CASE OF SHIBAYEVA v. RUSSIA

THIRD SECTION

CASE OF SHIBAYEVA v. RUSSIA

(Application no. 13813/06)

JUDGMENT
 

STRASBOURG

4 February 2020

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

In the case of Shibayeva v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 14 January 2020,

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

PROCEDURE

1.  The case originated in an application (no. 13813/06) 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, Ms Yelena Yevgenyevna Shibayeva (“the applicant”), on 9 March 2006.

2.  The applicant was represented by Mr Veselov, a lawyer practising in Serpukhov. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 22 February 2017 the Government were given notice of the complaint concerning non-enforcement of judgements in the applicant’s favour and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1960 and lives in Serpukhov.

5.  On 20 October 2005 the Serpukhov Town Court of the Moscow Region (“the Town Court”) found the applicant’s dismissal unlawful. The court ordered the applicant’s former employer, the state veterinary institution in the Moscow Region “Serpukhovskaya stantsiya po borbe s boleznyami zhivotnykh” (ГУ ветеринарии Московской области “Серпуховская станция по борьбе с болезнями животных”), to reinstate her in the position of a veterinarian, as well as to pay her 53,142.73 Russian roubles (RUB), as amended on 7 November 2005. On 14 December 2005 the judgment came into force.

6.  On 20 October 2005 and on 10 January 2006 the writs of execution were issued as regards the obligation to reinstate the applicant and to make the payment, respectively. The enforcement proceedings were initiated.

7.  On 14 February 2006 the enforcement proceedings in respect of the payment were terminated as the amount ordered by the judgment had been transferred to the applicant.

8.  In the course of the enforcement proceedings concerning the reinstatement, the bailiff in charge of the enforcement filed a petition in the Town Court to pay the applicant her average wages for the period of non‑enforcement of the judgment. On 22 June 2006 the Town Court awarded the applicant RUB 130,283.10 in average wages for the period from 21 October 2005 until 31 May 2006, to be paid by the debtor institution. The decision came into force on 4 July 2006. On 12 July 2006 the bailiffs initiated enforcement proceedings.

9.  On 11 September 2006 the applicant complained to the Town Court of bailiffs’ inefficiency during the enforcement proceedings as regards her reinstatement and the payment awarded on 22 June 2006.

10.  On 28 September 2006 the Town Court established, in particular, that the bailiff concerned twice requested the head of the debtor institution to immediately reinstate the applicant. On 10 November 2005 the debtor institution refused, referring to some objective reasons preventing them from doing that. Later, in November-December 2005, they argued that in the structure of the institution there was no such post as mentioned in the judgment of 20 October 2005. Moreover, the debtor institution submitted that they could not reinstate the applicant in August-September 2006 due to the fact that the head of their institution was on leave. The Town Court noted that the bailiffs attempted to penalise the head of the debtor institution in December 2005 and in February 2006, and applied for recovery of the wages for the applicant for the period of non-enforcement (see paragraph 8 above). The court, therefore, dismissed the applicant’s complaint. Its decision became final on 14 October 2006.

11.  On the same day the Town Court delivered a special court ruling. The court considered invalid all the reasons cited by the debtor institution in justification of the delay in reinstatement of the applicant. In particular, the applicant was not required to submit any documents to be reinstated. According to the court, neither the alleged lack of the post to which the applicant had to be reinstated nor the absence of the head of the institution during his leave could prevent the reinstatement. Thus, the debtor institution was found to be violating the domestic law and impeding execution of a binding judicial decision. The Town Court ordered that the situation be brought to the notice of the Ministry of Agriculture and Food of the Moscow Region.

12.  On 19 December 2006 the applicant was reinstated as required by the judgment of 20 October 2005.

13.  On 15 January 2007 the Town Court granted the bailiff’s request to award the applicant her average wages for the period from 1 June 2006 until 18 December 2006. Thus, the debtor institution was ordered to pay the applicant RUB 125,821.35. The decision came into force on 26 January 2007. The amount under the judgment, after deduction of the income tax, was paid to the applicant.

14.  On 9 February 2007, in execution of the decision of 22 June 2006, RUB 113,346.10 was transferred to the applicant, and the income tax in the amount of RUB 16,937 was sent to the treasury.RELEVANT DOMESTIC LAWCivil Code

15.  In force at the material time, Article 120 § 1 defined an institution as an entity established by its owner for the performance of managerial, socio-cultural or other non-commercial functions and funded by its owner in whole or in part. Article 298 § 1 provided that an institution could not alienate or otherwise dispose of the property assigned to it by its owner. Article 120 § 2 provided that an institution was liable under its obligations to the extent of its cash funds. If it lacked sufficient cash funds, the owner of the property assigned to it incurred vicarious liability.

16.  Article 399 § 1 provided that, before claiming a debt from a person whose liability is vicarious as described above, a creditor shall first claim the debt from the principal debtor. If the principal debtor refuses to satisfy the claim or no reply is received within a reasonable time, the claim may be brought against the person vicariously liable.Compensation Act

17.  On 30 April 2010 Russian Parliament enacted 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”). A summary of its provisions, which at the material time only concerned monetary claims against the State, may be found in the Court’s decision in Nagovitsyn and Nalgiyev v. Russia ((dec.), nos. 27451/09 and 60650/09, §§ 15-19, 23 September 2010).

