THIRD SECTION
DECISION
Application no. 15235/07
Svetlana Georgiyevna FESENKO against Russia
and 7 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 4 September 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are Russian nationals. The application numbers, dates, the applicants’ names and their personal details are set out in the annexed table.
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.
The facts of the cases, as submitted by the parties, may be summarised as follows.
On various dates the applicants brought civil proceedings against private parties. The national courts held for the applicants and ordered the defendants under these judgments (the debtors) to perform certain acts and/or to pay various sums to the applicants. The judgments became final and enforceable.
The Bailiffs’ Service initiated and pursued enforcement proceedings against the debtors with varying degrees of success. Discontented with the alleged lack of progress in the enforcement of the judgments, certain applicants initiated judicial proceedings. The relevant information is presented in the annexed table.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention about failure of the State to provide them adequate and efficient legal assistance in the enforcement of judgments against private parties.
The applicants also complained under Article 1 of Protocol No. 1 to the Convention that failure of the State to assist them in enforcement of the judgments resulted in violation of their property rights.
Some of the applicants also lodged accessory complaints under Articles 4, 6, 13, 14 and 17 of the Convention.
THE LAW
The Court first considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications listed in the appended table should be joined, given their common legal background.
The respondent Government in their observations argued that the present applications did not comply with the admissibility criteria under Article 35 of the Convention and thus invited the Court to declare them inadmissible.
Certain applicants disagreed, while the others did not provide specific admissibility arguments.
The Court has carefully examined the applications listed in the annexed table and concluded that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the applications listed in the annexed table are inadmissible and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 27 September 2018.
Stephen PhillipsAlena Poláčková
RegistrarPresident
Appendix
No.
Application no.
date of introduction
Applicant’s name
date of birth
place of residence
Represented by
Domestic judgment
in applicant’s favour
(court, date, award)
Article 1069 proceedings
(final decision – court, date,
award/reason to refuse)
Reason for inadmissibility
15235/07
12/03/2007
Svetlana Georgiyevna
FESENKO
13/07/1940
Rostov-on-Don
Justice of the Peace of Court Circuit no. 1 of the Leninskiy District of Rostov-on-Don on
- 27 February 2006 / RUB 36,750 (RUB 26,750 plus RUB 10,000 in non-pecuniary damage)
Moscow City Court on 21 May 2009 / refused:
- non-enforcement caused by lack of the debtor’s funds;
- the bailiff took all due lawful measures;
- no evidence of a causal link between the damages incurred by the applicant and the bailiff’s omission.
Manifestly ill‑founded
37871/07
05/08/2007
Grigoriy Semenovich
GALITSKIY
25/08/1937
Perm
Denis Grigoryevich Galitskiy
Justice of the Peace of Court Circuit no. 14 of the Kirovskiy District of Perm on
- 26 February 2007 / RUB 550,379.02 (RUB 449,558.44 in salary arrears and RUB 100,820.58 in delay interest)
Perm Regional Court on 2 December 2010 / refused:
- non-enforcement caused by lack of the debtor’s funds and multiple creditors;
- the bailiffs took reasonable measures;
- no causal link between non‑enforcement and the bailiff’s inaction;
- the debtor moved some of the funds to a third party in the course of the enforcement proceedings in order to settle the indebtedness.
Manifestly ill‑founded
19500/08
31/01/2008
Valeriy Ivanovich KOSTUSEV
10/04/1958
Troitskove,
Sakhalin Region
Yevgeniy Fedorovich
Kostyuchenko
Justice of the Peace of Court Circuit no. 21 of the Sovetskiy District of Vladivostok, Primorskiy Region on
- 1 June 2006 / RUB 994,280.45 in wages with interest
Primorskiy Regional Court on 4 December 2007 / claimed the debt / refused:
- the bailiffs took all possible measures to establish the debtor and his property;
- the applicant’s reference to a vessel, allegedly owned by the debtor, was unsubstantiated;
- the possibility of enforcement due to pending enforcement proceedings;
- no causal link between the bailiffs’ actions and the non-enforcement;
- Article 1070 of the Civil Code not applicable as the particular bailiff does not belong to the investigation, preliminary investigation, prosecution or judicial authorities;
- the debtor is a particular private party and not the State.
Manifestly ill‑founded
20527/08
04/04/2008
Elmira Aleksandrovna AVERYANOVA
06/03/1966
Dedovsk,
Moscow Region
Justice of the Peace of Court Circuit no. 63 of the Istrinskiy District, Moscow Region on
- 15 June 2001 / monthly alimony in the amount of 1/3 of all types of earnings as of 15 June 2001 until the children are of age
Moscow Regional Court on 27 May 2010 / pecuniary damage / refused:
- no grounds to acknowledge the bailiffs’ inaction (initiated the search of the debtor; took measures to locate his property);
- the bailiffs repeatedly initiated the debtor’s search with transfer of the case materials to the Internal Affairs officials for implementation of the search; the bailiffs could not perform the search due to lack of basic information on the debtor (the applicant informed the bailiffs that the debtor was no longer registered at the address indicated in the writ of execution and left in the unknown direction in 2000).
