issued by the Registrar of the Court

ECHR 194 (2014)

01.07.2014

Authorities’ failure to provide housing and utility services ordered

by Russian courts: a new pilot judgment in respect of Russia

In today’s Chamber judgment in the case of Gerasimov and Others v. Russia (application

nos. 29920/05, 3553/06, 18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11, 45381/11,

55929/11 and 60822/11), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been a violation of Articles 6 (right to a fair trial) and 13 (right to an

effective remedy) of the European Convention on Human Rights and a violation of Article 1 of

Protocol No. 1 (protection of property).

The case concerned 11 applicants living in various regions of Russia from Vladivostok to Smolensk

who were all victims of excessive delays in the enforcement of Russian court decisions granting them

various benefits in kind (such as housing, housing maintenance and repair services, provision of a car

for a disabled person, delivery of an administrative document, etc.).The Russian domestic law

allowed no effective redress in respect of those complaints.

The Court found that the applicants’ case showed that major structural problems on those issues

persisted in Russia, referring to its previous judgments on more than 150 similar applications.

Indeed, the case demonstrated a variety of situations, the vulnerability of the people affected and

the vast territory on which the same recurrent problems have occurred for roughly the last 15 years.

The Court concluded that the nature of the underlying problems, the large number of people

affected and the urgent need to grant them speedy and appropriate redress at the domestic level

justified the application of the pilot judgment procedure.²It therefore held that Russia had to set up,

within one year from the date on which the judgment becomes final, an effective domestic remedy

securing adequate and sufficient redress for the non-enforcement or delayed enforcement of

judgments imposing obligations in kind on the Russian authorities.

As regards 600 other similar cases pending before it, the Court held that Russia had to grant redress,

within two years from the date on which the judgment becomes final, to all victims of delayed

enforcement of judgments imposing obligations in kind who had lodged their applications with the

European Court of Human Rights before today’s judgment and whose cases were or will be

communicated to the Russian Government. The Court also decided to adjourn, for a maximum of

two years, the proceedings in all such cases pending the adoption of the above measures by the

State. The applicants in the present case were also awarded a total of 61,292 euros (EUR) for

damages and legal costs.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

In response to the large number of cases deriving from systemic or structural problems in certain countries the Court has, since 2004,

developed a pilot-judgment procedure. This consists in identifying in a single judgment systemic problems underlying recurrent violations

of the Convention and indicating in that judgment the remedial measures required to resolve such situations. The pilot judgments aim at

assisting the respondent State in finding the appropriate solutions and the Committee of Ministers in supervising the execution of the

judgments.

Principal facts

The applicants are 11 Russian nationals, born between 1927 and 1978 (one applicant died during the

proceedings and his widow is pursuing the application on his behalf).

All applicants obtained judicial decisions ordering the State authorities to provide them with housing

– in a majority of the cases – or with various services in kind, such as to ensure the repair of water or

heating facilities, or to provide a disabled person with a car. The decisions became final between

2002 and 2009, but their enforcement was considerably delayed, some of them remaining

unenforced to date.

Six of the applicants brought proceedings before the Russian courts claiming compensation for the

delayed enforcement of the judgments in their favour, relying on the 2010 law “On Compensation

for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a

Judgment within a Reasonable Time” (“Compensation Act”). The courts declared their cases

inadmissible, finding that the Compensation Act was only applicable to delayed enforcement of

judgments establishing a monetary debt to be recovered from the State budgets. Those findings

were confirmed on appeal by the Supreme Court in a number of decisions handed down in 2010 and

2011.

One applicant, Ms Kostyleva, brought civil proceedings, in May 2011, against the town

administration of Syktyvkar, Republic of Komi, for failure to comply with two final judgments, of

November 2000 and of August 2009, ordering the administration, respectively, to renovate the

building in which Ms Kostyleva inhabited a social tenancy flat, and to provide her and her family with

suitable housing. Her action was eventually granted in part by a judgment of September 2011,

acknowledging the lengthy non-enforcement. By another judgment of January 2012, she was

awarded compensation. Her appeal, stating that the monetary award had not adequately

compensated the serious damage sustained, was eventually dismissed in July 2012.