18.  On 14 December 2016 Russian Parliament enacted 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 in the Act 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 of the Russian Federation on 19 December 2016, entered into force on 1 January 2017. It extended 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. For a summary of the provisions of the new Law see Shtolts and Others v. Russia (dec.) (nos. 77056/14 and 2 others, §§ 31‑41, 30 January 2018).

THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION and article 1 of protocol No. 1 to the convention

19.  The applicant complained of delayed enforcement of the judgments of 20 October 2005 and of 22 June 2006 given in her favour. She relied on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1, 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.”

20.  The Government contested that claim. They submitted that the debtor was a publicly funded institution, supervised in the relevant period by the Ministry of Agriculture and Food of the Moscow Region. Having cited Articles 120 and 399 of the Civil Code (see paragraphs 15-16 above), they further submitted that the applicant had not sought to hold the owner of the property assigned to it vicariously liable in respect of the judgments. The Government also argued that since the judgments ordered recovery from the public budget, the applicant could have applied for compensation under the Compensation Act (see paragraphs 16-18 above).

21.  The applicant emphasised that the judgments in her favour were subject to immediate enforcement and reiterated her complaint. She argued that in her case the vicarious liability claim in respect of the regional authorities was not needed because the debtor institution had not been liquidated, and also due to the fact that the obligation to reinstate her was not material in nature.Admissibility

22.   The Court observes that in their observations the Government did not deny the authorities’ responsibility for the debts of the institution. They rather submitted that the applicant had failed to follow the procedure for bringing the relevant authority to vicarious liability (see paragraph 20 above). The Government enclosed several examples from the domestic case-law on the matter.

23. The Court observes that the case-law provided by the Government demonstrates that the national courts indeed allow the vicarious liability claims lodged against various federal and municipal bodies in respect of the monetary debts of their institutions. The Court, however, does not need to consider whether the applicant in the present case was required to lodge such a claim in respect of the monetary obligations under the judgments of 20 October 2005 and of 22 June 2006 as the complaint in this part is in any case inadmissible.

24.  It is not disputed between the parties that the payments were executed within two and seven months from the date of the entry into force of the relevant judgments (see paragraphs 5-8 and 14 above). The Court has consistently held that a delay of less than one year in payment of a monetary judicial award was in principle compatible with the Convention (see, for example, Belkin and Others v. Russia (dec.), no. 14330/07 and 15 other applications, 5 February 2009). Therefore, it follows that the complaint under Article 6 and Article 1 Protocol No. 1 about allegedly delayed payments under the domestic judgments is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

25.  As to the obligation to reinstate the applicant under the judgment of 20 October 2005, the Court notes that the domestic provisions governing the vicarious liability and the examples provided by the Government concern various monetary debts of the state and municipal institutions. Therefore, it remains unclear whether in the situation of a non-material obligation of an institution, as the obligation to reinstate the applicant in the present case, is covered by the same legal provisions and would bring similar results. Thus, in so far the Government may be understood as arguing that the applicant did not use an effective domestic remedy in respect of the delay in her reinstatement as ordered by the judgment of 20 October 2005, the Court considers their argument unsubstantiated (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; Kranz v. Poland, no. 6214/02, § 23, 17 February 2004; and Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003).

26.  As regards the Government’s objection that the applicant had not used the Compensation Act, the Court reiterates its position that 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, mutatis mutandis, Burdov v. Russia (no. 2), no. 33509/04, § 144, ECHR 2009, and Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, § 230, 1 July 2014). In line with this principle, the Court decides to proceed with the examination of the present case (compare with Nagovitsyn and Nalgiyev, cited above, § 41, and Shtolts and Others, cited above, § 118) and dismisses the Government’s objection.

27.  Turning to the applicant’s complaint that the allegedly prolonged failure to reinstate her amounted to violation of Article 1 of Protocol No. 1 the Court notes the following. Even assuming that the judgment created a legal basis for the applicant to be paid certain damages and remuneration, on 22 June 2006 and 15 January 2007 the applicant was awarded her average wages for the whole period of non-enforcement of the judgment of 20 October 2005 in the relevant part (see paragraphs 8 and 13 above). In these circumstances, the Court considers that the complaint under Article 1 of Protocol No. 1 as regards allegedly delayed reinstatement of the applicant is manifestly ill-founded.

28.  Thus, the Court concludes that the complaint under Article 6 concerning allegedly delayed reinstatement of the applicant ordered by the judgment of 20 October 2005 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.Merits

29.  The Court notes that on 20 October 2005 the Town Court ordered the debtor institution, inter alia, to reinstate the applicant to the position of a veterinarian. This part of the judgment was subject to immediate enforcement. The judgment became final and came into force on 14 December 2005. It is not disputed between the parties that the judgment remained unenforced in this part until 19 December 2006 that is for more than one year.

