Communicated on 28 August 2015

FIRST SECTION

Application no. 21718/06 Natalya Dmitriyevna KOCHERGA against Russia lodged on 25 April 2006

STATEMENT OF FACTS

The applicant, Ms Natalya Dmitriyevna Kocherga , is a Russian national, who was born in 1954 and lives in Prokopyevsk, Kemerovo Region.

A. The circumstances of the case

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

1. Eviction

Since the late 1980s the applicant was residing in a room in a dormitory accommodating workers of a local factory. Later on, the factory became a private company. In 1996 the applicant was dismissed from the factory but continued to live in the room.

The factory sought the applicant ’ s eviction. By judgment of 8 January 2003 judge K. of the Rudnichniy District Court of Prokopyevsk ordered the applicant ’ s eviction. It follows from the text of the judgment that “[the applicant] had been properly notified of the hearing”. According to the applicant, she had not been notified of the hearing, thus did not participate in it and was not aware of the judgment.

The judgment became final on 19 January 2003.

On 11 February 2003 the bailiff service opened enforcement proceedings against the applicant. The bailiff issued a decision, indicating that the applicant had five days to comply with the eviction order. In the same decision, the bailiff also ordered that an inventory list be compiled and issued a charging order in respect of the applicant ’ s belongings.

It is unclear when the applicant received this decision.

In any event, on 11 February 2003 the representatives of the company and a police officer broke into the applicant ’ s room while she was absent; her belongings were removed from there to be kept at the premises of the company. An inventory list of 211 items was compiled.

On 14 February 2003 the applicant was arrested during her attempt to enter the room and was taken to Rudnichniy police station.

On 27 February 2003 the bailiff closed the enforcement proceedings as completed.

On 3 March 2003 the applicant lodged an appeal against the judgment of 8 January 2003.

In March 2003 the town administration became the owner of the dormitory.

On 17 March 2003 the applicant ’ s registration at the address of her home was annulled.

On 4 April 2003 the Kemerovo Regional Court examined the applicant ’ s appeal and set aside the judgment of 8 January 2003. The appeal court noted that the summons for the trial had reached the post office already after the trial.

On 9 January 2004 the applicant ’ s application for a Russian passport (to replace her old USSR passport) was refused due to the absence of registration of residence.

By judgment of 24 November 2004 the District Court re-examined the eviction claim and dismissed it. The court found that the applicant could not have been lawfully evicted prior to giving her another dwelling. The court concluded that the applicant “had a right to room no. 92 in the dormitory at [address]”; that she was to “be moved in” this room while the then users of the room were to be evicted. The town administration was to provide these users with other housing.

The town administration and the room users appealed.

On 25 February 2005 the Regional Court upheld the judgment in respect of the applicant.

On unspecified date, the enforcement proceedings were opened.

In October 2005 the town administration signed a social tenancy contract with the applicant in respect of the room in the dormitory. The town administration undertook to deliver the room to the applicant, within ten days, free of any third parties ’ claims or entitlement.

On 20 June 2007 the bailiff discontinued the enforcement proceedings. The applicant was able to move in the room of the dormitory.

2. Related proceedings

(a) Claims for compensation on account of the eviction proceedings

In the meantime, in separate proceedings the applicant sued the State, arguing that judge K. had no proof that the applicant had been notified and thus could not lawfully proceed with the examination of the case; as a result of this unlawful action the applicant had sustained substantial pecuniary and non-pecuniary damage; in addition, the judge had made a manifest error of law, as confirmed by the judgments of 24 November 2004 and 25 February 2005.

On 19 April 2005 the Kemerovo Regional Court refused to deal with the case, indicating that there should be a final criminal judgment against the judge in order to a civil claim to proceed. The court took note of the applicant ’ s argument that, according to the constitutional ruling of 15 January 2001 (see below), not every failing on the part of a judge required such final judgment. However, the court concluded that the relevant grounds and the procedure for such claims had not (yet) been prescribed by the legislation.

On 12 October 2005 the Supreme Court of Russia, without holding a hearing, upheld this refusal. The applicant received the appeal decision in November 2005.

The applicant also sued the town administration for failing to enforce the judgment of 24 November 2004 in her favour. On 28 December 2005 the Tsentralniy District Court of Prokopyevsk held that the town administration unlawfully breached their undertaking under the social tenancy agreement (see above). The court ordered the administration to execute the agreement and to pay 500 Russian roubles to the applicant as compensation in respect of non-pecuniary damage.

In addition, the applicant sued the factory owner seeking restitution of her belongings. On 20 February 2006 the Rudnichniy District Court of Prokopyevsk ordered the factory owner “not to impede [the applicant ’ s] access to her belongings” but refused to order any compensation. The appeal court set aside the judgment in the part relating to the obligation imposed on the respondent, and ordered re-examination of this part of the case. Its outcome is unclear.

( b ) Claims on account of the annulment of registration and refusal of passport

In March 2004 the applicant unsuccessfully sought institution of criminal proceedings against the official who had annulled her residence registration and refused to issue her with the passport.

