CASE OF BIGASHEV 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)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
6. The applicant was born in 1927 and lives in Izhevsk, the Republic of Udmurtiya. 7. The applicant is a retired person and a World War II veteran with a category 2 disability. 8. He is the owner of two-thirds of a house with outbuildings and an adjacent plot of land located in the vicinity of a public highway in Izhevsk. His wife lived there with him from 1958 until her death in 2011. They cultivated their garden to grow their own fruit and vegetables. 9. Between 2000 and 2002 the municipal authorities repaired the highway and raised the level of the road surface. 10. Since the completion of the repair works the applicant’s house and plot of land have been submerged by melted snow and groundwater every year. The house has been seriously damaged and, according to the applicant, is no longer habitable. 11. In 2004 the applicant brought proceedings against the municipal authorities and the municipal company that had repaired the road. He claimed that a drainage pipe had been installed in breach of technical requirements and in the absence of any specific project documentation. The authorities had not properly supervised or validated the works carried out, despite numerous technical shortcomings. This had resulted in his house being inundated by melted snow and groundwater in May 2002. Since then it had been regularly flooded. The applicant claimed compensation for the pecuniary and non-pecuniary damage he had sustained as a result of the flooding. He also asked the Industrialnyy District Court of Izhevsk (“the Industrialnyy District Court”) to order the municipal authorities to develop specific project documentation for the installation of a new drainage pipe and carry out the necessary repairs to the road. 12. On 19 March 2007 the Industrialnyy District Court examined the applicant’s claims. It established that between 2001 and 2002 the municipal authorities had carried out repair works to the public highway in the vicinity of the applicant’s house and had installed a drainage pipe. Regarding the flooding of the applicant’s house in May 2002, the court held that he had not proved the extent of the damage and that “no casual connection had been established between the actions of the municipal authorities and the damage”. Accordingly, there were no grounds to award the applicant compensation for pecuniary and nonpecuniary damage. The court also noted that according to an expert report issued in October 2006: “... the most probable cause of the inundation of the applicant’s house in 2002 was its position below the level of the road, lack of preparatory and protective engineering measures, road construction in the absence of project documentation ...” 13. The Industrialnyy District Court concluded that the flooding resulted from a malfunctioning drainage pipe located under the road surface. The authorities were therefore under an obligation to arrange for works to be carried out related to the collection of wastewater from the road and the area near the applicant’s house. 14. On 5 July 2007 the Supreme Court of the Republic of Udmurtiya (“the Supreme Court”) quashed the part of the judgment of 19 March 2007 refusing to award the applicant compensation for pecuniary damage and adopted a new decision to that effect. It held that the case material confirmed that since 2000 the applicant’s house had been regularly inundated by surface water coming from the road, which had not been properly maintained by the town administration. As a result, his property had been damaged. The Supreme Court awarded the applicant 68,900 Russian roubles (RUB) (about 1000 euros (EUR)) in compensation for the pecuniary damage sustained as a result of his house being flooded. It upheld the remainder of the judgment of 19 March 2007. 15. On 12 May 2009 the bailiffs’ service initiated enforcement proceedings. On an unspecified date the town administration engaged the services of the municipal highway service to unclog the drainage pipe. According to the certificate of acceptance, the highway service finished the works in July 2009. 16. On 23 November 2009 the bailiffs’ service terminated the enforcement proceedings. The applicant did not lodge an appeal against that decision. 17. In April 2007 the applicant’s house and plot of land were again flooded. He sued the municipal authorities, claiming that his home and property had been flooded because the town administration had not complied with its obligation to install a waste water collection system for the road. He also claimed compensation for pecuniary and non-pecuniary damage. 18. On 20 October 2008 Oktyabrskiy District Court of Izhevsk (“the Oktyabrskiy District Court”) terminated the proceedings in respect of the applicant’s claim regarding the municipal authorities’ obligation to repair the road, since it had already been examined and decided by the Industrialnyy District Court on 19 March 2007. 19. On 30 October 2008 the Oktyabrskiy District Court examined the remainder of the applicant’s claims. It established that since 2000 the applicant’s house had been regularly flooded because the town administration had not carried out the necessary repairs to the road. It further established that the town administration had not enforced the final judgment of 19 March 2007 and as a result the applicant’s house had been regularly flooded since its adoption. Having regard to the above, the court concluded that the flooding of the house in spring 2007 had been the fault of the town administration, which had not properly maintained the road. The court awarded the applicant RUB 132,017 (about EUR 2,000) in compensation for pecuniary damage and dismissed his claim in respect of non-pecuniary damage. 20. On 21 January 2009 the Supreme Court upheld that judgment. 21. In September 2010 the applicant brought a new set of proceedings against the municipal authorities. He submitted that his house had been regularly flooded because of the failure of the local authorities to install a waste water collection system next to his house. The flooding had continued after the enforcement of the judgment of 19 March 2007. As a result of regular flooding his house had been almost destroyed, the living conditions did not conform to the established sanitary standards and the air inside and around the house was permanently damp. The applicant also claimed compensation for pecuniary and non-pecuniary damage. 