KHARITONOV proti Rusku

FIRST SECTION

DECISION

Application no. 31065/04
by Dmitriy Mikhaylovich KHARITONOV
against Russia

The European Court of Human Rights (First Section), sitting on 19 October 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S.Nielsen, Section Registrar,

Having regard to the above application lodged on 22 June 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dmitriy Mikhaylovich Kharitonov, is a Russian national who was born in 1982 and lives in Naberezhnyye Chelny, the Republic of Tatarstan. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Judgment in the applicant’s favour

The applicant lived with his mother in Kazan till September 1983 in a flat provided by the State.

In 1983 the applicant’s mother was deprived of parental rights and his aunt was appointed his tutor. Following the tutor’s request, the applicant was de-registered from the flat. Nevertheless, he continued to enjoy his tenancy rights on it. Since that moment the applicant lived with his tutor in another town.

In 1986 the applicant’s mother obtained permission from the state authorities to exchange her flat with a small room.

On 27 December 2002 the Aviastroitelnyy District Court of Kazan allowed the applicant’s claim against the Administration of the Aviastroitelnyy District for provision of housing. The court ordered that the defendant:

“...recognise the right of Mr Kharitonov to be provided, in the order of priority, with the accommodation equal to the one in which he had lived before and corresponding to the established social standards and provide Mr Kharitonov with accommodation in the order of priority.

Recover from the Administration of the Aviastroitelnyy District of Kazan in favour of Mr Kharitonov 500 roubles in compensation for legal expenses....”

On 23 January 2003 the Supreme Court of the Republic of Tatarstan upheld the judgment.

2. Domestic settlement

On 28 June 2006 the Government informed the Court that the judgment of 27 December 2002 as upheld by the decision of 23 January 2003 had been enforced in full on 25 November 2005.

On the same date the Government informed the Court that the applicant had accepted an offer in settlement of his application, namely the amount of RUR 50,000 (approximately EUR 1,470) in compensation for pecuniary and non-pecuniary damage caused by the delayed enforcement of the judgment of 27 December 2002 and legal costs and expenses incurred before the Court. The Government enclosed a copy of a friendly settlement agreement dated 9 June 2006 and signed by an official representing the Government and the applicant. Its relevant party, as translated from Russian, provides as follows:

“The Executive Committee of Kazan represented by Mr Ivlev Vladimir Gennadyevich, and Mr Kharitonov Dmitriy Mikhaylovich, the applicant, reached an agreement ...on the following terms:

(a) Under the present agreement the Executive committee shall pay the applicant RUR 50,000 in compensation for pecuniary and non-pecuniary damage caused by violation of his rights as well as in respect of costs and expenses incurred before the European Court [of Human Rights]. The indicated amount shall be free of any taxes and will be payable within three months following the decision of the European Court [of Human Rights] in accordance with Article 37 § 1 of the Convention. The said payment will constitute the final settlement of the case.

(b) Mr Kharitonov Dmitriy Mikhaylovich declares that he has no more claims against Russian Federation on the facts submitted in his application in the European Court, provided that the provisions of paragraph (a) are satisfied.

Once the provisions of paragraph (a) are satisfied, the Executive Committee of Kazan and the applicant undertake to inform the European Court of Human Rights thereof.

The present agreement constitutes the final settlement of the dispute. The Executive Committee of Kazan and the applicant undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention.”

On 20 July 2006 the Court transmitted a copy of the above agreement to the applicant and invited him to formally confirm that he had accepted the settlement in question and would not further pursue his application.

On 21 August 2006 the applicant confirmed that he had signed the agreement. He also submitted that he had some remarks on the agreement. He requested the Court to oblige the Government to put him on a waiting list for getting a bigger flat and to provide him with a new flat within three years.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the state authorities had authorised his mother to exchange the flat on which he had had tenancy rights and had failed to enforce in time the judgment of the Aviastroitelnyy District Court of Kazan of 27 December 2002 as upheld by the decision of the Supreme Court of the Republic of Tatarstan of 23 January 2003.

THE LAW

The Court notes that the applicant does not want to withdraw his application. Nevertheless, the Court will examine whether the circumstances call for the striking the case out of the list.

The Court recalls Article 37 of the Convention which, in so far as relevant, provides as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court recalls that in the recent cases Paritchi v. Moldova ((dec.), no. 54396/00, 1 March 2005) and Podbolotova v. Russia ((dec.), no. 26091/02, 24 November 2005) it made recourse to Article 37 § 1 (c) in the situations where the applicants first settled their cases at the domestic level but then disagreed to regard their case settled and insisted on the examination of their applications. The Court sees no reason to depart from this practice in the present case. It considers that, in the circumstances of the case, it is no longer justified to continue the examination of the application.

The Court takes note of the settlement reached between the parties, the authenticity of the respective agreement having not been contested by the applicant.

Against this background, the Court is satisfied that the settlement in the present case is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of the application by virtue of that Article.

Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Decides discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Registrar President