BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF BURDOV v. RUSSIA (No. 2)
(Application
no. 33509/04)
JUDGMENT
STRASBOURG
15 January
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Burdov v. Russia
(no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33509/04) 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, Mr Anatoliy Tikhonovich
Burdov (“the applicant”), on 15 July 2004.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation at
the Court, and by Mr G. Matyushkin, Representative of the Russian
Federation at the Court.
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 about the authorities’ failure to comply with
judgments delivered by domestic courts in his favour.
- On
22 November 2007 the President of the First Section decided
to communicate the applicant’s complaint to the Government. It
was also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
- On
3 July 2008 the Chamber decided, under Rule 54 § 2 (c)
of the Rules of Court, to grant the case priority under Rule 41 and
to invite the parties to submit further written observations on the
above application. The Chamber furthermore decided to inform the
parties that it was considering the suitability of applying a
pilot-judgment procedure in the case (see Broniowski v. Poland
[GC], 31443/96, §§ 189-194 and the operative part, ECHR
2004-V, and Hutten-Czapska v. Poland [GC] no. 35014/97, ECHR
2006-... §§ 231-239 and the operative part). The applicant
provided further observations on 11 August 2008 and the
Government on 26 September 2008.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Anatoliy Tikhonovich Burdov, is a Russian national who
was born in 1952 and lives in Shakhty, in the Rostov region of the
Russian Federation.
- On
1 October 1986 the applicant was called up by the military
authorities to take part in emergency operations at the site of the
Chernobyl nuclear plant disaster. The applicant was engaged in the
operations until 11 January 1987 and, as a result, suffered
from extensive exposure to radioactive emissions. He is entitled to
various social benefits in this connection.
- Considering
that the competent State authorities failed to pay these benefits in
full and in due time, the applicant repeatedly sued them in domestic
courts from 1997 onwards. The courts repeatedly granted the
applicant’s claims but a number of their judgments remained
unenforced for various periods of time.
A. The Court’s judgment of 7 May 2002
in Burdov v. Russia and further developments
1. The Court’s findings
- On
20 March 2000 the applicant first complained before the
Court about non-enforcement of domestic judicial decisions
(application no. 59498/00). In its judgment of 7 May 2002,
the Court found that the Shakhty City Court’s decisions of
3 March 1997, 21 May 1999 and 9 March 2000 had
remained unenforced wholly or in part at least until 5 March 2001,
when the Ministry of Finance took the decision to pay in full the
debt owed to the applicant. The Court accordingly held that there had
been violations of Article 6 of the Convention and of Article 1 of
Protocol No. 1 on account of the authorities’ failure for
years to take the necessary measures to comply with these decisions
(Burdov v. Russia, no. 59498/00, §§ 37-38,
ECHR 2002 III).
2. Resolution ResDH(2004)85 of the Committee of
Ministers concerning the Court’s judgment of 7 May 2002
- Under
the terms of Article 46 § 2 of the Convention, the
Court’s judgment of 7 May 2002 in Burdov v. Russia
was transmitted to the Committee of Ministers for the supervision of
its execution. The Committee invited the
Government to inform it of the measures which had been taken in
consequence of the Court’s judgment of 7 May 2002,
having regard to the Russian Federation’s obligation under
Article 46 § 1 to abide by it. On
22 December 2004 the Committee adopted Resolution
ResDH(2004)85 in this case. The measures taken by the Russian
authorities were summarised by the Government in the appendix to this
Resolution:
“(...) With regard to individual measures, the
amounts due under the domestic judicial decisions were paid to the
applicant on 5 March 2001. (...) Subsequently, a fresh indexation of
the monthly allowance was ordered by the Shakhty City Court on 11
July 2003 (final on 1 October 2003). The social authorities continue
to comply with the domestic judicial decisions by regularly paying
the sums awarded.
In addition, the following general measures were adopted
by the Russian authorities to comply with the European Court’s
judgment.
a) Resolving similar cases
At the outset, the government paid the arrears
accumulated as a result of the non-execution, as in the present case,
of domestic judgments ordering the payment of compensation and
allowances for the Chernobyl victims in the applicant position (a
total of 2,846 million roubles were paid between January and October
2002).
5 128 other domestic judgments concerning the indexation
of the allowances for the victims of Chernobyl were executed by the
authorities.
The government has also improved its budgetary process
to ensure that the necessary budgetary means are allocated to social
security bodies (2,152,071,000 roubles were allocated for 2003,
2,538,280,500 roubles for 2004, and 2,622,335,000 for 2005) to allow
them continuously to meet their financial obligations arising inter
alia from similar judgments. (...)
b) New indexation system introduced through
legislation
As regards the obligation of continuous indexation of
the amounts awarded by domestic courts, the legislation in force at
the relevant time provided for the cost of living as index for
calculation of allowances. By decision of 19 June 2002, the
Constitutional Court declared the relevant legislative provisions
unconstitutional, insofar as this system was found to lack clarity
and predictability; in this decision, the Constitutional Court
referred, inter alia, to the conclusions of the European Court in the
Burdov judgment. Consequently, on 2 April 2004, the Russian
Parliament amended the legislation governing the social insurance of
Chernobyl victims. The new law, which has been in force since 29
April 2004, provides for a new system of indexation of allowances,
which is based on the inflation rate used for calculation of the
federal budget for the next financial year.
c) Publication and dissemination of the judgment
The European Court’s judgment in [the] Burdov case
has been published in Rossijskaia Gazeta (on 4 July 2002), the main
official periodical publishing all laws and regulations of the
Russian Federation and widely disseminated to all authorities. The
judgment has also been published in a number of Russian legal
journals and internet data bases, and is thus easily available to the
authorities and the public.
d) Conclusion
In view of the foregoing, the Russian Government
considers that the measures adopted following the present judgment
will prevent new similar violations of the Convention in respect of
the category of persons in the applicant’s position and that
the Russian Federation has thus fulfilled its obligations under
Article 46, paragraph 1, of the Convention in the present case.
The government also believes that the measures adopted
constitute, moreover, a noticeable step towards resolving the more
general problem of non-enforcement of domestic court decisions in
various areas, as highlighted in particular by other cases brought
before the European Court against the Russian Federation. The
government continues to take measures to remedy this problem, not
least in the context of the execution, under the Committee’s
supervision, of other judgments of the European Court.”
- The
Committee was satisfied that on 16 July 2002,
within the time-limit set, the Government had paid the applicant the
sum of just satisfaction provided for in the judgment of 7 May 2002.
It further noted, in particular, the
measures taken in respect of the category of persons in the
applicant’s position. Having regard to all the measures
adopted, the Committee concluded that it had exercised its functions
under Article 46 § 2 of the Convention in this case.
The Committee recalled at the same time that the more general problem
of non-execution of domestic court decisions in the Russian
Federation was being addressed by the authorities, under the
Committee’s supervision, in the context of other pending cases.
B. Enforcement of new domestic judgments in the applicant’s
favour
1. Shakhty Town Court’s judgment of 17 April
2003
- On
17 April 2003 the Shakhty Town Court ordered the
Directorate of Labour and Social Development (Управление
труда
и социального
развития)
of Shakhty to pay the applicant 15,984.80 Russian Roubles (RUB) as
compensation for delays in payment of benefits in accordance with
Article 208 of the Code of Civil Procedure. On 9 July 2003
the judgment was upheld by the Rostov Regional Court and became
final.
- During
2003-2005 the applicant consecutively submitted the writ of execution
to the defendant authority, to bailiffs, to the Federal Treasury and
then again to the defendant authority. On 19 August 2005
the authorities transferred the amount of the court’s award to
the applicant’s account.
2. Shakhty Town Court’s judgment of 4 December
2003
- On
4 December 2003 the Shakhty Town Court ordered the
Directorate of Labour and Social Development to pay the applicant
RUB 68,463.54 as default interest for delays in payments between
1999 and 2001, in accordance with the Compulsory Social Insurance Act
1998 (no.125-ФЗ). The
judgment was not appealed against and became final on
15 December 2003.
- According
to the applicant, he submitted the writ for execution to the
respondent Department on the same date. On an unspecified date the
writ was submitted to the Shakhty Bailiffs’ Department; the
latter decided on 30 June 2004 that the judgment was
impossible to enforce as the debtor’s possessions could not be
seized.
- On
14 November 2005 the Shakhty Town Court granted the
defendant authority’s request for correction of an arithmetic
error and reduced the award to RUB 68,308.42. On 9 March 2006 the
same court granted the applicant’s request for correction of an
arithmetic error and ordered the defendant authority to pay the
applicant RUB 108,251.95. On 18 October 2006 the
authorities paid the latter amount to the applicant.
3. Shakhty Town Court’s judgment of 24 March 2006
- On
24 March 2006 the Shakhty Town Court ordered the Department
of Labour and Social Development (Департамент
труда
и социального
развития)
of Shakhty to index-link the monthly food allowance due to the
applicant as of 1 January 2006. The court set the amount of
monthly payments at RUB 1,183.73 with subsequent indexation and
ordered a one-off payment of RUB 36,877.06 for compensation for
shortfalls in previous monthly payments. In addition, as of
1 January 2006 the Department was ordered to proceed with
monthly payments of RUB 1,972.92 with subsequent indexation in
respect of compensation for health damage. The court further ordered
the defendant authority to pay the applicant RUB 4,980.24 and
RUB 13,312.46 as compensation for shortfalls in monthly payments
made between 2000 and 2005 for health damage and food allowance
respectively and an additional indexation payment of RUB 1,652.35
for health damage. On 22 May 2006 the judgment was upheld
by the Rostov Regional Court and became final.
- On
20 July 2007 the Shakhty Town Court corrected an arithmetic
error in its judgment and changed the initially awarded amount of
RUB 4,980.24 to RUB 5,222.78.
- On
2 November 2006 the judgment of 24 March 2006 was executed
in its major part: a total of RUB 67,940.56 was credited to the
applicant’s account. At the same time, the Ministry of Finance
did not upgrade the monthly payments as ordered by the court’s
judgment and the applicant continued to receive such payments at a
lower level. On 1 July 2007 the Ministry decided to upgrade
them. On 17 August 2007 the applicant received RUB 9,112.26
as compensation for shortfalls in monthly payments accumulated until
that date.
4. Judgments of 22 May 2007 and
21 August 2007
- On
22 May 2007 the Shakhty Town Court decided that the
Department of Labour and Social Development was to pay the applicant
as of 1 June 2007 the amount of RUB 17,219.43 monthly,
with subsequent indexation, in respect of compensation for health
damage. In addition, the Department was to pay RUB 188,566 as
compensation for shortfalls in previous monthly payments. The
judgment was not appealed against and became final on 4 June 2007.
It was enforced on 5 December 2007.
