Information Note on the Court’s case-law No. 133
August-September 2010
Nagovitsyn and Nalgiyev v. Russia (dec.) - 27451/09 and 60650/09
Decision 23.9.2010 [Section I]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Claim for compensation under Federal Law no. 68-ФЗ for the non-enforcement of judgments or procedural delays: effective remedy
[This summary also covers the decision in the case of Fakhretdinov and Others v. Russia, no. 26716/09, 23 September 2010]
Facts – In a pilot judgment of 15 January 2009 (Burdov v. Russia (no. 2), no. 33509/04, Information Note no. 115) the Court required the respondent State to set up an effective domestic remedy to secure adequate and sufficient redress for the non-enforcement or delayed enforcement of domestic judgments, a problem which had been identified as structural. In response to that judgment, the Russian Parliament adopted legislation affording a right to monetary compensation in cases where trials were not held or judgments were not enforced within a reasonable time (Federal Law no. 68-ФЗ 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 Compensation Act”). Under the Compensation Act, the level of compensation is determined by the courts by reference to a number of factors including the length of the delays, the impact on the claimant, the principles of reasonableness and fairness, and the practice of the European Court. Transitional provisions enable claims for compensation to be made to the domestic courts even where an application has been lodged with the European Court (provided they are made within six months of the entry into force of the Compensation Act and the European Court has not already ruled on the admissibility of the application).
The applicants in the instant cases had, prior to the Burdov (no. 2) judgment, lodged applications with the Court complaining either of the non-enforcement of domestic court judgments in their favour (Nagovitsyn and Nalgiyev) or of the length of court proceedings (Fakhretdinov and Others). In May 2010 they and all other applicants in the same position were advised by the Court to make use of the new remedy within the six-month time-limit set by the Compensation Act. The applicants subsequently informed the Court that they had either already brought proceedings under the new Act or intended to use the remedy. However, they explicitly stated that they wished to pursue their applications before the Court. In particular, Mr Nagovitsyn and Mr Nalgiyev challenged the capacity of the new remedy to provide adequate redress.
Law – Article 35 § 1: The new domestic remedy afforded by the Compensation Act was available to the applicants and their claims were not time-barred. Indeed, some of the applicants had already made use of the remedy.
As regards the effectiveness of the remedy, the Court noted that the new legislation required the domestic courts when deciding compensation claims to apply the Convention criteria as established in the Court’s case-law. It had thus been designed to address the issues of delayed enforcement of judgments and excessive length of judicial proceedings in an effective and meaningful manner. Although it was true that the domestic courts had not had the time to establish any stable practice under the Compensation Act, the Court saw no reason to believe that, despite its purely compensatory nature, the new remedy would not afford the applicants the opportunity to obtain adequate and sufficient compensation for their complaints or that it would not offer reasonable prospects of success. While acknowledging that an issue might subsequently arise regarding effectiveness were the respondent State still not to honour a judgment debt or respect the right to a trial within a reasonable time notwithstanding one or more compensation awards, the Court did not find it appropriate to anticipate such an event, or to decide that issue in abstracto at the present stage.
Once a domestic compensatory remedy had been introduced, it became particularly important for complaints to be considered in the first place and without delay by the national authorities, which were better placed and equipped to establish the relevant facts and to calculate monetary compensation. It was significant that the Compensation Act had been passed in response to a pilot-judgment procedure, one of whose aims was to allow the speediest possible redress to be granted at the national level to the large numbers of people suffering from structural problems within the domestic system. It was also relevant that people who had already applied to the Court before the entry into force of the Act were, under the transitional provisions, entitled to seek redress before the domestic courts. It would therefore be in line with the spirit and logic of the pilot judgment for them to claim redress for their grievances through the new domestic remedy. Accordingly, while the Court might exceptionally decide, for the sake of fairness and effectiveness, to conclude its proceedings by a judgment in certain cases of this kind which had remained on its list for a long time or had already reached an advanced stage of proceedings, it would require, as a matter of principle, all new cases introduced after the pilot judgment and falling under the Compensation Act to be submitted in the first place to the national courts. That position could be subject to review in the future depending, in particular, on the domestic courts’ capacity to establish consistent case-law under the Compensation Act in line with the Convention requirements. In conclusion, the applicants were required to exhaust the new domestic remedy.
Conclusion: inadmissible (failure to exhaust domestic remedies).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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