CASE OF KALININ v. RUSSIA

FIRST SECTION

CASE OF KALININ v. RUSSIA

(Application no. 16086/04)

JUDGMENT

STRASBOURG

15 January 2015

This judgment is final but it may be subject to editorial revision.

In the case of Kalinin v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Khanlar Hajiyev, President,
Julia Laffranque,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 9 December 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16086/04) 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 Alexandr Anatolyevich Kalinin (“the applicant”), on 24 March 2004.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3. On 22 April 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

4. In accordance with the pilot judgment Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009), the application was adjourned pending its resolution at the domestic level.

5. On 29 April 2010 the Government informed the Court that the domestic judgment in the applicant’s favour had been enforced and requested the Court to consider the application on the merits, arguing, in particular, that the applicant had failed to comply with the minimum cooperation requirement. The Court therefore decided to resume examination of the present case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1957 and lives in Yoshkar‑Ola, the Mari‑El Republic.

7. The applicant, a military serviceman at the material time, was dismissed from military service on 28 October 1999. He challenged in court his superior’s orders related to the dismissal.

8. On 22 February 2001 the 101st Garrison Military Court, referring inter alia to Article 239.7 of the Code of Civil Procedure of the R.S.F.S.R. (see paragraph 12 below), allowed the applicant’s challenge of his dismissal from military service in part. The court annulled the respective orders of the commander of the military unit no. 69795 and obliged the commander to change the date of the applicant’s dismissal to 6 March 2000 and to pay him all the allowances due over the period between 28 October 1999 and 6 March 2000 without listing them. The court specified that the allowances were to be calculated in accordance with the instructions and rates applicable on the date of the actual payment. It further ordered the military unit to reimburse the applicant’s legal expenses in the amount of 212.52 Russian roubles (RUB). The court rejected the remainder of the claims as unfounded. The respondent was represented at the court room.

9. On 25 May 2001 the judgment was upheld on appeal by the 3rd Garrison Military Court and entered into force.

10. On several occasions, notably on 11 June, 20 July and 29 August 2001 and on 4 March and 22 June 2002, the applicant sent complaints to various authorities arguing that the above–mentioned judgments in his favour had been unfair. On 20 July 2001 and 4 March 2002 he requested the Presidium of the Supreme Court of Russia to quash those judgments by way of supervisory review and to suspend their execution. On 22 June 2002 he submitted, in his complaint to the Constitutional Court, that the judicial award had not been enforced.

11. On 8 July 2008 the amounts awarded were paid to the applicant in part. According to the Government, on 16 January 2009 the judgment was enforced in full.

II. RELEVANT DOMESTIC LAW

12. Chapter 34.1 of the Code of Civil Procedure of the R.S.F.S.R., as in force at the material time, set out the procedure for examination of the complaints against State bodies, public organisations and authorities violating rights and freedoms of the citizens. Article 239.7 of the Code provided that a copy of the judicial decision was to be forwarded, for rectification of violations established by a domestic court, to the head of the respondent organisation or authority. Article 239.8 of the Code provided that the judicial decision which had entered into force had binding force on the authority or the organisation concerned. Copies of the decision were to be sent to the respondent authority, as well as an individual concerned, within ten days.

13. On 30 April 2010 the Russian Parliament adopted the Compensation Act, which entered into force on 4 May 2010. For the relevant provisions of the Compensation Act see Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 29-30, 23 September 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

14. The applicant complained under Articles 6, 13 and 14 of the Convention that the judgment in his favour had not been enforced in a timely manner. The Court will examine his complaint under Article 6 and Article 1 of Protocol No. 1, which read as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... 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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

15. The Government submitted in their initial observations that the judgment had been enforced in full on 9 July 2008. In their additional observations they cited 16 January 2009 as the date of the enforcement. They argued that it was through the applicant’s own negligence that the judgment had not been enforced earlier. First, the Government submitted, with reference to the statement of the command of the respondent military unit, that the unit “had not received a copy of the judgment for processing in accordance with the established procedure”. Nonetheless, the applicant had not taken any steps to notify the respondent military unit of the award in his favour. Second, they submitted that he had failed to obtain a writ of execution from the court or to seek the bailiffs’ service’s assistance to accelerate the enforcement proceedings. Further, he did not lodge a claim for non-pecuniary damage with a court, and therefore failed to exhaust the domestic remedies. They invited the Court to strike the case out as an abuse of petition.

16. The applicant maintained his complaint. He argued, first, that the respondent authority was clearly aware of the contents of the judgment of 22 February 2001, since its representatives had been present in the court room. Otherwise, there was nothing to suggest that they had not received a copy of the judgment. Furthermore, with reference to Articles 239.7 and 239.8 of the Code of Civil Procedure of the R.S.F.S.R. he stressed that his claim was not a civil action but a complaint against an authority, that the court’s ruling, once final, immediately had had a binding force, and that in such proceedings he had not been under an obligation to request a writ of execution from the domestic court or to forward it to the respondent authority.

