CASE OF LEBEDEV v. RUSSIA

THIRD SECTION

CASE OF LEBEDEV v. RUSSIA

(Application no. 6705/07)

JUDGMENT

STRASBOURG

20 March 2018

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

In the case of Lebedev 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 20 February 2018,

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

PROCEDURE

1. The case originated in an application (no. 6705/07) 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 Mr Vladimir Nikolayevich Lebedev, on 27 December 2006.

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 his successor in that office, Mr M. Galperin.

3. On 7 September 2012 the application was communicated to the Government. On the same day the Court granted priority to the application (Rule 41 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1929 and lives in St Petersburg.

A. Proceedings concerning a housing subsidy

5. On 17 February 2000 the applicant lodged a claim with the Yakutskiy Town Court of the Republic of Sakha (Yakutiya) (“the Town Court”) against the Government of the Republic of Sakha (Yakutiya) for providing him with a housing subsidy and for a compensation of non-pecuniary damage.

6. On 2 February 2001 the Town Court dismissed the claims.

7. On 23 April 2001 this decision was upheld on appeal by the Supreme Court of the Republic of Sakha (Yakutiya) (“the Supreme Court”).

8. On 7 April 2005, following the applicant’s supervisory review appeal, the Presidium of the Supreme Court quashed the decision of 23 April 2001. The Supreme Court remitted the case for a new examination by the court of cassation instance for the applicant had not been duly summoned to the hearing of 23 April 2001.

9. On 11 May 2005 the Supreme Court dismissed the applicant’s cassation appeal and upheld the judgment of 2 February 2001.

10. On 26 January 2006, upon the applicant’s supervisory review appeal, the Presidium of the Supreme Court quashed the judgment of 2 February 2001 and the decision of 11 May 2005 as it found that the lower courts misjudged the facts of the case and erred in application of the national law.

11. On 17 May 2006 the Town Court again dismissed the applicant’s claims.

12. On 21 August 2006 the Supreme Court set aside the judgment of 17 May 2006 on appeal and remitted the case for a new examination, as the lower court had misapplied the national law.

13. On 18 December 2006 the Town Court ordered the Government of the Republic of Sakha (Yakutiya) to pay the applicant 683,619 Russian roubles (RUB) from the federal budget funds allocated for providing the housing subsidies for persons leaving the high north regions.

14. On 12 February 2007 the Supreme Court found the decision of 18 December 2006 to award the applicant money unlawful and unreasoned, quashed the decision and yet again remitted the case for a new examination.

15. Twice, on 26 April 2007 and 7 September 2007, the Town Court dismissed the applicant’s claims.

16. Each time, on 18 July 2007 and 19 May 2008, respectively, the judgment of the Town Court was set aside on appeal, and the case was remitted for a new examination. In the first set of the proceedings, the appellate court found the judgment unlawful, and requested to bring into the proceedings the municipality “Nizhnekolymskiy rayon”. In the second set of the proceedings, the appellate court found that the applicant had not been duly summoned to the hearing, and that the municipality should have been joined to the proceedings as a defendant rather than a third party.

17. On 23 September 2008 the Town Court granted the applicant’s claims in part. It ordered the Government of the Republic of Sakha (Yakutiya) to pay the applicant RUB 1,812,838.10 from the federal budget funds allocated for the housing subsidies for persons leaving the high north regions.

18. On 17 November 2008 the judgment of 23 September 2008 was upheld on appeal by the Supreme Court.

B. Enforcement proceedings in respect of the judgment of 23 September 2008

19. On 25 November 2010 the applicant requested the writ of execution in respect of the judgment of the Town Court of 23 September 2008.

20. On 10 February 2010 a writ of execution was issued.

21. On unspecified dates, the applicant submitted the writ of execution, first, to the Department of the Federal Treasury and, second, to the Ministry of Finance of the Republic of Sakha (Yakutiya).

22. On 13 April and 8 June 2011 respectively the writ of execution was returned to the applicant as the debtor had no accounts at these bodies.

23. On 29 July 2011 the Department of the Federal Bailiffs’ Service for the Republic of Sakha (Yakutiya) (“the Bailiffs’ Service) received the writ of execution and opened the enforcement proceedings.

24. On 24 August 2011 the Head of the Bailiffs’ Service ordered to set aside the above decision to open the enforcement proceedings.

25. On 30 August 2011 the decision of 29 July 2011 was set aside and the Bailiffs’ Service refused institution of enforcement proceedings with the reasoning that as the enforcement document required recovery of public budgetary funds, it could not be enforced by the Bailiffs’ Service.

26. On 8 February 2012 the District Court clarified the judgment of 23 September 2008. It explained that the debt had to be recovered from the Government of the Republic of Sakha (Yakutiya) represented by the Federal Treasury of the Republic of Sakha (Yakutiya) from the federal budget sources allocated for the housing subsidies for persons leaving the high north regions.