Complaints, procedure and composition of the Court

All the applicants complained that the authorities’ failure to enforce the judgments in their favour

within a reasonable time had violated their rights under Article 6 (right to a fair trial). Six applicants

also complained under Article 13 (right to an effective remedy) that they lacked effective remedies

at national level in respect of their complaints about the prolonged non-enforcement. Finally, seven

applicants complained that their rights under Article 1 of Protocol No. 1 (protection of property)

were violated.

The case originated in 11 applications, which were lodged with the European Court of Human Rights

on various dates between July 2005 and August 2011.

Judgment was given by a Chamber of seven judges, composed as follows:

Isabelle Berro-Lefèvre (Monaco), President,

Elisabeth Steiner (Austria),

Khanlar Hajiyev (Azerbaijan),

Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”),

Julia Laffranque (Estonia),

Ksenija Turković (Croatia),

Dmitry Dedov (Russia),

and also Søren Nielsen, Section Registrar.

Decision of the Court

The Russian Government’s request for striking out several applications

The Court considered the Russian Government’s request to strike nine of the applications out of its

list of cases. It observed that the Government had submitted unilateral declarations acknowledging

the lengthy enforcement proceedings and had offered to pay the applicants in those cases

compensation. However, while two applicants had agreed to the terms of the Government’s

declarations, the remaining seven applicants had rejected the offers of compensation, stating in

particular that the amounts offered were insufficient, and had maintained their complaints.

In any event, the Court was compelled to pursue the examination of the applications, as the

Government’s declarations had failed to address a key aspect of the case, namely the lack of an

effective legal remedy at national level. This issue had been invoked by a majority of the applicants

and had been raised by the Court when it communicated the case to the Government in April 2012,

raising at the same time the question of the existence of a systemic problem and setting in motion

the pilot-judgment procedure. While the Court had already determined similar issues in previous

cases, it continued to receive hundreds of applications of that kind from Russia as a result of the

deficiencies of the remedies at national level, this situation being at odds with the principle of

subsidiarity. The Court therefore rejected the Government’s request to strike out the applications

concerned.

Articles 13 and 6

The Court found violations of Article 13 and Article 6 in respect of all 11 applicants.

As regards the complaints under Article 13, the Court observed that it had already given thorough

consideration to the issue of effective remedies at national level in the context of numerous Russian

cases concerning delayed enforcement of judgments, notably in its first pilot judgment concerning

Russia in the case of Burdov (no. 2).³

Both that pilot judgment and the Russian legislative proposals tabled with a view to setting up a

compensatory mechanism for redress in these types of cases had left little doubt that the Russian

civil law remedies did not ensure effective redress in those cases. As the Court had repeatedly held

in its judgments, while the possibility of compensation under the Russian Civil Code was not totally

excluded – and was indeed granted in certain rare cases – this remedy did not offer reasonable

prospects of success, being notably conditional on the establishment of the authorities’ fault.

As regards the 2010 Compensation Act, the Government had opted for radically restricting its scope

to judgments imposing monetary obligations on the State. As a result, the remedy provided for by

the Compensation Act was not available to the 11 applicants in this case, whose complaints

concerned the delayed enforcement of judgments imposing obligations in kind. Therefore they did

not dispose of any effective remedy at national level in respect of their arguable complaints.

Concerning the complaints under Article 6, the Court observed that it was undisputed between the

parties, as the Government had acknowledged, that the delays in the enforcement of the judgments

were in breach of the applicants’ right to a fair trial. The Court recapitulated the Convention criteria

to be applied in the assessment of the reasonable time requirement in all such cases. It noted in

particular that, while some of the obligations imposed on the authorities were burdensome and

might take longer to be fulfilled, a delay in ensuring basic utility services or renovation exceeding six

months after delivery of the final judgment concerned was to be considered unreasonably long.

