CASE OF KOROTYAYEVA AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF KOROTYAYEVA AND OTHERS v. RUSSIA

(Applications nos. 13122/11 and 2 others - see appended list)

JUDGMENT

STRASBOURG

18 July 2017

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

In the case of Korotyayeva and Others v. Russia,

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

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 27 June 2017,

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

PROCEDURE

1. The case originated in three applications (nos. 13122/11, 73303/11 and 19315/13) 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 three Russian nationals whose names are specified in the appended table.

2. The Russian Government (“the Government” ) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the Court.

3. In the wake of the pilot judgment in the case of Gerasimov and Others v. Russia, on various dates in December 2014 the applications were communicated to the Government for settlement or resolution (see Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 230-31 and point 13 of the operative part, 1 July 2014). The Court adjourned for two years, that is until 1 October 2016, the proceedings in all cases concerning non-enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State authorities (ibid., § 232 and point 14 of the operative part).

4. On 29 September 2016 the Government advised the Court that they were unable to settle the present applications within the above time-limit, as the domestic judgments in the applicants’ favour had remained unenforced.

5. Having regard to the expiry of the above-mentioned adjournment period, the Court has decided to resume the examination of the applications. The Court informed the parties at the communication stage that the cases, subject to settled case-law, would be allocated to the Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants are all Russian nationals living in different regions of Russia. Their personal details are set out in the appendix below.

A. Facts common for all cases

7. On various dates the applicants obtained binding judicial decisions ordering the State authorities to provide them with housing or perform other obligations in kind.

8. According to the latest information available to the Court, judgments became final as specified in the table below and either were enforced with a delay or have remained unenforced. The relevant details in respect of the judgments are listed in the appendix.

9. The applicants on several occasions applied to different Russian authorities seeking to accelerate the enforcement of the judicial awards in their favour.

B. Specific facts concerning modalities of enforcement

10. The applicant in case no. 73303/11 challenged lawfulness of his dismissal from military service alleging, in particular, that the judicial award in his favour of 28 May 2007 had not been complied with. By the final judgment of 12 May 2011 the Moscow Garrison Military Court rejected his action and established, inter alia, that the judgment of 28 May 2007 had been enforced in full on 25 March 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Federal Law No. 450-FZ amending the Compensation Act

11. On 14 December 2016 the Russian Parliament adopted Federal Law No. 450-FZ amending Federal Law No. 68-FZ on Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time (“the new Law” amending “the Compensation Act”). The amendments introduced provisions concerning compensation for violation of the right to enforcement within a reasonable time of a judgment ordering the State to fulfil obligations of a pecuniary and/or non-pecuniary nature. The new Law, signed by the President on 19 December 2016, entered into force on 1 January 2017. It extends the scope of the Compensation Act to cases concerning the non-enforcement of domestic judgments imposing obligations of a pecuniary or non-pecuniary nature on various domestic authorities, as follows.

12. The Compensation Act, as amended by the new Law, entitles a party (“an applicant”) to bring an action seeking compensation for the violation of his or her right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets, or a judgment ordering the federal authorities, authorities of the federal entities of the Russian Federation, local authorities, other bodies and organisations endowed with specific State or other public powers, or public and municipal servants to fulfil “other obligations of a pecuniary nature and (or) obligations of a non-pecuniary nature” (section 1(1) of the Compensation Act, as amended by section 1(1) of the new Law).

13. Such compensation can only be awarded if the alleged violation took place independently of the applicant’s own actions, except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or the right to enforcement of a judgment within a reasonable time (section 1(2) of the Compensation Act). A compensation award is not dependent on the courts establishing a fault on the part of the competent authorities (section 1(3) of the Compensation Act).

14. Compensation is awarded in monetary form (section 2(1) of the Compensation Act). The amount of compensation awarded should be determined by the courts in accordance with the applicant’s claims, the circumstances of the case, the length of the period during which the violation took place, the significance of its consequences for the applicant, the principles of reasonableness and fairness, and the practice of the European Court of Human Rights (section 2(2) of the Compensation Act).

15. Section 3 of the Compensation Act, as amended by section 1(2)(a) of the new Law, sets out the rules of jurisdiction and procedure. It provides, in particular, that a claim for compensation on account of delayed enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment ordering that compensation be paid from the State budget. Alternatively, a claim may be lodged at the end of the proceedings or after the compulsory enforcement of a judicial act imposing other obligations of a pecuniary or non-pecuniary nature on the authorities, but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the procedure for enforcement.

16. In the respective court proceedings the Russian Federation, a federal entity or a municipality is represented by a relevant financial authority and the main administrator of the relevant budget (section 3(9) of the Compensation Act as amended and supplemented by section 1(2)(b) of the new Law).