27. On an unspecified date the applicant on one more occasion sent the writ of execution to the Department of the Federal Treasury. On 26 April 2012 the writ was returned to him for the debtor had no account at the Treasury.

28. On 10 July 2012 the Bailiffs’ Service received the writ of execution and opened the enforcement proceedings.

29. On 10 September 2012 the enforcement proceedings were terminated for the debtor had no property that the debt could be recovered from.

30. On the same date the bailiff responsible for the execution of the judgment issued an act establishing that there were grounds for returning the writ of execution to the creditor. According to this document, the debtor, the Government of the Republic of Sakha (Yakutiya), was a collective executive body, without the status of a legal entity or any property on their balance sheet.

31. The judgment of 23 September 2008 remained unenforced.

C. Proceedings under the Compensation Act

32. On 29 November 2010 the applicant lodged a claim under the Compensation Act (see the Domestic Law part below). He complained that the civil proceedings in his case against the Government of the Republic of Sakha (Yakutiya) had been unreasonably long, and asked for a compensation in that respect.

33. On 20 December 2010 a judge of the Supreme Court of Russia ordered that the application should be returned to the applicant with the reasoning that the proceedings complained of ended on 17 November 2008, i.e. before the entry into force of the Compensation Act.

34. On 15 March 2011 the applicant’s special appeal against the above decision was dismissed by the Supreme Court of Russia. The court agreed with the judge that had passed the decision of 20 December 2010 that the end date of the proceedings was the date of the decision of 17 November 2008 to uphold the judgment of 23 September 2008 on appeal, while the subsequent period when the applicant applied for supervisory review of that decisions should not be included in the overall length of the proceedings.

II. RELEVANT DOMESTIC LAW

35. On 30 April 2010 the Russian Parliament adopted a 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 Compensation Act”). On the same date the Parliament adopted a Federal Law no. 69-FZ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010.

36. All individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the Compensation Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint (Section 6 § 2).

37. Other relevant provisions of the Compensation Act are summarised in Fakhretdinov and Others v. Russia (nos. 26716/09 and 2 others, §§ 11‑16, 23 September 2010), and Nagovitsyn and Nalgiyev v. Russia (nos. 27451/09 and 60650/09, §§ 15-20, 23 September 2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

38. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

39. The Government contested that argument. They submitted that the case was complex, and it was further complicated by the fact that the proceedings took place in Yakutsk while the applicant lived in St Petersburg. They argued that the applicant’s failure to attend hearings on several occasions and his numerous complaints and appeals contributed to the length of the proceedings. The Government submitted that the applicant had failed to use the Compensation Act under its transitional provisions in respect of his complaint about the excessive length of proceedings, and, therefore, had failed to exhaust the domestic remedy available to him.

40. The applicant reiterated his complaint, arguing that the case was not complex, and the courts had been provided with all the documents in order to decide on it. He claimed that whenever he received the summons he sent back to the relevant court the request asking to consider the case in his absence. The applicant further argued that he had lodged an application under the Compensation Act, but it had been returned to him.

A. Admissibility

41. As regards the Government’s objection that the applicant had failed to use the domestic remedies available to him, the Court reiterates its previous finding that at the time when the applicant brought his complaint about the length of proceedings to the Court, that is in December 2006, there was no effective remedy under Russian law capable of affording redress for the unreasonable length of proceedings (see Meshcheryakov v. Russia, no. 24564/04, § 36, 3 February 2011 with references therein). As regards the domestic remedy introduced by the Compensation Act, the Court notes that the applicant made an attempt to lodge such a claim, and the domestic courts returned the application to him without examining its merits, for the applicant’s failure to comply with formal requirements. Without assessing the relevant proceedings, the Court reiterates its settled approach that in any event it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court to bring again their claims before domestic tribunals (see, for similar reasoning, Fateyenkov and Others v. Russia, nos. 44099/04 and 9 others, 18 February 2016, with further references). In line with this principle, the Court decides to proceed with the examination of the present complaint (see, mutatis mutandis, Utyuzhnikova v. Russia, no. 25957/03, §§ 48-52, 7 October 2010; compare with Fakhretdinov and Others, cited above, § 32) and, accordingly, dismisses the Government’s non‑exhaustion objection.

42. The Court notes that this complaint 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

43. The Court observes that the civil proceedings concerning a housing subsidy began on 17 February 2000 and ended on 17 November 2008. The following periods should be excluded from the overall length of the proceedings as during that time the case was not pending before the domestic courts: from 23 April 2001 until 7 April 2005, and from 11 May 2005 until 26 January 2006. Thus, the period to be taken into account amounts to approximately four years and twenty days. During this time the case was considered at three levels of jurisdiction.

44. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

45. The Court observes that the proceedings concerned a request for a housing subsidy, and it is not convinced by the Government’s argument that the proceedings were particularly complex.