Manifestly ill‑founded
44275/08
27/06/2008
Nikolay Ivanovich
PETROV
15/11/1940
Kazan,
Republic of Tatarstan
Justice of the Peace of Court Circuit no. 1 of the Vakhitovskiy District of Kazan, Republic of Tatarstan on:
- 10 July 2006 (court order) / RUB 79,170;
- 29 January 2007 / RUB 30,450;
- 12 March 2007 (court order) / RUB 109,620 (total of the two preceding judgments);
- 1 July 2008 / RUB 21,122.36 in interest (ref. court order of 10 July 2006 and judgment of 29 January 2007);
- 28 August 2008 / RUB 19,614.37 in indexation (ref. court order of 10 July 2006);
- 28 August 2008 / RUB 5,757 in indexation (ref. judgment of 29 January 2007)
Supreme Court of the Bashkortostan Republic on 31 March 2008 / bailiffs’ inaction was found unlawful but the claims for damage were refused:
- the claims against the local bailiffs’ service for pecuniary and non-pecuniary damage were not raised before the first-instance court and were not heard by the first instance;
- the applicant’s cassation argument that he brought the action against the local bailiffs’ service and not the particular bailiff could not cause revocation of the first-instance judgment as enforcement is carried out not by a service but by a particular bailiff; as follows from the court record the applicant referred to inaction of the bailiff (not the bailiffs’ service).
Non-exhaustion of domestic remedies
3953/09
26/12/2008
Viktor Vasilyevich
YARYGA
09/04/1957
Stepnoye,
Stavropol Region
Stepnovskiy District Court of the Stavropol Region on
- 22 May 2003 / RUB 153,000 in the main debt and RUB 38,566 in interest
Non‑exhaustion of domestic remedies
33056/09
17/04/2009
Andrey Olegovich
MOSKVIN
06/09/1959
Korolev,
Moscow Region
Korolev Town Court of the Moscow Region on
- 4 November 2000 / RUB 852,600;
- 29 December 2004 / debt indexed to RUB 1,473,483.20;
- 20 December 2007 / debt indexed to RUB 1,989,929.76;
- 1 October 2007 / debt indexed to RUB 1,681,471.40;
- 22 February 2012 / debt indexed to RUB 2,082,457.59;
- 26 September 2005 / RUB 303,789 in interest, plus interest until actual payment, and RUB 4,669.36 in State fee;
- 25 October 2005 / RUB 303,789 for the use of other persons’ funds
Moscow City Court on 19 February 2009 / refused:
- no evidence that the bailiffs caused moral or physical harm to the applicant;
- no causal link between the claimed pecuniary damage (the fee for registration of the property right to the debtor’s house) and the unlawful actions of the bailiff;
- no legal grounds for reimbursement of the applicant’s rent payments (the applicant has been renting an apartment upon eviction from the debtor’s house).
Manifestly ill‑founded
75416/11
30/11/2011
Larisa Nikolayevna LOPATINA
20/12/1957
Fontenay le Fleury, France
self-representation
Nizhegorodskiy District Court of Nizhniy Novgorod on:
- 21 April 2010 / RUB 99,252.50 in wages for the period of forced absence;
- 8 June 2010 / reinstatement at work, RUB 233,054.81 in wages and RUB 15,000 in non‑pecuniary damage / immediate enforcement, but for RUB 132.688/14 in wages and RUB 15,000 in non‑pecuniary damage which were to be enforced upon entry of the judgment into effect;
- 30 June 2010 / RUB 141,684.95 (RUB 115,000 in wages, RUB 14,285.76 in compensation for unused vacation, RUB 2,399.19 in interest for delayed wages, RUB 10,000 in non-pecuniary damage);
- 25 October 2010 / RUB 179,800 in wages for the period of forced absence, RUB 53,689.47 in compensation for delayed wages, RUB 15,000 in non-pecuniary damage;
- 13 November 2010 / reinstatement at work and RUB 10,000 in non-pecuniary damage / immediate enforcement in part of the reinstatement;
- 25 February 2011 / RUB 131,053.45 in wages, RUB 1,950.43 in interest for delayed wages, RUB 15,000 in non-pecuniary damage;
- 18 April 2011 / termination of employment agreement due to the employee’s initiative, return of employment record book with the respective record
Manifestly ill‑founded
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