THIRD SECTION

CASE OF ANDREYEV v. RUSSIA

( Application no. 28852/06 )

JUDGMENT

STRASBOURG

14 January 2020

This judgment is final but it may be subject to editorial revision.

In the case of Andreyev v. Russia ,

The European Court of Human Rights ( Third Section ), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President, Helen Keller, María Elósegui, judges, and Stephen Phillips , Section Registrar ,

Having deliberated in private on 3 December 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 28852/06) 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, Mr Aleksandr Mikhaylovich Andreyev (“the applicant”), on 23 May 2006.

2 . The Russian Government (“the Government”) were represented initially by Mr A. Fedorov, Deputy Minister of Justice, and then by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3 . On 24 April 2017 the Government were given notice of the complaint under Article s 6 § 1 and 13 of the Convention concerning the delayed enforcement of a domestic decision given against a municipal unitary enterprise (MUP) and the lack of any effective remedy in domestic law. T he remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

4 . The applicant was born in 1954 and lives in Kotovsk.

5 . The applicant was a social tenant of an apartment in a four-flat apartment block under a social tenancy agreement with the local administration. In accordance with the agreement, the administration was obliged to perform maintenance and overhaul of the house and the adjacent territory, as well as a major overhaul of the flat. The applicant also had a service agreement in respect of the flat with municipal unitary enterprise Payment Processing Centre of Kotovsk ( МУП “ Единый расчетно ‑ кассовый центр ” , “the MUP”), renamed in 2008 to Integrated Customer Service (“ Служба единого заказчика ” ). It appears that in accordance with the service agreement the MUP was to ensure execution of the social tenancy agreement in the part concerning maintenance and overhaul.

6 . The company was set up in accordance with a decision of the administration of Kotovsk and had a right of economic control over assets assigned to it by the owner. It provided housing and communal services in the area. It was competent, in particular, to determine the need for communal services provision and overhaul of the housing in the area; to accept living premises in the municipal housing fund; to set out quality standards for maintenance work and to supervise compliance of the works actually performed with those requirements; to organise competitions for companies providing overhaul and maintenance services; to draft and conclude standard communal services ’ supply agreements; to control the compliance with the terms of the tenancy and service agreements; to collect arrears in payments of communal charges and for various maintenance works; to make proposals for tariffs for housing maintenance and overhaul. The company defined the amounts of communal charges, as well as subsidies to citizens. On behalf of the local administration it concluded service agreements with housing owners. Until 2006 the company had issued national passports to local residents.

7 . On 14 April 2011 insolvency proceedings started in respect of the municipal unitary enterprise and on 29 March 2012 it was liquidated.

8 . On 14 August 2001, following the applicant ’ s civil claim, the Kotovsk Town Court of the Tambov Region (“the Town Court”) established, without further details, that the MUP had failed to ensure technical maintenance of the housing, as well as to perform current and major overhaul of the housing. It ordered the MUP to comply with the terms of the social tenancy agreement. The judgment did not contain further clarifications. The judgment entered into force ten days later.

9 . On 17 September 2001 the bailiffs initiated the enforcement proceedings. Subsequently, on several occasions (15 September 2004, 21 April 2006, 2 March 2007, and 16 August 2008) they concluded that the respondent company failed to comply with the judgment, as the leaking roof had not been repaired, the basement was constantly flooded and the humidity was excessive, and the house had remained inaccessible through the adjacent yard.

10 . On 14 April 2003 the applicant ’ s family privatised the apartment.

11 . In reply to the bailiffs ’ requests for clarification of the judgment of 14 August 2001, by separate decisions of 22 December 2004 and 27 April 2006 the Town Court confirmed that the social tenancy agreement remained in force and held that the judgment had to be further executed despite the privatisation of the flat.

12 . In 2008 the company claimed to have the social tenancy agreement discontinued. The applicant and his family members brought proceedings against both the unitary enterprise and the Kotovsk Town Administration seeking to have the flat repaired, and further claimed compensation for damage and penalty from the MUP.

13 . According to the expert examination report of 1 August 2008 commissioned by the Town Court, the apartment block was “44%‒dilapidated”. The applicant ’ s flat was suitable for living. The major overhaul of the flat in so far as the flooding was concerned was technically impossible as it required maintenance works in respect of the entire house. The expert further established that since some date before 2003 major repairs of the floor and the windows had been necessary in the applicant ’ s flat. The expert determined the list of works and their price.