- On
21 August 2007, the Shakhty Town Court ordered the Federal
Labour and Employment Agency to pay the applicant RUB 225,821.73
as compensation for certain delayed payments in respect of health
damage between 2000 and 2007. The judgment was not appealed against
and became final on 3 September 2007. It was enforced on 3
December 2007.
II. RELEVANT DOMESTIC MATERIAL
A. Execution of domestic judgments
1. Law on Enforcement Proceedings
- Section 9
of the Federal Law on Enforcement Proceedings of 21 July 1997
(no. 119-ФЗ) as in force at the material time
provided that a bailiff was to set a time-limit up to five days for
the defendant’s voluntary compliance with a writ of execution.
The bailiff was also to warn the defendant that coercive action would
follow should the defendant fail to comply with the time-limit. Under
section 13 of the Law, the enforcement proceedings had to be
completed within two months of the receipt of the writ of execution
by the bailiff.
2. Special execution procedure for the judgments delivered
against the State and its entities
- In
2001-2005 the judgments delivered against the public authorities were
executed in accordance with a special procedure established, inter
alia, by the Government’s Decree no. 143 of
22 February 2001 and, subsequently, by Decree no. 666
of 22 September 2002, entrusting execution to the Ministry
of Finance (see further details in Pridatchenko and Others v.
Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03,
§§ 33-39, 21 June 2007). By a judgment of 14 July
2005 (no. 8-П), the Constitutional Court considered
certain provisions governing the special execution procedure to be
incompatible with the Constitution. Following the judgment, the Law
of 27 December 2005 (no. 197-ФЗ)
introduced a new Chapter in the Budget Code modifying this
special procedure. The Law notably empowered the Federal Treasury to
execute judgments against legal entities funded by the federal budget
and the Ministry of Finance to execute judgments against the State.
Under Article 242.2.6 of the Budget Code, the judgments must be
executed within three months after receipt of the necessary
documents.
- Further
special procedures governing payment of social benefits to persons
who suffered from radioactive emissions in the Chernobyl disaster
were set by Law no. 1244-1 of 15 May 1991 with
subsequent amendments and by the Government’s decrees no. 607
of 21 August 2001, no. 73 of 14 February 2005
and no. 872 of 30 December 2006. In 2002-2004
compensation for health damage was ensured by the Ministry of Labour
within the limits of the budgetary allocations provided for the
relevant fiscal year. In 2005-2006 such compensation was ensured by
territorial departments of the Federal Labour and Employment Agency
and in 2007-2008 by the Agency itself on the basis of registers
submitted by social welfare bodies and within the limits of the
budgetary allocations provided to that effect.
3. Report of the Commissioner for Human Rights of the Russian
Federation
- The
2007 Activities Report of the Commissioner for Human Rights of the
Russian Federation pointed out that the perception of domestic
judgments as what one might call “non-compulsory
recommendations” was still a widespread phenomenon not only in
society but also in State bodies. It noted that the non-enforcement
problem had also arisen in respect of judgments of the Constitutional
Court. According to the report, the problem had been discussed
between December 2006 and March 2007 at special meetings in all
federal circuits involving regional authorities and representatives
of the President’s Administration. An idea thus emerged of
setting up a national filter mechanism that would allow for
examination of Convention complaints at the domestic level. The
Commissioner concluded that joint efforts should be deployed with a
view to eliminating the roots of the problem rather than simply
reducing the number of complaints.
B. Domestic remedies in respect of the non-execution or delayed
execution of domestic judgments
1. Legal provisions
(a) Civil law
- Chapter
25 of the Code of Civil Procedure provides a procedure for
challenging State authorities’ acts or inaction in courts. If a
court finds that the complaint is well-founded, it orders the State
authority concerned to remedy the breach or unlawfulness found
(Article 258).
- Article
208 of the Code of Civil Procedure provides for “indexation”
of judicial awards: the court which made the award may upgrade it
upon a party’s request in line with the increase in the
official retail price index until the date of effective payment.
Default interest and other compensation for pecuniary damage may in
addition be recovered from the debtor for non-compliance with a
monetary obligation and use of another person’s funds (Article
395 of the Civil Code).
- Damage
caused by unlawful action or inaction of State or local authorities
or their officials is subject to compensation from the Federal
Treasury or a federal entity’s treasury (Article 1069).
Compensation for damage caused to an individual by unlawful
conviction, prosecution, detention on remand or prohibition on
leaving his or her place of residence pending trial is granted in
full regardless of the fault of the state officials concerned and
following the procedure provided for by law (Article 1070 § 1).
Damage caused by the administration of justice is compensated if the
fault of the judge is established by a final judicial conviction
(Article 1070 § 2).
- A court may hold the tortfeasor liable for
non-pecuniary damage caused to an individual by actions impairing his
or her personal non-property rights or affecting other intangible
assets belonging to him or her (Articles 151 and 1099 § 1).
Compensation for non-pecuniary damage sustained through an impairment
of an individual’s property rights is recoverable only in cases
provided for by law (Article 1099 § 2 of the Civil
Code). Compensation for non-pecuniary damage is payable irrespective
of the tortfeasor’s fault if damage was caused to an
individual’s life or limb, sustained through unlawful criminal
prosecution, dissemination of untrue information and in other cases
provided for by law (Article 1100 of the Civil Code).
(b) Criminal law
- Article 315
of the Criminal Code provides for sanctions for persistent failure by
any State official or civil servant to comply with a judicial
decision that has entered into legal force. The sanctions include a
fine, temporary suspension from service, community service
(обязательные
работы)
for a maximum term of 240 hours or deprivation of liberty for a
maximum term of two years.
2. Constitutional Court’s judgment of 25 January 2001
- By
Ruling no. 1-P of 25 January 2001, the Constitutional
Court found that Article 1070 § 2 of the Civil Code
was compatible with the Constitution in so far as it provided for
special conditions on State liability for damage caused by the
administration of justice. It clarified, nevertheless, that the term
“administration of justice” did not cover judicial
proceedings in their entirety but only judicial acts touching upon
the merits of a case. Other judicial acts – mainly of a
procedural nature – fell outside the scope of the notion
“administration of justice”.
- State
liability for the damage caused by such procedural acts or failures
to act, such as a breach of the reasonable time for court
proceedings, could arise even in the absence of a final criminal
conviction of a judge if the fault of the judge had been established
in civil proceedings. The Constitutional Court emphasised, however,
that the constitutional right to compensation by the State for the
damage should not be tied in with the individual fault of a judge. An
individual should be able to obtain compensation for any damage
incurred through a violation by a court of his or her right to a fair
trial within the meaning of Article 6 of the Convention.
- The
Constitutional Court held that Parliament should legislate on the
grounds and procedure for compensation by the State for the damage
caused by unlawful acts or failures to act of a court or a judge and
determine territorial and subject-matter jurisdiction over such
claims.
3. Supreme Court’s decision of 26 September 2008 and
the new Compensation Bill
- On
26 September 2008 the Plenum of the Supreme Court adopted a decision
(no. 16) to submit to the State Duma of the Russian Federation a
draft Constitutional Law on compensation by the State of damage
caused by violations of the right to judicial proceedings within a
reasonable time and of the right to the execution within a reasonable
time of judicial decisions that have entered into legal force
(hereinafter referred to as the “Compensation Bill”). The
Supreme Court also decided to submit to the State Duma a second draft
Law introducing changes in certain legal acts in connection with the
adoption of the Compensation Bill. Both drafts were formally tabled
in the State Duma on 30 September 2008.
- The
purpose of the Compensation Bill is to set up in Russia a domestic
legal remedy in respect of violations of the rights to judicial
proceedings within a reasonable time and to the execution of an
enforceable judicial decision within a reasonable time
(section 1 § 1). It is also provided that the
applicants in cases which have not yet been declared admissible by
the Court may apply for compensation of damage under the Bill within
six months after its entry into force planned for 1 January 2010
(section 19). The Bill empowers courts of general jurisdiction
to consider cases brought against the State on alleged violations of
the aforementioned rights (section 3 § 1) and
provides for specific rules to govern the proceedings in such cases.
The State is represented in the proceedings by the Ministry of
Finance (section 3 § 3). The latter has to prove
that there was no violation of the reasonable time requirement, while
the plaintiff has to prove the existence of pecuniary damage
(section 11 § 1). To decide a case, the court
assesses its complexity, the behaviour of the parties and other
actors in the proceedings, and the acts or inaction of judicial or
prosecution authorities, the parties to enforcement proceedings or
the enforcement authorities. The court also assesses the duration of
the violation and the importance of its consequences for the person
affected (section 12). If the court finds a violation, it makes a
monetary award for damage to be determined taking account of specific
circumstances of the case, of the requirements of equity and of the
Convention standards (section 14). The court may take a separate
decision finding a breach of law by a court or State official and
order specific procedural actions to be taken, with a request to
report back within a month (section 15).
- The
Supreme Court’s explanatory memorandum sets out the needs for
additional budgetary allocations to ensure the implementation of the
Compensation Bill. The average compensation per case is estimated at
EUR 3,050 having regard to the fact that the just satisfaction
amounts awarded by the European Court of Human Rights in
non-enforcement cases have usually ranged between EUR 1,200 and
EUR 4,900.
- The
second draft Law introduces amendments to other legal acts. Under new
Article 1070.1 of the Civil Code, damage caused by violations of the
reasonable time requirement by State authorities in judicial
proceedings or in the execution of judgments is compensated from the
Federal Treasury. Under new Article 242.2 of the Budget Code,
judicial decisions granting such compensation must be enforced within
two months.
4. The Address by the President of the Russian Federation to
the Federal Assembly
- In
his Address to the Federal Assembly delivered on 5 November 2008,
the President of the Russian Federation stated in particular that it
was necessary to establish a mechanism for compensation of damage
caused by violations of citizens’ rights to trial within a
reasonable time and to the full and timely implementation of court
decisions. The President stressed that the execution of court
decisions was still a huge problem, which concerned all courts
including the Constitutional Court. He further stated that the
problem was notably due to the lack of real accountability of
officials and citizens who fail to execute court decisions and that
this accountability was to be established.
III. RELEVANT INTERNATIONAL MATERIAL
A. Council of Europe
1. Committee of Ministers
- On
3-5 December 2007 the Committee of Ministers resumed
consideration under Article 46 § 2 of the Convention
of the group of the Court’s judgments against Russia concerning
failure to enforce or delays in the enforcement of domestic judgments
(Timofeyev and others group,
CM/Del/OJ/DH(2007)1013 Public). The following decision was
adopted by the Committee on 19 December 2007
(CM/Del/Dec(2007)1013 FINAL):
“The Deputies, (...)