17. A court decision granting compensation is subject to immediate enforcement (section 4(4) of the Compensation Act). It may be appealed against in accordance with the procedural legislation in force (section 4(5)).

18. A judgment ordering different authorities to fulfil other obligations of a pecuniary or non-pecuniary nature is executed by the relevant financial body (section 5(2(2) of the Compensation Act as amended by section 1(3)(b) of the new Law). The costs of compensation awards are included in the federal budget, in the budgets of the federal entities and in local budgets (section 5(3) of the Compensation Act as amended).

19. Costs related to the implementation of the new Law should be recovered from the funds of the relevant budgets of the Russian Federation allocated for that purpose (section 2 of the new Law).

20. All individuals who have complained to the European Court of Human Rights that their right to enforcement of a judgment within a reasonable time has been violated may claim compensation in the domestic courts under the Compensation Act as amended within six months of the new Law’s entry into force, provided that the European Court has not ruled on the admissibility or merits of the complaint (section 3(2) of the new Law).

B. Other relevant domestic law provisions concerning enforcement of judgments

21. Other relevant domestic law provisions are summarised in Gerasimov and Others, cited above, §§ 87-112.

C. Military travel documents

22. Section 20 of the Military Service Act of 27 May 1998 No. 76-FZ provides that military servicemen and their family members have the right to travel free of charge, in particular, to and from a leave destination. According to the Order No. 200 of the Ministry of Defence dated 6 June 2001 and the enclosed Instruction, “travel documents” are specific claim forms, issued by the military authorities to servicemen and their family members for their travel, in particular, to and from a leave destination free of charge, and containing information on the travellers’ personal details, destination, military grade and the purpose of the trip. A serviceman receives travel tickets at the relevant transportation companies on presentation of the form.

THE LAW

I. JOINDER OF THE APPLICATIONS

23. Given that the applications at hand concern similar facts and complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of Court.

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

24. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given in their favour. They relied on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1 to the Convention, which read as follows:

Article 6 § 1

“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.”

25. The Government submitted that the judgments in the applicants’ favour either had been executed on the dates listed in the appended table or had remained unenforced as specified in the appendix, due to the complexity of the enforcement proceedings in respect of the obligations at stake, as well as the need to allocate significant budget funds for provision of housing. They further acknowledged their obligations under the pilot judgment Gerasimov and Others and stated that they would deploy all means to enforce the judgments which had remained without execution or resolve the issues by any appropriate means.

A. Admissibility

26. Having regard to the nature of the domestic awards (see the appendix as well as paragraph 22 above for relevant domestic legislation in case no. 73333/11), the Court considers that the applicants received, by virtue of the relevant judgments in their favour, a “legitimate expectation” to acquire a pecuniary asset which was sufficiently established to constitute a “possession” falling within the ambit of Article 1 of Protocol No. 1 to the Convention (see Gerasimov and Others, cited above, §§177-79, with further references).

27. The Court notes that the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

28. The Court further finds that the complaint under Article 6 in these three cases is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

29. The Court reiterates that execution of a judgment given by a court is an integral part of the “trial” for the purposes of Article 6 of the Convention; an unreasonably long delay in enforcement of a binding judgment may therefore breach the Convention (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II).

30. In so far as the applicant in case no. 73303/11 may be understood to disagree with the domestic court’s assessment of the enforcement status of the judgment of 28 May 2007 in his favour, the Court reiterates its constant approach that domestic courts are better placed to ascertain the proper method of enforcement and to decide the issue of whether and when full and appropriate compliance with a judgment has been secured. In accordance with its established case-law, the Court requires that any dispute in that respect be first and foremost examined by domestic courts. The Court may only depart from this principle and accept an argument about the improper enforcement of a judgment in the event of flagrant inconsistency between the judgment requirements and the defendant authority’s acts (see Gerasimov and Others, cited above, § 173 and the case-law cited therein). In the absence of any evidence of such “flagrant inconsistency”, the Court gives credit to the domestic court’s finding that the judgment of 28 May 2007 was enforced in full on 25 March 2010 (see paragraph 10 above and the table below).

31. In case no. 19315/13 the Government advised the Court that the domestic judgment had remained unenforced by 29 September 2016. In the absence of any subsequent comments from the parties, the Court will consider that the judgment has not been enforced to date.

32. Having regard to its case-law on the subject, the periods of non‑enforcement and the nature of the obligation in kind at stake in each of the present cases (see Gerasimov and Others, cited above, §§ 167-74), the Court considers that the delays in enforcement of the binding judgments in the applicants’ favour fell short of the Convention requirements. By failing to comply, for years, with the enforceable judgments in the applicants’ favour, the authorities breached the applicants’ right to a court. There has been a violation of Article 6 of the Convention in the three present cases.

