CASE OF VANYUKOVA v. RUSSIA

THIRD SECTION

CASE OF VANYUKOVA v. RUSSIA

(Application no. 22764/12)

JUDGMENT

STRASBOURG

8 October 2019

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

In the case of Vanyukova v. Russia,

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

Georgios A. Serghides, President,
Branko Lubarda,
Erik Wennerström, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 September 2019,

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

PROCEDURE

1.  The case originated in an application (no. 22764/12) 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 Tatyana Georgiyevna Vanyukova (“the applicant”), on 16 March 2012.

2.  The applicant was represented by Mr S.I. Gridnev, a lawyer practising in Vladikavkaz.

3.  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.

4.  In the wake of the pilot judgment in the case of Gerasimov and Others v. Russia, on 24 November 2014 the the complaints concerning the non-enforcement of a judgment in the applicant’s favour and the lack of an effective remedy against the non-enforcement was 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 remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Court informed the parties at the communication stage that the case, subject to settled case-law, would be allocated to the Committee.

5.  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).

6.  On 29 September 2016 the Government advised the Court that they were unable to settle the present application within the above time-limit, as the domestic judgment in the applicant’s favour had remained unenforced. Having regard to the expiry of the above-mentioned adjournment period, the Court has decided to resume the examination of the application. In 2018 the Court invited the parties to provide further comments of factual and legal issues arising in the case. They were requested, in particular, to specify a due domestic procedure which was to be used at the material time to allow enforcement of the initial judgment given against the command of a military unit after the applicant’s transfer to a different military unit.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

7.  The applicant was born in 1955 and lives in Vladikavkaz. She is a former military officer.

8.  On 11 February 2004 the Vladikavkaz Garrison Military Court ordered the command of military unit no. 5588 to grant the applicant 10 days of additional leave per each three months of service and to recalculate the term of her military service for the purpose of the calculation of her pension, to take account of her participation in an armed conflict for the period between 8 June 1995 and 31 December 2001 and in line with the military unit’s commander’s orders. The judgment entered into force on 25 February 2004.

9.  On 11 February 2004 the debtor unit issued a certificate to confirm that, according to the unit’s calculation, the applicant was entitled to 224 days of additional leave.

10.  Once the judgment became final, the applicant transferred it to the debtor military unit.

11.  At some point military unit no. 5588 complied with the judgment in so far as the recalculation of her term of service on account of her participation in the armed conflict was concerned.

12.  According to the applicant, no procedure for compulsory enforcement of the court order was put in place, and no writ of execution in respect of the judgment has ever been issued, as the military unit voluntarily complied with the judicial order in part (see paragraph 11 above).

13.  On 6 November 2006 the applicant was transferred to military unit no. 3718 (“the mew military unit”) for further military service. According to the applicant, military units nos. 5588 and 3718 are parts of the same “sub‑division” (подразделение). The debtor unit indicated in the initial judgment still exists.

14.  On 28 August and 27 October 2010 the applicant asked the new unit to grant her additional leave days in accordance with the judgment, in view of her upcoming dismissal from military service. From the respective commander’s resolutions (hand-written replies on the applicant’s original requests) it follows that her requests were disallowed, as the new military unit was not a debtor in accordance with the judgment, and there was no information on the applicant’s use of the leave days. Furthermore, the request was belated as the judgment of 2004 should have been submitted for execution within three years.

15.  On 8 September 2010 military unit no. 5588 certified that the applicant had been entitled to 224 additional leave days.

16.  According to the applicant, in November 2010 military unit no. 3718 recalculated the term of her military service.

17.  On 15 December 2010 the applicant was dismissed from military service without being granted the leave in question.

18.  On 21 February 2011 she challenged her dismissal without granting additional leave, arguing, in particular, that she was entitled either to the said leave or to a monetary compensation for the unused leave days.

19.  On 20 May 2011 the first-instance court granted her claim. The court found that as a result of the applicant’s transfer to the new unit the duty to enforce the award was also transferred thereon. The applicant had not missed the three-month time-limit for lodging her complaint, as she had challenged the decision to dismiss her without granting the leave awarded by the judgment, and not the commander’s refusals to grant her leave issued in August and October 2010. Finally, the requirement to submit the writ of execution within three years would only be applicable if the applicant had made use of her subjective right to seek compulsory enforcement of the judicial award. In any event, the authorities were not absolved from an obligation to abide by the judgment. Military unit no. 5588 had received the judgment immediately after its entry into force, and the new unit had recalculated the applicant’s term of service and thus had complied with the judgment in part. The court ordered to reinstate the applicant, so that she could have been provided with the leave days.