A. Admissibility

17. As regards the Government’s argument that the applicant’s complaint amounted to an abuse of petition, the Court reiterates that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references). The Court observes that the applicant brought to its attention a genuine complaint about delayed enforcement of the domestic judgment. Nothing in the case file reveals any appearance of an abuse of the right of individual petition. Accordingly, the Government’s objection must be dismissed.

18. As regards the non-exhaustion argument, the Court has already found that the suggested remedy was ineffective (see, among others, Burdov (no. 2), cited above, §§ 103 and 106-16).

19. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The Court’s case-law

20. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III). 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). Where a judgment is against the State, the defendant State authority must be duly notified thereof 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 compliance (see Akashev v. Russia, no. 30616/05, § 21, 12 June 2008).

21. At the same time, the Court has accepted that a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt (see Shvedov v. Russia, no. 69306/01, § 32, 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, among others, Burdov (no. 2), cited above, § 69). The creditor’s uncooperative behaviour may be an obstacle to timely enforcement of a judgment, thus alleviating the authorities’ responsibility for delays (see Belayev v. Russia (dec.), 36020/02, 22 March 2011). The Court has found, for example, that the authorities ought not to be held responsible for the applicants’ unexplained failure to follow the domestic enforcement procedure and, notably, for their deliberate and persistent refusal to provide the writs of enforcement (see Gadzhikhanov and Saukov v. Russia, nos. 10511/08 and 5866/09, §§ 27-31, 31 January 2012). It should be recalled, however, that the requirement of the creditor’s cooperation must not 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, and Burdov (no. 2), cited above, § 69).

2. Application to the present case

22. In the present case, the parties disagreed as to whether the delayed enforcement had been caused by the applicant’s uncooperative conduct.

23. The Court notes the applicant’s reference to his several petitions to higher courts by which he had raised the issues of both the unfairness of the initial judicial decision and the authorities’ failure to enforce them. However, the Court observes that, while at least one of them indeed mentioned the fact of the delayed enforcement, all those petitions were addressed to the judicial authorities with the aim to challenge the findings of the lower court in the part rejecting the remainder of the applicant’s claims (see paragraph 10 above). The Court further notes that some of those requests and petitions contained an explicit request to suspend enforcement pending re-consideration of the allegedly unfair judicial award. In any event, no suspension has ever been granted, and there is nothing to suggest that those petitions or the authorities’ replies were at any point forwarded either to the respondent military unit or to a court competent to suspend execution of the initial award. In these circumstances, the Court is unable to find that these petitions had had any bearing on the enforcement issue.

24. The Court will now turn to the Government’s arguments about the applicant’s failure to cooperate, as submitted by them.

25. First, the Government claimed that the applicant was under and obligation to notify the respondent military command of the judgment. The Court notes, however, that they have not submitted any evidence to confirm the impugned military command’s statement that the latter had not received a copy of the judgment and had been unaware of its contents. Further, that statement is even more surprising, given that the respondent authority was represented at the court room and was thus clearly aware of the outcome of the proceedings. In any event, Court has already found that where the defendant State authority intervenes as a party in court proceedings, it must automatically receive the original text of the judgment from the domestic court itself (see the case-law cited in paragraph 20 above) The Court does not discern, therefore, any need for the applicant to notify the respondent authority of the judgment (see, for the similar conclusion, Gadzhikhanov and Saukov, cited above, § 22).

26. Second, as regards the applicant’s failure to seek the bailiffs’ assistance and to obtain a writ of execution, the Court notes that the present case is different from the aforementioned Gadzhikhanov and Saukov. Indeed, in that case it was not disputed that the writs of execution had been sent to the applicants by the respective domestic courts, accompanied by clear instructions on further steps to be taken by the applicants. However, the applicants had withheld the writs for several years without a valid reason and had not forwarded them to the respective respondent authorities (see Gadzhikhanov and Saukov, cited above, §§ 27-31, and Shevchenko v. Russia, no. 11536/04, §§ 23-28, 22 October 2013).

