THIRD SECTION
DECISION
Application no. 35555/05
Olga Yuryevna KAMNEVA against Russia
and 6 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 2 May 2017 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the decision to apply the pilot-judgment procedure taken in the case of Gerasimov and Others v. Russia (nos. 29920/05 and 10 others, 1 July 2014),
Having regard to the declarations submitted by the respondent Government requesting the Court to strike the applications out of the list of cases and the applicants’ reply to those declarations,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The case originated in seven applications (nos. 35555/05, 2567/07, 5455/08, 6893/08, 59050/08, 48743/09 and 4568/10) 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 seven Russian nationals on various dates listed in the appendix below. Their personal details are set out in the appendix.
2. By letter received on 2 September 2016 Ms Olga Yuryevna Kamneva, the applicant in case no. 35555/05, notified the Court that on 7 October 2015 she had got married and had changed her name to Tome. The Court will continue processing the application under the case name of Kamneva v. Russia. This corresponds to the applicant’s name as referred to in the domestic court proceedings at issue as well as in her application lodged with the Court.
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 Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the Court.
A. Facts of the cases
4. On various dates the applicants obtained binding judicial decisions ordering the State authorities to provide them with housing. The judgments became final as specified in the table below and were enforced with a delay. The relevant details in respect of the judgments are listed in the appendix.
B. Communication of the applications to the Government
5. In the wake of the pilot judgment in the case of Gerasimov and Others, on various dates the applications were communicated to the Government for settlement or resolution (see Gerasimov and Others, cited above, §§ 230-31 and point 13 of the operative part) in so far as they concerned the applicants’ complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about non-enforcement of the final judicial decisions and the complaint under Article 13 of the Convention about the lack of an effective remedy in respect of the non‑enforcement issue.
C. Relevant amendments to the Compensation Act
6. On 14 December 2016 the Russian Parliament adopted 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 were made to the part of 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 on 19 December 2016, entered into force on 1 January 2017. It extends 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, as follows.
7. The Compensation Act, as amended by the new Law, entitles a party (“an applicant”) to bring an action seeking compensation for the violation of his or her right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets, or a judgment ordering the federal authorities, authorities of the federal entities of the Russian Federation, local authorities, other bodies and organisations endowed with specific State or other public powers, or public and municipal servants to fulfil “other obligations of a pecuniary nature and (or) obligations of a non-pecuniary nature” (section 1(1) of the Compensation Act, as amended by section 1(1) of the new Law).
8. Such compensation can only be awarded if the alleged violation took place independently of the applicant’s own actions, except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or the right to enforcement of a judgment within a reasonable time (section 1(2) of the Compensation Act). A compensation award is not dependent on the courts establishing a fault on the part of the competent authorities (section 1(3) of the Compensation Act).
9. Compensation is awarded in monetary form (section 2(1) of the Compensation Act). The amount of compensation awarded should be determined by the courts in accordance with the applicant’s claims, the circumstances of the case, the length of the period during which the violation took place, the significance of its consequences for the applicant, the principles of reasonableness and fairness, and the practice of the European Court of Human Rights (section 2(2) of the Compensation Act).
10. Section 3 of the Compensation Act, as amended by section 1(2)(a) of the new Law, sets out the rules of jurisdiction and procedure. It provides, in particular, that a claim for compensation on account of delayed enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment ordering that compensation be paid from the State budget. Alternatively, a claim may be lodged at the end of the proceedings or after the compulsory enforcement of a judicial act imposing other obligations of a pecuniary or non-pecuniary nature on the authorities, but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the procedure for enforcement.
11. In the respective court proceedings the Russian Federation, a federal entity or a municipality is represented by a relevant financial authority and the main administrator of the relevant budget (section 3(9) of the Compensation Act as amended and supplemented by section 1(2)(b) of the new Law).
12. A court decision granting compensation is subject to immediate enforcement (section 4(4) of the Compensation Act). It may be appealed against in accordance with the procedural legislation in force (section 4(5)).
13. A judgment ordering different authorities to fulfil other obligations of a pecuniary or non-pecuniary nature is executed by the relevant financial body (section 5(2(2) of the Compensation Act as amended by section 1(3)(b) of the new Law). The costs of compensation awards are included in the federal budget, in the budgets of the federal entities and in local budgets (section 5(3) of the Compensation Act as amended).
14. Costs related to the implementation of the new Law should be recovered from the funds of the relevant budgets of the Russian Federation allocated for that purpose (section 2 of the new Law).
15. All individuals who have complained to the European Court of Human Rights that their right to enforcement of a judgment within a reasonable time has been violated may claim compensation in the domestic courts under the Compensation Act as amended within six months of the new Law’s entry into force, provided that the European Court has not ruled on the admissibility or merits of the complaint (section 3(2) of the new Law).
THE LAW
A. Joinder of the applications
16. Given that the applications at hand concern similar facts and complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of Court.
