CASE OF TROITSKAYA-MIRKOVICH AND OTHERS v. RUSSIA

 

 

THIRD SECTION

CASE OF TROITSKAYA-MIRKOVICH AND OTHERS v. RUSSIA

(Applications nos. 38874/05 and 3 others –
see appended list)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

14 December 2021

 

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

In the case of Troitskaya-Mirkovich and Others v. Russia,

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

 María Elósegui, President,
 Darian Pavli,
 Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 38874/05, 27193/07, 4726/14, 54986/15) 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”) on various date by Russian nationals (“the applicants”, a list of the applicants is set out in the appendix);

the decision to give notice of the application to the Russian Government (“the Government”), represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office;

the parties’ observations;

Having deliberated in private on 23 November 2021,

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

SUBJECT-MATTER OF THE CASE

1.  The present cases concern the national authorities’ alleged failure to provide the applicants with the necessary assistance in enforcement of the final judgments against private parties.

2.  On various dates the applicants had final judgments against private parties rendered by national courts in their favour to be enforced. They submitted the writs of execution for these decisions to the bailiffs’ service and enforcement proceedings were initiated, which brough no or insufficient results. The applicants lodged civil actions against the bailiffs’ service, seeking compensation for non-pecuniary damage by the lengthy non‑enforcement of the judgments. The particulars of the relevant domestic proceedings are presented in the appended table.

3.  The provisions of domestic law concerning execution of judgments were previously set out in the case Kunashko v. Russia (no. 36337/03, §§ 27‑30, 17 December 2009) and concerning compensation for damage caused by public authorities and their officials in the case Smagilov v. Russia ((dec.), no. 24324/05, §§ 17-31, 13 November 2014).

THE COURT’S ASSESSMENT

JOINDER OF THE APPLICATIONS

4.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

5.  The applicants complained under Article 6 of the Convention that the national authorities had failed to assist them in the enforcement of the final judgments against private parties. In the relevant part that Article 6 reads as follows:

“1.  In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

6.  The Government contested that argument.

Admissibility

7.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

Merits

8.  The Court notes that the applicable general principles are well‑established in the case-law. Notably, when final judgments are issued against “private” defendants, the State’s positive obligation consists of providing a legal arsenal allowing individuals to obtain, from their evading debtors, payment of sums awarded by those judgments, however this positive obligation is not that of result, but one of means (see among many other authorities see Scollo v. Italy, 28 September 1995, § 44, Series A no. 315‑C, Dachar v. France (dec.), no. 42338/98, 6 June 2000, Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). When it is established that the measures taken by the authorities were adequate and sufficient, the State cannot be held responsible for a failure by a “private” defendant to pay the judgment debt. Only when irregularities and defects attributable to the authorities had a deleterious effect on the enforcement proceedings in their entirety is the State’s responsibility under Article 6 of the Convention engaged (see mutatis mutandis Kunashko, cited above, §§ 38-39).

9.  The Court, having carefully examined the applications listed in the appended table and having regard to its case-law, concludes that, in the light of aforementioned and the material in its possession, and in so far as the matters complained of are within it competence, the Russian authorities had failed to provide the applicants with requisite legal assistance in the enforcement of the judgments against private parties and the measures taken by the bailiffs’ service had not been adequate and sufficient.

10.  There has accordingly been a violation of the applicants’ rights under Article 6 of the Convention.

ALLEGED VIOLATION OF ARTICLE 1 of protocol No. 1

11.  The applicants complained that the authorities’ failure to assist them in the enforcement of the judgments against private parties had resulted in violation of their rights under Article 1 of Protocol No. 1, which in the relevant part reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions ...”

12.  The Government contested that argument.

Admissibility

13.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

Merits

14.  The Court notes that it well-established that when a case concerns enforcement of a final judgment and the debtor is a private party the State cannot be expected to take on the debts of a private party, which having become insolvent or having encountered financial problems is no longer able to pay off the debts (see, for example, Bobrova v. Russia, no. 24654/03, § 16, 17 November 2005). Each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it. The Court’s sole task in cases like the present one is to consider whether the measures taken by the authorities were adequate and effective (see Păduraru v. Romania, no. 63252/00, § 93, ECHR 2005‑XII (extracts), with further references). In this context the State’s duties under Article 6 of the Convention and Article 1 of Protocol No. 1 overlap. However, under the Court’s case-law, in order to find a violation of Article 1 of Protocol No. 1 in such cases it is necessary for the unfairness established under Article 6 of the Convention to have a “direct impact” on the applicant’s property rights (see Zagrebačka banka d.d. v. Croatia, no. 39544/05, §§ 269‑70, 12 December 2013, with further references).

15.  An applicant would first have to demonstrate that he had lost a chance of receiving the award, or a certain part of it, and then that the loss could be ascribed, solely or largely, to the impugned act, having the above‑mentioned “direct impact” (see Krivonogova v. Russia (dec.), no. 74694/01, 1 April 2004). Accordingly, if there remains a prospect of enforcement of a judgment, it would in principle be unwarranted to conclude that there has been a violation of Article 1 of Protocol No. 1

16.  The Court, having carefully examined the applications and having regard to its case-law and the materials in its possession, finds that there are no grounds to establish that the authorities’ actions had a “direct impact” on the enforcement proceedings, which could preclude enforcement of the judgments in these applicants’ favour.

17.  There has accordingly been no violation of the applicants’ right under Article 1 of Protocol No. 1 that provision.

REMAINING COMPLAINTS

18.  The applicants in cases Sablina v. Russia (no. 4726/14) and Ivanyuk v. Russia (no. 54986/15) also lodged an accessory complaint under Article 13 of the Convention. However, having regard to all the available material, the submissions of the parties and its findings under Article 6 of the Convention and Article 1 of Protocol No. 1, the Court finds that this complaint is manifestly ill-founded and must be declared inadmissible under Article 35 § 3 (a) of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicants claimed various amounts in respect of pecuniary and non-pecuniary damages as well as costs and expenses.