- recalled
that these judgments reveal various structural problems in the
Russian legal system which, by their nature and scale, severely
affect its effectiveness and cause very numerous violations of the
Convention an increasing number of which are complained of before the
Court;
- took
note, with interest, of various measures adopted or being taken by
certain competent authorities to prevent new similar violations and
to remedy those that have already occurred by setting up or improving
appropriate domestic procedures, measures which remain to be taken;
- emphasised
anew that the problems revealed by the judgments require urgent
solutions in order to ensure that the relevant Convention rights are
adequately protected at the domestic level, thus preventing an
exceedingly high number of similar applications to the Court;
- invited
the competent authorities to continue bilateral consultations with
the Secretariat with a view to establishing a proper strategy for
adoption of the necessary measures, including the setting up of
effective domestic remedies; (...)”
- The
problems underlying the non-enforcement of domestic judgments in
Russia and various measures taken or considered by the authorities in
the context of the implementation of the Court’s judgments were
addressed in detail in the Committee of Ministers’ documents
CM/Inf/DH(2006)45 of 1 December 2006 and CM/Inf/DH(2006)19rev3
of 4 June 2007. The latter document presented the progress so far
achieved by the Russian authorities, pointed at a number of
outstanding questions and proposed further measures with a view to a
comprehensive solution of the problem. The main avenues of action
proposed were summarised as follows (see CM/Inf/DH(2006)19rev3, cited
above, page 1):
“- Improvement of budgetary procedures and of
practical implementation of the budget decisions;
- Identifying a specific state authority as a defendant;
- Ensuring effective compensation for delays
(indexation, default interest, specific damages, penalties for
delays);
- Increasing the effectiveness of domestic remedies for
proper enforcement of judicial decisions;
- Improvement of the legal framework governing
compulsory execution against the public authorities;
- Ensuring effective liability of civil servants for
non-enforcement;
Special consideration is given to possible ways of
ensuring coherence of the present execution mechanisms by allowing
the Treasury and the bailiffs to act in a complementary manner in
their respective fields of competence and under appropriate judicial
review. A strong emphasis is also put on possible ways of preventing
litigation against the State through improved budgetary proceedings,
which would allow the State to timely comply with its pecuniary
obligations.”
- In
Recommendation Rec(2004)6 to member states on the improvement of
domestic remedies adopted on 12 May 2004, the Committee of Ministers
recommended inter alia that:
“(...) member states review, following Court
judgments which point to structural or general deficiencies in
national law or practice, the effectiveness of the existing domestic
remedies and, where necessary, set up effective remedies, in order to
avoid repetitive cases being brought before the Court (...)”
- The
Appendix to the Recommendation further stated inter alia:
“(...) Remedies following a “pilot”
judgment
13. When a judgment which points to structural or
general deficiencies in national law or practice (“pilot case”)
has been delivered and a large number of applications to the Court
concerning the same problem (“repetitive cases”) are
pending or likely to be lodged, the respondent state should ensure
that potential applicants have, where appropriate, an effective
remedy allowing them to apply to a competent national authority,
which may also apply to current applicants. Such a rapid and
effective remedy would enable them to obtain redress at national
level, in line with the principle of subsidiarity of the Convention
system.
14. The introduction of such a domestic remedy could
also significantly reduce the Court’s workload. While prompt
execution of the pilot judgment remains essential for solving the
structural problem and thus for preventing future applications on the
same matter, there may exist a category of people who have already
been affected by this problem prior to its resolution. (...)
16. In particular, further to a pilot judgment in which
a specific structural problem has been found, one alternative might
be to adopt an ad hoc approach, whereby the state concerned would
assess the appropriateness of introducing a specific remedy or
widening an existing remedy by legislation or by judicial
interpretation. (...)
18. When specific remedies are set up following a pilot
case, governments should speedily inform the Court so that it can
take them into account in its treatment of subsequent repetitive
cases. (...)”
2. Parliamentary Assembly
- In
Resolution 1516 (2006) on implementation of the European Court’s
judgments, adopted on 2 October 2006, the Parliamentary
Assembly noted with grave concern the continuing existence in several
states of major structural deficiencies which cause large numbers of
repetitive findings of violations of the Convention and represent a
serious danger to the rule of law in the states concerned. The
Assembly listed among those deficiencies some major shortcomings in
the judicial organisation and procedures in the Russian Federation,
including chronic non-enforcement of domestic judicial decisions
delivered against the State (see paragraph 10.2). The Assembly urged
the authorities of the States concerned, including the Russian
Federation, to resolve the issues of particular importance mentioned
in the resolution and to give this action top political priority.
- In
the report of the Committee on Legal Affairs and Human Rights, the
rapporteur, Mr Erik Jurgens, called for an urgent solution to the
above-mentioned problems as they affect a very large number of people
in Russia. He also warned that the influx of numerous clone cases in
the Court was likely to undermine the effectiveness of the Convention
mechanism (Doc. 11020). He further stated:
“ 58. The Rapporteur welcomes the frank
and open position of most of the Russian officials and institutions
he met in Moscow as well as their clear understanding that the above
problems put at stake the effectiveness of the Russian judicial
system, and indeed, of the State as a whole. It is perhaps indicative
that especially the presidents of the Constitutional Court and of the
Supreme Court showed a very constructive attitude, as both of them
recognized the problems and encouraged the Rapporteur in his
endeavours to help find a solution for them.
59. The authorities provided assurances that
the most important problems would be addressed as a matter of
priority and that appropriate steps would be taken to ensure rapid
adoption of reforms required by the European Court’s judgments.
60. The Russian officials’ clear
willingness to come to grips with the aforementioned important
problems is most welcome. The Rapporteur stresses that the complexity
of these issues is such as to require enhanced and concerted efforts
of all actors within the Russian legal system.
61. Thorough reform strategies in this
respect, however, still remain to be established. In view of the
present problems raised in the judgments and others still to come,
the Rapporteur has strongly recommended to the authorities to set up
a special mechanism of interagency cooperation in the implementation
of Strasbourg Court judgments. Constant involvement of Parliament and
the Russian delegation to the Assembly in the implementation process
is also necessary. The Rapporteur is convinced that his Russian
parliamentary colleagues will seriously consider his recommendation
to set up a specific mechanism and procedure for parliamentary
oversight to implement Strasbourg Court judgments, as well as other
relevant proposals made in the draft resolution. The Rapporteur also
trusts that the members of the Russian delegation to the Assembly
will promote and follow-up the adoption of the specific measures
required by certain judgments (for details, see Appendix III, Part
III).”
B. United Nations
- In
the preliminary observations following a visit to Russia from 19 to
29 May 2008, the United Nations Special Rapporteur on the
independence of judges and lawyers, Mr Leandro Despouy, voiced
“important concerns at the fact that an important percentage of
judicial decisions, including those against state officials, were not
implemented”. He added that “problems with the
implementation of judicial decisions in Russia had contributed to the
poor image of the judiciary in the eyes of the population”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the authorities’ prolonged failure to
comply with the binding and enforceable judgments in his favour
violated his right to a court under Article 6 of the Convention and
his right to the peaceful enjoyment of his possessions under Article
1 of Protocol No. 1, which in so far as relevant read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by {a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law...”
A. Parties’ submissions
1. The Government
- The
Government initially argued in their observations that the applicant
had not exhausted domestic remedies. However, in their further
observations in response to those of the applicant, the Government
did not maintain their objection as to non-exhaustion of domestic
remedies.
- The
Government also submitted that the applicant could no longer claim to
be a victim of the alleged violations: the damage caused by
enforcement delays had been compensated by additional indexation
awards granted by courts under Article 208 of the Code of Civil
Procedure. The Government supported their submission by reference to
certain decisions of the Court (notably Nemakina v. Russia
(dec.), no. 14217/04, 10 July 2007, and Derkach v. Russia
(dec.), no. 3352/05, 3 May 2007).
- The
Government further argued that the complaints were manifestly
ill-founded: in their view, the periods of time from receipt of the
necessary documents by the competent authorities to the effective
payment of judicial awards had ranged between thirteen days and nine
months and were thus reasonable in the light of the Court’s
case-law. The Government blamed the applicant for having repeatedly
withdrawn the writ of execution concerning the judgment of
17 April 2003 and consecutively sent it to different
authorities. The judgment of 4 December 2003 was enforced
only six months after its rectification on 9 March 2006.
Finally, the judgment of 24 March 2006 was enforced in two
steps: on 2 November 2006 in its major part and on
17 August 2007 for the remainder, i.e. only nine months
after the partial execution.
- The
Government lastly referred to the complexity of the enforcement
proceedings in this case given that several judgments were involved.
They also emphasised objective circumstances, such as the complexity
of the federal multilevel budgetary system and legislative changes,
which had led to delays in enforcement for which the Government were
not responsible.
2. The applicant
- The
applicant submitted that he had complained before different State
authorities including the Ministry of Finance, Federal Treasury,
prosecutor’s office and bailiffs about insufficient regular
payments and/or delays in enforcement of judgments in his favour. In
his view, the State authorities should also have displayed diligence
in this respect, but had failed to take the necessary action. He
considered that the surprisingly short delays in the execution of the
judgments of 22 May 2007 and 21 August 2007 were
presumably a result of the Court’s decision to communicate his
application to the Government.
- As
regards the other three judgments, the applicant disagreed with the
Government’s calculation of the delays. He argued that an
overall 31-month delay in the execution of the judgment of
17 April 2003 was imputable to various authorities; the
writ of execution concerning the judgment of 4 December 2003
had remained for 21 months with the Shakhty Directorate of Labour and
Social Development without any action being taken, before it applied
to the court for correction of an arithmetic error; the judgment of
24 March 2006 remained unenforced, albeit in part, until August 2007.
The applicant concluded that he was still a victim of violations of
Article 6 of the Convention and Article 1 of Protocol No. 1.
B. The Court’s assessment
1. Admissibility
- The
Court notes that the Government have explicitly dropped their
objection as to non-exhaustion of domestic remedies by the applicant
and will not examine this question.
- As regards the applicant’s victim status, the
Court recalls that under Article 34 of the Convention, “the
Court may receive applications from any person ... claiming to be the
victim of a violation by one of the High Contracting Parties of the
rights set forth in the Convention or the Protocols thereto ...”.
- It
falls first to the national authorities to redress any alleged
violation of the Convention. In this regard, the question whether or
not the applicant can claim to be a victim of the violation alleged
is relevant at all stages of the proceedings under the Convention
(see Burdov, cited above, § 30).
- The
Court reiterates that a decision or measure favourable to the
applicant, such as the enforcement of a judgment after substantial
delay, is not in principle sufficient to deprive him of his status as
a “victim”, unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Petrushko v.
Russia, no. 36494/02, §§ 14-16,
24 February 2005, with further references). Redress so
afforded must be appropriate and sufficient, failing which a party
can continue to claim to be a victim of the violation (see Scordino
v. Italy (no. 1) [GC], no. 36813/97, § 181,
ECHR 2006 ..., and Cocchiarella v. Italy
[GC], no. 64886/01, § 72, ECHR 2006 ...).