³Burdov v. Russia (no. 2) (33509/04), Chamber judgment of 15 January 2009.

Article 1 of Protocol No. 1

The Court found a violation of Article 1 of Protocol No. 1 in respect of six of the applicants, who had

obtained judgments obliging the authorities to provide them with flats. By virtue of those judgments

they had obtained a “legitimate expectation”, within the meaning of the Court’s case-law, to acquire

an asset, which was sufficiently established to constitute a possession for the purpose of Article 1 of

Protocol No. 1. The prolonged delays in the enforcement of those judgments had thus constituted

an unjustified interference with the applicants’ right to peaceful enjoyment of their possessions.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicants sums between EUR 900 and 9,000 – totalling

EUR 59,325 – in respect of non-pecuniary damage, and a total of EUR 1,967 in respect of costs and

expenses to two of the applicants.

Binding force and execution of the judgment (Article 46)

The Court observed that the non-enforcement or delayed enforcement of judicial decisions had

been a recurrent problem in Russia, which had led to the most frequent violations of the Convention

since its ratification by Russia in 1998. While part of the problem had been successfully resolved by

the first pilot judgment and the ensuing adoption of the Compensation Act, numerous cases which

did not fall within the scope of that law still had little chance of being resolved at national level and

thus continued to be lodged with the Court. However, the Court neither had the capacity nor was it

appropriate to its function to decide a large number of cases requiring the finding of basic facts or

the calculation of monetary compensation, both of which should be the domain of the national

courts.

The applicants’ cases as well as many others – the Court having already decided more than 150

applications of this type – left no doubt that Russia was experiencing major structural problems in

the enforcement of judgments imposing obligations in kind on the State authorities. The structural

nature of the underlying problems was all the more striking when judgments ordering the allocation

of housing were concerned. The Court’s numerous judgments suggested that there was a gap

between, on the one hand, the State’s social obligation to provide housing to certain individuals and,

on the other hand, the authorities’ incapacity to comply with those obligations with reference, most

often, to the scarcity of available resources. In that regard, the Court underlined that under its case-

law the Convention did not allow a State authority to cite a lack of funds as an excuse for not

honouring a judgment debt within a reasonable time.

In this context the bailiffs’ capacity to ensure enforcement in accordance with the law was severely

weakened. In the applicants’ case the authorities had either remained deaf to the bailiffs’ insistent

summons, or had plainly responded that the enforcement of the judgment was impossible. The

situation was largely aggravated by the continuous lack of effective domestic remedies in respect of

such obvious and recurrent violations of the Convention. As a result, people affected by the most

basic and undisputable violations of the Convention, like those acknowledged by the Government in

the present case, still continue to seek redress before the Court in the first instance.

Noting that it was not its task to advise the Government in the complex legal, political and budgetary

process, the Court abstained from indicating any specific measures to be taken, leaving it to the

authorities to establish the appropriate enforcement mechanisms in line with the Convention

requirements. Against this background, the Court’s findings in respect of domestic remedies

revealed essentially a legal problem that lent itself to be resolved through an amendment of

domestic legislation, as demonstrated by the positive experience of the Burdov pilot judgment. The

Court therefore held that Russia, in cooperation with the Council of Europe’s Committee of

Ministers, had to set up, within one year from the date on which the judgment becomes final, an

effective remedy at national level securing adequate and sufficient redress for the non-enforcement

or delayed enforcement of judgments imposing obligations in kind on the authorities.

As regards other pending cases concerning the same issue, the Court held that Russia had to grant

redress, within two years from the date on which the judgment becomes final, to all victims of

delayed enforcement of judgments imposing obligations in kind who had lodged their applications

with the European Court of Human Rights before today’s judgment and whose cases were or will be

communicated to the Russian Government. It also decided to adjourn, for a maximum of two years,

the proceedings in all cases against Russia concerning the non-enforcement or delayed enforcement

of such judgments.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.