20.  On 20 July 2011 the appeal court in the final instance quashed the lower court’s ruling and issued a new judgment dismissing her action. The court found that the lower court correctly established the facts but misapplied the domestic law. According to the appeal court, the new military unit was under no legal obligation to enforce the judgment, as it was given against a different military unit. The court noted that the applicant had not requested the initial debtor to provide her with the leave days in 2004-2006, during her service in that unit. Furthermore, the domestic courts had never examined the possibility of changing the method and the procedure of the execution of the judicial award. Finally, the initial judgment had never been amended or modified to allow its enforcement by the new military unit.

II.  RELEVANT DOMESTIC LAW

A.  Manner of execution of a judgment

21.  Article 203 § 1 of the Code of Civil Procedure provides that a court which considered a case may change the method and the procedure («cпособ и порядок») of execution of the judgment on applications of the parties or the bailiff or on account of the parties’ property situation or other circumstances.

22.  According to section 18 of the Enforcement Act of 1997 (Federal Law on Enforcement Proceedings no. 119-FZ of 21 July 1997, in force until 1 February 2008), where circumstances precluding performance of the enforcement acts arose, a bailiff could apply to a court or another authority which issued the writ of execution, with a request for modification of the method and the procedure of execution of the judgment. The bailiff could do so of his own initiative or on the parties’ request. Similarly, section 37 of the Enforcement Act of 2007 (Federal Law on Enforcement Proceedings no. 229- FZ of 2 October 2007 which replaced the earlier Enforcement Act as of 1 February 2008 and is now in force) provides that the bailiff may request a court, another organ or authority which has issued the enforcement document to modify the method and the procedure of execution.

B.  Allowances for military servicemen

23.  Military servicemen are entitled to additional leave days in accordance with domestic legislation on account of their participation in the armed conflicts (Rules of Military Service, approved by the Decree of the President of the Russian Federation no. 1237 of 16 September 1999, section 34(16)).

24.  Servicemen dismissed from military service should be provided with all types of allowances on the date of their exclusion from the military unit’s lists. Otherwise they cannot be dismissed from service without their consent (section 34(16) of the above Rules).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

25.  The applicant complained about the non-enforcement of the judgment of 11 February 2004 in her favour. She referred to Article 6 of the Convention and Article 1 of Protocol No. 1, which reads as follows:

Article 6

“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.”

26.  In their initial observations after the expiry of the adjournment period the Government submitted that the judgment in the applicant’s favour had remained unenforced. They acknowledged their obligations under the Gerasimov and Others pilot judgment 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. In their further observations they noted, without further details, that the leave days were “counted towards the applicant’s service period” and that she had been provided with “30 rehabilitation days instead of the unused leave”. They further quoted the domestic court’s findings to the effect that the applicant had not asked the command of the initial debtor unit for provision of additional leave days before her dismissal from that unit, and that the domestic courts had not examined whether the manner of execution should have been changed. They submitted that it was no longer possible to provide the applicant with additional days of leave, as she had been dismissed from the military service.

27.  The applicant maintained her complaint. She argued that the two military units were parts of the same sub-division, and the new military unit had been under obligation to comply with the unenforced part of the final judgment in her favour. Pursuant to the applicant’s request in 2010, the new military unit command voluntarily complied with that judicial decision in part, as they had calculated the length of her service. The appeal court’s findings absolving the new unit from an obligation to enforce the award had been unfair. The days of the rehabilitation leave could not be counted towards her unused additional leave.

A.  Admissibility

28.  The Government may be understood to argue that the applicant’s behaviour was uncooperative and constituted an obstacle to the enforcement of the judgment in good time.

29.  The Court has accepted in earlier cases that a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt (see Shvedov v. Russia, no. 69306/01, § 32, 20 October 2005). The creditor’s uncooperative behaviour may be an obstacle to timely enforcement of a judgment, thus alleviating the authorities’ responsibility for delays (see Belayev v. Russia (dec.), no. 36020/02, 22 March 2011). The requirement of the creditor’s cooperation must not, however, go beyond what is strictly necessary and, in any event, does not relieve the authorities of their obligation under the Convention to take timely action of their own motion, on the basis of the information available to them, with a view to honouring the judgment against the State (see Akashev v. Russia, no. 30616/05, § 22, 12 June 2008).