- The
Government argued that domestic courts granted the applicant
compensation for delays in enforcement of the judgments in his favour
by way of indexation of the initial awards under Article 208 of the
Code of Civil Procedure. The applicant did not contest this fact, but
argued that he retained the status of a victim. The Court has thus to
consider whether the indexation awards amount to an acknowledgement
of the violations of the Convention and constitute appropriate and
sufficient redress in this respect.
- The
Court notes on the first point that the decisions referred to by the
Government did not explicitly acknowledge violations of the
Convention. They awarded compensation on the basis of an objective
fact that a certain time had elapsed between the moment when the sums
were due and the moment when they were paid. The question would thus
arise of whether these decisions acknowledged the alleged violations
in substance. However, the Court does not consider it necessary to
rule on this issue, given its conclusion below as to whether redress
granted was adequate and sufficient.
- On
the latter point, the Court observes that Article 208 of the Code of
Civil Procedure only allows the courts to upgrade the amounts awarded
in line with an official price index, thus compensating for
depreciation of the national currency. The compensation so awarded
thus covered only inflation-related losses but not any further damage
sustained by the applicant, either pecuniary or non-pecuniary. The
Government did not provide any argument to the contrary. The Court
has already considered the issue in other cases concerning Russia and
concluded that compensation for inflation losses alone, however
accessible and effective in law and practice, does not constitute the
adequate and sufficient redress required by the Convention (see
Moroko v. Russia,
no. 20937/07, § 27, 12 June 2008). As to the earlier
decisions quoted by the Government (see paragraph 48 above), the
Court reaffirms that they were taken in the specific circumstances of
these individual cases (see Moroko, cited above, § 26)
and must not be interpreted as establishing any general principle
that would contradict the Court’s present conclusion.
- The
Court accordingly concludes that the applicant was not granted
adequate and sufficient redress in respect of the alleged violations
and can thus still claim to be a victim under Article 34 of the
Convention. The Government objection must therefore be dismissed.
- As regards other arguments submitted by the parties,
the Court notes that they raise serious questions that require
consideration on the merits. The Court accordingly considers that the
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- It
is not disputed by the parties that the five judgments concerned by
the present case were fully enforced but with certain delays. The
only issue to be decided by the Court is whether these delays
violated the Convention.
- The
parties disagreed on this point at least with regard to three of the
five judgments: the Government considered that the delays were up to
ten months and were in conformity with the Convention; the applicant
considered the delays to be much longer and, therefore, in breach of
the Convention.
- Given
these diverging positions, the Court considers it appropriate to
recall and clarify the main principles established by its case-law
that must guide the determination of the relevant issues under the
Convention.
(a) General principles
- The
right to a court protected by Article 6 would be illusory if a
Contracting State’s domestic legal system allowed a final,
binding judicial decision to remain inoperative to the detriment of
one party. Execution of a judgment given by any court must therefore
be regarded as an integral part of the “trial” for the
purposes of Article 6 (see Hornsby v. Greece, 19 March 1997,
§ 40, Reports of Judgments and Decisions 1997 II).
- An
unreasonably long delay in enforcement of a binding judgment may
therefore breach the Convention (see Burdov
v. Russia, no. 59498/00, ECHR
2002 III). The reasonableness of such delay is to be
determined having regard in particular to the complexity of the
enforcement proceedings, the applicant’s own behaviour and that
of the competent authorities, and the amount and nature of the court
award (see Raylyan
v. Russia, no. 22000/03, §
31, 15 February 2007).
- While
the Court has due regard to the domestic statutory time-limits set
for enforcement proceedings, their non-respect does not automatically
amount to a breach of the Convention. Some delay may be
justified in particular circumstances but it may not, in any event,
be such as to impair the essence of the right protected under Article
6 § 1 (see Burdov, cited above, § 35). Thus,
the Court considered, for example, in a recent case concerning
Russia, that an overall delay of nine months taken by the
authorities to enforce a judgment was not prima facie
unreasonable under the Convention (see Moroko, cited above, §
43). Such an assumption does not, however, obviate the need for an
assessment in the light of the aforementioned criteria (see paragraph
66 above) and having regard to other relevant circumstances (see
Moroko, cited above, §§ 44-45).
- A
person who has obtained a judgment against the State may not be
expected to bring separate enforcement proceedings (see
Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004). In such cases, the
defendant State authority must be duly notified of the judgment
and is thus well placed to take all necessary initiatives to comply
with it or to transmit it to another competent State authority
responsible for execution. This is particularly relevant in a
situation where, in view of the complexities and possible overlapping
of the execution and enforcement procedures, an applicant may have
reasonable doubts about which authority is responsible for the
execution or enforcement of the judgment (see
Akashev v. Russia, no. 30616/05,
§ 21, 12 June 2008).
- A
successful litigant may be required to undertake certain procedural
steps in order to recover the judgment debt, be it during a voluntary
execution of a judgment by the State or during its enforcement by
compulsory means (see Shvedov
v. Russia, no.
69306/01, § 29–37, 20 October 2005).
Accordingly, it is not unreasonable that the authorities request the
applicant to produce additional documents, such as bank details, to
allow or speed up the execution of a judgment (see,
mutatis mutandis,
Kosmidis and Kosmidou v.
Greece, no. 32141/04, §
24, 8 November 2007). The requirement of the creditor’s
cooperation must not, however, go beyond what is strictly necessary
and, in any event, does not relieve the authorities of their
obligation under the Convention to take timely action of their own
motion, on the basis of the information available to them, with a
view to honouring the judgment against the State (see Akashev,
cited above, § 22). The Court thus considers that the
burden to ensure compliance with a judgment against the State lies
primarily with the State authorities starting from the date on which
the judgment becomes binding and enforceable.
- The
complexity of the domestic enforcement procedure or of the State
budgetary system cannot relieve the State of its obligation under the
Convention to guarantee to everyone the right to have a binding and
enforceable judicial decision enforced within a reasonable time. Nor
is it open to a State authority to cite the lack of funds or other
resources (such as housing) as an excuse for not honouring a judgment
debt (see Burdov, cited above, §35, and Kukalo v.
Russia, no. 63995/00, § 49, 3 November 2005).
It is for the Contracting States to organise their legal systems in
such a way that the competent authorities can meet their obligation
in this regard (see mutatis mutandis Comingersoll S.A. v.
Portugal [GC], no. 35382/97, § 24, ECHR 2000 IV,
and Frydlender v. France [GC], no. 30979/96, § 45,
ECHR 2000 VII).
(b) Application of these principles to the present
case
- The
Court will consider the delays in the execution of the five judgments
concerned in this case on the basis of the above principles.
(i) Judgment of 17 April 2003
- The
Shakhty Town Court’s judgment of 17 April 2003 became binding
and enforceable on 9 July 2003 and the defendant authority
was or should have been aware of its obligation to pay the applicant
the sum awarded as of that date. That the applicant submitted a writ
of execution only a month later does not affect the starting point of
the authority’s obligation to comply with the judgment. Indeed,
he could not be expected to bring any enforcement or other similar
proceedings (see paragraph 68 above). Starting from that date, the
defendant authority had thus an obligation to take all necessary
measures, either on its own or in cooperation with other responsible
federal and/or local authorities, to ensure that the necessary funds
were made available so as to honour the State’s debt. It
appears indeed that the defendant authority had at its disposal all
the necessary elements, such as the applicant’s address and
bank details, to proceed with the payment at any moment.
- The
time taken by the authorities to comply with a judgment should
accordingly be calculated from the moment on which it became final
and enforceable, that is, on 9 July 2003, until the moment when the
judicial award was paid to the applicant, that is, on 19 August 2005.
The time taken to comply with the judgment of 17 April 2003 was thus
two years and one month.
- Such
a long delay in payment of a judicial award is on its face
incompatible with the Convention requirements stated above and the
Court finds no circumstance to justify it.
- It
is noted, in particular, that the enforcement was not of any
complexity: the judgment required payment of a sum of money. The
applicant made no obstacle to the enforcement. Nor can he be blamed
for his attempt to seek relief with the bailiffs and the Federal
Treasury after having waited in vain for more than nine months for
the defendant’s voluntary compliance with the judgment. On the
other hand the Court notes that the writ of execution fruitlessly
stayed with various authorities for lengthy periods, notably nine
months with the defendant Department, four months with the bailiffs
and eleven months with the Federal Treasury. The Court finds no
justification for this inaction. The complexity of the multilevel
budgetary system referred to by the Government cannot justify the
lack of appropriate coordination between the authorities and their
inaction during the above periods.
- The
above elements are sufficient for the Court to conclude that the
State failed to enforce the judgment of 17 April 2003 within a
reasonable time.
(ii) Judgment of 4 December 2003
- The
judgment of 4 December 2003 became final on 15 December 2003 and was
enforced on 18 October 2006. The time taken by the
authorities to comply with the judgment was two years and ten months.
It is true, as pointed out by the Government, that the court modified
this judgment twice. The first rectification was made on
14 November 2005 upon the defendant authority’s
request to reduce the initial award by RUB 155 (EUR 4). However
the need for such a rectification may explain only a tiny fraction of
the overall delay, if any. Yet the Government offered no explanation
for the almost two years which elapsed between 15 December 2003
and 14 November 2005. Nor did it inform the Court of any measure
taken by the defendant authority to enforce the judgment during that
period. Even assuming that the authority acted with more diligence at
a later stage, such a long delay suffices for the Court to find a
violation of the right to have this judgment enforced within a
reasonable time.
(iii) Judgment of 24 March 2006
- The
Court finds it beyond any dispute that the judgment of 24 March 2006,
which became binding on 22 May 2006, was executed on
2 November 2006, but only in part. The parties also agreed
that the full execution of the judgment had only been effected on
17 August 2007.
- While
noting that the authorities acted with relative diligence by paying
the awards in their major part within six months, the Court considers
that Article 6 imposes an obligation to comply with a binding
and enforceable judgment in full. The Court will thus assess the
reasonableness of the whole period until full compliance. The time
taken by the authorities to comply with the judgment in its entirety
was thus one year and almost three months.
- As
it transpires notably from the Government’s submissions and the
Shakhty Deputy Prosecutor’s letter of 29 April 2007 submitted
by the applicant, the full enforcement of the judgment had not been
possible given the absence of appropriate regulations or procedures
at the federal level. Indeed, the upgrades decided by the Shakhty
Town Court had not been paid to the applicant until the adoption of a
specific procedure in that connection by the Ministry of Finance (see
paragraph 19 above).