14 . On 3 February 2009 the Town Court granted the company ’ s claim to terminate the social tenancy agreement. The court further rejected the applicant ’ s claim for compensation and a penalty against the MUP and the claim to oblige the Town Administration to perform repairs of the apartment block, the apartment and the adjacent land plot.

15 . On 18 May 2009 the Tambov Regional Court upheld the judgment, except for the decision to reject the claim against the administration to have the apartment repaired. In this part the Regional Court sent the case for a fresh examination.

16 . On 24 August 2009 the Town Court observed that the need for a major overhaul of the applicant ’ s flat was established on the basis of the expert reports and had not been discharged by the landlord, that is the local administration, by the time of privatisation. The court further rejected some of the applicant ’ s submissions concerning the scope of works to be performed as insufficiently substantiated, and redefined the list of the required works on the basis of the expert report (see paragraph 13 above). It accordingly obliged the Kotovsk Town Administration to perform major repairs of the floor and the windows in the applicant ’ s apartment.

17 . By a separate decision of 24 August 2009 the court discontinued the proceedings in respect of the unitary enterprise as substantially the same as those of 3 February and 18 May 2009 (see paragraphs 14 and 15 above).

18 . The administration appealed, arguing that it was not under an obligation to repair the flat, as it was not a party to the social tenancy agreement which had been concluded with the MUP, and, in any event, after the privatisation it was for the applicant to perform his flat ’ s capital maintenance.

19 . On 21 October 2009 the Tambov Regional Court upheld the judgment of 24 August 2009 on appeal. With reference to Article 19 of the Privatisation of Housing Act (see paragraph 22 below) the court found that the administration was liable to perform the works as the former landlord.

20 . On 30 November 2010 the bailiff responsible for the enforcement of the judgment of 24 August 2009 terminated the proceedings due to actual execution. The parties have not submitted any information showing that the applicant contested the enforcement of this judgment before the national courts.

21 . The domestic provisions relevant to cases on the legal status of State and municipal unitary enterprises with the right of economic control are summarised in Liseytseva and Maslov v. Russia (nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014).

22 . Article 16 of the Privatisation of Housing Act (Law no. 1541-I of 4 July 1991, as in force at the material time) provided that privatisation of living premises requiring a major overhaul ( требующих капитального ремонта ) was to be conducted in accordance with the Act. The former landlord remained under obligation to perform the major overhaul of a house in accordance with the norms on maintenance, exploitation and overhaul of the housing fund.

THE LAW

23 . The applicant complained of the non-enforcement of the judgment of 14 August 2001 given in his favour and of the lack of any effective remedy in domestic law . He relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:

Article 6 § 1

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

24 . The Government submitted that the judgment of 14 August 2001 was enforced as regards the major repairs on 24 August 2009, when the Town Administration was obliged to perform the relevant works. Thus, the complaint was manifestly ill-founded.

25 . The applicant maintained his complaint, arguing that there was no full enforcement of 14 August 2001, and that in 2009 the domestic courts did not protect him from all the consequences of the alleged lack of proper compliance with the social tenancy agreement.

26 . The Court has held that the existing legal framework in Russia does not provide unitary enterprises with a degree of institutional and operational independence that would absolve the State from responsibility under the Convention for the debts of such companies (see Liseytseva and Maslov , cited above, §§ 193-204). In order to determine the issue of State responsibility for the debts of State or municipal unitary enterprises the Court must examine whether and how the extensive powers of control provided for in domestic law were actually exercised by the authorities in the present case (see Liseytseva and Maslov, cited above, §§ 205-06).

27 . The present case is similar to Liseytseva and Maslov (cited above, §§ 208-19) from the standpoint of the debtor enterprise ’ s functions and the degree of actual control exercised by the authorities over the company ’ s activities. Having regard to the company ’ s functions (see paragraph 6 above), and also bearing in mind that the MUP acted on behalf of the authorities in the contractual relations with the applicant, the Court finds that, as in the leading judgment, the debtor enterprise in the instant case did not enjoy sufficient institutional and operational independence from the authorities. Accordingly, the State is to be held responsible under the Convention for the judgment debts owed to the applicant by the enterprise.

28 . The Court further notes that the applicant ’ s complaints under Articles 6 and 13 of the Convention are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.