The applicant also sued the State on account of the same facts. On 19 August 2004 the District Court dismissed her claims. Her appeal was not processed as belated in September 2004.

( c ) C riminal complaint

The applicant sought institution of criminal proceedings on account of the execution of the unlawful eviction order and the loss of her belongings. On 28 February 2003 the authorities refused to open a criminal case. It was later on quashed and the preliminary inquiry was resumed.

In May 2004 the authorities opened a criminal case on account of arbitrary actions ( самоуправство ) punishable under Article 330 of the Criminal Code. In August 2004 the case was closed. In January 2005 the supervising prosecutor ordered resumption of the proceedings. In April 2005 the case was against closed and resumed in May 2005. On 27 May 2005 the authorities closed the case. On 28 June 2006 the Rudnichniy District Court of Prokopyevsk confirmed this decision on judicial review. On 24 August 2006 the Regional Court upheld the judgment.

B. Relevant domestic law and practice

1. State liability in relation to administration of justice

Article 1069 of the Civil Code (“the Code”) provides that loss sustained as a result of unlawful actions or inaction on the part of public authorities or their officials should be compensated. Loss sustained as a result of the administration of justice is recoverable if the judge ’ s fault has been established in criminal proceedings (Article 1070 § 2 of the Code).

By a ruling of 25 January 2001, the Constitutional Court provided an interpretation of Article 1070 § 2 of the Code. It held that a judge ’ s criminal conviction was a necessary element for a claim for damages on account of an unlawful judicial decision issued by that judge in the context of civil proceedings. However, a criminal conviction was not required if the claim concerned loss or damage sustained through other violations in judicial proceedings, such as, for instance, a failure to examine the case within a reasonable time. The Constitutional Court held that the federal legislature should adopt a legislative framework governing that second category of tort claims and, in particular, clarifying the grounds for recovering damages and related jurisdictional matters.

The Constitutional Court indicated that the absence of the above-mentioned legislative framework should not serve as a reason for refusing to deal with a case. The absence of such a framework did not imply the inapplicability of the general rules concerning the grounds and procedure for establishing State liability or concerning jurisdictional matters (see decision no. 210-O of 27 May 2004 and decision no . 278-O- P of 5 March 2009). Subsequently, the Constitutional Court developed its po sition (see decision no. 524-О-P of 8 April 2010) as follows:

“Administration of justice is a special type of State authority. When applying a general legal rule in the circumstances of a given case, a judge provides an interpretation of the rule, takes a decision within the scope of his (at times wide) margin of appreciation provided by the law and, often, assesses the circumstances without the benefit of sufficient information ... A party to court proceedings benefiting from an annulment or amendment of a judgment by a higher court is entitled to consider that that judgment had not been in compliance with the law through the judge ’ s fault... Article 1070 § 2 excludes a presumption of culpability on the tortfeasor ’ s part, and requires the establishment of the judge ’ s guilt in a criminal judgment as an additional condition of State liability ... Thus, Article 1070 § 2 links State liability to a criminal act of a judge, which was premeditated or owing to the improper exercise of his powers ... when examining a case and taking a judicial decision...The above does not preclude compensation in respect of damage caused in other circumstances or contexts, when the judge ’ s guilt may be established by a court decision outside the sphere of criminal law ...”

2. Enforcement proceedings

Section 75 of the Enforcement Proceedings Act of 1997 provided, at the time, that if the debtor had not complied with the eviction order within the time-limit specified by the bailiff, the latter was empowered to take measures to enforce effective eviction. To do this, the bailiff was to inform the debtor of the eviction date; to draw an inventory list of the debtor ’ s property and to ensure the safe-keeping of the debtor ’ s belongings.

COMPLAINTS

The applicant complains under Article 8 of the Convention about the unlawful entering into her home by other people, including public officials.

The applicant also complains that the removal and loss of her property amounted to a violation of Article 1 of Protocol No. 1.

She also complains with reference to Articles 6 and 13 of the Convention about the delay in enforcement of the final judgments in her favour and the refusal to examine her claim against the State (judgment of 19 April 2005 by the Kemerovo Regional Court). Lastly, the applicant refers to the absence of effective remedies in relation to her above complaints .

QUESTIONS TO THE PARTIES

1 . 1. Were there violations of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the delays in the enforcement of the judgment of 24 November 2004, as upheld on 25 February 2005, and the judgment of 28 December 2005?

1.2. Did the applicant have effective remedies, as required under Article 13 of the Convention, in respect of the above complaint?

2 . Was there a violation of Article 6 of the Convention on account of the applicant ’ s access to a court (judgment of 19 April 2005 by the Kemerovo Regional Court, as upheld on 12 October 2005) (cf. Vasil yev and Kovtun v. Russia , no. 13703/04 , §§ 48-56 , 13 December 2011 , and Gryaznov v. Russia , no. 19673/03 , §§ 74-83 , 12 June 2012 )?

3. Did the circumstances of the case give rise to violations of Article 8 of the Convention and Article 1 of Protocol No.1 in relation to the unlawful eviction order and its execution; seizure and loss of the applicant ’ s belongings?