- However,
the Court has not found in the Government’s submissions any
reason justifying more than one year’s delay in the adoption by
the Ministry of Finance of the new procedure. Nor can the Court
attribute the delay to objective difficulties referred to by the
Government: the matter appeared to be under the sole control of the
Government. In any event, the lack of general regulations or
procedures on a federal level cannot per se justify such a
long delay in compliance with a binding and enforceable judgment. In
the Court’s view, the right to a court would not be effective
if the execution of a binding and enforceable judgment in a
particular case were made conditional on the adoption by the
administration of general procedures or regulations in the area
concerned.
- Finally,
as regards the nature of the award, the Government argued that the
benefits in question were not the applicant’s only income and
were thus of less importance. The Court cannot agree with this
argument given that at least some of these awards concerned
substantial amounts of compensation for health damage sustained by
the applicant at the site of the Chernobyl nuclear disaster and
leading to his life-long disability. In the Court’s view, such
awards can by no means be qualified as being marginal or
insignificant in nature.
- In
view of these circumstances, the Court concludes that the
authorities’ failure for one year and almost three months to
fully comply with the judgment of 24 March 2006 also violated the
applicant’s right to a court.
(iv) Judgments of 22 May 2007 and
21 August 2007
- The
Court notes that the Shakhty Town Court’s judgments of
22 May 2007 and 21 August 2007 became final on
4 June 2007 and 3 September 2007 respectively;
they were enforced on 5 December 2007 and 3 December 2007
respectively. The time taken by the authorities to enforce the
judgments was six months and three months respectively.
- The
applicant referred to certain initial difficulties in obtaining
enforcement of the former judgment which were swiftly resolved
following the communication of his application by the Court to the
Government. Be that as it may, the Court is satisfied that the
periods of 6 and 3 months respectively taken by the authorities to
enforce these judgments do not in themselves appear unreasonable;
furthermore the Court finds no particular circumstance showing that
these delays impaired the essence of the applicant’s right to a
court.
(v) Conclusions
- In
view of the foregoing, the Court concludes that by delaying the
execution of the Shakhty Town Court’s judgments of 17 April
2003, 4 December 2003 and 24 March 2006 the authorities failed
to respect the applicant’s right to a court. There is
accordingly a violation of Article 6 of the Convention.
- Given that the binding and enforceable judgments
created an established right to payment in the applicant’s
favour, which should be considered as a “possession”
within the meaning of Article 1 of Protocol No. 1 (see
Vasilopoulou v. Greece, no. 47541/99, § 22, 21
March 2002), the authorities’ prolonged failure to comply with
these judgments also violated the applicant’s right to peaceful
enjoyment of his possessions (see Burdov, cited above, § 41).
There is accordingly also a violation of Article 1 of Protocol No. 1.
- In
view of its findings in paragraphs 84-85 above, the Court concludes
that there is no violation of Article 6 and of Article 1 of Protocol
No. 1 in respect of the enforcement of the judgments of 22 May
2007 and 21 August 2007.
II. EXISTENCE OF EFFECTIVE DOMESTIC REMEDIES AS REQUIRED
BY ARTICLE 13 OF THE CONVENTION
- The
applicant did not allege the lack of effective domestic remedies in
respect of his complaint about prolonged non-enforcement by the
authorities of domestic judgments in his favour. The Court observed
nonetheless that alleged ineffectiveness of domestic remedies was
being increasingly complained of before the Court in cases concerning
non-enforcement or delayed enforcement of domestic judgments. It
therefore decided of its own motion to examine this question under
Article 13 in the present case and requested the parties to submit
observations. Article 13 provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
- The
applicant did not submit any specific argument on the existence of
domestic remedies and their effectiveness. In his earlier
observations, he mentioned that he had unsuccessfully submitted his
grievances to various authorities, including the Ministry of Finance,
Federal Treasury, Prosecutor’s Office and Bailiffs.
- The
Government argued that there were several effective domestic remedies
against non-enforcement that had not been tested by the applicant in
the present case. Firstly, the Constitution guarantees to everyone
judicial protection and the right to challenge State authorities’
acts or inaction in courts. Law no. 4866-1 of 27 April 1993 and
Chapter 25 of the Code of Civil Procedure allow such actions or
inaction to be condemned by courts, thus opening a way for claiming
damages and bringing criminal proceedings under Article 315 of the
Criminal Code against those responsible for enforcement delays. An
example of case-law was provided: by a decision of 13 July 2007
the Leninskiy District Court of Cheboksary, Republic of Chuvashiya,
found inaction by the regional treasury department to be unlawful and
ordered payment of the judicial award within one working day.
- Secondly,
the Government submitted that Chapter 59 of the Civil Code
provided grounds for claiming both pecuniary and non-pecuniary damage
for enforcement delays and that this remedy had proven its
effectiveness in practice. Four examples of case-law awarding
compensation for non-pecuniary damage were provided or quoted
(decision of 23 October 2006 in the case of Khakimovy by
the Novo-Savinovskiy District Court of Kazan, Republic of
Tatarstan; decisions delivered on unspecified dates in the case of
Akuginova and others by the Elista City Court, Republic of
Kalmykiya; decision of 3 August 2004 in the case of Butko
by the Kirovskiy District Court of Astrakhan; decision of 28 March
2008 in the case of Shubin by the Beloretsk Town Court,
Republic of Bashkortostan).
- Thirdly,
the Government referred to Article 208 of the Code of Civil Procedure
and Article 395 of the Civil Code as providing grounds for
compensation of pecuniary damage. The former allows index-linking of
judicial awards and its application is not conditional on the
establishment of fault for delays; several examples of its successful
application were provided. The latter allows the claiming of default
interest and further compensation for additional pecuniary damage
arising from delayed enforcement; two Supreme Court decisions
applying this provision in non-enforcement cases in 2002 and 2006
were provided.
- Lastly,
the Government submitted that the Supreme Court had prepared a draft
constitutional law introducing a domestic remedy against excessive
length of judicial proceedings and delayed enforcement of judgments
and that it would shortly be considered by the Government.
- The
Government concluded that Russian law provided for an aggregate of
various remedies which should be considered as a whole; they were
formulated with clarity and applied in practice as required by
Article 13.
B. Court’s assessment
1. General principles
- The
Court recalls that Article 13 gives direct expression to the States’
obligation, enshrined in Article 1 of the Convention, to protect
human rights first and foremost within their own legal system. It
therefore requires that the States provide a domestic remedy to deal
with the substance of an “arguable complaint” under the
Convention and to grant appropriate relief (see Kudła v.
Poland [GC], no. 30210/96, § 152, ECHR 2000 XI).
- The scope of the Contracting States’ obligations
under Article 13 varies depending on the nature of the applicant’s
complaint; the “effectiveness” of a “remedy”
within the meaning of Article 13 does not depend on the certainty of
a favourable outcome for the applicant. At the same time, the remedy
required by Article 13 must be “effective” in practice as
well as in law in the sense either of preventing the alleged
violation or its continuation, or of providing adequate redress for
any violation that has already occurred. Even if a single remedy does
not by itself entirely satisfy the requirements of Article 13, the
aggregate of remedies provided for under domestic law may do so (see
Kudła, cited above, §§ 157-158, and
Wasserman v. Russia (no. 2),
no. 21071/05, § 45, 10 April 2008).
- As
regards more particularly length-of-proceedings cases, a remedy
designed to expedite the proceedings in order to prevent them from
becoming excessively lengthy is the most effective solution (see
Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 183, ECHR 2006 ...). Likewise, in cases concerning
non-enforcement of judicial decisions, any domestic means to prevent
a violation by ensuring timely enforcement is, in principle, of
greatest value. However, where a judgment is delivered in favour of
an individual against the State, the former should not, in principle,
be compelled to use such means (see,
mutatis mutandis,
Metaxas,
cited above, § 19): the burden to comply with such a
judgment lies primarily with the State authorities, which should use
all means available in the domestic legal system in order to speed up
the enforcement, thus preventing violations of the Convention (see,
mutatis mutandis, Akashev, cited above, §21-22).
- States
can also choose to introduce only a compensatory remedy, without that
remedy being regarded as ineffective. Where such a compensatory
remedy is available in the domestic legal system, the Court must
leave a wider margin of appreciation to the State to allow it to
organise the remedy in a manner consistent with its own legal system
and traditions and consonant with the standard of living in the
country concerned. The Court is nonetheless required to verify
whether the way in which the domestic law is interpreted and applied
produces consequences that are consistent with the Convention
principles, as interpreted in the light of the Court’s case-law
(see Scordino, cited above, § 187-191). The Court
has set key criteria for verification of the effectiveness of a
compensatory remedy in respect of the excessive length of judicial
proceedings. These criteria, which also apply to non-enforcement
cases (see Wasserman,
cited above, §§ 49 and 51), are as follows:
an action for
compensation must be heard within a reasonable time (see Scordino,
cited above, § 195 in fine);
the compensation
must be paid promptly and generally no later than six months from
the date on which the decision awarding compensation becomes
enforceable (ibid., § 198);
the procedural rules
governing an action for compensation must conform to the principle
of fairness guaranteed by Article 6 of the Convention (ibid.,
§ 200);
the rules regarding
legal costs must not place an excessive burden on litigants where
their action is justified (ibid., § 201);
the level of
compensation must not be unreasonable in comparison with the awards
made by the Court in similar cases (ibid., §§
202-206 and 213).
- On
this last criterion, the Court indicated that, with regard to
pecuniary damage, the domestic courts are clearly in a better
position to determine the existence and quantum. The situation is,
however, different with regard to non-pecuniary damage. There exists
a strong but rebuttable presumption that excessively long proceedings
will occasion non-pecuniary damage (see Scordino, cited above,
§§ 203-204, and Wasserman, cited above, §50).
The Court considers this presumption to be particularly strong in the
event of excessive delay in enforcement by the State of a judgment
delivered against it, given the inevitable frustration arising from
the State’s disregard for its obligation to honour its debt and
the fact that the applicant has already gone through judicial
proceedings and obtained success.
2. Application of the principles to the present case
(a) Preventive remedies
- The
Court recalls that it has already found in several cases that there
was no preventive remedy in the Russian legal system which could have
expedited the enforcement of a judgment against a State authority
(see Lositskiy v. Russia, no. 24395/02, §§ 29-31,
14 December 2006, and Isakov v. Russia,
no. 20745/04, § 21-22, 19 June 2008). It found in
particular that the bailiffs did not have power to compel the State
to pay the judgment debt.
- The
bailiffs’ incapacity to influence in any way the enforcement of
the judgments in the applicant’s favour, let alone to bring him
relief, was also demonstrated in the present case. In April and June
2004 enforcement proceedings were instituted by bailiffs in respect
of the judgments of 14 April and 4 December 2003. In
July 2004 they were discontinued without bringing any result. The
Rostov Regional Directorate of the Ministry of Justice informed the
applicant by a letter of 12 July 2004 that the bailiffs did not have
power to seize funds from the debtor authority’s main bank
account (лицевой
счет),
while its settlements account (расчетный
счет),
on which bailiffs could seize funds, contained none.
