NIKITINA v. LATVIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
1. The applicant, Ms Gaļina Ņikitina, is a Latvian national who was born in 1965 and lives in Rīga. She was represented before the Court by Ms Z. Paulovska, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The relevant historical background has been described in detail in paragraphs 2 to 9 of the Court’s decision in the case of Liepājnieks v. Latvia (no. 37586/06, 2 November 2010). 4. In addition, it should be noted in the present case that from 1985 the applicant lived in an apartment in the building located at 3 Pastendas Street, under a lease agreement concluded under Soviet law. On 29 October 1992, following the restoration of Latvia’s independence, the building was denationalised and returned to its former owners. 5. On 5 January 1994 the applicant concluded a new lease for one year. It appears that the lease was extended every year until 9 May 2000. In the meantime, according to the applicant, the owners failed to maintain the building, in breach of the lease agreement. 6. It appears that, after the expiry of the seven-year non-eviction period (see Liepājnieks, cited above, § 6), the owners initiated eviction proceedings before the civil courts (see, by contrast, Liepājnieks, cited above, §§ 11 and 88). 7. On 26 May 2003 the Rīga City Zemgale District Court (Rīgas pilsētas Zemgales priekšpilsētas tiesa) ordered the eviction of the applicant and her minor daughter from the apartment without allocating them another place of residence. The applicant appealed against the judgment. 8. On 17 January 2005 the Rīga Regional Court (Rīgas apgabaltiesa) upheld that judgment and confirmed that the applicant and her daughter were to be evicted from the apartment and that no other place of residence was to be allocated to them. The regional court’s judgment took effect on the same day. The applicant lodged an appeal on points of law, in vain. 9. On an unspecified date, the applicant and her daughter were evicted from the apartment. 10. In December 1998 the applicant approached the local municipality with a view to receiving its assistance on matters relating to apartments. It appears that her application was examined approximately a year later: on 8 December 1999 the Rīga City Council entered the applicant’s family (the applicant and her minor daughter) in the register for receiving municipal assistance in the allocation of a place of residence (for rent). The applicant’s family were entered in the third group of the register, based on the fact that the apartment in which they were living was not suitable for permanent residence. 11. On 1 January 2002 a new law on assistance concerning issues relating to apartments took effect (see paragraph 34 below). The applicant’s family were now entered in register no. 12, keeping their initial registration date. 12. On 3 November 2004 the applicant was granted the status of a low-income person. This was subsequently extended until at least 23 October 2006. 13. On 2 February 2005 the applicant’s family were entered in register no. 7 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent), keeping their initial registration date. Register no. 7 was designed to include persons in need of the municipality’s assistance who had low-income status, were tenants in denationalised buildings and did not have any other place of residence. The applicant’s family appear to have been at the top of that list on account of their initial registration date. 14. On 23 February 2005, having received a phone call from the municipality, the applicant went to its offices to deal with the necessary formalities for receiving a lease offer, which, as it later transpired, had been issued for her. An official of the municipality required the applicant to submit the information regarding the proceedings for her eviction (see paragraphs 6 to 9 above). Having received the information, the official noted that all available lease offers had already been issued and that the applicant had to continue waiting for an offer. 15. On 29 March 2005, following an enquiry by the applicant, the municipality informed her that there was no basis on which to offer her a lease, because the eviction proceedings had resulted in a judgment against her and she no longer had a right to reside in the apartment in question. It was noted, however, that should the applicant’s appeal on points of law be upheld and the judgment of 17 January 2005 (see paragraph 8 above) be reversed, the municipality would consider that she retained the right to reside in the apartment and she would be offered a lease. 16. On 28 August 2006 the applicant was informed that she and her daughter would be struck off register no. 7 since she no longer satisfied the applicable criteria. She was invited to submit any objections within two weeks. The applicant was also informed that she could submit documents to be entered in register no. 1 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent). Register no. 1 was designed to include persons who had been evicted from their place of residence. It appears that the applicant did not submit any response to the authorities on these issues. 17. On 4 October 2006 the competent commission decided to strike the applicant’s family off register no. 7 because the applicant’s lease in a denationalised building had been terminated on 17 January 2005. The decision contained a reference to the effect that the applicant could submit a complaint with the municipality against that decision within one month. 18. On 8 November 2006 the applicant lodged a complaint against the decision. On 15 December 2006 her complaint was rejected and she was informed that she could lodge an appeal with the administrative courts within one month. She did not exercise that right. 19. On 17 December 2006 the applicant complained to the municipality that her complaint of 8 November 2006 had not been examined, adding that she had been called on an unspecified date to participate in a meeting with the municipality but had not understood the purpose of that meeting. 20. On 4 January 2007 the applicant received a reply to her complaint of 17 December 2006. It was explained that her complaint against the decision of 4 October 2006 had been rejected on 15 December 2006 and that she could lodge an appeal with the administrative courts within one month. The system of registers and their scope was also explained and the applicant was informed that her family could be eligible for inclusion in register no. 1 for priority treatment. She was encouraged to contact the competent division in the municipality and was given the relevant contact details. The applicant did not proceed as suggested. 21. On 1 November 2005 the applicant lodged a complaint with the Rīga City Council about an action of a public authority (faktiskā rīcība). On 9 January 2006 the Rīga City Council rejected the applicant’s complaint. 