CASE OF TIMOFEYEV AND 144 OTHER CASES AGAINST THE RUSSIAN FEDERATION

Interim Resolution CM/ResDH(2009)43 [1]

Execution of the judgements of the European Court of Human Rights

in 145 cases against the Russian Federation relative to the failure or serious delay in abiding by final domestic judicial decisions delivered against the state and its entities as well as the absence of an effective remedy

(See Appendix for the list of cases in the Timofeyev group)

CM/Inf/DH(2006)19 revised 2 and CM/Inf/DH(2006)45, CM/Inf/DH(2006)19 revised 3

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the continuous flow of judgments in which the Court has found violations of Article 6, paragraph 1, of the Convention and of Article 1 of Protocol No. 1 to the Convention due to the non-enforcement or belated enforcement by the state and by state entities of final domestic judicial decisions in the applicants’ favour and of Article 13 of the Convention on account of the lack of an effective domestic remedy in this respect;

Recalling that the Committee of Ministers has been supervising the adoption by the Russian Federation of general measures to prevent new similar violations of the Convention since the first Burdov judgment of 7 May 2002;

Noting that some two hundred judgments delivered since that date highlighted the existence of serious structural problems related to the non-enforcement of domestic judicial decisions delivered against the state and its entities;

Recalling the consistent position of the Committee of Ministers, shared by the Russian authorities, as demonstrated in the Committee’s previous decisions, that the problems at the basis of the violations found by the Court in these judgments were large-scale and complex in nature and that their resolution required the implementation of comprehensive and complex measures at both federal and local level;

Considering the Memorandum (CM/Inf/DH(2006)19rev3) presenting the measures taken by the authorities and the outstanding issues and the Conclusions of two high-level Round Tables on non-enforcement of court decisions by the state and its entities respectively of October 2006 (CM/Inf/DH(2006)45) and of June 2007 (CM/Inf/DH(2007)33);

As regards prevention of non-execution or delayed execution

Noting in particular the progress made by the competent Russian authorities in resolving the main structural problems underlying the violations, through:

- continuous improvement of the legislative and regulatory framework which resulted particularly in the setting up of execution and enforcement mechanisms;

- adoption of a number of organisational measures, thus ensuring better monitoring of the execution by the state and its entities of court decisions;

- reform of the budgetary regulations with a view to guaranteeing additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations;

Noting with satisfaction that these measures are, to a certain extent, based on the proposals made in the Committee of Ministers’ documents (see in particular CM/Inf/DH(2006)19 rev 3 and CM/Inf/DH(2006)45) and welcoming the authorities’ coordinated and interdisciplinary approach to their implementation;

Considering that despite the positive developments mentioned above, the major effects of these reforms, not least in preventing new applications before the Court, remain to be demonstrated and that further action is still needed to ensure full compliance by the Russian Federation with its obligations resulting from the Court’s judgments;

Noting with great interest in this respect that in his Address to the Parliament of 5 November 2008, the President of the Russian Federation stressed that the execution of court decisions was still a huge problem and stated in particular that it was necessary to establish a mechanism to compensate damages caused by violations of citizens’ right to trial within a reasonable time and to the full and timely execution of court decisions;

Stressing that the situation continues to give rise to serious concerns in a number of problematic areas and/or in respect of certain defendant state authorities, in particular

- judicial awards in favour of most vulnerable groups of people: social benefits for Chernobyl victims, compensation for damage sustained during military service and the provision of social housing;

- execution of judicial decisions by the Ministry of the Interior, the Ministry of Defence and certain other agencies;

Stressing therefore the need for the competent Russian authorities to enhance their efforts to make rapid and visible progress in the areas concerned, thus effectively ensuring at domestic level appropriate redress for violations of the Convention and preventing the risk of a further influx of applications before the Court;

As regards domestic remedies

Recalling that the primary responsibility for implementing the Convention rights lies with member states, which have thus an obligation to provide effective domestic remedies in case of violations of the Convention;

Recalling the consistent position of the Convention organs that the setting up of domestic remedies, however important, does not relieve states from their general obligation to solve the structural problems underlying violations and further recalling in this respect Recommendation Rec(2004)6 of the Committee of Ministers’ to member states regarding the need to improve the efficiency of domestic remedies;