- The
Government further considered that another remedy provided for by
Chapter 25 of the Code of Civil Procedure was capable of producing a
preventive effect. Yet the Court has already assessed its
effectiveness and concluded that a judicial appeal against the debtor
authority’s inaction would yield a declaratory judgment
reiterating what was in any event evident from the original judgment,
namely that the State was to honour its debt (see Moroko,
cited above, § 25). As to courts’ capacity to order
remedial action under Article 258 of the Code of Civil Procedure,
this new judgment would not bring the applicant closer to his desired
goal, that is the actual payment of the judicial award (see
Jasiūnienė v. Lithuania (dec.), no. 41510/98,
24 October 2000, and Plotnikovy
v. Russia, no. 43883/02, § 16, 24 February
2005). It is indicative that, in the only example of application of
this provision submitted to the Court (see paragraph 91 above), the
Government did not specify if the defendant authority had effectively
complied with the domestic court’s order to pay the judicial
award within one working day. The Court therefore considers that this
remedy does not allow effective prevention of a violation on account
of non-enforcement of a judgment against the State.
- As
to Article 315 of the Criminal Code mentioned by the Government and
the wide array of sanctions it provides for, the Court does not
exclude that such coercive action may contribute to change the
attitude of those who unacceptably delay the execution of judgments.
The Court has, however, seen no evidence of its effectiveness in
practice. On the contrary, no use of this provision was made despite
the applicant’s repeated complaints to the competent
authorities, including prosecutors (see paragraph 80 above). In these
circumstances, the Court cannot consider this provision to be
effective both in theory and in practice as required by Article 13 of
the Convention.
(b) Compensatory remedies
(i) Pecuniary damage
- The
Court has also considered on several occasions the question of the
effectiveness of certain compensatory remedies relied on by the
Government.
- As
regards the compensation of pecuniary damage for delays in
enforcement, the Government referred to the possibilities offered by
Article 395 of the Civil Code and by Article 208 of the
Code of Civil Procedure. As regards the former, the Court has been
provided with little evidence demonstrating the effectiveness of this
remedy. The two judgments quoted by the Government are far from
showing the existence of a widespread and consistent case-law in this
regard. On the contrary, in one of the two cases mentioned lower
courts thrice rejected the claim for compensation lodged under
Article 395 on the ground that the creditor had not proved that the
debtor institution had used the unpaid sum for itself and was thus
responsible under that provision. In this connection the Court refers
to its finding that a remedy the use of which is conditional on the
debtor’s fault is impracticable in cases of non-enforcement of
judgments by the State (see Moroko, cited above, § 29,
and paragraphs 111-113 below).
- The
situation is different as regards the remedy provided for by Article
208 of the Code of Civil Procedure allowing index-linking of monetary
awards. The Court notes that individuals, like the applicant, were
frequently awarded compensation for inflation losses on the basis of
Article 208 of the Code of Civil Procedure. Of particular importance
is the fact emphasised by the Government and illustrated by specific
examples that this compensation was calculated and awarded in a
straightforward procedure without requiring the authorities’
fault or unlawful action to be evidenced by the plaintiff. The Court
further notes that this compensation is calculated on the basis of an
objective official index of retail prices, which actually reflects
the depreciation of the national currency (compare Akkuş
v. Turkey, 9 July 1997, §§ 30-31, Reports
1997 IV, and Aka v. Turkey, 23 September 1998,
§§ 48-51, Reports 1998 VI). This remedy is
thus capable of adequately compensating inflation losses. That the
applicant was awarded such compensation on numerous occasions also
tends to confirm that the provision is applicable by courts in
non-enforcement cases.
- On
the other hand, the payment of such compensation awards was delayed
in the present case, thus severely undermining the effectiveness of
this remedy in practice. The Court accepts that the authorities need
time in which to make payment. It recalls, however, that the period
should not generally exceed six months from the date on which the
decision awarding compensation becomes enforceable (see Scordino,
cited above, § 198). Having regard to all the material at
its disposal, the Court is not convinced that this requirement is
systematically satisfied in respect of payment of compensation
awarded by domestic courts under Article 208 of the Code of Civil
Procedure. However, even assuming that the requirement of speedy
payment of such compensation is met, this remedy alone would not
provide sufficient redress as it can only compensate damage resulting
from monetary depreciation (see paragraph 59 above).
(ii) Non-pecuniary damage
- The
Court has next to consider whether Chapter 59 of the Civil Court
referred to by the Government constitutes an effective remedy for
compensation of non-pecuniary damage in the event of non-enforcement
of a judicial decision. The Court recalls that it has already
assessed the effectiveness of this remedy in several recent cases in
the context of both Article 35 § 1 and Article 13 of the
Convention.
- The
Court found that, while the possibility of such compensation was not
totally excluded, this remedy did not offer reasonable prospects of
success, being notably conditional on the establishment of the
authorities’ fault (see Moroko, cited above, §§ 28-29).
The Government did not contest in the present case that compensation
under Chapter 59 was subject to this condition, unlike the indexation
under Article 208 of the Code of Civil Procedure (see paragraph 107
above).
- The
Court refers in this respect to a very strong, albeit rebuttable,
presumption that an excessive delay in execution of a binding and
enforceable judgment will occasion non-pecuniary damage (see
paragraph 100 above). That compensation of non-pecuniary damage
in non-enforcement cases is conditional on the respondent authority’s
fault is difficult to reconcile with this presumption. Indeed,
enforcement delays found by the Court are not necessarily due to
failings of the respondent authority in a given case but may be
attributable to deficient mechanisms at the federal and/or local
level, not least to excessive complexities and formalism of the
budgetary and financial procedures which considerably delay transfers
of funds between responsible authorities and their subsequent payment
to final beneficiaries.
- The
Court notes that the Civil Code lists a very limited number of
situations in which compensation for non-pecuniary damage is
recoverable irrespective of the respondent’s fault (notably
Articles 1070 § 1 and 1100). Neither excessively
lengthy proceedings nor delays in enforcement of judicial decisions
appear in this list. The Code provides, in addition, for damage
caused by the administration of justice to be compensated if the
fault of the judge is established by a final judicial conviction
(Article 1070 § 2).
- Against
this background, the Constitutional Court held in 2001 that the
constitutional right to compensation by the State for the damage
caused by procedural acts, including excessively lengthy proceedings,
should not be tied in with the individual fault of a judge.
Referring, inter alia, to Article 6 of the Convention, the
Constitutional Court held that Parliament should legislate on the
grounds and procedure for such compensation. The Court notes,
however, that no legislation has yet been enacted to that effect.
- The
Government argued nonetheless that Chapter 59 had been successfully
applied in practice, quoting four specific examples of domestic
case-law. The Court notes that the same examples have been quoted by
the Government in other similar cases and confirms its view that they
appear as exceptional and isolated instances rather than evidence of
established and consistent case-law. They cannot therefore alter the
Court’s earlier conclusion that the remedy in issue is not
effective in both theory and practice.
- Moreover,
the Court notes that even in such exceptional cases of application of
Chapter 59, the level of the compensation awarded for non-pecuniary
damage was at times unreasonably low in comparison with the awards
made by the Court in similar non-enforcement cases. For instance, in
the case of Butko quoted by the Government, the plaintiff
received RUB 2,000 (EUR 55) in respect of non-pecuniary
damage (decision of 3 August 2004). The same amount was awarded
under this head to V. Mukhlynova in the case of Akuginova and
others also mentioned by the Government (decision of 22 January
2006). The Court further recalls that it has already found in two
other cases that the amounts awarded to the applicants in respect of
non-pecuniary damage incurred through belated enforcement of
judgments were manifestly unreasonable in the light of the Court’s
case-law (see Wasserman, cited above, § 56, and
Gayvoronskiy v. Russia, no. 13519/02, § 39, 25 March
2008). The compensation was, in addition, awarded in excessively
lengthy proceedings in the former case and was itself paid with
considerable delay in the latter.
- Having
regard to the aforementioned shortcomings, the Court considers that
the remedy provided for by Chapter 59 of the Civil Code cannot be
considered as effective both in theory and in practice as required by
Article 13 of the Convention.
(c) Conclusion
- The
Court concludes that there was no effective domestic remedy, either
preventive or compensatory, that allows for adequate and sufficient
redress in the event of violations of the Convention on account of
prolonged non-enforcement of judicial decisions delivered against the
State or its entities. There is accordingly a violation of Article 13
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Relying
on Article 14 of the Convention, the applicant complained of
discrimination on account on the authorities’ alleged failure
to apply the Compulsory Social Insurance Act 1998 (No.125-ФЗ)
to the liquidators of the Chernobyl disaster on the same terms as to
other professional groups. He submitted in particular that he had not
received default interest as provided for by this Act. The Government
argued that this question concerned the application of domestic law
and was solely within the competence of the domestic courts.
- The
Court notes that the Shakhty Town Court’s judgment of
4 December 2003 granted the applicant’s claim under
the aforementioned Act (see paragraph 14 above). In any event, the
applicant’s complaint about alleged discrimination, should
first have been submitted to the domestic courts under Article 35 § 1
of the Convention. The applicant failed to demonstrate that he had
exhausted domestic remedies in this regard. Nor did he substantiate
his allegation before the Court. The Court therefore finds no
appearance of a violation of Article 14 and rejects this complaint.
IV. ALLEGED SHORTFALL IN PAYMENT OF JUST SATISFATION DUE
UNDER THE COURT’S JUDGMENT OF 7 MAY 2002
- The
applicant also complained about the authorities’ failure to pay
him the full amount of just satisfaction awarded by the Court’s
judgment of 7 May 2002. According to his calculation, the sum of
EUR 3,000 awarded was equivalent at the date of payment to
RUB 94,981.50, while he only received RUB 92,724.60. He
accordingly claimed a shortfall of RUB 2,256.90.
- The
Court reiterates that under Article 46 § 2 of the
Convention, the supervision of the execution of its judgments is
entrusted to the Committee of Ministers (see paragraphs 10-11 above).
The Court has no competence to examine this complaint, which should
have been submitted to the Committee of Ministers (see Haase and
others v. Germany (dec.), no. 34499/04, 7 February 2008).
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- The
Court notes at the outset that non-enforcement or delayed enforcement
of domestic judgments constitutes a recurrent problem in Russia that
has led to numerous violations of the Convention. The Court has
already found such violations in more than 200 judgments since the
first such finding in the Burdov case in 2002. The Court
therefore finds it timely and appropriate to consider this second
case brought by the same applicant under Article 46 of the
Convention, which reads as follows:
“Article 46 Binding force and execution of
judgments
1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties’ submissions
- The
applicant submitted that the Russian authorities’ recurrent
failure to enforce domestic judicial decisions delivered against them
constituted a systemic problem as demonstrated by repeated
non-enforcement of such decisions in his case.
