CASE OF NAGOVITSYN v. RUSSIA
Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
4. The applicant was born in 1950 and lives in Kirov. 5. In 1986 the applicant took part in the cleaning up operation after the nuclear accident at the Chernobyl nuclear plant. He was subsequently registered disabled, becoming entitled to various social benefits, including the right to obtain a loan on preferential terms (льготный кредит) and free housing from the State. 6. According to the Government, the applicant lived in a four-room flat with six other members of his family. The flat measured 52 square metres. In 1996 this flat was officially categorised as a “communal dwelling” which gave the applicant the right to claim free housing from the State. 7. On an unspecified date the applicant requested Sberbank (a bank controlled by the State – hereafter “the bank”) to provide him with a preferential loan to purchase housing for himself and his family. However, he did not obtain the loan. Apparently there had been no agreement between the State and the banks regulating the allocation of such credits to Chernobyl victims. 8. In 1997 the applicant brought proceedings against the State and the bank, seeking to obtain a preferential loan, as provided by the Law on the welfare of Chernobyl victims (“the Chernobyl Law” – see “Relevant domestic law” below). 9. On 19 November 1997 the Leninskiy District Court of Kirov decided the case in his favour. It found that the applicant, as a Chernobyl victim, had the right to a preferential loan under section 14 (20) of the Chernobyl Law, but the Ministry of Finance had not yet signed an agreement with banks on the procedure for issuing such loans. The District Court ordered the Ministry of Finance to secure the applicant's right to the loan. That judgment was not appealed against and became final on 1 December 1997. The writ of execution was forwarded to the bailiff in Moscow, and on 27 July 1999 enforcement proceedings were commenced. 10. In the meantime, on 13 July 1999 the Ministry of Finance informed the applicant that the judgment of 19 November 1997 could not be enforced since the law relating to the federal budget did not allow the allocation of preferential loans to Chernobyl victims. 11. Later that year, referring to the lack of progress in the enforcement proceedings, the applicant requested the court to modify the operative part of the judgment of 1997. He sought to obtain compensation of 50% of the amount he needed to buy a flat. On 24 November 1999 the Leninskiy District Court modified the judgment of 19 November 1997 ordering the State to compensate the applicant for the cost of the flat he would buy. 12. On 27 December 1999 the applicant purchased a three-room flat in a house under construction from a developer. He paid 203,200 Russian roubles (RUB) for that flat. 13. On 10 April 2001 the Kirov Regional Court quashed the decision of 24 November 1999 and remitted the case to the district court for fresh examination. There is no information as to whether the applicant's request concerning the modification of the original judgment of 19 November 1997 was eventually satisfied. 14. On 10 October 2000, referring to the provisions of the Chernobyl Law, the applicant brought proceedings against the municipality of Moscow seeking an order to oblige them to provide him with a flat in Moscow. On 15 January 2001 the Presnenskiy District Court of Moscow dismissed his claim. On 14 May 2001 the Moscow City Court upheld the district court's decision. 15. On 8 August 2001 the applicant brought proceedings against the local municipality of Kirov claiming free accommodation. On 28 November 2001 the Leninskiy District Court of Kirov ruled in his favour and ordered the municipality to provide the applicant with appropriate housing for a family of three within three months, in accordance with existing housing and sanitary standards. That judgment was not appealed against and became final on 10 December 2001. On 11 January 2002 the bailiffs initiated enforcement proceedings. 16. On an unspecified date the municipality requested the court to stay the enforcement proceedings. They claimed that they had no free housing available to enforce the judgment of 28 November 2001. The applicant objected; he also asked the court to specify how the judgment of 28 November 2001 should be enforced. 17. By a supplementary judgment of 12 November 2002 the Leninskiy District Court dismissed the request of the municipality. The court also held that housing should be given to the applicant under a protected tenancy agreement. The court further held that the applicant had the right to acquire the housing through privatisation in accordance with section 14 (21) of the Chernobyl Law. In the operative part of the supplementary judgment the court held as follows: “[the applicant] should be provided with housing either [on the basis of] a social tenancy or ...by way of transfer [of housing] into his ownership.” That judgment was not appealed against and became final. 