22. On 6 February 2006 the applicant brought proceedings in the Administrative District Court (Administratīvā rajona tiesa), asking it to compel the Rīga City Council to issue a favourable administrative act (labvēlīgs administratīvs akts) and conclude a lease with her. 23. On 10 August 2006 the district court partly ruled in the applicant’s favour. On the one hand, the district court concluded that an action of a public authority – namely the municipality’s refusal to offer a lease to the applicant – had been unlawful. On the other hand, the district court did not compel the municipality to issue a favourable administrative act or to conclude a lease with the applicant. 24. As concerns the action of a public authority, the district court noted that the parties did not dispute that on 23 February 2005 the applicant’s family had been entered in register no. 7, that the applicant’s turn had come to receive the municipality’s assistance and that at least one apartment was available for lease. It was the municipality’s duty under domestic law to offer every available apartment to the applicant. The district court ruled that the applicant had a right to request that a certain action be taken, that is, that a lease offer be given to her. The responsible official did not have the right to refuse to make such an offer as on 23 February 2005 the applicant’s entry in register no. 7 had still been effective. 25. As regards the applicant’s request to compel the municipality to issue a favourable administrative act and to conclude a lease, the district court held that it could not compel the municipality to issue such an act before it had offered a lease and the applicant had accepted it. 26. The municipality appealed against the district court’s ruling in so far as it concerned the action of a public authority. The applicant did not lodge an appeal. Thus, the district court’s ruling regarding the request for a favourable administrative act and a lease offer remained uncontested. 27. On 15 May 2007 the Administrative Regional Court (Administratīvā apgabaltiesa) upheld the district court’s ruling. The regional court found that, in fact, on 23 February 2005 the municipality had already prepared a lease offer and that the official had not handed it over to the applicant on that date. Under domestic law, only a special commission had the necessary powers to strike the applicant’s family off register no. 7. Since this had not been done on 23 February 2005, the applicant had not lost the right to receive municipal assistance. 28. The regional court concluded that an action of a public authority – namely the refusal to issue a lease offer – had been unlawful. As the applicant had not contested the district court’s finding concerning the request for a favourable administrative act and a lease offer, the regional court and later also the Senate of the Supreme Court, did not rule on this issue. 29. On 3 January 2008, following an appeal on points of law by the municipality, the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) fully concurred with the regional court’s reasoning. The municipality argued before the Supreme Court that the applicant had lost the right to reside in the apartment on the grounds of the judgment of 17 January 2005 and, accordingly, the issuance of a lease offer would not be effective in the circumstances. The Supreme Court agreed that with the judgment of 17 January 2005 the applicant’s family had lost the right to reside in the apartment. However, only the competent commission could have examined the situation and decided whether or not to strike the applicant’s family off the register. Since on 23 February 2005 such a decision had not been taken, the applicant had not lost the right to receive the municipality’s assistance in resolving the issue of her apartment. The Supreme Court thereby upheld the lower court’s judgment. 30. Under Article 92 of the Constitution (Satversme), everyone has a right to receive commensurate compensation if his or her rights have been violated. 31. Under section 92 of the Law of Administrative Procedure (Administratīvā procesa likums), in force since 1 February 2004, everyone has the right to receive commensurate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority. 32. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful, or to the public authority concerned following a judgment adopted in such proceedings. 33. The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority is prescribed by the Law on Compensation for Damage caused by Public Authorities (Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums), in force since 1 July 2005. Chapter III of the Law provides for the procedure to follow when an individual claims damages from a public authority. Under section 15, an individual is entitled to lodge an application with the public authority that was responsible for the damage. Pursuant to section 17, such an application must be lodged not later than within one year of the date when the individual became aware of the damage and, in any event, not later than five years after the date of the unlawful administrative act or unlawful action of a public authority. 34. On 1 January 2002 the Law on Assistance Concerning Apartment Matters (likums “Par palīdzību dzīvokļa jautājumu risināšanā”) took effect. Several types of assistance are available under section 3 of the Law, including the possibility of leasing a place of residence from a local municipality. Under section 14, the municipality is entitled to offer assistance in order of priority to tenants living in denationalised buildings. It is left to the municipality to determine the criteria and the procedure for such assistance. Section 18 of the Law provides that the municipality is to offer a lease in writing and that the individual concerned has a certain time-limit for accepting the offer. 35. The Rīga City Council, the biggest municipality in Latvia, has adopted several regulations on these issues. In the present case, regulations nos. 61, 76 and 6 are relevant. Under regulations no. 61, in force from 31 March 2004 to 26 November 2004, individuals with low-income status residing in a denationalised building were entitled to be entered in register no. 7 for priority treatment in receiving the municipality’s assistance in the allocation of a place of residence (for rent), if they did not have any other place of residence (Article 2.3.8). The decision as to whether or not an individual was entitled to receive the municipality’s assistance, or to be included in or struck off any of the registers, was to be taken by a special commission (Article 1.6). 36. Under regulations no. 76, in force from 26 November 2004 to 27 July 2005, the relevant provisions remained the same as in regulations no. 61. 37. From 27 July 2005 to 13 December 2007 regulations no. 6 were in force. These regulations laid down clearer provisions governing the different registers, eligibility criteria and the order of priority. Similarly to the previous regulations no. 61 and 76, they provided that the decision to strike a person off any of the registers should be taken by a special commission (Article 1.9).