22. The Oktyabrskiy District Court ordered an expert construction examination in the applicant’s case. According to the expert report dated 9 January 2013, which relied on Russian Building Regulations pertaining to roads and urban development (see paragraphs 42-48 below): “... the installation of a drainage system ordered by the judgment of 19 March 2007 ... has not been carried out ... [the applicant’s] house has been flooded since July 2009 [up to the date] of examination of [his] case in court. The waste water is collecting in [four neighbouring] streets, including the applicant’s. The road next to the applicant’s house is essentially horizontal and the diversion of [melted snow] ... has not been technically finalised (the diameter of the pipe has not been technically justified, its route and gradient not calculated) ... The water collection system which existed previously has been modified due to the unauthorised elevation of parts of the road and its surface and the newly constructed road ...” In the expert’s opinion, in order to protect the applicant’s house from yearly flooding it was necessary to carry out a land survey, draft a plan of the project, make the necessary calculations and perform repairs. 23. On 21 January 2013 the Oktyabrskiy District Court examined the applicant’s claims. It held that it was competent to do so in so far as they concerned the flooding of his house which occurred after enforcement of the judgment of 19 March 2007. 24. The court allowed the applicant’s claims in part. It established, in particular, that after enforcement in 2009 of the judgment of 19 March 2007 the applicant’s house had been regularly flooded as a result of the authorities’ failure to comply with their obligation to properly maintain the applicant’s street and the road near his house. The court ordered the municipal authorities to commission a project with a specialist firm for the construction of a drainage pipe on the part of the road adjacent to the applicant’s house, and to carry out construction works in accordance with that project by 1 July 2013. It dismissed the applicant’s claims in respect of pecuniary and non-pecuniary damage as there was “no causal link between the action or inaction of [the authorities] and the damage sustained [by the applicant]”. 25. On 22 April 2013 the Supreme Court upheld the judgment of 21 January 2013. It appears that the applicant did not lodge an appeal against that decision. 26. On 16 August 2013 the Oktyabrskiy District Court issued a writ of execution. 27. On 4 September 2013 the bailiffs’ service instituted enforcement proceedings. 28. On 24 February 2014, after three formal demands under the writ of execution and in the absence of any action on the part of the town administration, the bailiffs’ service found it liable for the administrative offence of non-compliance with a writ of execution, and issued a fine of RUB 5,000 (about EUR 80). 29. In spring 2014 the applicant’s house was again flooded. 30. On 13 and 16 September 2014 the town administration signed two municipal contracts under the terms of which it engaged two companies to perform road repairs and anti-flood works on the part of the road adjacent to the applicant’s house. On 13 and 31 October 2014 respectively the works were completed. 31. On 5 November 2014 the bailiff terminated the enforcement proceedings following an on-site inspection and determined that the judgment of 21 January 2013 had been fully enforced. 32. The applicant appealed against that decision, complaining that the judgment in question had not been fully enforced. 33. On 4 February 2015 the Oktyabrskiy District Court dismissed his appeal, finding that the judgment had been fully enforced. 34. On 29 April 2015 the Supreme Court quashed that decision and adopted a new decision allowing the applicant’s complaint regarding the bailiff’s decision to terminate the proceedings. It held, in particular, that that decision had been unlawful and ordered the bailiffs’ service to reopen the enforcement proceedings. On 27 May 2015 the chief bailiff overturned the decision to terminate the enforcement proceedings in the applicant’s case. 35. On 8 July 2015 the Oktyabrskiy District Court examined the applicant’s claim concerning the failure of the town administration to enforce the judgment of 21 January 2013 within a reasonable time. The applicant claimed RUB 98,000 (about EUR 1,600) in respect of nonpecuniary damage. The court acknowledged that he had undeniably sustained non-pecuniary damage and awarded him RUB 10,000 (about EUR 160). It also noted that the necessary repairs had been carried out in October 2014 and that the applicant’s representative, Mr K., had stated in the proceedings that the flooding of the house had stopped. 36. On 19 October 2015 Mr K. acknowledged in writing that the judgment had been enforced. On 20 October 2015 the bailiff terminated the enforcement proceedings. 37. On 16 September 2013 the applicant applied to the Interdepartmental Commission (“the Commission”) attached to the Industrialnyy District administration to have his house declared unfit for habitation on account of the damage caused by regular flooding. 38. On 11 October 2013 the Commission held that over the years the applicant’s house had lost a number of its features. However, it was still possible to recover them by carrying out structural repairs. 39. On 18 October 2013 the head of the Industrialnyy District administration approved those conclusions and held that the applicant’s house was in need of structural repairs, that it was possible to carry them out and that they should be carried out by the owner. 40. On 26 December 2014 the Industrialnyy District Court dismissed a complaint by the applicant regarding the Commission’s decision. On an unspecified date the Supreme Court upheld that decision on appeal. 41. On 10 January 2011 the applicant and his wife applied to the municipal authorities to be placed on the municipal housing list. It appears that up to the date of examination of his case by the Court the applicant has not been provided with any accommodation.