29 . The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece , no. 18357/91, § 40, Reports of Judgments and Decisions 1997 ‑ II). In the leading case of Liseytseva and Maslov (cited above) the Court already found a violation in respect of issues similar to those in the present case. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of these complaints.

30 . The Court observes that the scope of the MUP ’ s obligations under the social tenancy agreement was not defined clearly in the text of the judgment of 14 August 2001. However, it transpires from both the text of the judgment and the bailiffs ’ conclusions on the progress of the enforcement (see paragraph 9 above), not disputed by the parties, that the MUP was to perform certain works in the apartment block. Given that on 3 February 2009 the social tenancy agreement was discontinued (see paragraph 14 above), and no outstanding obligations on the MUP were established by the domestic courts (see paragraphs 15 and 17 above), the Court concludes that on that date the judgment of 14 August 2001 became unenforceable. However, on 24 August 2009 in the proceedings against the local administration the Town Court established an updated list of major repairs which had still been necessary since at least 2003 but had not been performed (see paragraph 16 above).

31 . The Court notes that the works ordered on 24 August 2009 were later on conducted by the authorities (see paragraph 20 above). Thus, the Court concludes that, having performed the updated list of works as defined by the final judgment of 24 August 2009, the local administration discharged the obligations in respect of the major overhaul of the flat. As regards the applicant ’ s allegations about the insufficient scope and poor quality of the works performed, the Court reiterates that the domestic courts are better placed to ascertain the proper method of enforcement and to decide the issue of whether and when full and appropriate compliance with a judgment has been secured. In accordance with its established case-law, the Court requires that any dispute in that respect be first and foremost examined by domestic courts (see Gerasimov and Others v. Russia , nos. 29920/05 and 10 others, § 173, 1 July 2014). In the absence of any such proceedings, the Court cannot accept the applicant ’ s submissions regarding the alleged non-enforcement in the subsequent period.

32 . All of the above notwithstanding, the Court has not been provided with any documents showing to what extent the debtor MUP was complying with the social tenancy agreement prior to its termination in 2009, i.e. during more than seven years and eight months while the decision of 14 August 2001 was enforceable. On the contrary, it observes that as late as 2008 the bailiffs were still attempting to enforce the judgment of 14 August 2001 (see paragraph 11 above), and in 2009 major repairs were still required, as evidenced by the judgment of 24 August 2009 (see paragraph 16 above). Accordingly, the Court finds it established that the MUP failed to comply with the judgment in full and in good time.

33 . In the view of the foregoing and having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the judgment of 14 August 2001 issued in the applicant ’ s favour.

34 . There has therefore been a violation of Article 6 of the Convention on account of the non-enforcement of that judgment.

35 . In Liseytseva and Maslov (cited above, §§ 156-82), the Court found that there has not been an effective remedy in respect of a non-enforcement of a judgment issued against a unitary enterprise at the material time. In the absence of any comments by the parties, and having regard to the case materials, the Court does not find any reason to depart from that finding in the present case. It concludes that the applicant did not have at his disposal an effective remedy in respect of the non-enforcement complaint.

36 . The complaint therefore discloses a breach of Article 13 of the Convention in conjunction with Article 6.

37 . 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.”

38 . The applicant claimed 74,000 euros (EUR) in respect of pecuniary damage. In respect of this claim, he submitted that it would be reasonable to award each member of his family EUR 1,000 for each year of non ‑ enforcement. He did not provide further details or calculations. The applicant also claimed EUR 10,000 in respect of non-pecuniary damage.

39 . The Government argued that the applicant did not substantiate his claim in respect of pecuniary damage, and that his non-pecuniary claim was excessive.

40 . In respect of the amount of the pecuniary damage claimed the Court notes that the applicant failed to substantiate his claim by making itemised calculations and producing invoices or other documentary evidence of the material loss he had allegedly sustained. Accordingly, this part of the claim should be rejected.

41 . Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Voronkov v. Russia , no. 39678/03, §§ 68-69, 30 July 2015), the Court considers it reasonable to award the applicant EUR 2,000, plus any tax that may be chargeable, in respect of non ‑ pecuniary damage, and to reject the remainder of his claims under this head.

42 . The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum under that head.

43 . The Court considers it appropriate that the default interest rate 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,

(a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 14 January 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Paulo Pinto de Albuquerque Registrar President