Постановление Европейского суда по правам человека от 26.03.2009 "Дело "Николенко (Nikolenko) против Российской Федерации" [рус., англ.]

ubject to editorial revision.

In the case of Nikolenko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Nina {Vajic}, President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and {Andre} Wampach, Deputy Section Registrar,
Having deliberated in private on 5 March 2009,
Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (No. 38103/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Ms Larisa Aleksandrovna Nikolenko ("the applicant"), on 1 September 2004.
2. The applicant was represented by Ms N. Lonert, a lawyer practising in Azov, a town in the Rostov Region of Russia. The Russian Government ("the Government") were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
3. On 12 June 2007 the President of the First Section decided to communicate to the Government the complaints concerning non-enforcement of judgments, supervisory review, and compulsory labour. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. The circumstances of the case

4. The applicant was born in 1967 and lives in Armavir, a town in Armenia.
5. A warrant officer of the Russian Border Guard Service ("Service"), she serves in a unit stationed in Armenia.
6. In June 2000 the applicant requested an early discharge because of structural changes in her service. Under domestic law, long-serving personnel in need of better housing (the applicant met these conditions) could be discharged against their will only if the command provided them with such housing. When asking for discharge, the applicant specified that she wished to receive the housing.
7. As no housing was provided, in November 2003 the applicant sued the Director of the Service for provision of housing and an early discharge. On behalf of the defendant the trial was attended by X, a major of military justice acting on the basis of a power of attorney. X accepted the applicant's claim and on 15 March 2004 the Fifth Garrison Military Court ordered the Director to provide the applicant's family with housing in Moscow and to discharge her. This judgment became enforceable immediately, but was not enforced.
8. In July 2004 the Bailiff's Service investigated the applicant's allegation that the delayed enforcement constituted an offence under section 315 of the Criminal Code (ignoring judgments), but found that the Director had no case to answer.
9. On the Director's request, on 18 January 2005 the Presidium of the North-Caucasian Military Court quashed the judgment on supervisory review and ordered a rehearing. The Presidium justified the quashing with four reasons.
First, the judgment had been based solely on the defendant's acceptance of the claim and had not explored whether the claim as such had been lawful and compatible with third parties' interests.
Second, X had not been duly authorised by the defendant proper, i.e. by the Director; he was authorised by the Service's local branch only.
Third, the acceptance of the claim had not been formally recorded.
Fourth, the Garrison Court had misevaluated facts and material law.
10. After the rehearing, on 1 June 2006 the Garrison Court ordered the Director to provide the applicant's family with housing in Mosc



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