FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48758/99 by Lyubov Alekseyevna VOLKOVA against Russia

The European Court of Human Rights (Fourth Section), sitting on 18 November 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr R. Maruste , Mr A. Kovler , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mrs F. Elens-Passos , Deputy  Registrar ,

Having regard to the above application lodged on 28 December 1998,

Having regard to the partial decision of 25 September 2001,

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, Lyubov Alekseyevna Volkova , is a Russian national who was born in 1959 and lives in Volgograd, Russia.

A. The circumstances of the case

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

1. The initial housing dispute

The applicant and her family (her husband and two children, born in 1982 and 1987) moved into in a dormitory in Volgograd in 1985.

They occupied two rooms in the dormitory, with shared kitchen, shower and toilet facilities. They were registered as living in the dormitory permanently, which was their sole residence.

In 1993 the ownership of the dormitory was transferred to a company called “VNIITMASH”.

In 1995 the applicant, along with other residents, was ordered by the District Prosecutor of the Sovetskiy district of Volgograd to vacate the premises because the building required urgent structural renovation. The applicant was provided with temporary housing in another dormitory in Volgograd, although smaller and of inferior quality. In August 1995 the applicant was forcibly evicted from the building and her belongings were transferred to the designated rooms.

The applicant and her family were provided with a room of 16 square metres, where their belongings were put. The room was in a student dormitory. It had cold water only, had no shower facilities and the kitchen facilities were minimal. The applicant’s family initially stayed with other members of their family, but in August 1998 had to move into the room. In order to have space for themselves, their belongings, including furniture, were moved to a storage. The room was adjacent to a toilet, which smelled strongly, was damp and infested with fungi and insects.

The applicant, along with other residents, brought an action against VNIITMASH and the administration of the Sovetskiy district for provision of permanent housing and non-pecuniary damages. In it they alleged that though the status of the building was a dormitory, their contracts were not for dormitory-type accommodation, but for proper flats. On 24 April 1996 the Volgograd Regional Court confirmed in the final instance the judgment of the Sovetskiy District Court to reject the applicants’ claim. VNIITMASH undertook to allow the applicants to return to the dormitory after the renovation, which was scheduled to be completed in September 1996.

The building was not renovated on time, and the applicant applied to the court again. The district administration accepted her claims. The Sovetskiy District Court by its judgment of 22 June 1999 ordered the administration to provide the applicant with “comfortable” ( благоустроенное ) housing. The judgment was not appealed by either of the parties, entered into force and was forwarded to the bailiff in July 1999.

On 8 September 1999 the renovation in the original building was completed and the ownership of it was transferred to the district administration, with a status of a dormitory.

On 24 September 1999 the administration of the Sovetskiy district issued a voucher ( ордер ) to the applicant’s family for two rooms of 34 square metres in the newly renovated dormitory building. It appears that the bailiff closed the enforcement procedures on 11 October 1999.

The applicant refused to accept the accommodation offered, as she believed that the housing in the dormitory did not correspond to the definition of “comfortable”, as ordered by the court on 22 June 1999. She also alleged that the conditions had become worse since the renovation. In particular, the applicant and her family would only be able to register as temporary occupants of the building, the rooms offered to them were separated from each other and were connected by a corridor shared with other rooms. Further, they were required to share the toilet and kitchen facilities with a larger number of families, and the quality of the building remained very poor, even after the renovation.

On her complaint, the bailiff reopened the enforcement procedures and on 23 February 2000 prohibited the issuing of housing vouchers by the district administration and seized the district housing registry.

On 27 April 2000 the Sovetskiy District Court, on the administration’s complaint, quashed the bailiff’s order of 23 February 2000. On 28 June 2000 the Volgograd Regional Court confirmed this decision. The courts found that the judgment of the Sovetskiy District Court of 22 June 1999 had been executed by the administration which provided her with “comfortable” housing in the dormitory, and the applicant’s refusal to accept it did not warrant continuation of enforcement procedures.

On 18 July 2000 the administration offered three rooms in the dormitory to the applicant, totalling 53,5 square metres. The applicant and her family did not accept the places in the dormitory and refused to move in.

2. Procedure in the supervisory instance

On 6 June 2000 the rapporteur, under Rule 49 § 1 of the Rules of Court, asked the Russian Government the following questions:

“1. What is the current situation with respect to enforcement of the decision of the Sovetskiy District Court of Volgograd of 22 June 1999?