20.  The Government considered the claims to be unsubstantiated and indicated that the awards should be made in line with the Court’s established practice.

21.  The Court, having regard to its practice, the nature of the established violations of the applicants’ rights, and acting on an equitable basis, awards the applicants the amounts indicated in the appended table.

22.  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,

Decides to join the applications;Declares the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 admissible and the complaint under Article 13 of the Convention inadmissible;Holds that there has been a violation of Article 6 of the Convention in all of the present applications;Holds that there has been no violation of Article 1 of Protocol No. 1 in all of the present applications;Holds

(a)  that in respect of costs and expenses paid by Ms Sablina (app. no. 4726/14) and in respect of non-pecuniary damage sustained by all the applicants the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated below 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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova  María Elósegui
 Deputy Registrar President

 

APPENDIX
 

List of applications raising complaints under Article 6 § 1 and Article 1 of the Protocol No. 1

(non-enforcement or delayed enforcement of domestic judgments against private parties)

No.

Application

no.

 

Applicant name

Year of birth

Place of residence

Nationality

Represented by

Domestic judgment in applicant’s favour (court, date, award)

 

Article 1069 proceedings (final decision – court, date, award/reason to refuse)

Grounds for the Court’s finding

 

Just satisfaction award

 

1

38874/05

Olga Serafimovna TROITSKAYA-MIRKOVICH

 

1952

 

Dolgoprudniy, Moscow Region

 

Russian

 

National award

Dmitrov Town Court

05/11/2001

RUB 171 519,52

 

entered into force: 06/05/2002

 

Article 1069

None

Unlawful omission recognised:

Babushkinskiy District Court of Moscow

14/06/2007

Article 6 – the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by losing the case file and substituting the debtor with his heirs only six years after his death.

 

Article 1 of Protocol No. 1 – the actions of the authorities’ had no “direct impact” on the enforcement proceedings, the judgment was fully enforced.

 

EUR 1,000 non-pecuniary damage

2

27193/07

Ivan Stepanovich

REVES

 

1924

 

Moscow

 

Russian

 

National award

Presnenskiy District Court of Moscow

10/04/2002

RUB 592,500

 

Article 1069

Declined

Moscow City Court

18/04/2006

(final)

No evidence of damages

Article 6 – the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by losing twice the case file.

 

Article 1 of Protocol No. 1 –

the actions of the authorities’ had no “direct impact” on the enforcement proceedings, which could preclude further enforcement of the judgment. The applicant maintains a possibility to have the judgment in her favour enforced.

 

EUR 1,000 non-pecuniary damage

3

4726/14

Valentina Fedorovna SABLINA

 

1946

 

Saratov

 

Russian

 

Oleg Olegovich ANISHCHIK

 

National award

Leninskiy District Court of Saratov

09/12/1999

RUB 98 168,86

 

Leninskiy District Court of Saratov

13/02/2003

RUB 63 278,00

 

Leninskiy District Court of Saratov

05/05/2015

indexation of the sums awarded under the two judgments

 

Article 1069

Compensation proceedings:

Frunzenskiy District Court of Saratov

27/02/2013

RUB 15,000

Unlawful omission recognized:

Leninskiy District Court of Saratov

15/08/2012

 

Article 6 – the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by losing twice the case file.

 

Article 1 of Protocol No. 1 – the actions of the authorities’ had no “direct impact” on the enforcement proceedings, the judgments were fully enforced.

 

 

Art. 13 – manifestly ill-founded, since the applicant clearly used the relevant domestic remedy and even obtained compensation. The applicant’s discontent with the outcome of proceedings does not demonstrate ineffectiveness of a remedy as such.

 

EUR 1,000 non-pecuniary damage

 

EUR 600 in respect of costs and expenses

4

54986/15 

Yuriy Lvovich

IVANYUK

 

1960

 

Snezhinsk, Chelyabinsk Region

 

Russian

National award

Kurchatovskiy District Court of Chelyabinsk

27.02.02 (came into force on 29.04.02)

RUB 225,861

 

Kurchatovskiy District Court of Chelyabinsk

24.02.04 (came into force on 09.03.04)

RUB 220,695

 

 

Kurchatovskiy District Court of Chelyabinsk

12.05.04 (came into force on 25.05.04)

RUB 81,982

 

Kurchatovskiy District Court of Chelyabinsk

30.03.05 (came into force on 19.04.05)

RUB 141,188

 

Kurchatovskiy District Court of Chelyabinsk

09.03.07 (came into force on 20.03.07)

RUB 114,111

 

Article 1069

Compensation proceedings:

Leninskiy District Court of Chelyabinsk

07.07.14 (final decision – Supreme Court, 05.06.15)

RUB 20,000

 

Unlawful omission recognised:

Kurchatovskiy District Court of Chelyabinsk

14/06/2007

 

Kurchatovskiy District Court of Chelyabinsk

12/04/2011

 

Article 6 – the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by letting the debtor’s spouse to acquire a vast amount of property.

 

Article 1 of Protocol No. 1 – the actions of the authorities’ had no “direct impact” on the enforcement proceedings, the judgments were fully enforced.

 

Art. 13 – manifestly ill-founded, since the applicant clearly used the relevant domestic remedy and even obtained compensation. The applicant’s discontent with the outcome of proceedings does not demonstrate ineffectiveness of a remedy as such.

 

EUR 7,700 non-pecuniary damage

 

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