Judgment of the Constitutional Court of 14 May 2012 № 11-П on the review of constitutionality of a provision of passage 2 of part 1 of Article 446 of the Civil Procedure Code of the Russian Federation in connection with complaints of citizens F.Kh.Gumerova and A.Iu.Shikunova

Legal issue: whether the provision in question is constitutional, given that it does not allow (excepting the case of a mortgage) to levy execution on a dwelling apartment owned by the debtor, when such apartment is the sole place suitable for the permanent residence of the debtor and the members of his family?

Ratio decidendi: in the opinion of the Court, the rights and lawful interests of the participants of legal turnover must enjoy commensurate (proportionate) protection on the basis of a balance of constitutional values. The proprietary immunity against the execution of court decision, being established for the sake of securing the constitutional principle of commensurability in the area of protection of rights and lawful interests of the creditor (recoveror) and the citizen-debtor as participants of execution proceedings, must extend to a dwelling apartment which by its objective characteristics (parameters) is reasonably sufficient for meeting the debtor’s need for dwelling as a necessary means of subsistence, as follows from the constitutional duty of the Russian Federation as a social state to care of the well-being of its citizens, preserving for them the conditions of normal life. Therefore the Court, relying on its earlier legal positions and being led by the principle of reasonable restraint, have refrained from deeming this rule to be unconstitutional, because it would entail the risk of uncertain and, consequently, arbitrary law-application. At the same time, the Court pointed out that the contested rule should not be understood as not admitting a deterioration of housing conditions of the citizen (debtor) and members of his family on the sole ground that a certain dwelling apartment, regardless of its quantitative and qualitative characteristics, including its value, is the only place suitable for permanent residence of those persons.

Based on this, the Court has prescribed to the federal legislator to specify: 1) the criteria which would enable to characterise a dwelling apartment as the one obviously exceeding the level of necessity; 2) the procedure for levying execution on it, which would require finding out whether the apartment in question is the only one suitable for the residence of the owner and his family members and guaranteeing them the possibility to satisfy their reasonable need for housing; 3) the list of persons falling into the category “family members jointly living with the citizen-debtor”, and 4) to ensure that the regulation and law-enforcement practices would not entail the risk of violation of rights of the citizen-debtor and thus the violation of the balance of constitutionally significant values whom this institution of law seeks to protect.

Dissenting opinion:
  • The defects of the current regulation as to the issue of the housing immunity against execution are so great that the Court ought not to deem it conformant to the Constitution, the more so that the using by the Court in a concrete case of the method of refraining from invalidation of contested provisions is arguable.

  • The Court was wrong in refraining  from having deemed the contested rule to be unconstitutional and failed to provide legal redress to the applicants.

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Subject area:
Court Proceedings execution procedure