THIRD SECTION
DECISION
Applications nos. 42011/07 and 40048/09
Vitaliy Nikolayevich NADOLINSKIY against Russia
and Lidiya Vladimirovna CHAYKOVSKAYA and Lyudmila Mikhaylovna CHVILEVA against Russia
The European Court of Human Rights (Third Section), sitting on 23 January 2018 as a Committee composed of:
Helen Keller, President,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 23 August 2007 and 22 June 2009 respectively,
Having regard to the declaration submitted by the respondent Government on 20 July 2016 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicants are three Russian nationals living in Taganrog. Their personal details are listed in the Appendix.
On the dates indicated below the Taganrog Town Court of the Rostov Region issued judgments ordering the municipal unitary enterprise Housing and Exploitation Department of Taganrog, to perform various pieces of construction work in the apartment blocks the applicants were living in. The judgments entered into force on the dates listed in the Appendix below. According to the Government, they were enforced as follows:
In case no. 42011/07 the parties submitted that some works were performed in 2006-2007, but most of them started in 2009 and had not been performed in full until at least 8 June 2009, according to a relevant bailiffs’ report. According to the Government, the remaining works were performed at some point after 8 October 2009 by a different company at the expense of the local budget and the owners of the flats. The applicant stated in reply, in broad terms, that in 2009 some pieces of work had not been performed in full and some the repairs were not of good quality, and the inhabitants of the apartment block had had to pay for the major overhaul and to subsequently repair some roof leaks at their own expense.
In case no. 40048/09 the Government submitted that the judgment had been executed in full in 2008, as confirmed by the expert report of 10 May 2010.
Since January 2014 insolvency proceedings have been pending in respect of the debtor company.
The applicants complained, notably, under Article 6 of the Convention about non-enforcement of the judgments given against the unitary enterprise and the lack of an effective remedy in respect of the non-enforcement.
On 1 April 2016 the applications had been communicated to the Government.
THE LAW
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
By a letter of 20 July 2017 the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention. The declarations provided as follows:
“... the Government of the Russian Federation acknowledge the violation of the applicant’s rights guaranteed by the Convention, due to the lengthy enforcement of the judgments of [a domestic court] of [date].
The Government of the Russian Federation are ready to pay [each applicant] [the sums listed in the appendix] as compensation for non - pecuniary damage.”
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 [sum set out in the table below], which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be converted into the currency of the Russian Federation at the rate applicable at the date of payment. It 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.”
By letter of 3 September 2016 Mr Nadolinskiy (application no. 42011/07) indicated that he did not agree with the declaration as it was submitted in English, not in Russian. He reiterated in an accompanying letter that it took years to obtain enforcement of the judgment, and even by 2009 some pieces of work had not been performed in full by the debtor company or the repairs were not of good quality, and the inhabitants of the apartment block had had to pay some works themselves.
The applicants in case no. 40048/09, who were also invited to comment on the unilateral declaration, did not provide comments in reply.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular 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 applications”.
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). To this end, the Court has examined the declarations in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (cited above, §§ 75-77; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
In a number of cases against Russia the Court has established its practice concerning complaints about the non-enforcement of domestic judgments given against state and municipal unitary enterprises having the right of economic control (see, for example, Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, 9 October 2014; Voronkov v. Russia, no. 39678/03, 30 July 2015; and several follow-up cases).
In so far as Mr Nadolinskiy may be understood to contest the execution modalities, the Court notes that both parties’ factual submissions as regards the enforcement of the domestic judgment are couched in general terms and lack details. In any event, 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 v. Russia, nos. 29920/05 and 10 others, § 173, 1 July 2014, and the case-law cited therein). In the absence of information about any relevant proceedings concerning the period after October 2009, referred to by the Government as the enforcement date, the Court concludes that the applicant failed to bring his grievances to the attention of the domestic courts. The Court therefore lends credence to the Government’s submissions as to the enforcement of the judgment and rejects the applicant’s objection.
The Court further notes that the amounts proposed in respect of non‑pecuniary damage are consistent with the amounts awarded in similar cases (see Liseytseva and Maslov, cited above, § 233, and Voronkov, cited above, §§ 67-70).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – 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).
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).
In view of the above, it is appropriate to strike the cases out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declarations and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to join the applications;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 15 February 2018.
Fatoş AracıHelen Keller
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant name
Year of birth
Date of the judgment and its entry into force
Domestic award
Enforcement status
Remedial offer
1.
42011/07
22/06/2009
Vitaliy Nikolayevich NADOLINSKIY
(date of birth not provided)
(a)
12/12/2006
23/12/2006
(b)
09/09/2006
29/08/2006
(a) To perform various apartment block repairs, i.e. to repair the roof, apartment building entrance, service pipes; to pay the applicant 2,062 Russian roubles (RUB) (approximately 59 euros (EUR)) in non‑pecuniary damage, court expenses
(b) To perform various apartment block repairs, i.e. to replace a boiler and the pipes system, to clean and to repair the basement; to pay the applicant RUB 5,921 (EUR 231)
The debtor company performed some works in 2006- 2009. The remainder was performed at some point after 8 October 2009 at the expense of the local budget and the owners of the flats of the apartment block concerned.
EUR 2,000
2.
40048/09
22/06/2009
Lidiya Vladimirovna CHAYKOVSKAYA
1939
Lyudmila Mikhaylovna CHVILEVA
1940
11/02/2006
21/03/2007
To replace a boiler and to repair the basement of applicants’ house, to pay RUB 5,083 (EUR 146) to Ms Chvileva and RUB 4,865 (EUR 140) to Ms Chaykovskaya in respect of non-pecuniary damage
Enforced in 2008
EUR 2,000 to each applicant
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