B. The applicants’ complaint about non-enforcement of the domestic judgments
17. The applicants complained about non-enforcement of the final judgments in their favour imposing obligations in kind on various domestic authorities. They relied, in particular, on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
18. On various dates the Government submitted that the domestic judgments had been enforced in full on various dates set out in the appendix. The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the applications. All those declarations read as follows:
“... the Russian authorities acknowledge the lengthy non-enforcement of the judgment of [a domestic court] of [date]. The judgment became final on [date] and was enforced on [date]. The delay in enforcement constituted ...
The authorities are ready to pay the applicant EUR ... as just satisfaction.
They also declare that they are ready to pay the applicants the sums listed in the appendix in respect of non-pecuniary and, where appropriate, pecuniary damage.”
19. The Government’s proposals, as well as factual information on the domestic judgments in the individual cases, are summarised in the appendix below. The declarations went on to read:
“The authorities therefore invite the Court to strike [the application] out of the list of cases. They suggest that the present declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The [sums set out in the table below], which [are] to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. [They] will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay [these sums] within the said three‑month period, the Government undertake to pay simple interest on [them] from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
20. The applicants were invited to comment on the Government’s unilateral declarations, if they so wished.
21. Some of the applicants did not submit any comments. Others disputed the real dates of enforcement or argued that the authorities had failed to observe proper modalities of enforcement of the judgments in their favour. Some of the applicants claimed that they were entitled to a further compensation of pecuniary damage or costs. Finally, some of them were dissatisfied with the amounts proposed in respect of non-pecuniary damage and submitted their own calculations to that effect.
22. Having examined the terms of the Government’s declarations concerning the present applications, the Court understands them as intending to give the applicants redress in line with the pilot judgment (see Gerasimov and Others, cited above).
23. The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
24. Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued (see the principles emerging from the Court’s case-law, and in particular the Tahsin Acar v. Turkey judgment (preliminary objections) ([GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).
25. The Court has established clear and extensive case-law concerning complaints relating to the non-enforcement or delayed enforcement of domestic decisions imposing obligations in kind on domestic authorities (see the pilot judgment Gerasimov and Others, cited above, with further references).
26. The Court notes that the declarations submitted by the Government in the present cases were no doubt intended to resolve the issues raised by the applications in so far as the non-enforcement complaints were concerned. The Court is satisfied that the Government have acknowledged, at least in substance, the violation of the applicants’ Convention rights as a result of the delayed enforcement of the final judgments in their favour.
27. In so far as several applicants contested the execution modalities, the Court reiterates that domestic courts are better placed to ascertain the proper method of enforcement and to decide the issue of whether and when full and appropriate compliance with a judgment has been secured. The Court requires that any dispute in that respect be first and foremost examined by domestic courts (e.g., the parties’ lawsuits against the bailiffs’ decision to pursue or to close the enforcement proceedings). The Court may only depart from this principle and accept an argument about the improper enforcement of a judgment in the event of flagrant inconsistency between the judgment requirements and the defendant authority’s acts (see Gerasimov and Others, cited above, § 173 and the case-law cited therein). The Court notes that the applicants failed to bring their respective grievances to the attention of the domestic courts. Furthermore, it finds that the present cases do not reveal any flagrant inconsistency. The Court therefore lends credence to the Government’s submissions and rejects the applicants’ objections.
28. In so far as the applicants contested the amounts proposed by the Government in respect of non-pecuniary damage, the Court is satisfied that the sums offered by the Government as compensation for non-pecuniary damage to all the applicants are directly proportionate to the delays in enforcement of the judgments. They are also in line with the Court’s case‑law in so far as the non-enforcement issue is concerned (see, for example, Kalinkin and Others v. Russia, nos. 16967/10 and 20 others, 17 April 2012, and Ilyushkin and Others v. Russia, nos. 5734/08 and 28 others, 17 April 2012). As for the remainder of some of the applicants’ submissions under this head, the Court does not accept that there is a causal link between the amounts claimed and the alleged violations of the Convention on account of the non-enforcement, and rejects the objections.
29. In so far as the applicants may be understood to claim further compensation of pecuniary damage or costs incurred in the domestic proceedings or in the proceedings before the Court, the Court notes that they did not substantiate their claims with any documents or evidence and accordingly rejects the objections.
30. In sum, having regard to the nature of the admissions contained in the Government’s declarations, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)). Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).
31. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
32. In view of the above, it is appropriate to strike the cases out of the list in so far as it relates to the non-enforcement complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
C. The applicants’ complaint about the lack of the domestic remedy in respect of their non-enforcement complaint
33. Some applicants further complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non-enforcement complaints. The Government did not specify their position in relation to this complaint.