Stressing that the provision of such remedies is all the more pressing in case of repetitive violations, so as to enhance the remedial capacity of the national judicial system, pending the implementation of more comprehensive and time-consuming reforms;

Recalling that in order for such remedy to be effective in cases of non-enforcement or delayed enforcement of domestic judicial decisions, the following core requirements of the Convention should be met:

- a person should not be required to prove the existence of non-pecuniary damage as the latter is strongly presumed to be the direct consequence of the violation itself;

- compensation should not be conditional on the establishment of fault on the part of officials or the authority concerned as the state is objectively liable under the Convention for its authorities’ failure to enforce court decisions delivered against them within a reasonable time;

- the level of compensation must not be unreasonable in comparison with the awards made by the Court in similar cases;

- adequate budgetary allocations should be foreseen so as to ensure that compensation is paid promptly and generally no later than six months from the date on which the decision awarding compensation becomes enforceable;

Stressing that the need for ensuring the execution of such awards by budgetary arrangements is all the greater in countries facing frequent delays in enforcement of judicial decisions;

Noting with interest the draft federal constitutional law submitted by the Supreme Court of the Russian Federation to Parliament on 30 September 2008, which takes account of these requirements of the Convention;

Noting further that a special working group involving the representatives of the main State agencies has been set up upon the President’s mandate rapidly to find an appropriate solution with a view to introducing a remedy required by the Convention in the Russian legal system;

Recalling in this respect that Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their obligation under that provision of the Convention;

Noting in addition that the provision of a merely compensatory or acceleratory remedy may not suffice to ensure rapid and full compliance with obligations under the Convention, and that further avenues must be explored, e.g. through the combined pressure of various domestic remedies, provided that their accessibility, sufficiency and effectiveness in practice are convincingly established;

Considering in this respect that a number of remedies already exist in the Russian legislation and have already been used in cases of non-enforcement or lengthy enforcement of domestic judicial decisions (e.g. Chapter 25 and Section 208 of the Code of Civil Procedure, Chapter 59§4 of the Civil Code, Article 315 of the Criminal Code) but that these remedies have so far not been found by the Court to provide adequate and sufficient redress;

CALLS UPON the Russian authorities to rapidly translate into concrete actions the will expressed at the highest political level to combat non-enforcement and delayed enforcement of domestic judicial decisions and to set up to that end effective domestic remedies either through rapid adoption of the constitutional law mentioned above or through amendment of the existing legislation in line with the Convention’s requirements;

URGES the Russian authorities to give priority to resolving outstanding non-enforcement issues in the problem areas identified above so as rapidly to achieve concrete and visible results, thus limiting the risk of new violations of the Convention and of further applications before the Court;

ENCOURAGES the Russian authorities to continue their efforts in the implementation of the initiated reforms so as to ensure full and timely execution of domestic courts decisions, in particular through:

- ensuring better coordination between different authorities responsible for the execution of domestic judicial decisions so as to avoid the risk that claimants are caught in a vicious circle in which different authorities send them back and forth;

- further improving the rules governing all execution procedures, including appropriate role for bailiffs and judicial review;

- ensuring the existence of appropriate general regulations and procedures at federal and local level for the implementation of the authorities’ financial obligations;

- further developing recourse to different remedies already provided by Russian legislation so as to ensure their implementation in case of non-enforcement or belated enforcement of judicial decisions with sufficient certainty as required by the Convention;

- strengthening state liability for non-execution as well as the individual responsibility (disciplinary, administrative and criminal where appropriate) of civil servants;

DECIDES to resume consideration of these issues in the context of the Court’s judgments concerned at their 1059th Human Rights meeting (2-4 June 2009), in particular in the light of the information to be provided by the respondent state on progress in the provision of a domestic remedy.

Appendix to Interim Resolution CM/ResDH(2009)43

Information provided by the Russian authorities in the context of the examination by the Committee of Ministers of 145 cases against the Russian Federation (Timofeyev group of cases)

A number of important measures taken by the Russian authorities has already been analysed in the Memorandum CM/Inf/DH(2006)19 revised 3. The most important measures which have been taken and are being taken by the Russian authorities in particular since the declassification of this memorandum on 4 June 2007 are summarised below.