30.  The Court recalls that the reasonableness of the delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s behaviour and that of the competent authorities, and what was at stake for the applicant in a given case (see Raylyan v. Russia, no. 22000/03, §§ 31-34, 15 February 2007, with further references). As regards the last criterion, it has been the Court’s constant approach that employment disputes require the authorities to act with particular expedition (see, mutatis mutandis, Obermeier v. Austria, judgment of 28 June 1990, Series A no. 179, § 72).

31.  Having said that, the Court notes that the obligation to reinstate the applicant can have particular implications, as compared with pecuniary obligations and other obligations in kind. For example, in order to reinstate someone, an organisation may be required to dismiss another person already taken into service, ensuring at the same time his labour rights, or otherwise to re-organise its labour force. Thus, the Court is prepared to accept that in some cases execution of such an obligation can give rise to issues which may well take more time to fulfil than a monetary obligation. It notes in this regard that in order to protect person’s rights in cases when reinstatement is delayed the domestic law provided for the possibility to recover the average wages for the period of non-enforcement, as it was done in the present case (see paragraphs 8-14 above).

32.  The Court further observes that there was in fact no need to dismiss another employee in order to reinstate the applicant in the case at hand. However, the post to which the applicant had to be reinstated did not exist when the judgment of 20 October 2005 came into force. The debtor institution referred to this fact in November – December 2005 in reply to the bailiff’s request to immediately reinstate the applicant. The Court has no further information on any steps taken by the debtor institution to create the required post or on any hindrances thereto. The debtor’s subsequent explanations as to the delay in reinstatement concern only the absence of their head in August – September 2006.

33.  As regards the applicant’s behaviour, the Court does not find any delays in enforcement attributable to her. In particular, the Court notes that the Town Court considered that the applicant was not required to submit any particular documents to be reinstated in the present case. Neither did the domestic court establish any faults on her behalf or on behalf of the bailiffs, finding that it was the debtor who impeded the execution of the judgment (see paragraphs 10-11 above).

34.  In the view of the foregoing, having regard to its case-law, the period of non-enforcement and the nature of the obligation in kind at stake in the present case (see Gerasimov and Others, cited above, §§ 167-74), the Court considers that the delay in enforcement of the judgment in the applicant’s favour fell short of the Convention requirements.

35.  There has accordingly been a violation of Article 6 of the Convention on account of delayed enforcement of the judgment of 20 October 2005 as regards the applicant’s reinstatement.ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

36.  The applicant complained about the lack of an effective domestic remedy in respect of the delayed enforcement of the judicial decisions in her favour. She relied on Article 13 of the Convention which reads as follows:

Article 13

“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.”

37.  The Court has found above that the non-enforcement complaint as regards the monetary awards did not give rise to an arguable claim of a breach of a Convention right (see paragraph 24 above). Thus, in the part concerning these pecuniary obligations Article 13 complaint is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

38.  As regards the obligation to reinstate the applicant, the Court notes the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the Gerasimov and Others pilot judgment (cited above) by Federal Law No. 450-FZ amending the Compensation Act of 2010 (for further details concerning the amendments see Shtolts and Others, cited above, §§ 30-78).

39.  In the light of the adoption of the new domestic remedy and in line with its previous decisions, the Court considers that it is not necessary to examine separately the admissibility and merits of the applicant’s complaint under Article 13 in the relevant part (see, mutatis mutandis, Konstantinova and Others v. Russia (dec.), no. 60708/13, §§ 30-33, 5 February 2019; Stroganova and Others v. Russia (dec.), no. 51391/07, 6 November 2018; and Tkhyegepso and Others v. Russia, nos. 44387/04 and 11 others, §§ 21‑24, 25 October 2011).APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  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.”Damage

41.  The applicant claimed 7,000 euros (EUR) in respect of non‑pecuniary damage.

42.  The Government argued that these claims were excessive and unreasonable.

43.  Regard being had to its case-law, the Court considers it reasonable to award the applicant EUR 900 in respect of non-pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the claims under this head.Costs and expenses

44.  The applicant also claimed EUR 2,148 for the costs and expenses. That amount was paid to Mr V. Veselov, the applicant’s representative in the domestic enforcement proceedings and before the Court. She submitted two legal assistance contracts and two invoices confirming the payments under those contracts.

45.  The Government contested these claims, arguing, in particular, that EUR 698 had been paid for the legal services during the domestic proceedings, and not the proceedings before the Court.

46.  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. 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. Having regard to all relevant factors, the Court considers it reasonable to award EUR 400 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.Default interest

47.  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,Declares the complaint under Article 6 § 1 of the Convention concerning the delay in enforcement of the judgment of 20 October 2005 as regards the applicant’s reinstatement admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there is no need to examine the complaint under Article 13 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, 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)        EUR 900 (nine hundred euros) in respect of non-pecuniary damage;

(ii)      EUR 400 (four hundred euros) in respect of costs and expenses;

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

Done in English, and notified in writing on 4 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAlena Poláčková
RegistrarPresident

 

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