CASE OF NIKOLENKO v. RUSSIA
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 6 - Right to a fair trial;No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1967 and lives in Armavir, a town in Armenia. 5. A warrant officer of the Russian Border Guard Service (“Service”), she serves in a unit stationed in Armenia. 6. In June 2000 the applicant requested an early discharge because of structural changes in her service. Under domestic law, long-serving personnel in need of better housing (the applicant met these conditions) could be discharged against their will only if the command provided them with such housing. When asking for discharge, the applicant specified that she wished to receive the housing. 7. As no housing was provided, in November 2003 the applicant sued the Director of the Service for provision of housing and an early discharge. On behalf of the defendant the trial was attended by X, a major of military justice acting on the basis of a power of attorney. X accepted the applicant’s claim and on 15 March 2004 the Fifth Garrison Military Court ordered the Director to provide the applicant’s family with housing in Moscow and to discharge her. This judgment became enforceable immediately, but was not enforced. 8. In July 2004 the Bailiff’s Service investigated the applicant’s allegation that the delayed enforcement constituted an offence under section 315 of the Criminal Code (ignoring judgments), but found that the Director had no case to answer. 9. On the Director’s request, on 18 January 2005 the Presidium of the North-Caucasian Military Court quashed the judgment on supervisory review and ordered a rehearing. The Presidium justified the quashing with four reasons. First, the judgment had been based solely on the defendant’s acceptance of the claim and had not explored whether the claim as such had been lawful and compatible with third parties’ interests. Second, X had not been duly authorised by the defendant proper, i.e. by the Director; he was authorised by the Service’s local branch only. Third, the acceptance of the claim had not been formally recorded. Fourth, the Garrison Court had misevaluated facts and material law. 10. After the rehearing, on 1 June 2006 the Garrison Court ordered the Director to provide the applicant’s family with housing in Moscow by means of a first-priority queue (в первоочередном порядке). The court dismissed the applicant’s claim for discharge because this matter was within the authority of her unit, not that of the Director. This judgment became binding on 25 October 2006. 11. To enforce the judgment, in November 2006 the logistics department of the Service sent to the applicant’s unit a list of documents necessary for putting her in the queue. In February 2007 the unit provided a part of these documents. In May 2007 the logistics department reminded the applicant that to complete her file she had to provide further documents, among them an extract from the register of tenants, her children’s birth certificates, and proof of entitlement to privileges. In September 2007 the applicant completed the file, and on 2 November 2007 the housing commission of the Service put the applicant’s family in the first-priority housing queue. 12. Under section 23 § 1 of the Federal Law on the Status of Servicemen, servicemen who have served ten years and more and whose housing needs to be improved, cannot be discharged against their will without the provision of such housing. 13. According to the Ruling of the Constitutional Court 322-O of 30 September 2004, after expiry of a serviceman’s contract and in the absence of his written agreement to discharge without provision of housing, he should be considered as serving voluntarily only until the provision of housing.