2. To what type of accommodation is the applicant entitled, according to the above-mentioned judicial decision?”

The Government responded on 18 September 2000. They informed the Court that on 17 July 2000 the Presidium of the Volgograd Regional Court, acting in supervisory review upon a request ( протест ) lodged by its president, had quashed the judgment of the Sovetskiy District Court of 22 June 1999 and remitted the case.

The applicant later informed the Court that the Presidium of the Volgograd Regional Court had met on 17 July 2000, and she was not aware of it as the information notice was sent to her only on 13 July when she was out of town. The representatives of the administration and the District Prosecutor’s Office were present at the hearing and presented their arguments.

On 26 July 2000 the Sovetskiy District Court again considered the case and rejected the applicant’s claim, stating that she was only entitled to the housing in the renewed dormitory. The decision was confirmed on 30 August 2000 by the Volgograd Regional Court. On 27 September 2000 the bailiff closed enforcement proceedings because the court decision of 22 June 1999 had been quashed.

The applicant on several occasions attempted to challenge the court decision by way of supervisory review, but was refused.

On 12 April 2001 the district administration confirmed the offer of three rooms in the dormitory to the applicant, but she did not accept it.

3. Procedures related to the applicant’s eviction

In 2001 the owner of the rooms where the applicant was temporarily staying since 1998 applied to a court seeking her eviction. On 13 June 2001 the Sovetskiy District Court granted the claim. The court found that the building was designated for structural renovation, all other occupants had been displaced, the applicant had failed to pay the rent since August 1999. The court also noted that the applicant was entitled to the rooms in the original dormitory which she refused to accept.

On 19 July, 10 August and 14 December 2001 the district administration offered to the applicant the voucher for three rooms in the dormitory.

On 22 August 2001 the Volgograd Regional Court, upon the applicant’s appeal, quashed and remitted the decision of 13 June 2001. It appears that these proceedings are still pending.

4. Communication of the complaint to the Russian Government and new supervisory proceedings

On 5 October 2001 the complaint was communicated to the Russian Government.

On 4 February 2002 a request for supervisory review was lodged with the Supreme Court by the Deputy President of the Supreme Court. On 4 March 2002 the Supreme Court, acting by way of supervisory review, quashed and remitted the following judicial decisions: decision of the Presidium of the Volgograd Regional Court of 17 July 2000, judgment of the Sovetskiy District Court of 26 July 2000, decision of the Volgograd Regional Court of 30 August 2000. The new proceedings in the Sovetskiy District Court are still pending.

On 12 April 2002 the Presidium of the Volgograd Regional Court, acting by way of supervisory review upon a request by the President of the Regional Court, quashed and remitted the judgment of the Sovetskiy District Court of 22 June 1999. The new proceedings are still pending.

B. Relevant domestic law and practice

Article 11 of the Code of Civil Procedure of 1964 (CCP) then in force provided that regional and higher courts may conduct “supervisory review” of the activities of the lower courts. This means, according to Articles 319, 320 and 327, that certain senior judicial officers may, at any time, on the request by the person concerned or on their own motion, lodge with a higher court an “application for supervisory review” ( протест ) against a final decision of a lower court on all questions of fact and law. If an “application for supervisory review” is lodged, the proceedings recommence and execution of the judgment may be adjourned (Article 323). The “supervisory review” procedure is separate from proceedings whereby a case may be reviewed on grounds of new facts (Articles 333 -337).

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about unfair trial. In particular, she complains about the proceedings in the supervisory instance, where she was deprived of an opportunity to present her arguments.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that the judgment of 22 June 1999 was quashed following the supervisory review on 17 July 2000 by the Presidium of the Volgograd Regional Court, and that the procedure was “unfair”. Article 6 § 1, insofar as relevant, reads as follows:

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

The Government submit that the decision of the Presidium of the Volgograd Regional Court was quashed by the Supreme Court by way of supervisory review in March 2002. These proceedings served to correct the alleged violations, the applicant’s case has not been finally determined at the national level and the application cannot therefore be examined by the Court.

The applicant requests that her application should proceed and complains about the arbitrary nature of the proceedings.

The Court notes that the complaint under Article 6 § 1 concerns the quashing of an earlier judgment in the applicant’s favour. The issue is whether such procedure, permitting a final judgment to be quashed, can be considered compatible with Article 6 and, in particular, whether the principle of legal certainty was thereby infringed (see Ryabykh v. Russia, no. 52854/99, §§ 55-56, 24 July 2003; Brumărescu v. Romania [GC], no. 28342/95, § 62, 28 October 1999).