34. The Court reiterates that by the pilot judgment in Gerasimov and Others it ordered the State, in cooperation with the Committee of Ministers, to set up an effective domestic remedy or combination of such remedies which secured adequate and sufficient redress for non‑enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State’s authorities in line with the Convention principles as established in the Court’s case-law (see Gerasimov and Others cited above, §§ 223-26 and point 12 of the operative part).
35. The Court takes cognisance of the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and/or non-pecuniary nature on the domestic 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 paragraphs 6-15 above).
36. The Court has not yet assessed the quality of the new remedy in force as of January 2017 and will examine this question in other cases that are more suitable for such analysis. It further notes that the present applications were lodged before the above-mentioned amendments to the Compensation Act entered into force.
37. However, in the light of the adoption of the new domestic remedy – and given that the Court has in any event examined the present cases in the light of the pilot judgment’s requirement to grant adequate and sufficient redress to applicants who lodged their applications before the date of delivery of the pilot judgment (see Gerasimov and Others, cited above, §§ 230-31 and point 13 of the operative part) – the Court considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, mutatis mutandis, Pobudilina and Others v. Russia (dec.), nos. 7142/05 and 29 others, 29 March 2011; Zemlyanskiy and Others v. Russia (dec.), nos. 18969/06 and 4 others, 13 March 2012; and several other cases). As stated above, this ruling is without prejudice to the Court’s future assessment of the new remedy.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the Government’s declarations and the arrangements for ensuring compliance with the undertakings referred to therein;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as they concern the complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the delayed enforcement of the domestic judgments in the applicants’ favour;
Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention.
Done in English and notified in writing on 24 May 2017.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
APPENDIX
No.
Application No.
Lodged on
Applicant
Date of birth
Place of residence
Domestic court
Date of judgment
Final on
Domestic award
Enforcement date Enforcement delay as acknowledged in the UD
Date of unilateral declaration
Remedial offer (euros)
Date of applicant’s letter in reply
35555/05
07/09/2005
Olga Yuryevna KAMNEVA
(TOME)
10/09/1971
Mainz, Germany
Vologda Town Court
20/08/2003
10/10/2003
“... the Vologda Town Administration ... to provide [the applicant’s family] with a flat”
26/10/2006
3 years and 16 days
09/06/2016
2,988
02/09/2016
2567/07
05/12/2006
Yuriy Mikhaylovich DUBOVSKIY
01/05/1958
Chernoye
Moscow Garrison Military Court
19/06/2006
06/07/2006
"... [the Commander in Chief of the Internal Armed Forces] ... to provide [the applicant] with housing ..."
31/01/2012
5 years, 6 months 25 days
08/12/2015
5,466
29/01/2016
5455/08
15/12/2007
Eduard Fakhrazyyevich NIZAMOV
14/11/1970
Ishimbay
1)
Izhevsk Garrison Military Court
01/12/2006
19/01/2007
2)
Industrialnyy District Court of Izhevsk
30/12/2008
12/01/2009
1)
"... the Ministry for Disaster Relief ... to reinstate ... [the applicant] ... in [the waiting list for receipt of housing] ... and provide him ... in the town of Izhevsk ... with an apartment ..."
2)
"... the Ministry for Disaster Relief ... to transfer ... free of charge ... [the title to] a [specific] apartment ... to [the applicant] under the privatisation procedure"
1)
11/06/2009
2 years 4 months 22 days
2)
11/06/2009
5 months
05/05/2016
2,340
25/07/2016
6893/08
24/12/2007
Aleksandr Moiseyevich PIKOVSKIY
02/12/1957
Znamensk
Znamenskiy Garrison Military Court
04/12/2008
14/12/2008
"... the Commander of the military unit ... to provide [the applicant] with housing ..."
25/04/2013
4 years 4 months 9 days
11/02/2016
4,270
13/04/2016
59050/08
10/11/2008
Yuriy Aleksandrovich ALEKSEYEV
04/06/1961
Novosibirsk
Dzerzhinskiy District Court of the Novosibirsk Region
23/04/2003
10/06/2003
"... the Administration of the Novosibirsk Region to provide [the applicant] with housing ..."
02/12/2011
8 years 5 months 22 days
11/02/2016
6,500
None
48743/09
18/08/2009
Sergey Ivanovich KOSTENKO
16/06/1956
Mishkinskaya
Aksayskiy District Court of the Rostov Region 21/01/2008
31/03/2008
"... The Administration of the Rostov Region and the Administration of the Aksayskiy District to provide [the applicant] with a housing certificate ..."
30/10/2009
1 year 7 months
07/07/2016
1,550
16/08/2016
4568/10
05/01/2010
Mikhail Nikolayevich SMOLYKIN
19/11/1960
Malyy Mishkin
Novocherkassk Town Court of the Rostov Region 21/09/2007
03/03/2008
"... the Administration of the Rostov Region to provide [the applicant] with a housing certificate ..."
30/10/2009
1 year 7 months 27 days
07/07/2016
1,620
15/08/2016
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