Lack of capital is not a legitimate reason for a reduction in government allowance for the purchase of housing. Violation of the right to property


Nechayeva v. Russia 12.05.2020 (no. 18921/15)

see here 


State allownace for the purchase of a first home, state budget and the right to property.

The applicant mother of 4 children was judged by the competent committee of the Ministry of Labor to be eligible for a grant to purchase a house. The commission reduced the amount they were entitled to by applying a non-statutory reduction rate. The domestic courts rejected her lawsuit, deeming the reduction of the amount legal and justified.

The Court notes that the subsidy is clearly an advantage given to the discretion of the authorities. However, the exercise of this right does not depend on the availability of sufficient financial resources.

The applicant was deprived of the amount of the full subsidy she was entitled to, although the application of the reduction rate was not provided for by any legal provision.

The ECtHR reiterated that the lack of funds was not a case in which the State was relieved of its obligations under the Convention and ruled that the right to property had been violated (Article 1 of the First Additional Protocol). He was fined 72,000 euros for property damage and 1,600 euros for non-pecuniary damage.


Article 1 of the First Additional Protocol


The applicant, Ms Yelena Nechayeva, is a Russian national who was born in 1978 and lives in
Moscow. Married and the mother of four children, she worked, from 2002 to 2015, as a federal civil
servant in the Department of Labour and Employment. The case concerned the application of a
mechanism for the reduction of an allowance that she had been granted to help with the purchase
of housing.

At the relevant time Ms Nechayeva was living with her family in a room in a communal flat. She
owned that room and one room in another flat, with a total area of 66.37 sq. m. In December 2010
she asked the head of her Department to place her on the list of civil servants eligible for housing
assistance. In a decision of 18 March 2011 the head of the Department of Labour granted that
request, pursuant to Government Decree no. 63 of 29 January 2009 and to a decision of 15 February
2011 by a committee of that Department set up to examine grants of allowances to civil servants. In
December 2013 the committee determined which civil servants were eligible for assistance and
decided to apply a reduction coefficient to the amount granted to candidates working in Moscow “in
view of limited budgetary resources”. It selected thirteen officials, including the applicant, who were
eligible for the grant, and fixed the reduction coefficient.

On 23 December 2013 the head of the Department of Labour granted the applicant assistance for
the purchase of housing in the amount of 4,353,927 roubles (RUB). In September 2014
Ms Nechayeva entered into a contract for the purchase of a flat in Moscow with a surface area of
26.5 sq. m. On 9 October 2014 the sum of RUB 4,353,927 was transferred to her bank account.
In April 2014 Ms Nechayeva filed an administrative appeal challenging the amount granted to her. In
particular, she considered that she was entitled to RUB 24,486,105. She argued that by applying a
coefficient not provided for under Russian law the committee had overstepped its powers.

On 4 July 2014 the Moscow Simonovsky District Court handed down its judgment. It validated the
committee’s calculation of the allowance. As to the reduction coefficient, the court noted that the
committee had justified its application on the grounds of insufficient funds. It found that, in these
circumstances, the decision to apply a reduction mechanism was “legal and justified”. It therefore
dismissed Ms Nechayeva’s appeal.

On 16 October 2014 the Moscow court upheld the District Court’s judgment on appeal.
Ms Nechayeva appealed to the Supreme Court of Russia, which, on 6 July 2015, ruling in a single
judge formation, refused to refer the appeal to its civil division for consideration.

Relying on Article 1 of Protocol No. 1 (protection of property), the applicant argued that the
application of the reduction coefficient to the amount of the allowance that she had been entitled to
receive had been an arbitrary measure incompatible with the requirements of that Article.


The Court notes that Article 1 of the ECHR does not in itself guarantee the right to social security in a particular amount and does not impose restrictions on the freedom of States Parties to decide “whether or not to establish a social protection system or to choose the type or level.” the benefits to be provided under such a system. ”

It also recalls that if Article 1 of the First Additional Protocol to the Convention applies only to existing assets and does not create any right to acquire property. In some cases, the “legal expectation” to acquire a share of the inheritance may also benefit from the protection of that provision. The Court notes in this case that the law provides for a “right” under the condition of subsidizing a fixed amount, and even a “selective right” for certain categories of employees to which the applicant belongs, under the provisions of the application, in which case the subsidy is clearly, in the Court’s view, an advantage given to the discretion of the authorities.

The exercise of this right does not depend on the availability of sufficient financial resources. However, there is no time limit for the distribution of the subsidy and, ultimately, the granting of it to a particular employee depends on the Commission’s decision, taking into account certain criteria which, moreover, are rather vague (such as “housing conditions” or “professional performance”). »).

However, for the following reasons, the Court considers that it is not necessary to rule on the matter if, at the critical time, the persons included in the list – including the applicant – enjoyed a real “guaranteed right” or rather had a mere expectation of receive a subsidy in the future.

In fact, it was never disputed by the Commission that the applicant met the conditions required to receive the grant. On 23.12.2013, the head of the labor department issued an order for the granting of this allowance. Subsequently, when she filed a lawsuit, the domestic courts recognized that the amount of the allowance “due” to the press amounted to 9,522,374 RUBs and that “it had been properly awarded”. Therefore, there was no disagreement as to whether she was entitled the allowance, only the amount was disputed. Therefore, the Court cannot accept the Government’s contrary argument.

In this case, where the applicant’s right has been recognized by domestic authorities, the Court concludes that it was “property” and that Article 1 of the First Additional Protocol is therefore in force.

The applicant has the right to be protected by Article 1 of the First Additional Protocol, ie the right to receive an allowance in an amount calculated in accordance with specific provisions. The Court therefore considers that the reduction of this amount through the application of a reduction rate was an interference with the exercise of the right to peaceful enjoyment of its property.

The Court noted that legality was a basic condition for the application of Article 1 of the First Additional Protocol in relation to the intervention and the right protected by this provision. In this case, it notes that in the present case the application of the reduction rate was not provided by any legal provision. This was confirmed during the proceedings initiated by the applicant. There was also no provision for the possibility of reducing the amount of the allowance paid in case of insufficient available capital. At the same time, the Court reiterates that the lack of funds is not a case of exempting the state from its obligations under the Convention.

With regard to the issue of whether the applicant has rightly waived her right to receive full allowance, the Court noted that such a waiver does not appear to be provided for by law and has never been confirmed by the authorities. Consequently, it rejects the Government’s objection.

Therefore, in the absence of a legal basis for implementing the reduction rate, the intervention made in the exercise of the right by the applicant for peaceful enjoyment of her property did not satisfy the condition of “legality” set out in Article 1 of the First Additional Protocol to the Convention. This conclusion makes it unnecessary to examine compliance with the other requirements of this provision.

Violation of Article 1 of Protocol No. 1

Just satisfaction: EUR 72,000 for pecuniary damage, EUR 1,600 for non-pecuniary damage, and
EUR 1,130 for costs and expenses.


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