I - Measures aimed at the resolution of the general problems underlying non-execution or belated execution of domestic judicial decisions

A.Legislative measures

The main efforts of the Russian authorities are directed at the continuous improvement of the legislative framework governing execution of judicial decisions delivered against the state and state entities, in particular through:

- the introduction in 2005 in the Budgetary Code of the specific procedure for execution of judicial decisions delivered against the state and its entities (for more details about this procedure see the Memorandum CM/Inf/DH(2006)19 revised);

- the adoption on 5 October 2007 of the new Federal Law on enforcement proceedings;

- the adoption in April 2007 of further amendments to the Budgetary Code in order to extend the Federal Treasury’s power to freeze the operations on the accounts of a budgetary institution to its branches, thus increasing its deterrent effect;

- drafting of the Execution Code aimed at establishing a common set of rules governing the execution and enforcement proceedings.

B.Regulatory measures

1) Ministry of Finance

The following measures have been taken by the Ministry of finance in order to increase the effectiveness of the execution procedure provided by the Budgetary Code:

- the adoption on 15 August 2006 by the Ministry of Finance of Order No. 271 on the execution by the Ministry of Finance of court decisions delivered against the state, which not least introduces daily monitoring;

- the adoption on 31 July 2008 by the Government of the Russian Federation of Resolution No 579 on the form of the writ of execution, which should decrease the risk of execution documents being returned to the claimants without execution;

- the adoption on 20 January 2009 by the Ministry of Finance and Prosecutor General’s Office of Joint Order No 12/3н on the interaction between prosecutors’ offices and the Ministry of Finance in the framework of citizens’ complaints concerning wrongful criminal prosecution;

2) Federal Treasury

In order to explain in a more detailed and accessible manner, particularly to individual claimants, the procedure of execution of court decisions delivered against budgetary institutions provided by the Budgetary Code, the Federal Treasury prepared the Administrative Rules on the execution by the Federal Treasury of the execution of court decisions delivered against budgetary institutions.

The draft Rules were subject to public discussion and thus took account of the difficulties faced by individuals while submitting writs of execution. These Rules entered into force on 29 January 2009.

The Administrative Rules provide

- uniform procedures of execution of court decisions for all territorial departments of the Federal Treasury;

- the exhaustive list of documents to be submitted by claimants and debtors in the framework of the execution of a court decision;

- personal liability of the servants of the Federal Treasury for improper implementation of the procedures provided by the Rules;

- the way of challenging by individuals of actions or omissions to acts of servants or organs of the Federal Treasury.

A monitoring procedure set up by Order No 103 of 24 April 2008 within the Federal Treasury made it possible to identify the authorities mainly facing difficulties with timely execution of court and the most problematic regions. A report in this respect was sent to the Ministry of finance for so that appropriate measures might be taken.

3) Federal Bailiffs Service

Although Russian legislation does not directly provide bailiffs’ jurisdiction to enforce court decisions delivered against public entities, the Supreme Commercial Court, in its Ruling No 23 of 22 June 2006, held that bailiffs have competence to initiate enforcement proceedings in respect of the public authorities’ assets where they fail to comply with judicial decisions after the expiry of the 3-month period provided by the Budgetary Code.

After the adoption of this Ruling and of the new Federal Law on enforcement proceedings, the Federal Bailiffs Service has taken the following measures:

- the adoption on 9 November 2007 of Order No 585 approving methodical recommendations on the enforcement of court decisions delivered against the state and its entities which provide among other things the seizure and sale of the assets of public entities;

- dissemination to all territorial departments of a circular letter on the practice of enforcement of court decisions at the expense of the debtor’s assets, in particular of the debts owed to third parties in relation to rent;

- dissemination in 2008 of more than 140 instructions and information letters to its territorial departments, including the analysis of the judgments of the European Court;

- dissemination on 30 January 2009 to all territorial departments of recommendations on the examination of complaints lodged against bailiffs with their hierarchical superiors;

- elaboration of the Rules on the reinforcement of the personal control by the heads of the territorial departments and of the Head of the Service of enforcement proceedings.

On 21 April 2008 the President of the Russian Federation issued an Order entrusting the bailiffs with a coordination role with regard to the execution of court decisions. Numerous meetings were organised in 2008 with different authorities, such as the Ministry of the Interior, the Ministry of Defence, the Ministry of Emergency Situations, the Ministry of Health, the Pension Fund, etc.