30.  As regards the applicant’s alleged failure to request the initial debtor to execute the judicial award, the Court reiterates that a person who has obtained an enforcement title against the State cannot be required to resort to enforcement proceedings in order to have it executed (see, for example, Cocchiarella v. Italy [GC], no. 64886/01, § 89, ECHR 2006‑V). In such cases, the defendant State authority must be duly notified of the judgment and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for execution (see, among others, Akashev, cited above, § 21). The initial debtor in the present case was served with the copy of the judgment and, moreover, started to comply with it (see paragraph 11 above). The Court does not discern any need for the applicant to remind the authorities of the judgment they had already started to execute. Similarly, the Court sees no reason to depart from its settled approach and finds that the applicant cannot be blamed for not making use of the compulsory enforcement proceedings.

31.  Further, as noted by the domestic courts and the Government, she could have arguably requested to change the manner of execution (see paragraph 21 above), or, in case where the enforcement proceedings were in place, request the bailiff to make such a request (see paragraphs 21 and 22 above). However, in the absence of any further clarifications from the parties, the Court cannot speculate on the outcome of such request, let alone prospects of success of such proceedings, given that the key issue in the present case was a correct determination of an entity responsible for further enforcement, rather than specific enforcement modalities. The Court rejects the Government’s respective argument.

32.  Otherwise, despite the Court’s explicit request (see paragraph 6 above), the parties did not provide any information about a procedure which was to be used at the material time to allow enforcement of the judgment concerning leave days provision, where a serviceman was transferred to a different unit in the context of her continued employment with the Russian military forces, and where the initial debtor unit had not ceased to exist. In these circumstances, the Court is unable to establish the exact scope and nature of any specific additional steps the applicant had to take to obtain the enforcement of the judgment. Accordingly, the Court does not have sufficient grounds to conclude that her behavior was an obstacle to timely and full enforcement of a judgment (see, by contrast, Gadzhikhanov and Saukov v. Russia, nos. 10511/08 and 5866/09, §§ 25-31, 31 January 2012), and rejects the Government’s argument to that effect. As it is incumbent on the State to organise its legal system in such a way that ensures co-ordination between various enforcement agencies and secures honouring of the State’s judgment debts in good time (see, mutatis mutandis, Reynbakh v. Russia, no. 23405/03, § 23, 29 September 2005), the Court further finds that it was for the applicant’s two consecutive employers – the military units apparently belonging to the same sub-division – to ensure coordination in providing her with the allowances pursuant to the final judgment during her uninterrupted service in the Russian military forces.

33.  Finally and importantly, as established by the first-instance court in 2011, the new unit in any event complied with the judgment in the part concerning the recalculation of the applicant’s term of service (see paragraph 19 above). This conclusion was not disputed by the parties before the Court, and the appeal instance confirmed that the lower court’s establishment of the facts was correct (see paragraph 20 above). Accordingly, the Court cannot establish that prior to her dismissal and the ensuing final court decision of 20 July 2011 the applicant knew, or ought to have known, that the enforcement of the judgment in her favour was no longer possible after her transfer for further service to the new military unit (see, by contrast, Babich and Azhogin v. Russia (dec.), nos. 9457/09 and 9531/09, §§ 47‑54 and 57‑58, 15 October 2013; or Bichenok v. Russia (dec.), no. 13731/08, 31 March 2015).

34.  The Court concludes 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

35.  The Court observes that the judgment in the applicant’s favour had not been enforced until at least late 2010, when she was dismissed – that is, for more than six years. That period is prima facie incompatible with the Convention requirements.

36.  In addition, despite the Court’s request, the parties did not provide any reference to domestic law provisions enabling the debtor to replace the obligation to grant additional leave by the so-called “rehabilitation days”, as suggested by the Government. The Court accordingly rejects their respective argument.

37.  Having regard to its case-law on the matter ( see the leading case of Gerasimov and Others, cited above) the Court considers that the authorities did not deploy all necessary efforts to enforce fully and in due time the judgment in the applicant’s favour, in breach of her right to a court.

38.  Accordingly, there has been a violation of Article 6 of the Convention on account of the non-enforcement of the judgment of 11 February 2004 in the applicant’s favour.

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

39.  The applicant further referred to Article 1 of Protocol No. 1 in respect of the non-enforcement complaint. Given its findings under Article 6 above, as well as having regard to the nature of the domestic award made by the national court in the present case, the Court considers that there is no need for a separate examination of the admissibility and merits of the complaints under Article 1 of Protocol No. 1 (see, mutatis mutandis, Lyubov Stetsenko v. Russia, no. 26216/07, § 92, 17 April 2014).

III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

40.  The applicant may be understood to complain about the lack of an effective domestic remedy in respect of the non-enforcement. 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.”