27. By contrast to the above applications, in the present case, the Government did not submit – and otherwise there is nothing to suggest – that any writ of execution had at all been issued in respect of the judgment in the applicant’s favour. Further, in contrast to the above applications (see, for instance, Shevchenko, cited above, § 25), there is nothing to confirm that the applicant had been advised of the procedure to follow in order to obtain execution of the judgment. In fact, the parties did not submit any document or information to demonstrate that the applicant had in fact been advised of the necessity to solicit any writ of execution at a domestic court or to forward it to the respondent authority (see, for the outline of the relevant procedure referred to by the applicant and not disputed by the Government, paragraph 12 above). Finally, unlike in the aforementioned Gadzhikhanov and Saukov (cited above, §§ 5 and 17) it was not claimed that the enforcement of the judgment was impossible in the absence of the applicant’s cooperation. In fact, the Government themselves submitted that the judicial award had been executed in part as a follow-up of the prosecutor’s inquiry in 2008, and that the remainder of the allowances due to the applicant had been paid to him in 2009 irrespective of his alleged failure to obtain and submit the writs of execution.

28. In view of the above, the Court does not find on the evidence before it that the applicant failed to take minimally required steps to obtain execution of the judicial award or that his behaviour was an obstacle to enforcement of the judgment in her favour (see, by way of contrast, Gadzhikhanov and Saukov, cited above, §§ 27-31). Consequently, the Court considers that the authorities ought to be held responsible under the Convention for the non‑enforcement of the judicial award in his favour.

29. The Court further notes that the State has avoided paying the judgment debt pursuant to the final domestic judgment in the applicant’s favour for more than seven years, which is prima facie incompatible with the Convention requirements (see, among others, Kozodoyev and Others v. Russia, nos. 2701/04 et al., § 11, 15 January 2009).

30. Regard being had to the Government’s acknowledgments and to its own well-established practice, the Court finds that by failing, for a significant period of time, to comply with the enforceable judgment in the applicant’s favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving the money he could reasonably have expected to receive. The Court therefore considers that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in respect of the present application.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

31. The applicant may be understood to complain under the Convention that he did not have an effective domestic remedy against the non‑enforcement of the judgment. The Court will examine this issue under Article 13 which reads 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.”

32. The Government retorted that the applicant had not availed himself of a possibility to make a claim for non-pecuniary damages. The applicant maintained his complaint.

33. The Court notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. However, the Court does not find it necessary to separately examine the applicant’s complaint under Article 13 (see, for the Court’s reasoning in many similar cases, Tkhyegepso and Others v. Russia, nos. 44387/04 et al., §§ 19-24, 25 October 2011).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

34. The applicant complained under Articles 6, 13 and 14 of incorrect interpretation of the law and facts by the domestic courts, wrongful assessment of the evidence and a discretionary choice of evidence in the domestic proceedings, as well as about an impossibility to render a domestic judge responsible for an alleged abuse.

35. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36. 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

37. The applicant claimed 3,672,579 Russian roubles (RUB) (approximately 104,373 euros (EUR)) in respect of pecuniary damage. Of this amount, RUB 1,283,854 (approximately EUR 36,480) represented the combat allowance allegedly due to him from 6 March 2000 to 6 November 2008, RUB 5,400 (EUR 153) the amount of a medical allowance and RUB 246,825 (EUR 7,014) of other emoluments. The remainder of the sum, according to the applicant, represented various benefits he would have received during unspecified periods of time if not dismissed from military service, including the increase of his pension until the year 2018. He further claimed RUB 600,000 (approximately EUR 17,051) in respect of non–pecuniary damage.

38. The Government contested the claims as excessive and pointed out that the applicant had not submitted either detailed calculations or any documents evidencing that the damage had actually occurred.

39. The Court observes that the applicant’s claim in respect of pecuniary damage, although itemised, is not supported by any evidence. In fact, he did not provide any details in respect of the method of calculation he used and did not furnish any documents in this respect. Furthermore, the Court does not discern any causal link between the violation found and the pecuniary damage alleged. In these circumstances, it rejects the applicant’s claim in respect of pecuniary damage.

40. On the other hand, it awards the applicant EUR 6,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the claims under this head.

B. Costs and expenses

41. The applicant claimed RUB 6,000 (approximately EUR 170) for the costs and expenses, apparently incurred both before the domestic courts and this Court. He did not submit any documents in respect of this claim and explained that he had not kept relevant documents since he had hoped to obtain a resolution of the case at the domestic level and therefore to avoid proceedings before the Court. The Government contested the claim as unsubstantiated.

42. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court observes that the applicant had not furnished any evidence to demonstrate that the above expenses had been actually incurred. Regard being had to the documents in its possession and the above criteria, it rejects the applicant’s claim for costs and expenses.

C. Default interest

43. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non-enforcement of the judgment of 22 February 2001, as upheld on 25 May 2001, and under Article 13 of the Convention concerning the lack of an effective remedy against the non‑enforcement admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the delayed enforcement of the judgment in the applicant’s favour;

3. Holds that there is no need to examine separately the complaint under Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachKhanlar Hajiyev
Deputy RegistrarPresident

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