- The
Government argued that no such problem existed in respect of either
enforcement of judgments or domestic remedies. They argued that the
Constitutional Court had not contested the existence of a special
procedure for the execution of judicial decisions against the State
(judgment of 14 July 2005). There were further specific regulations
governing payment of benefits to Chernobyl victims. In 2007
considerable budgetary allocations were additionally made to pay
outstanding debts under domestic judgments and the actual needs in
such funds were reflected in the 2007 budget. The Government
concluded that there were clear mechanisms for enforcement of such
decisions, notably in respect of Chernobyl victims. The complexity of
these mechanisms was attributable to the multilevel structure of the
budgetary system and to the need for coordination between federal and
local authorities. The Government submitted, in addition, some
statistical information about enforcement of judgments provided by
federal ministries and bailiffs.
B. The Court’s assessment
1. General principles
- The
Court recalls that Article 46 of the Convention, as interpreted in
the light of Article 1, imposes on the respondent State a legal
obligation to implement, under the supervision of the Committee of
Ministers, appropriate general and/or individual measures to secure
the right of the applicant which the Court found to be violated. Such
measures must also be taken in respect of other persons in the
applicant’s position, notably by solving the problems that have
led to the Court’s findings (see Scozzari and Giunta v.
Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000
VIII; Christine Goodwin v. the United Kingdom [GC], no.
28957/95, § 120, ECHR 2002 VI; Lukenda v. Slovenia,
no. 23032/02, § 94, ECHR 2005 X; and S. and
Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04,
§ 134, ECHR 2008 ...). This obligation was consistently
emphasised by the Committee of Ministers in the supervision of the
execution of the Court’s judgments (see, among many
authorities, Interim Resolutions DH(97)336 in cases concerning the
length of proceedings in Italy; DH(99)434 in cases concerning the
action of the security forces in Turkey; ResDH(2001)65 in the case of
Scozzari and Giunta v. Italy; ResDH(2006)1 in the cases of
Ryabykh and Volkova).
- In
order to facilitate effective implementation of its judgments along
these lines, the Court may adopt a pilot-judgment
procedure allowing it to clearly identify in a judgment the existence
of structural problems underlying the violations and to indicate
specific measures or actions to be taken by the respondent state to
remedy them (see Broniowski v. Poland
[GC], 31443/96, §§ 189-194 and the operative part, ECHR
2004-V, and Hutten-Czapska v. Poland
[GC] no. 35014/97, ECHR 2006-... §§ 231-239 and the
operative part). This adjudicative approach is however pursued with
due respect for the Convention organs’ respective functions: it
falls to the Committee of Ministers to evaluate the implementation of
individual and general measures under Article 46 § 2 of the
Convention (see, mutatis mutandis, Broniowski v.
Poland (friendly settlement) [GC], no. 31443/96, § 42,
ECHR 2005 IX, and Hutten-Czapska v. Poland (friendly
settlement) [GC], no. 35014/97, § 42,
28 April 2008).
127. Another important aim of the
pilot-judgment procedure is to induce the respondent State to resolve
large numbers of individual cases arising from the same structural
problem at the domestic level, thus implementing the principle of
subsidiarity which underpins the Convention system. Indeed, the
Court’s task, as defined by Article 19, that is to “ensure
the observance of the engagements undertaken by the High Contracting
Parties in the Convention and the Protocols thereto”, is not
necessarily best achieved by repeating the same findings in large
series of cases (see, mutatis mutandis,
E.G. v. Poland (dec.), no. 50425/99, § 27,
23 September 2008, § 27). The object of
the pilot-judgment procedure is to facilitate the speediest and most
effective resolution of a dysfunction affecting the protection of the
Convention rights in question in the national legal order (see
Wolkenberg and Others v. Poland (dec.), no. 50003/99,
§ 34, ECHR 2007 ...
(extracts)). While the respondent State’s
action should primarily aim at the resolution of such a dysfunction
and at the introduction, where appropriate, of effective domestic
remedies in respect of the violations in question, it may also
include ad hoc
solutions such as friendly settlements with the applicants or
unilateral remedial offers in line with the Convention requirements.
The Court may decide to adjourn examination of all similar cases,
thus giving the respondent State an opportunity to settle them in
such various ways (see, mutatis mutandis, Broniowski,
cited above, § 198, and Xenides-Arestis v. Turkey,
no. 46347/99, § 50, 22 December 2005).
- If,
however, the respondent State fails to adopt such measures following
a pilot judgment and continues to violate the Convention, the Court
will have no choice but to resume examination of all similar
applications pending before it and to take them to judgment so as to
ensure effective observance of Convention (see, mutatis
mutandis, E.G.,
cited above, § 28).
Application of the principles to the present case
(a) Application of the pilot-judgment procedure
- The
Court notes that the present case can be distinguished in some
respects from certain previous “pilot cases”, such as
Broniowski
and Hutten-Czapska,
for example. In fact, persons in the same position as the applicant
do not necessarily belong to “an identifiable class of
citizens” (compare Broniowski,
cited above, § 189, and Hutten-Czapska,
cited above, § 229). Furthermore, the two aforementioned
judgments were the first to identify new structural problems at the
root of numerous similar follow-up cases, while the present case
comes to be considered after some 200 judgments have amply
highlighted the non-enforcement problem in Russia.
- Notwithstanding
these differences, the Court considers it appropriate to apply the
pilot-judgment procedure in this case, given notably the recurrent
and persistent nature of the underlying problems, a large number of
people affected by them in Russia and the urgent need to grant them
speedy and appropriate redress at the domestic level.
(b) Existence of a practice incompatible with the
Convention
- The
Court finds, at the outset, that the violations found in the present
judgment were neither prompted by an isolated incident, nor
attributable to a particular turn of events in this case, but were
rather the consequence of regulatory shortcomings and/or
administrative conduct of the authorities in the execution of binding
and enforceable judgments ordering monetary payments by State
authorities (compare Broniowski,
cited above, § 189, and Hutten-Czapska,
cited above, § 229).
132. Although
the Government denied such a situation in their additional
observations, their submissions in the present case appear to run
against an almost undisputed recognition at both domestic and
international level of the existence of structural problems in this
field (see paragraphs 25 and 38-45 above). The problems appear, in
addition, to have been acknowledged by the Russian competent
authorities (see notably CM/Inf/DH(2006)45, cited above) and
are being repeatedly emphasised by the Committee of Ministers. The
Committee’s recent decisions noted, in particular, that the
structural problems in question in the Russian legal system severely
affected, by their nature and scale, its effectiveness and caused
very numerous violations of the Convention (see paragraph 39 above).
- The
important concerns voiced and the findings made by various
authorities and institutions are consonant with some 200 judgments of
the Court which highlighted the multiple aspects of the underlying
structural problems, which do not affect only Chernobyl victims, as
in the present case, but also other large groups of the Russian
population, including particularly some vulnerable groups. The State
has thus been very frequently found to considerably delay the
execution of judicial decisions ordering payment of social benefits
such as pensions or child allowances, of compensation for damage
sustained during military service or of compensation for wrongful
prosecution. The Court cannot ignore the fact that approximately 700
cases concerning similar facts are currently pending before it
against Russia and that some of the cases, like the present one, lead
the Court to find a second set of violations of the Convention in
respect of the same applicants (see Wasserman (no. 2), cited
above, and Kukalo v. Russia (no. 2), no.
11319/04, 24 July 2008). Moreover, the victims of
non-enforcement or delayed enforcement dispose of no effective
remedy, either preventive or compensatory, that allows for adequate
and sufficient redress at the domestic level (see paragraphs 101-117
above).
- The
Court’s findings, taken in conjunction with the other material
in its possession, thus clearly indicate that such breaches reflect a
persistent structural dysfunction. The Court notes with grave concern
that the violations found in the present judgment occurred several
years after its first judgment of 7 May 2002, notwithstanding
Russia’s obligation under Article 46 to adopt, under the
supervision of the Committee of Ministers, the necessary remedial and
preventive measures, both at individual and general levels. The Court
notes in particular that non-compliance with one of the judgments in
the applicant’s favour lasted until August 2007, not least
because of the competent authorities’ failure to adopt the
necessary procedures (see paragraphs 80-81 above).
- In
view of the foregoing, the Court concludes that the present situation
must be qualified as a practice incompatible with the Convention (see
Bottazzi v. Italy [GC], no. 34884/97, § 22,
ECHR 1999 V).
(c) General measures
- The
Court notes that the problems at the basis of the violations of
Article 6 and Article 1 of Protocol No. 1 found in this case are
large-scale and complex in nature. Indeed, they do not stem from a
specific legal or regulatory provision or a particular lacuna in
Russian law. They accordingly require the implementation of
comprehensive and complex measures, possibly of a legislative and
administrative character, involving various authorities at both
federal and local level. Subject to monitoring by the Committee of
Ministers, the respondent State remains free to choose the means by
which it will discharge its legal obligation under Article 46 of the
Convention, provided that such means are compatible with the
conclusions set out in the Court’s judgment (see Scozzari
and Giunta, cited above, § 249).
- The
Court notes that the adoption of such measures has been thoroughly
considered by the Committee of Ministers in cooperation with the
Russian competent authorities (see decisions and documents cited in
paragraphs 39-40 above). The Committee’s decisions and
documents show that although the implementation of the necessary
measures is far from being completed, further actions are being
considered or taken in this respect (see the main avenues outlined in
paragraph 40 above). The Court notes that this process raises a
number of complex legal and practical issues which go, in principle,
beyond the Court’s judicial function. It will thus abstain in
these circumstances from indicating any specific general measure to
be taken. The Committee of Ministers is better placed and equipped to
monitor the necessary reforms to be adopted by Russia in this
respect. The Court therefore leaves it to the Committee of Ministers
to ensure that the Russian Federation, in accordance with its
obligations under the Convention, adopts the necessary measures
consistent with the Court’s conclusions in the present
judgment.
- The
Court observes, however, that the situation is different as regards
the violation of Article 13 on account of the lack of effective
domestic remedies. In accordance with Article 46 of the Convention,
the Court’s findings in paragraphs 101-117 above clearly
require the setting up of an effective domestic remedy or a
combination of remedies allowing adequate and sufficient redress to
be granted to large numbers of people affected by the violations in
question. It appears highly unlikely in the light of the Court’s
conclusions that such an effective remedy can be set up without
changing the domestic legislation on certain specific points.
