Shtolts and Others v. Russia (dec.)

Information Note on the Court’s case-law 215

February 2018

Shtolts and Others v. Russia (dec.) - 77056/14, 17236/15 and 14023/16

Decision 30.1.2018 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Complaints relating to enforcement of judgments following introduction of new domestic remedies in response to Gerasimov and Others pilot judgment: inadmissible

Facts – In its pilot judgment in Gerasimov and Others v. Russia, the Court required Russia to provide effective domestic remedies in cases of non-enforcement or delayed enforcement of domestic court orders requiring the State authorities to provide the applicants with housing or comply with other obligations in kind.

In December 2016 new legislation (Federal Law no. 450-FZ of 1 January 2017 amending Federal Law no. 68-FZ “the Compensation Act”) was introduced in response to the pilot judgment. The new legislation introduced provisions extending 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.

In the instant case, the three applicants complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of domestic judgments in their favour and the lack of an effective domestic remedy in that regard.

Law – Article 35 § 1: The Court examined whether the new remedies created as a result of the amendment were effective, complied with the precepts set out in Gerasimov and Others, and whether the applicants were required to have recourse to them in order to comply with Article 35 § 1 of the Convention. Since the remedy had been put in place in response to a pilot judgment, it could be taken into account even though it was not in force when the applications were lodged. There was nothing to suggest that the new compensatory remedy was not available to the applicants.

Considering the effectiveness of the new remedy, firstly, the Court’s findings in Nagovitsyn and Nalgiyev v. Russia (dec.) concerning the initial Compensation Act were applicable to the amended legislation and the new criteria for the examination of the applications appeared analogous to those laid down in the Court’s case-law.

Secondly, delays in issuing a writ of execution and transferring it to a competent authority were taken into account by the domestic courts in their assessment of the authorities’ conduct in compensation proceedings, consonant with the Court’s own position.

Thirdly, the procedure for the examination of claims for compensation conformed to the principle of fairness guaranteed by Article 6 of the Convention with the domestic court fee not constituting an excessive burden for applicants.

Finally, the Court accepted that the domestic courts had not yet been able to establish any stable practice under the amended Compensation Act but that there was no reason to assume the courts would be unable to deal with compensation claims within a reasonable time, or that awards would not be paid promptly. Any doubts about the prospects of a remedy, which appears to offer a reasonable possibility of redress, were not a sufficient reason to eschew it.

In sum, the Compensation Act as amended met in principle the criteria set out in the Gerasimov and Others pilot judgment. Accordingly, the applicants and all others in their position were required to use the remedies introduced by the Act.

However, the Court was prepared to change its approach as to the potential effectiveness of the remedy, should the practice of the domestic courts show, in the long run, that applications for compensation were being refused on formalistic grounds, that compensation proceedings were excessively long, that compensation awards were insufficient or were not paid promptly, or that domestic case-law was not in compliance with the requirements of the Convention. The Court would not lose sight of the more general context and, notably, of the respondent State’s compliance with its legal obligation under Article 46 to solve underlying structural problems.

Conclusion: inadmissible (failure to exhaust domestic remedies).

(See Gerasimov and Others v. Russia, 29920/05 et al., 1 July 2014, Information Note 176; and Nagovitsyn and Nalgiyev v. Russia (dec.), 27451/09 and 60650/09, 23 September 2010, Information Note 133)

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This summary by the Registry does not bind the Court.

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