33. The Court further finds that prolonged delays in the enforcement of the judgments in the applicants’ favour constituted an unjustified interference with their right to peaceful enjoyment of their possessions (see Gerasimov and Others, cited above, §§ 182-83). The Court concludes therefore that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the above applications.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

34. The applicants further complained, either explicitly or in substance, about the lack of an effective domestic remedy in respect of their non‑enforcement grievance. 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.”

35. The Government did not specify their position in relation to that issue in the present three cases.

36. The Court reiterates that by the pilot judgment in Gerasimov and Others it ordered the State, in cooperation with the Committee of Ministers, to set up an effective domestic remedy or combination of such remedies which secured adequate and sufficient redress for non‑enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State authorities in line with the Convention principles as established in the Court’s case-law (see Gerasimov and Others cited above, §§ 223-26 and point 12 of the operative part).

37. The Court now takes cognisance of the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary or non-pecuniary nature on the domestic authorities, introduced in the wake of the pilot judgment by Federal Law No. 450-FZ amending the Compensation Act of 2010. That statute, which entered into force on 1 January 2017, enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments ordering the domestic authorities to fulfil various obligations in kind (see paragraphs 11-20 above).

38. The Court further observes that the transitional provisions of the new law allow all applicants before the Court to lodge their complaints to domestic courts during six months after its entry into force (see paragraph 20 above). At the same time, the Court recalls that in the aforementioned pilot judgment it decided to follow a different course of action in respect of the applications lodged before the delivery of the judgment. The Court considered that it would be unfair if the applicants in such cases, who had 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 to the domestic authorities, be it on the grounds of a new remedy or otherwise (see Gerasimov and Others, cited above, § 230). The Court has therefore resumed examination of the present applications on their merits (see paragraph 5 above) notwithstanding the existence of a domestic remedy which is available to the applicants pursuant to the transitional provisions of the new law and, in case of Mr Shakhovorostov, will remain available until the domestic judgment in his favour is fully enforced.

39. The Court has not yet assessed the quality of the new remedy in force as of January 2017 and will examine this question in other cases which are more suitable for such analysis.

40. However, in the light of the adoption of the new domestic remedy the Court considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, mutatis mutandis, Tkhyegepso and Others v. Russia, nos. 44387/04 and 11 others, §§ 21-24, 25 October 2011; Pobudilina and Others v. Russia (dec.), nos. 7142/05 and 29 others, 29 March 2011; and several other cases). This ruling is without prejudice to the Court’s future assessment of the new remedy.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41. 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. Application no. 19315/13

42. The applicant in case no. 19315/13, who had been invited to submit his claims for just satisfaction before 2 January 2017, did not submit such claims. Accordingly, the Court considers that there is no call to award him any sum on that account.

43. The Court further notes from the Government’s submissions that the domestic judgment in the above case has remained unenforced to date (see the appended table). The State’s obligation to enforce that judgment is not in dispute in the present case (see, in particular, paragraph 25 above). The Court considers that the respondent State has an outstanding obligation to secure, by appropriate means, enforcement of the judgment in the applicant’s favour (see Pridatchenko and Others v. Russia, nos. 2191/03 and 3 others, § 68, 21 June 2007, and Salikova v. Russia, no. 25270/06, § 83, 15 July 2010).

B. Applications nos. 13122/11 and 73303/11

1. Pecuniary damage

44. The applicant in case no. 73303/11 claimed 160,304 euros (EUR) in respect of pecuniary damage. EUR 35,541 of that amount represented a cost of a round trip to Sidney for five persons which would constitute, according to the applicant, a proper execution of the judgment of 28 May 2007 in his favour; EUR 23,263 a one-time welfare payment allegedly due to the applicant which he had been unable to receive due to the change of the domestic welfare legislation during the enforcement period in respect of the second judgment; EUR 3,000 the amount paid to a psychologist; and the remainder represented a default interest in respect of the above sums. The Government disputed the claim as excessive, unsubstantiated and unrelated to the subject-matter of the dispute.

45. The Court agrees with the Government and considers that the applicant failed either to establish the causal link between the violation found and the amounts claimed or to substantiate his claims by making itemised calculations and producing invoices or other documentary evidence of the material loss he had allegedly sustained. It accordingly rejects the entirety of the applicant’s claims under this head.

2. Non-pecuniary damage

46. The applicant in case no. 13122/11 claimed “at least EUR 7,000” and the applicant in case no. 73303/11 claimed EUR 500,000 in respect of non-pecuniary damage. The Government disputed the claims as excessive.

47. Regard being had to the documents in its possession and to its case‑law, as well as to the circumstances of each case – and, in particular, the nature of the domestic awards and the number of domestic judgments concerned (see Gerasimov and Others, cited above, § 189) – the Court considers it reasonable to award EUR 6,000 to Ms Korotyayeva and EUR 3,200 to Mr Skovorodko in respect of non-pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of their claims under this head.

