DISSENTING OPINION OF JUDGES SICILIANOS AND DEDOV

1. With all due respect for the position of the majority, we are unable to agree that there was no violation of Article 6 § 1 of the Convention in this case. In our view, the present case raises an important question of principle concerning the applicability threshold of Article 6.

2. It is clear that at the material time there existed a general undertaking on the part of the State to improve the living conditions of those who resided in sub-standard housing. In most situations, that undertaking was not concrete and, consequently, did not clearly confer an enforceable “right” on the persons concerned. Only certain categories of persons were eligible to receive the housing within a certain time-limit, whereas other persons on the waiting lists had to wait until housing became available (see paragraph 19 under “Relevant domestic law” above).

3. As is rightly observed in the judgment, the Court was not called upon to decide whether the applicant had any substantive entitlement to a larger flat. It is conceivable that the applicant had no such right, or, at least, that this “right” was not enforceable within a specific time-limit. That being said, the question before the Court was not whether the applicant was entitled to a larger flat, but whether the domestic courts had to examine the claim whereby he tried to assert his rights.

4. The Court has repeatedly considered that Article 6 cannot be interpreted as guaranteeing access to court only in respect of well-founded claims. According to well-established case-law, “the dispute over a ‘ right ’ , which can be said at least on arguable grounds to be recognised under domestic law, must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise” ( Vilho Eskelinen and Others v. Finland , [GC], no. 63235/00, § 40 ECHR 2007 ‑ II (emphasis added). See also Tre Traktörer AB v. Sweden , 7 July 1989, § 36 , Series A no. 159 ; Rolf Gustafson v. Sweden , 1 July 1997, § 38 , Reports of Judgments and Decisions 1997 ‑ IV ; and Masson and Van Zon v. the Netherlands , 28 September 1995, § 44 , Series A no. 327 ‑ A). Furthermore, the Court has noted that “the mere fact that the wording of a legal provision affords an element of discretion does not in itself rule out the existence of a right” (see Boulois v. Luxembourg , [GC], no. 37575/04 , § 93 , ECHR 2012 ; Camps v. France (dec.), no. 42401/98, 23 November 1999; and Ellès and Others v. Switzerland , no. 12573/06, § 16, 16 December 2010). In other words, the threshold set by the Court ’ s case-law for the applicability of Article 6 is much lower: in order to attract the protection of this provision the right claimed by the plaintiff must be recognised under the domestic law “at least on arguable grounds”. The dispute may concern the very existence of the right in question, precisely as in the present case. The intention is to free the domestic courts from unnecessary work and to relieve them from examining claims which are “frivolous or vexatious or otherwise lacking in foundation” ( Rolf Gustafson , cited above, § 39).

5. Nevertheless, Article 6 does not allow the rejection of all potentially weak claims without examination, far from it. If this was the case, the scope of application of Article 6 (and the supervisory role of the Court) would have been substantially restricted. A mere doubt about the existence of a “right” would preclude the applicability of article 6 and thus the whole set of guarantees under this provision. However, it is precisely under those circumstances that the guarantees of article 6 are most needed. Such a restrictive approach would not be in conformity with the cornerstone principle of the rule of law, or indeed with the object and purpose of the Convention.

6. In our opinion, the issues raised by the applicant in the domestic proceedings were not at all “frivolous or vexatious” and deserved examination on the merits. The applicant based his claim on the fact that his daughter suffered from diabetes, that their flat was too small, and that for many years their situation had remained the same despite the family being simultaneously on three waiting lists. Those facts were contested neither in the domestic proceedings nor by the Government. It is not disputed that diabetes was on the list of illnesses which conferred the right of inclusion on the “first priority” waiting list under the old Housing Code and the Decree of 28 March 1983 of the Ministry of Public Health of the USSR. Under the new Housing Code also “severe chronic illness” of a member of the family was mentioned as a ground for entitlement to additional living space. The applicant, referring to these acts, claimed that his family was entitled to additional housing. Whereas diabetes was not included in the list of “severe chronic illnesses” which entitled the family to the “extraordinary” (that is, priority or “out of turn”) provision of additional housing, the new Housing Code empowered the Government to establish such a list (see Government Decree no. 378 of 16 June 2006), and it was for the courts to ascertain whether the applicant ’ s family was eligible to obtain better housing. Thus, the applicant ’ s interpretation of the law and the facts was not “frivolous” and his claim was not “vexatious”. It was rather his bona fide understanding of the meaning of the “right to housing” as proclaimed in the Constitution and the Housing Code, and of the “benefits” made available to disabled people by Government Decree no. 901 of 27 July 1996 (see paragraph 21 of the judgment).

7. In sum, we conclude that in the circumstances the applicant ’ s case related to a dispute over a civil right which could be said, at least on arguable grounds, to be recognised under domestic law. Thus, this claim attracted the protection of Article 6 of the Convention. However, by terminating the proceedings without addressing the substance of the applicant ’ s arguments and without rendering a judgment on the merits, the courts denied the applicant access to court. In our opinion, there has therefore been a violation of Article 6 § 1 of the Convention on that account.