CASE OF TURISHCHEV v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
4. The applicant was born in 1955 and lives in Moscow. 5. On 27 August 2002 the applicant brought civil proceedings against the Administration of the Mirninskiy Ulus of the Sakha (Yakutiya) Republic (“the Administration”), a private person S., her husband B., and a private company A. claiming a title to a flat, damages, and S.’s eviction from the flat. 6. On 18 September 2002 the Mirninskiy District Court of the Sakha (Yakutiya) Republic (“the District Court”) refused to consider his action, because there already had been a decision of 6 February 2001 taken by the District Court concerning the same dispute. 7. On 13 November 2002 the Supreme Court of the Sakha (Yakutiya) Republic overruled the refusal and remitted the case for a new examination, as the action included a new co-defendant, and, therefore, it could not be said that the dispute was among the same parties. 8. On 15 January 2003 the District Court ordered eviction of S. and her family from the flat and dismissed the claim against the Administration. 9. On 3 March 2003 the Supreme Court of the Sakha (Yakutiya) Republic quashed the judgment on appeal and returned the case for a fresh examination, as the lower court had failed to address issues related S.’s property rights. 10. On 29 July 2003 the District Court ordered an expert examination of the flat in order to determine its market value. 11. On 14 August 2003 the court proceedings resumed. 12. In the meantime, the applicant amended his claims and sought to obtain compensation for his belongings allegedly stolen in 1999, nonpecuniary damage, legal costs, travel expenses and reimbursement of the rent he had to pay after his eviction from the disputed flat back in 1999. 13. On 29 August 2003 the District Court examined the case, ordered the Administration to pay the applicant 800,000 Russian roubles (RUB) in respect of the flat’s market value and dismissed the remainder of the claims. In particular, the claim for compensation for the allegedly stolen property was dismissed as unfounded. 14. On 20 October 2003 the judgment was upheld on appeal by the Supreme Court of Sakha (Yakutiya) and entered into force. 15. On 11 June 2004, upon the applicant’s request, the bailiffs initiated the enforcement proceedings. 16. On 27 August 2004 the District Court granted the Administration’s request for suspension of the enforcement of the judgment of 29 August 2003 until 15 January 2005 due to financial difficulties encountered by the debtor. 17. On 15 November 2004 the applicant’s appeal against the above decision was dismissed. 18. On 18 March 2005 the monetary award in accordance with the judgment of 29 August 2003 was paid to the applicant. 19. On 29 September 2005, upon the applicant’s extraordinary appeal, the Presidium of the Supreme Court of Sakha (Yakutiya) quashed the judgment of 29 August 2003 and the decision of 20 October 2003 and remitted the case for a fresh examination. The Presidium found that the courts had incorrectly applied the material law to various aspects of the case, and had failed to join the appropriate financial body as co-defendant. 20. It appears that the amounts paid to the applicant under the quashed judgment of 29 August 2003 have not been reclaimed. 21. On 15 November 2005 the District Court suspended the proceedings, due to B.’s illness and asked the applicant to clarify his claims. 22. On 21 December 2005 the applicant submitted the amended claims. 23. On 16 February 2006 the District Court joined, at the defendant’s request, the Ministry of Finance as co-defendant in the proceedings and suspended the examination of the case on account of B.’s poor state of health. 24. On 14 February 2007 the case was assigned to a different judge of the District Court, for the sake of the court’s impartiality. 25. On 21 March 2007 the District Court dismissed the applicant’s action. 26. On 4 June 2007 the Supreme Court of Sakha (Yakutiya) upheld the judgment on appeal except for the parts concerning the eviction of S. and B., reimbursement of the rent, payments for utility services, a commission fee, and recovering of the cost of the apartment. The decision in those parts was remitted for a fresh examination due to failure by the lower court to assess certain evidence and misapplication of the material law. 27. On 27 August 2007 the District Court suspended the proceedings pending S.’s return from vacation. 28. On 26 October 2007 the court ordered the applicant to clarify his claims and scheduled a new hearing on 23 November 2007. 29. On 23 November 2007 the court issued a special writ ordering the bailiffs to obtain clarifications of the claims from the applicant. 30. It appears that at some point the applicant provided the required information. 31. On 30 April 2008 the District Court dismissed the action as unfounded. The court explained that the applicant had other remedies to use under the civil law in order to protect his property rights. In particular, he could claim that an equivalent apartment or a compensation be provided to him. 32. By the final judgment of 13 August 2008 the Supreme Court of Sakha (Yakutiya) upheld the lower court’s findings on appeal. 33. In the meantime, the applicant sued the Administration for statutory interest for the delay in enforcement of the judgment of 29 August 2003. 34. On 7 February 2007 the District Court discontinued the proceedings as the judgment of 29 August 2003 had been quashed and a new decision in the case had not yet been adopted.