- In
this respect, the Court attaches considerable importance to the
findings of the Russian Constitutional Court, which has invited
Parliament since January 2001 to set up a procedure for compensation
of damage arising, inter alia, from excessively lengthy
proceedings. Of particular importance is the finding made by
reference notably to Article 6 of the Convention that such
compensation should not be conditional on the establishment of fault
(see paragraph 32-33 above). The Court also welcomes the legislative
initiative recently taken by the Supreme Court in this area and notes
the bills tabled in Parliament on 30 September 2008 with a view to
introducing remedies in respect on the violations in question (see
paragraphs 34-36 above). The Court notes with interest the reference
to the Convention standards as a basis for determining compensation
for damage, and that the average amounts of compensation for delayed
enforcement were calculated by reference to the Court’s
case-law (see paragraphs 35 and 36 above).
- It is not, however, for the Court to assess the
overall adequacy of the ongoing reform, nor to specify what would be
the most appropriate way to set up the necessary domestic remedies
(see Hutten-Czapska, cited above, § 239). The State
may either amend the existing range of legal remedies or add new
remedies to secure genuinely effective redress for the violation of
the Convention rights concerned (see Lukenda, cited above,
§ 98; Xenides-Arestis, cited above, § 40).
It is also for the State to ensure, under the supervision of the
Committee of Ministers, that a new remedy or a combination of
remedies respects both in theory and in practice the requirements of
the Convention as set out in the present judgment (see notably
§§ 96-100). In so doing, the authorities may also have
due regard to the Committee of Ministers’ Recommendation
Rec(2004)6 to member states on the improvement of domestic remedies.
- The
Court accordingly concludes that the respondent State must introduce
a remedy which secures genuinely effective redress for the violations
of the Convention on account of the State authorities’
prolonged failure to comply with judicial decisions delivered against
the State or its entities. Such a remedy must conform to the
Convention principles as laid down notably in the present judgment
and be available within six months from the date on which the present
judgment becomes final (compare Xenides-Arestis, cited above,
§ 40 and point 5 of the operative part).
(d) Redress to be granted in similar cases
- The
Court recalls that one of the aims of the pilot-judgment procedure is
to allow the speediest possible redress to be granted at the domestic
level to the large numbers of people suffering from the structural
problem identified in the pilot judgment (see paragraph 127 above).
It may thus be decided in the pilot judgment that the proceedings in
all cases stemming from the same structural problem be adjourned
pending the implementation of the relevant measures by the respondent
State. The Court considers it appropriate to adopt a similar approach
following the present judgment, while differentiating between the
cases already pending before the Court and those that could be
brought in the future.
(i) Applications lodged after the delivery of the
present judgment
- The
Court will adjourn the proceedings on all new applications lodged
with the Court after the delivery of the present judgment, in which
the applicants complain solely of non-enforcement and/or delayed
enforcement of domestic judgments ordering monetary payments by State
authorities. The adjournment will be effective for a period of one
year after the present judgment will become final. The applicants in
these cases would be informed accordingly.
(ii) Applications lodged before the delivery of the
present judgment
- The
Court decides, however, to follow a different course of action in
respect of the applications lodged before the delivery of the
judgment. In the Court’s view, it would be unfair if the
applicants in such cases, who have allegedly been suffering for years
of continuing violations of their right to a court and sought relief
in this Court, were compelled yet again to resubmit their grievances
with the domestic authorities, be it on the grounds of a new remedy
or otherwise.
- The
Court therefore considers that the respondent State must grant
adequate and sufficient redress, within one year from the date on
which the judgment becomes final, to all victims of non-payment or
unreasonably delayed payment by State authorities of a domestic
judgment debt in their favour who lodged their applications with the
Court before the delivery of the present judgment and whose
applications were communicated to the Government under Rule 54 §
2(b) of the Rules of the Court. It is recalled that delays in the
enforcement of judgments should be calculated and assessed by
reference to the Convention requirements and, notably, in accordance
with the criteria as defined in the present judgment (see in
particular paragraphs 66-67 and 73 above). In the Court’s view,
such redress may be achieved through implementation proprio motu
by the authorities of an effective domestic remedy in these cases or
through ad hoc
solutions such as friendly settlements with the applicants or
unilateral remedial offers in line with the Convention requirements
(see paragraph 127 above).
- Pending
the adoption of domestic remedial measures by the Russian
authorities, the Court decides to adjourn adversarial proceedings in
all these cases for one year from the date on which the judgment
becomes final. This decision is without prejudice to the Court’s
power at any moment to declare inadmissible any such case or to
strike it out of its list following a friendly settlement between the
parties or the resolution of the matter by other means in accordance
with Articles 37 or 39 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed a global sum of EUR 40,000 in respect of
pecuniary and non-pecuniary damage. He referred to sufferings caused
by the State’s repeated and persistent failure to comply with
the domestic judgments notwithstanding his first successful
application to the Court. He supported his claim for pecuniary damage
by the authorities’ alleged failure to pay him default interest
under the Compulsory Social Insurance Act 1998 (see paragraph 118
above).
- The
Government submitted that the applicant had suffered no pecuniary
damage and that a finding of a violation would provide adequate just
satisfaction for any damage sustained. They referred to certain
non-enforcement cases in which the Court had either awarded modest
amounts (Plotnikovy v. Russia, no. 43883/02, § 34,
24 February 2005) in respect of non-pecuniary damage or decided that
the finding of a violation was sufficient (Poznakhirina v. Russia,
no. 25964/02, 24 February 2005; Shapovalova v. Russia,
no. 2047/03, 5 October 2006; Shestopalova and Others v.
Russia, no. 39866/02, 17 November 2005; and Bobrova v.
Russia, no. 24654/03, 17 November 2005).
- The
Court recalls that it has rejected the applicant’s complaint
about non-payment of default interest under the Compulsory Social
Insurance Act 1998 (see paragraph 119 above); it therefore also
rejects the applicant’s claim for pecuniary damage in this
regard.
- As
regards non-pecuniary damage, the Court accepts that the applicant
suffered mental distress and frustration on account of the violations
found. The Court furthermore considers that the question is ready for
decision and may be considered in the present judgment without
waiting for the adoption of general measures as decided above (see
paragraph 141 above).
- The
Court cannot agree with the Government that a finding of a violation
would provide adequate just satisfaction. The Court refers in this
respect to a very strong presumption that the authorities’
non-compliance or delayed compliance with a binding and enforceable
judgment will occasion non-pecuniary damage (see paragraphs 100 and
111 above). It transpires clearly from the great majority of its
judgments that such violations of the Convention give rise, in
principle, to frustration and distress that cannot be compensated by
the mere finding of a violation.
- Against
this background, the cases referred to by the Government appear
rather exceptional. Indeed, the Court’s position in these cases
may be explained by their very specific circumstances, not least by
the small size of domestic court awards (less than EUR 100 in
most of the cases) and the marginal significance of the awards in
relation to the applicants’ incomes (see Poznakhirina, cited
above, § 35).
- The
Court recalls that it determines the size of awards for non-pecuniary
damage taking into account such factors as the applicant’s age,
personal income, the nature of the domestic court awards, the length
of the enforcement proceedings and other relevant aspects (see
Plotnikovy, cited above, §34). The applicant’s
health is also taken into account, as well as the number of the
judgments that failed to be properly and/or timeously enforced. All
these factors may affect in various degrees the Court’s award
in respect of non-pecuniary damage and even lead, exceptionally, to
no award at all. At the same time, it is demonstrated rather clearly
by the Court’s case-law that such awards are, in principle,
directly proportionate to the period during which a binding and
enforceable judgment remained unenforced.
- Turning
to the circumstances of the present case, the Court recalls that by
the judgment of 7 May 2002 it awarded the same applicant EUR 3,000
in respect of non-pecuniary damage sustained on account of
enforcement delays ranging between almost one and three years within
the Court’s jurisdiction and concerning three domestic
judgments (see Burdov, cited above, §§36 and 47).
- In
the instant case the same applicant suffered from comparable
enforcement delays in respect of similar judicial awards under three
other domestic judgments. Accordingly, the violations found by the
Court would, in principle, call for a just satisfaction award equal
or very close to the one decided by the judgment of 7 May 2002. The
Court will, in addition, bear in mind that distress and frustration
arising from non-enforcement of domestic judgments may be heightened
by the existence of a practice incompatible with the Convention since
it seriously undermines, as a matter of principle, the citizens’
confidence in the judicial system. This factor has however to be
carefully balanced against the respondent State’s attitude and
efforts to combat such a practice with a view to meeting its
obligations under the Convention (see paragraph 137 above). The Court
must also take account of additional special circumstances in the
present case. Indeed, it must be accepted that the applicant’s
distress and frustration were exacerbated by the authorities’
persistent failure to honour their debts under the domestic judgments
notwithstanding the first finding of violations by the Court in his
case. As a result, the applicant had no choice but again to seek
relief through time-consuming international litigation before the
Court. In view of this important element, the Court considers that an
increased award would be appropriate in respect of non-pecuniary
damage in the present case.
- Having
regard to the foregoing and making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court awards
the applicant EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not claim any compensation for costs and expenses. The
Court therefore makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaint concerning the
authorities’ prolonged failure to comply with binding and
enforceable judgments in the applicant’s favour and the
remainder of the applicant’s complaints inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and of Article 1 of Protocol No. 1 on account of
the State’s prolonged failure to enforce three domestic
judgments ordering monetary payments by the authorities to the
applicant;
- Holds that there has been no violation of
Article 6 of the Convention and of Article 1 of Protocol No. 1 on
account of the enforcement of the judgments of 22 May 2007
and 21 August 2007;
- Holds that there has been a violation of Article
13 of the Convention on account of the lack of effective domestic
remedies in respect of non-enforcement or delayed enforcement of
judgments in the applicant’s favour;
- Holds that the above violations originated in a
practice incompatible with the Convention which consists in the
State’s recurrent failure to honour judgment debts and in
respect of which aggrieved parties have no effective domestic remedy;
- Holds that the respondent State must set up,
within six months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, an effective domestic remedy or combination of such
remedies which secures adequate and sufficient redress for
non-enforcement or delayed enforcement of domestic judgments in line
with the Convention principles as established in the Court’s
case-law;
- Holds that the respondent State must grant such
redress, within one year from the date on which the judgment becomes
final, to all victims of non-payment or unreasonably delayed payment
by State authorities of a judgment debt in their favour who lodged
their applications with the Court before the delivery of the present
judgment and whose applications were communicated to the Government
under Rule 54 § 2(b) of the Rules of the Court;
- Holds that pending the adoption of the above
measures, the Court will adjourn, for one year from the date on which
the judgment becomes final, the proceedings in all cases concerning
solely the non-enforcement and/or delayed enforcement of domestic
judgments ordering monetary payments by the State authorities,
without prejudice to the Court’s power at any moment to declare
inadmissible any such case or to strike it out of its list following
a friendly settlement between the parties or the resolution of the
matter by other means in accordance with Articles 37 or 39 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final, EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian Roubles at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President