FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20116/02 by Yelena Petrovna USKOVA against Russia

The European Court of Human Rights (First Section), sitting on 24 October 2006 as a Chamber composed of:

Mr C.L. Rozakis , President, Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , judges, and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged on 20 December 2000 ,

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:

THE FACTS

The applicant, Mrs Yelena Petrovna Uskova , is a Russian national who was born in 1968 and lives in Volgograd . The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Proceedings concerning provision of housing

In 1999 the applicant asked the Dzerzhinskiy District Council to provide her with a flat. She was eligible for provision of State housing because at that time she worked as a judge in the Dzerzhinskiy District Court of Volgograd.

The matter was brought before a court after the Council had failed to provide her with a flat as required under domestic law. On 13 May 1999 the Krasnoarmeyskiy District Court of Volgograd confirmed the applicant ’ s eligibility for State housing because of her judicial function and ordered that the District Council should provide her with a flat.

The judgment was not appealed against and became final. However, it was not enforced.

On an unspecified date the President of the Volgograd Regional Court lodged an application for supervisory review of the judgment of 13 May 1999 .

On 1 September 2000 the Presidium of the Volgograd Regional Court , by way of supervisory-review proceedings, quashed the judgment of 13 May 1999 and remitted the case for re-examination on the ground that the District Court had not taken into consideration the applicant ’ s dismissal from her judicial position on 29 April 1999 .

On 13 August 2001 the Krasnoarmeyskiy District Court dismissed the applicant ’ s claim because her eligibility for a flat had ceased to exist as a result of her dismissal in April 1999. The judgment became final on 22 November 2001 , when it was upheld on appeal by the Volgograd Regional Court .

2. Labour dispute

On 29 April 1999 the Judicial Qualification Board of the Volgograd Region refused to recommend the applicant for a judicial position and dismissed her. On 24 June 1999 the Supreme Judicial Qualification Board upheld that decision on appeal.

The applicant appealed against the decisions of 29 April and 24 June 1999 to the Supreme Court of the Russian Federation .

On 23 August 1999 the Supreme Court upheld the decisions of 29 April and 24 June 1999 in the part concerning the applicant ’ s dismissal and remitted the matter concerning the recommendation for a judicial position for a new consideration.

On 2 August 2000 the Volgograd Regional Court , in the final instance, dismissed the applicant ’ s complaint concerning the refusal to issue a recommendation.

B. Relevant domestic law

Article 19 § 3 of the Federal Law on the Status of Judges in the Russian Federation (no. 3132-I of 26 June 1992) provided at the relevant time that judges, who needed improvement of their housing conditions, were to be provided with separate housing premises according to established norms.

COMPLAINT S

1. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the final judgment of 13 May 1999 had been quashed by way of a supervisory review.

2. The applicant further complained under Articles 6, 13 and 14 of the Convention about unfairness of the proceedings concerning her dismissal and discrimination against her.

THE LAW

1. The applicant complained under Article 1 of Protocol No. 1 that the act of quashing of the final judgment of 13 May 1999 had violated her right to peaceful enjoyment of her possessions. The relevant part of this provision read 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 Government argued that the applicant ’ s complaint should be dismissed as incompatible ratione materiae because she did not have the right to a flat after her dismissal from judicial position.

The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his or her “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or “assets”, including claims, in respect of which the applicant can argue that he or she has at least a “ legitimate expectation ” of obtaining effective enjoyment of a property right (see Kopecký v. Slovakia [GC], no. 44912/98, § 35 , ECHR 2004 ‑ IX ). Thus, the Court must determine whether the applicant ’ s claim for a flat amounted to a “possession” within the meaning of that provision.

It is not in dispute that the applicant ’ s proprietary interest was in the nature of a claim and that it could not accordingly be characterised as an “existing possession” within the meaning of the Court ’ s case-law.