41.  The Court has already noted 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 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 Kamneva and Others v. Russia (dec.), nos. 35555/05 and 6 others, 2 May 2017). The Court has found that the amended Compensation Act in principle meets the criteria set out in the Gerasimov and Others pilot judgment and provides the applicants with a potentially effective remedy for their non-enforcement complaint (see Shtolts and Others v. Russia (dec.), nos. 77056/14 and 2 others, §§ 87-116 and § 123, 30 January 2018).

42.  Even though the remedy was – and still is – available to the applicant, the Court reiterates 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 Gerasimov and Others, cited above, § 230).

43.  However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicant’s complaint under Article 13 in the present case (see, mutatis mutandis, Korotyayeva and Others, nos. 13122/11 and 2 others, § 40, 18 July 2017; and Tkhyegepso and Others v. Russia, nos. 44387/04 and 11 others, §§ 21-24, 25 October 2011).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

44.  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

45.  The applicant claimed 7,800,778 Russian roubles (RUB) (approximately 121,725 euros (EUR)) in respect of pecuniary damage. That amount represented monetary compensation for 224 days of additional leave between 8 June 1995 and 31 December 2001, as well as salary, emoluments and interest for the period between 1 January 2002 and 31 December 2016. She further claimed RUB 500,000 (approximately EUR 7,795) in respect of non-pecuniary damage.

46.  The Government contested those claims as manifestly excessive and unsubstantiated. They noted that no monetary award had been made by the domestic court in the applicant’s favour, and the applicant had not lodged relevant claims with the national court.

47.  The Court agrees with the Government that the domestic court’s judgment did not oblige the authorities to pay the applicant any specific amount of money. In the absence of a relevant domestic ruling, the Court does not discern a causal link between the amount claimed and the violation found, and rejects the claim for pecuniary damage.

48.  On the other hand, the Court notes that it has found a violation of the Convention on account of the continued non-enforcement of the judgment of 11 February 2004. Indeed, in so far as that judgment has not been annulled and modified, the Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been in had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). Having regard to the violation found, the Court finds that in the present case this principle applies as well. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment of 11 February 2004.

49.  The Court further points out that its judgments are essentially declaratory in nature. In general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention (see Shofman v. Russia, no. 74826/01, § 53, 24 November 2005, with further references). By finding a violation of Article 6 § 1 in the present case, the Court has established the Government’s obligation to take appropriate measures to remedy the applicant’s individual situation, that is to ensure compliance with the applicant’s enforceable claim under the judgment of 11 February 2004 (see, for instance, Humbatov v. Azerbaijan, no. 13652/06, § 38, 3 December 2009, with further references). The Court notes that the applicant in the present case was dismissed from military service. In this connection, the Court considers that a decision on appropriate measures to enforce the judicial award, or, if this proves impossible, granting the applicant reasonable compensation, or a combination of these and other measures, falls to the respondent State (see, mutandis mutadis, Tarverdiyev v. Azerbaijan, no. 33343/03, § 66, 26 July 2007). The Court, however, emphasises that any measures adopted must be compatible with the conclusions set out in the Court’s judgment (see Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II, with further references).

50.  The Court further awards the applicant EUR 7,800 in respect of non‑pecuniary damage, and dismisses the remainder of her claims under this head.

B.  Costs and expenses

51.  The applicant also claimed RUB 70,000 (EUR 1,091) for the costs and expenses incurred before the domestic courts and RUB 150,000 (EUR 2,339) for those incurred before the Court. She submitted a copy of a receipt confirming the payment made by the applicant and accepted by Mr Gridnev of the two above amounts in respect of the “domestic proceedings” and “Strasbourg proceedings”, respectively.

52.  The Government contested the claim as unfounded and pointed out that the applicant had failed to submit a copy of any agreement for legal services.

53.  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. Regard being had to the documents in its possession and to its case-law, the Court considers that the amount claimed is not reasonable to quantum, given 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 300 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

54.  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 under Article 6 of the Convention concerning the non-enforcement of the judgment of 11 February 2004 in the applicant’s favour admissible;

2.  Holds that these complaints disclose a breach of Article 6 § 1 of the Convention on account of the non‑enforcement of the judgment of 11 February 2004;

3.  Holds that there is no need to examine separately the admissibility and merits of the complaint under Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention;

4.  Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic judgment in the applicant’s favour;

5.  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:

(i)  EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, 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;

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

Done in English, and notified in writing on 8 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsGeorgios A. Serghides
RegistrarPresident

 

Full & Egal Universal Law Academy