3. Costs and expenses

48. The applicant in case no. 73303/11 claimed EUR 7,008 in respect of costs and expenses. That amount comprised three payments of EUR 2,000 each to Ms Silkina, a lawyer, and a cost of a personal computer. The applicant submitted three legal assistance contracts with Ms Silkina – one in respect of the domestic proceedings and two others covering legal assistance in preparation of the application to the Court in respect of each domestic judgment separately – which show that the applicant had undertaken to reimburse her for the time spent in the domestic proceedings, as well as for assistance in preparation of the original application to the Court. He further submitted three invoices evidencing payments of the respective amounts.

49. The Government considered that the claim had not been substantiated with documents.

50. 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 are reasonable as to quantum. As regards the cost of a computer, the Court rejects the claim in this part as unrelated to the consideration of the present application by the Court. As regards the lawyer’s fee, the Court considers that the amount claimed is not reasonable to quantum, given a number of the applicant’s complaints which were declared inadmissible at an earlier stage, as well as a straightforward nature of the case at hand. Furthermore, the Court observes that neither the applicant’s submissions nor the case file contain information on the specific services covered by the invoices, or on the lawyer’s hourly or daily rate, or a detailed description of the work done in that case and the time spent on it. Thus, the Court considers that a significant reduction is necessary on those grounds (see Bykov v. Russia [GC], no. 4378/02, § 114, 10 March 2009). Having regard to all relevant factors, the Court considers it reasonable to award EUR 500 in respect of costs and expenses, plus any tax that may be chargeable to the applicant, and to reject the remainder of the claims under this head.

C. Default interest

51. 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. Decides to join the applications;

2. Declares admissible, in respect of all applications, the non-enforcement complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention;

3. Holds, in respect of all applications, that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of non-enforcement of the judgments in the applicants’ favour;

4. Decides, in respect of all applications, that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention;

5. Holds that the respondent State has an outstanding obligation to secure, by appropriate means, within three months, the enforcement of the pending domestic judgment in case no. 19315/13 referred to in the appended table;

6. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable:

(i) in respect of non-pecuniary damage:

EUR 6,000 (six thousand euros) to Ms Korotyayeva;

EUR 3,200 (three thousand two hundred euros) to Mr Skovorodko;

(ii) in respect of costs and expenses:

EUR 500 (five hundred euros) to Mr Skovorodko,

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıBranko Lubarda
Deputy RegistrarPresident

APPENDIX

List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and, where relevant,

Article 1 of Protocol No. 1 to the Convention

(non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law)

No.

Application no.
Date of introduction

Applicant name

Date of birth

Place of residence

Relevant domestic decision

Start date of non-enforcement period

End date of non-enforcement period

Length of enforcement proceedings

Domestic order    

13122/11

12/01/2011

Natalya Nikolayevna KOROTYAYEVA

20/11/1960

Arkhangelsk

Oktyabrskiy District Court of Arkhangelsk

05/10/2009

16/11/2009

02/07/2016

6 years, 7 months, 17 days

“... the mayor’s office of Arkhangelsk to provide [the applicant] ... with [housing] in Arkhangelsk comprising two rooms in a shared flat satisfying sanitary and technical requirements, with amenities according to the conditions existing in the relevant residential area, not less than 44.7 sq.m. of living area ...”

(Context: proceedings concerning rehousing from derelict building declared unsuitable for living)   

73303/11

21/10/2011

Aleksandr Vikentyevich SKOVORODKO

09/08/1966

Moscow

1) Moscow Garrison Military Court

28/05/2007

2) Perovskiy District Court of Moscow 08/12/2011

1) 17/07/2007

2) 16/02/2012

1) 25/03/10

2 years, 8 months, 7 days[1]

2) 11/12/2015

3 years, 9 months, 25 days

1) “... The Head of the Military University of the Ministry of Defense ... to grant [the applicant] leave for 2005-2006 and to issue travel documents for travelling to the vacation destination and back for the applicant and his family members ...”

2) “... Declare unlawful the refusal of the Military Commissariat of Moscow to issue documents on the applicant...to process and issue [pension] documents [to the applicant] ...”   

19315/13

21/02/2013

Yevgeniy Yevgenyevich SHAKHVOROSTOV

24/09/1961

Moscow

Moscow Garrison Military Court

21/06/2011

01/07/2011

Pending –

not enforced to date

5 years, 10 months, 20 days

(latest information from the Government: 29/09/2016)

“... the Head of the Housing Department of the Ministry of Defense to provide the applicant and his family members with housing in accordance with applicable norms [...] in Moscow [...]”

[1]. As established by the final judgment of the Moscow Garrison Military Court

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