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More on ECtHR, Article 8 and the Private Sector


Hot on the heels of Buckland v UK follows a further decision of the ECtHR: Pelipenko v Russiawhich is likely to add further weight to the Article 8/private sector debate.

The case is distinctive for the State’s shocking mishandling of the litigation between the Applicants and their landlord. Possession proceedings were initially brought against Ms P and her son by ‘The Golden Beach Resort’ in 2001. The Town Court dismissed the claim on 21/11/01 and ordered the Resort to make arrangements for the purchase of a flat for the family.

In 2004 Ms P applied to enforce the judgement of 21/11/01 and on 5/11/04, the Town Court ordered that unless the Resort purchased a 2 bed flat for the family by 1/1/05, they would be required to pay the sum of 1,168,800 roubles in lieu.

Ms P applied again for enforcement of the 21/11/01 judgement in 2006 but it subsequently emerged that the bailiffs office mislaid the writ of execution in 2008 and the Resort became insolvent on 11/3/09.

The property had in 2006 been the subject of a number of transfers and sales until it ended up in the ownership of Ms A in July 2006. Ms A started possession proceedings against Ms P in July 2009 and the Court, holding that the premises had never been declared fit for habitation, made a possession order on 25/1/10. The bailiffs turned up unannounced at the premises on 11/8/10 and evicted the family the same day. Despite moving back in in September 2010 following an inquiry initiated by the Prosecutor’s Office, the bailiffs returned to re-execute the warrant on 25/11/10.

The Supreme Court quashed the judgements and ordered the family’s reinstatement on 7/6/11. The Court also held the judgement of 21/11/01 to be enforceable against Ms A. However, Ms A had already made the property substantially uninhabitable and it was not possible for the family to return to their former home. An application was then made to the ECtHR for breaches of Art 6 and Art 8 ECHR.

The Article 6 complaint presented the Court with no difficulty. The bailiffs office did nothing to enforce the 2001 judgement for a seven year period between April 2002 and March 2009, when the company was still solvent. They failed to take adequate and effective measures to ensure compliance with an enforceable judicial decision.

Even though the Supreme Court had overturned the possession order of 25/1/10, the Court observed that this decision was of no practical benefit to the Applicants as Ms A had already made the property uninhabitable. The Court found that the Russian Courts had failed to  secure for the Applicants the rights guaranteed by the Convention and it held that there had been a violation of Article 8.

The Court reserved the question of compensation upon written submissions from the parties.

Comment: it might be too early to treat this case as laying down clear principles as far as Article 8 and the private sector is concerned. The focus in Pelipenko was on the State’s dereliction of duty and the failure of the Court system to uphold domestic law for the benefit of the Applicants, hence the breach of the Convention Rights. The Court stresses (at para.65) that there was no reason to depart from the Supreme Court’s interpretation and application of domestic law. However, the Government did make this point in its submissions (para. 43):

Having extensively relied on the Court’s case-law, the Government further submitted that the judgment had been issued against a private company for whose debts the State could not be held liable. They stressed that the State’s responsibility did not go any further than to assist the applicants in the enforcement of the judgment, through bailiffs or by way of bankruptcy proceedings. The Government reiterated that this was not an obligation of result but of means, with the means of enforcement available to the present applicants having been adequate and effective. The State should only bear responsibility for very serious omissions committed by its officials which had negated the point of enforcing the judgment.

The Government might have hoped that the Court would declare the complaint inadmissible because of Ms P’s right to enforce against the liquidated company and/or Ms A. Nevertheless, the Court held the State accountable for the Applicants’ eviction, irrespective of whether the landlord was private or public. It will be interesting to see how the damages award is assessed.

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.


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