The fact that the decision of the Presidium of the Regional Court was subsequently quashed on a further application for supervisory review could not be said to improve legal certainty in the applicant’s case and this position is not affected by the proceedings which are pending at the national level.

The Court considers, in the light of the parties’ submissions, that this issue raises serious questions of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complains about poor living conditions, discrimination on the basis of social status and lack of effective remedies. She also claims violation of her property rights because of the inferior quality of the housing offered to her and by spoilage of her personal belongings. She invokes Articles 3, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.

The Government submit that the proceedings are still pending at the national level and therefore the complaint is premature.

The applicant submits that the outcome of the proceedings is uncertain and she has no effective remedies against the alleged violations.

As to her complaint under Article 3, the prohibition of degrading or inhuman treatment applies when a “minimum level of severity is attained” ( Price v. the United Kingdom , no. 33394/96, § 24, ECHR 2001). While the housing situation of the applicant may be a source of a considerable distress, no material has been submitted to the Court which could give rise to issues under Article 3 of the Convention in the present case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the complaint under Article 8, the Court recalls that neither Article 8 nor any other provision of the Convention guarantees housing of a particular standard or at all (see Chapman v. the United Kingdom , no. 27238/95, § 99, ECHR 2001).

In any event, the Court notes that in September 1999 the administration gave the applicant the chance to move into two, and then three, rooms in the newly renovated dormitory. This offer was renewed on numerous occasions and remains open to the applicant. Her refusal to do so is the reason why the family continues to reside in poorer living conditions, and this situation can not be attributed to the authorities.

It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 § 4 of the Convention.

As to the complaint about discrimination under Article 14 of the Convention, the Court finds nothing in the complaint to support the allegation about discrimination. In particular, there is nothing to suggest that the applicant was indeed subject to a difference in treatment from others in a comparable position in the enjoyment of a right guaranteed by the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the part of the complaint related to violation of property rights by provision of housing of inferior quality, it is true that the right to live in a certain place may constitute “possessions” within the meaning of Article 1 of Protocol No. 1. The applicant’s right to accommodation in the original dormitory as such is clear, and was not disputed at any moment.

However, from the very start the applicant’s right was limited to accommodation of a certain type - in a dormitory. The applicant’s claim that she was entitled to a housing of a different kind is not supported by the national legislation or by the findings of the domestic courts. In particular, the judgment of the Sovetskiy District Court of 22 July 1999 entitled the first applicant to “comfortable” housing. The ensuing dispute between the applicant and the administration as to the definition of the “comfortable” housing was resolved by the decisions of the Sovetskiy District Court of 27 April 2000 and of the Volgograd Regional Court of 28 June 2000, which established that the housing vouchers issued to the applicant for rooms in the dormitory corresponded to her entitlement for “comfortable” housing. The offer of the district administration of the rooms in the dormitory remains valid.

It therefore follows that there was no interference with the applicant’s right to peaceful enjoyment of her possessions. This part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 § 4 of the Convention.

The applicant also complains under Article 1 of Protocol No. 1 about the personal possessions that were transferred in 1995 into a room separate from where she and her family were living. The Court notes that this issue has not been raised before any relevant domestic authority which could have corrected the situation. In particular, the question was not raised before the domestic courts.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

As to the complaint about lack of effective remedies under Article 13, the part related to the court proceedings is in fact a complaint concerning unfair trial. This part of the complaint is reviewed in details under the heading of Article 6, and the Court does not find it necessary to review it also under the guarantees of Article 13.

As regards the applicant’s complaint about violation of Article 13 in relation to Articles 3, 8 and 14 of the Convention and of Article 1 of Protocol No. 1, the Court recalls that a complaint under Article 13 may only be made in relation to an arguable claim of a violation of one of the substantive provisions (see Eur . Court HR, Boyle and Rice v. UK judgment of 27 April 1988, § 53-54). The applicant’s complaints under the above articles of the Convention are manifestly ill-founded, and do not therefore constitute an arguable claim in the terms of the Convention. There is, accordingly, no breach of Article 13 in relation to complaints under Article 3, 8 and 14 of the Convention and Article 1 of Protocol No. 1.

It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaint concerning [Note1] the fairness of the proceedings;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President

[Note1] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.