It therefore remains to determine whether that claim was sufficiently established to attract the guarantees of Article 1 of Protocol No. 1, that is whether the applicant had a “legitimate expectation” of obtaining effective enjoyment of a flat in the context of the judgment of 13 May 1999 .

The Court reiterates that where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law (see Kopecký , cited above , § 52). A conditional claim which lapses as a result of the non-fulfilment of the condition cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 82-83 , ECHR 2001 ‑ VIII , and Gratzinger and Gratzingerova v. the Czech Republic ( dec .), no. 39794/98, ECHR 2002 ‑ VII ).

Turning to the facts of the present case, the Court observes that by virtue of the judgment of 13 May 1999 the District Council was to put at the applicant ’ s disposal a flat. By operation of law the provision of housing was conditional on the applicant ’ s status as an active judge. It therefore appears that her right to receive a flat ceased to exist once she had been dismissed in April 1999. Following her dismissal she could no longer legitimately expect to receive a flat (see, by contrast, Teteriny v. Russia , no. 11931/03, 30 June 2005 ) .

It follows that at the time of the events complained about – that is, quashing of the judgment by way of supervisory review – the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1, either in the form of an “existing possession”, or in the form of a “ legitimate expectation ” of obtaining effective enjoyment of a property right. T he complaint under Article 1 of Protocol No. 1 is therefore incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

2. The applicant further complained under Article 6 § 1 of the Convention that the act of quashing of the final judgment of 13 May 1999 had violated her “right to a court”. The relevant part of Article 6 of the Convention read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government, relying on the Court ’ s decision in the case of Pitkevich v. Russia (no. 47936/99, 8 February 2001) argued that the applicant ’ s complaint was incompatible ratione materiae because the applicant had been a judge and because her claim had been directly linked to the exercise of her judicial functions.

The applicant averred that her dispute had been within the private-law domain as it had concerned her pecuniary right to obtain a flat. Although her right to a flat had been directly connected to her judicial position, the dispute had still been of a private-law character.

The Court finds that it is not necessary to examine the arguments presented by the parties as the complaint about the quashing of the final judgment of 13 May 1999 is in any event inadmissible for the following reasons.

The Court reiterates that Article 6 § 1 extends only to a dispute (“contestation”) over a “civil right” which can 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, pp. 1043-1044, § 73).

In the present case, on 13 May 1999 the District Court awarded the applicant a flat because under the domestic law an active judge was entitled to a flat. The judgement of 13 May 1999 was quashed on the ground that the District Court had not taken into consideration the applicant ’ s dismissal in the intervening period which put an end to her housing entitlement.

The parties did not dispute that the applicant ’ s housing entitlement had been directly linked to her employment as a judge. The Court has already established that after the applicant ’ s dismissal in April 1999 and, as follows, on the date of the supervisory-review hearing of 1 September 2000, the applicant could no longer claim to have been entitled to a flat. The Court has found in respect of the applicant ’ s complaint under Article 1 of Protocol No. 1 that after 29 April 1999 the applicant ’ s claim to a flat had no basis in domestic law. Having regard to the Court ’ s findings under Article 1 of Protocol No. 1, it considers that for the purpose of Article 6 of the Convention at the time of the quashing of the judgment of 13 May 1999 by way of supervisory review the applicant did not have a “civil right” recognisable under domestic law (see, for similar reasoning, Zhigalev v. Russia , no. 54891/00, §§ 160-162 , 6 July 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 supervisory-review and subsequent proceedings in the instant case. It follows that the applicant ’ s complaint under this provision must be rejected as being incompatible ratione materiae within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. Lastly, the applicant complained under Articles 6, 13 and 14 of the Convention that the proceedings concerning her dismissal had been unfair and that she had been discriminated against. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court ’ s competence ratione materiae , it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 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.

For these reasons, the Court unanimously

De cides to discontinue the application of Article 29 § 3 of the Convention and declare s the application inadmissible.

S antiago Quesada Christos Rozakis Deputy Registrar President