18. On 15 December 2002 the applicant registered himself as the owner of another flat in Kirov, which he had purchased some time earlier from a developer (see paragraph 12 above). 19. On 25 December 2002 the municipality formally deprived the applicant of the status of a person in need of better housing. On 29 May 2003 the municipality tried to reopen the case which had ended with the judgment of 28 November 2001, claiming that the applicant was no longer entitled to better housing. However, on 14 July 2003 the court refused to reopen the case. 20. On 22 June 2004 the municipality offered the applicant a two-room flat. According to the Government, since the flat offered to the applicant was smaller than the one awarded by the court judgment, the municipality also offered the applicant compensation to cover the difference. However, the applicant refused to accept the flat and the compensation. 21. In December 2004 the applicant was offered a three-room flat. However, he did not accept the offer. 22. On 5 April 2005 the municipality provided the applicant with another three-room flat. On 11 April 2005 the applicant signed a declaration which was formulated as follows: “I declare that I accept, in execution of the judgment of 28 November 2001..., ... the three-room flat situated at 9/1, Stroiteley Avenue, ... measuring 40.28 square metres. Taking into account the decision of the Leninskiy District Court of 12 November 2002, the flat should either be transferred into my ownership or the social tenancy agreement should stipulate that ... 'the owner shall transfer the flat into the ownership of the tenant at his first request.' ... Otherwise I shall not consider that the judgment of the court is executed.” 23. On 13 April 2005 the applicant received the keys to flat no. 68, 9/1, Stroiteley Avenue. However, it appears that another tenant had already obtained the title to the flat by that time. Thus, on 6 May 2005 the municipality decided to allocate another flat to the applicant (no. 72). The applicant accepted the flat, and on 19 May 2005 he signed a social tenancy agreement with the municipality. 24. On 27 May 2005 the Mayor of Kirov wrote a letter to the applicant stating that “flat no. 72 would be transferred to the applicant, free of charge”. 25. The Law on social protection of citizens exposed to radiation as a result of the Chernobyl Nuclear Power Station explosion (“the Chernobyl Law”) of 15 May 1991, as in force at the material time, provides that persons who were registered disabled following their exposure to radioactive emissions are entitled to certain social benefits. In particular, they were entitled to free housing, where their existing accommodation did not comply with minimum housing standards (“a person in need of better housing”). The State undertook to provide such persons with accommodation within three months of placing them on a waiting list. The same law entitled them to obtain preferential credit - an interest-free loan for buying or constructing a house. It also provided that fifty per cent of the amount of the loan would be paid off by the State (section 14 (20) of the Chernobyl Law), under the condition that they are in need of better housing. 26. The Law of 27 December 2000 on the federal budget for 2001 suspended the application of section 20 (14) of the Chernobyl Law until 31 December 2000 because of the lack of funds. In the following years the application of this paragraph was repeatedly suspended by the laws relating to the federal budget. 27. On 22 August 2004 the law commonly known as “the Monetisation of Social Benefits Law” was passed (Law no. 122-FZ). That Law abrogated various non-monetary social benefits granted by the previous legislation (free housing, free medicine and so on) or replaced them with monetary payments. Section 3 (8) of that Law modified the wording of section 14 of the Chernobyl Law. In particular, the right to receive preferential loans from the State was excluded from the list of social benefits to which the Chernobyl victims were entitled. 28. For provisions governing the right to “social tenancy” of State-owned housing see Malinovskiy v. Russia, no. 41302/02, §§ 20 et seq., ECHR 2005... (extracts)). 29. Under Articles 13, 209 and 338 of the Code of Civil Procedure, a court judgment which has acquired legal force is binding and must be executed.