CASE OF YERKIMBAYEV v. RUSSIA
Violation of Article 6 - Right to a fair trial
Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1962 and lives in Moscow. 5. The applicant and his wife obtained an occupation certificate for a municipal flat where another family, (“Family X”), lived at the material time. Family X had, in turn, received an occupation certificate for another flat. As the flat offered to Family X did not meet their expectations, the family refused to move out of the old flat. 6. On 15 October 1998 the applicant instituted proceedings in the Lyublinskiy District Court of Moscow seeking the eviction of Family X. 7. On 12 November 1998 the Municipal Housing Department of Moscow, who owned the flat at the material time, also lodged a claim for the eviction of Family X. 8. On 22 December 1998 the Lyublinskiy District Court in the absence of the defendants passed judgment in default, granting the applicant’s request and ordering the eviction of Family X. However, the latter appealed against the above judgment which was annulled as a result on 8 February 1999. 9. On 10 March 1999 the defendants lodged a counter claim, requesting, inter alia, that the applicant’s occupation certificate be declared void. 10. Meanwhile, in April 1999 the applicant and his wife privatised the flat in dispute and registered their property right in the State’s Register. 11. As regards the twelve hearings fixed between 18 May 1999 and 26 May 2000, two were adjourned following requests by the defendants and four were adjourned because the representative of the Municipal Housing Department of Moscow failed to attend. The remaining six hearings were adjourned in view of the non-attendance of the Ministry of Finance, which was responsible for the allocation of municipal housing to the defendants and whose attendance was required to verify the issue of the lawfulness of the provision to the defendants’ family of new housing and the taking away of the flat in dispute. It was not until the District Court imposed a fine on the Ministry amounting to 3,000 Russian roubles for non-attendance at the hearings that a representative of the Ministry finally appeared before the court. 12. On 26 May 2000 the Lyublinskiy District Court of Moscow granted the applicant’s claim and dismissed that of the defendant. 13. On 26 October 2000 the judgment was upheld on appeal by the Moscow City Court and entered into force. 14. On 14 December 2000 the bailiffs opened enforcement proceedings. 15. On 20 December 2000 and 15 May 2001 the enforcement proceedings were suspended until 9 April 2001 and 13 July 2001 respectively, pending the examination of the request filed by the defendants for supervisory review of the judgment of 26 May 2000, as upheld on appeal on 26 October 2000. 16. On 17 August 2001 the enforcement proceedings were again suspended following the subsequent request from the defendants for supervisory review of the above judgment. 17. On 19 April 2002 the Deputy President of the Supreme Court of Russia brought an application for supervisory review of the judgment to the Presidium of the Moscow City Court. 18. On 13 June 2002 the Presidium of the Moscow City Court quashed the judgment by way of supervisory review and remitted the case for fresh examination by a differently composed bench. 19. On 4 November 2002 the Lyublinskiy District Court granted the defendants’ counter claim and declared the occupation certificate issued to the applicant void. The court further obliged the Municipal Housing Department of Moscow to provide the applicant and his family with another flat. 20. Following the appeal lodged against the above judgment by the Municipal Housing Department of Moscow, on 18 March 2003 the Moscow City Court quashed the above judgment on appeal and remitted the case for fresh examination. 21. As regards the six hearings fixed between 14 May 2003 and 8 October 2003, one was adjourned because the judge was involved in another case, two were adjourned because of the non-attendance of the defendants and on their request, and three were adjourned because of the non-attendance of the Municipal Housing Department of Moscow. 22. On 8 October 2003 the Lyublinskiy District Court granted the applicant’s claim and dismissed that of the defendants. 23. On 26 February 2004 the Moscow City Court upheld the judgment on appeal. 24. On 23 March 2004 the bailiffs opened the enforcement proceedings. 25. On 29 June 2004 the defendants were evicted. The applicant and his family moved into the flat.