46. As to the applicant’s conduct, it has been the Court’s constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interests (see, for example, Ignatyeva v. Russia, no. 10277/05, § 38, 3 April 2008). There is nothing in the present case to indicate that the applicant’s behaviour was vexatious or led to any substantial delays in the examination of the case.

47. Turning to the conduct of the authorities, while the Court does not detect any obvious procrastination on the part of the courts in the present case, it takes cognisance of the fact that the civil case was remitted for a fresh examination on six occasions by either the appeal court or the supervisory review court for various breaches of law.

48. According to the Court’s well-established jurisprudence, the multiple repetition of re-examination orders within the same set of proceedings may disclose a deficiency in the judicial system (see Falimonov v. Russia, no. 11549/02, § 58, 25 March 2008). In Svetlana Orlova the Court found that the right to have one’s claim examined within a reasonable time would be devoid of all sense if domestic courts examined a case numerous times, by shifting it from one court to another, even if at the end the accumulated length of proceedings did not appear particularly excessive (see Svetlana Orlova v. Russia, no. 4487/04, § 47, 30 July 2009).

49. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

50. There has accordingly been a breach of Article 6 § 1 of the Convention on account of the length of proceedings.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT

51. On 31 January 2011 the applicant complained that the authorities had not paid him the amount in accordance with the judgment of 23 September 2008. He relied on Article 6 § 1 of the Convention, cited above, and Article 1 of Protocol No. 1 to the Convention, which read as follows:

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.”

52. The Government submitted in their observations that the decision of 23 September 2008 remained unenforced. They further argued, that the applicant had failed to exhaust the domestic remedies in respect of this complaint. In particular, they argued that the applicant was entitled to use the Compensation Act during the enforcement proceedings, not earlier than six months after the statutory period for enforcement expired and within six months after the enforcement proceedings were terminated.

53. The applicant reiterated his complaint. He submitted that he had lodged an application under the Compensation Act in respect of the length of the civil proceedings in his case, which was returned to him in March 2011. The applicant further submitted that after that, on 16 September 2011, he sent to the Court his additional complaints.

54. The Court has previously examined similar cases and has taken the view that, as a matter of principle, it would require that all cases introduced after the pilot judgment Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009) and falling under the Compensation Act be submitted in the first place to the national courts (Nagovitsyn and Nalgiyev, cited above, §§ 27‑45). In the decision Nagovitsyn and Nalgiyev the Court noted that it could exceptionally decide, for the sake of fairness and effectiveness, to conclude its proceedings by a judgment in certain cases of this kind which had remained on its list for a long time or had already reached an advanced stage of proceedings (ibid., § 41).

55. By contrast to the complaint about the length of the court proceedings, introduced with the Court long before the Compensation Act’s entry into force (see paragraph 1 above), the applicant expressed his intention to complain about the non-enforcement of the domestic judgment on 31 January 2011, that is a year and a half after the relevant domestic remedy was enacted. Furthermore, for an unexplained reason he chose to bring the domestic Compensation Act proceedings in respect of his length complaint (see paragraph 32 above), but not in relation to his non‑enforcement grievance. Even after the Government in their observations dated 30 October 2012 had pointed out that such possibility still existed for the applicant at the material time (see paragraphs 32 and 52 above), the applicant did not lodge the relevant application. The Court has no reason to doubt that the applicant was entitled to use the Compensation Act during the statutory period indicated by the Government for lodging such applications.

56. In the view of the foregoing, the Court does not find any reason to depart from the general approach adopted in Nagovitsyn and Nalgiyev (cited above) in the present case and concludes that the applicant was required to use the Compensation Act in respect of his non-enforcement complaint.

57. Accordingly, the complaint about the non-enforcement of the judgment in the applicant’s favour must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

58. The applicant also complained under Article 13 of the Convention that there had been no effective remedy at his disposal in respect of the non‑enforcement of the judgment in his favour and the length of civil proceedings. Lastly, relying on Articles 6, 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained that in 1997 he lost his apartment; that the amount awarded to him by the judgment of 23 September 2008 was insufficient and the civil proceedings were unfair.

59. Having regard to all the material in its possession in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

60. 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

61. The applicant claimed in total 3,721,370 Russian roubles (RUB), in respect of pecuniary damage, and RUB 400,000 and 3,500 euros (EUR) in respect of non-pecuniary damage.

62. The Government contested these claims as excessive, ill-founded, and not corresponding to the national courts’ decisions and the Court’s case-law. The Government stated that, if awarded, the compensation for non‑pecuniary damage should correspond to the four-year term of the applicant’s case consideration by the national courts.

63. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 750, plus any tax that may be chargeable, in respect of non-pecuniary damage.

B. Costs and expenses

64. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.

C. Default interest

65. 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 concerning the length of proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 750 (seven hundred and fifty 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;

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

Done in English, and notified in writing on 20 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıBranko Lubarda
Deputy RegistrarPresident

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