4)Prosecutor General’s Office

In 2007-2008 the Prosecutor General’s Office and the Military Prosecutors’ Office controlled the authorities’ compliance with the legislation governing the execution of domestic judicial decisions delivered against the state and its entities. As a result, the relevant authorities, including the Minister of finance and the Minister of Defence, were summoned to remedy the violations found rapidly. The appropriate measures were taken and the civil servants responsible disciplinary sanctioned.

5) Other authorities

In order to improve the execution of court decisions in certain particular areas, a number of measures have been adopted by other authorities:

- the Pension Fund issued to its territorial departments Recommendations on the execution of court decisions concerning pensions which take into account the requirements of the Convention and the judgments of the European Court;

- the Ministry of Defence adopted on 4 October 2008 an instruction which also covers the execution of courts decisions delivered against the Armed forces’ entities;

- dissemination on 20 December 2007 to all commanders of the Armed forces of a letter of the Vice-Minister of Defence drawing their attention to the negative situation regarding the execution of domestic judicial decisions delivered in favour of servicemen and emphasising the obligation strictly to comply with these decisions in a timely manner.

II - Measures aimed at the resolution of the problem in specific sectors

1)As regards Chernobyl victims

In order to establish clear procedures in this area, the Russian authorities have taken or are taking the following measures aimed at:

- determining the organs responsible for the execution of court decisions, which are now the organs of social protection of the subdivisions of the Russian Federation (municipalities);

- ensuring the consistency of domestic courts’ case-law through the dissemination of the appropriate guidelines by the Supreme Court of the Russian Federation (letter No OSP-2008 of 25 November 2008);

- -reflecting on the possibilities of concentrating the powers concerning these payments in the hands of a unique superintendent of budgetary funds.

2)As regards social housing

In order to improve the situation with regard to social housing, the following measures are taken or are under way:

- on 29 December 2004 and 21 March 2006 the government adopted Rulings, according to which accommodation for Chernobyl victims and servicemen, including former servicemen, shall be granted either through financial aid or through a state housing certificate in the framework of the state federal housing sub-programmes (for details see the Annotated Agenda CM/Del/OJ/DH(2008)1020);

- on 3 October 2008 the government adopted the Ruling on the reinforcement of the social protection of members of the armed forces in order to increase the amounts of compensation paid to these persons so that they may rent houses while waiting for the provision of housing;

- the First Deputy Prosecutor General entrusted on 22 January 2009 the regional prosecutors to ensure that regional budgetary laws provide for the necessary funding for purchase of housing according to housing programs as well as for the execution of judicial decisions in this respect;

- the Federal Bailiffs Service is drawing up, in co-operation with the Ministry of the Interior, the Ministry of Defence, the Ministry of the Emergency Situations, the Federal Security Service and the Ministry of Finance, an interagency instruction providing a uniform mechanism of the enforcement of court decisions concerning housing.

III – Measures aimed at improvement of domestic remedies in cases of non-enforcement of domestic judicial decisions

1) Constitutional Court of the Russian Federation

By its Ruling no. 734-OP of 3 July 2008, the Constitutional Court held that the courts may apply Article 151 of the Civil Code “Compensation of non-pecuniary damage” in case of non-enforcement of domestic judicial decisions delivered against the state and its entities. The Constitutional Court further held that it did not absolve the legislator from rapidly setting up a special procedure to compensate damage sustained as a result of non-enforcement of domestic judicial decisions by the state and its entities.

2) Supreme Court of the Russian Federation

A draft constitutional law setting up a remedy before the domestic courts in case of excessive length of judicial and execution proceedings was submitted by the Supreme Court of the Russian Federation to Parliament on 30 September 2008.

3) Supreme Commercial Court of the Russian Federation

The Supreme Commercial Court is preparing a draft Plenum Decision to provide lower courts with guidelines on the implementation of already existing legislation in order to compensate damages resulting from non-enforcement of domestic judicial decisions (e.g. indexation, challenging actions or omissions to act of bailiffs, etc).

A working group was set up within the Supreme Commercial Court to draft amendments to the Code of Commercial Procedure with a view to introducing a mechanism compensate damages caused by civil servants at national level.

[1] Adopted by the Committee of Ministers on 19 March 2009 at the 1051st meeting of the Ministers’ Deputies.

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