, not later than five years after the date of the unlawful administrative act or unlawful action of a public authority.
2. Municipal assistance
34. On 1 January 2002 the Law on Assistance Concerning Apartment Matters (likums “Par palīdzību dzīvokļa jautājumu risināšanā”) took effect. Several types of assistance are available under section 3 of the Law, including the possibility of leasing a place of residence from a local municipality. Under section 14, the municipality is entitled to offer assistance in order of priority to tenants living in denationalised buildings. It is left to the municipality to determine the criteria and the procedure for such assistance. Section 18 of the Law provides that the municipality is to offer a lease in writing and that the individual concerned has a certain time-limit for accepting the offer.
35. The Rīga City Council, the biggest municipality in Latvia, has adopted several regulations on these issues. In the present case, regulations nos. 61, 76 and 6 are relevant. Under regulations no. 61, in force from 31 March 2004 to 26 November 2004, individuals with low-income status residing in a denationalised building were entitled to be entered in register no. 7 for priority treatment in receiving the municipality’s assistance in the allocation of a place of residence (for rent), if they did not have any other place of residence (Article 2.3.8). The decision as to whether or not an individual was entitled to receive the municipality’s assistance, or to be included in or struck off any of the registers, was to be taken by a special commission (Article 1.6).
36. Under regulations no. 76, in force from 26 November 2004 to 27 July 2005, the relevant provisions remained the same as in regulations no. 61.
37. From 27 July 2005 to 13 December 2007 regulations no. 6 were in force. These regulations laid down clearer provisions governing the different registers, eligibility criteria and the order of priority. Similarly to the previous regulations no. 61 and 76, they provided that the decision to strike a person off any of the registers should be taken by a special commission (Article 1.9).
COMPLAINTS
38. The applicant complained that the municipality had refused to offer her a lease and had failed to provide for her social security. She referred in that connection to the events of February and March 2005. The applicant was also dissatisfied with the fact that notwithstanding the ruling of 3 January 2008 whereby the municipality’s refusal (an action of a public authority) had been held to be unlawful, she had not received any lease offers and had been struck off the register altogether.
39. In view of the above, the applicant was dissatisfied with the execution of the domestic court’s ruling in her favour.
THE LAW
A. Alleged violation on account of the refusal to offer a lease
40. The applicant complained, first of all, about the municipality’s refusal to offer her a lease and to provide her with social security in 2005. Secondly, she complained that the municipality had not offered her a lease even after the judgment of 3 January 2008. Lastly, she submitted that she had been struck off the relevant register for municipal assistance.
41. The Court will examine these complaints under Article 1 of Protocol No. 1 to the Convention in so far as possible. That Article provides as follows:
“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.”
42. As concerns the first and second of these complaints, the Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the applicant herself had not lodged an appeal against the ruling of 10 August 2006. In the alternative, they argued that these complaints were incompatible ratione materiae with the provisions of the Convention. The Government submitted that the applicant did not have any existing possessions or claims in respect of which she could argue that she had a legitimate expectation of a property right for the purposes of Article 1 of Protocol No. 1 to the Convention.
43. The applicant did not provide any submissions in this regard.
44. The Court will assume, for the sake of argument, that the applicant in the circumstances of the present case could be considered to have had existing possessions or assets, including claims, in respect of which she could argue that she had at least a legitimate expectation of obtaining effective enjoyment of a property right within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court notes in this connection that the applicant’s complaint about the municipality’s refusal to offer her a lease was examined on the merits by a first-instance administrative court and upheld. At the same time, her request to issue a favourable administrative act and to conclude a lease was rejected (see paragraphs 23 - 26 above). That ruling was amenable to a judicial appeal procedure, but the applicant did not pursue that procedure either before the regional court or before the Senate of the Supreme Court, namely, she did not contest the district court’s conclusion that it could not compel the municipality to issue a favourable administrative act and to conclude a lease with her. Nor did the applicant put forward any argument before the Court that this remedy was not effective. In such circumstances the Court accepts the Government’s preliminary objection. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
45. As concerns the third of these complaints, the Government contended that it was not in fact included in the original file. They interpreted the applicant’s submissions as giving rise only to complaints closely linked to the case as examined by the domestic administrative courts. In the alternative, they raised a preliminary objection of non-exhaustion of domestic remedies and submitted that the applicant had not lodged an appeal against the decision of 4 October 2006.
46. The Court reiterates at the outset that it is master of the characterisation to be given in law to the facts of the case (see RuZa v. Latvia (dec.), no. 33798/05, 11 May 2010). Turning to the facts of the present case, the Court notes that the applicant did in fact lodge a complaint against the decision of 4 October 2006 to strike her off register no. 7, and that that complaint was examined and rejected by the municipality. Notwithstanding this fact, the Court agrees with the Government that the applicant did not pursue her complaint to the next level – that is, she did not bring the case before the administrative courts, a possibility which had been duly explained to her by the municipality. The Court therefore accepts the Government’s preliminary objection and rejects this complaint under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
47. Given that the admissibility criteria for the applicant’s complaints about the refusal to offer a lease are not fulfilled (see paragraphs 44 and 46 above), the Court does not consider it necessary to examine the same complaints under Article 6 § 1 of the Convention.
B. Alleged violation on account of the non-execution of a judgment
48. The applicant complained, in essence, that the ruling of 3 January 2008 remained unexecuted.
49. The Court will examine this complaint under Article 1 of Protocol No. 1 to the Convention in so far as possible.
50. The Government argued that the final ruling in the administrative proceedings did not impose any obligation on the municipality and hence it did not remain inoperative to the applicant’s detriment. They further explained that following a ruling in the applicant’s favour, whereby an action of a public authority had been declared unlawful, she could have brought an action for damages against the public authority concerned, namely the Rīga City Council. In sum, the Government submitted that this complaint was manifestly ill-founded.
51. The applicant did not provide any submissions in this regard.
52. Acting on the same premise as noted above (paragraph 44), the Court observes that the judgment of 3 January 2008 did indeed clearly determine that the action of a public authority whereby the applicant was not offered a lease was unlawful. The judgment did not contain any indication of the consequences of the unlawful action. Thus, it cannot be said that any issues arise as to the non-execution of a final judgment in the applicant’s case. Moreover, the Government asserted that the domestic law provided a possibility for the applicant to claim damages and that it was for her to initiate such proceedings (see paragraphs 30 to 33 above). The applicant did not argue that the remedy was not effective.
53. In the light of the foregoing, the Court considers that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
54. Given that the admissibility criteria for the applicant’s complaint about the non-execution of a judgment are not fulfilled (see paragraphs 52 and 53 above), the Court does not consider it necessary to examine the same complaint under Article 6 § 1 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago
Quesada Josep Casadevall
Registrar President