THIRD SECTION
DECISION
Application no. 51391/07
Natalya Aleksandrovna STROGANOVA and Others
against Russia
The European Court of Human Rights (Third Section), sitting on 6 November 2018 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 application lodged on 9 November 2007,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the unilateral declarations submitted by the Government and the comments submitted by the applicants in reply,
Having deliberated, decides as follows:
THE FACTS AND PROCEDURE
The applicants are twenty-six Russian nationals. A list of the applicants, their dates of birth and places of residence is set out in the Appendixes I, II and III. Ms Larisa Dudarenok and Ms Stanislav Dudarenok are members of one family.
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 applicants complained under Article 6 § 1 of the Convention about the delayed enforcement of the judgment of 23 January 2007 by the Leninskiy District Court of Rostov-na-Donu ordering the Rostov Region Department of the Interior and a private company to conclude shared‑construction agreements with the applicants in respect of the construction of an apartment block. The judgment entered into force on 12 March 2007 and was enforced on various dates specified in the Appendixes. They could be understood to complain under Article 13 about the lack of an effective remedy against the delayed enforcement.
In the wake of the pilot judgment in the case of Gerasimov and Others v. Russia, on 4 December 2014 the the complaint concerning the non‑enforcement was communicated to the Government for settlement or resolution (see Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 230-31 and point 13 of the operative part, 1 July 2014).
On 28 March 2016 the Government submitted their unilateral declarations with a view to resolving the issues raised by the application.
In their declarations they acknowledged the lengthy enforcement of the judgment. The unilateral declarations further contained the dates of the judgment, of its entry into force and of its full enforcement in respect of each applicant, as well as the overall enforcement delays, as specified in the Appendixes I, II and III.
The authorities stated their readiness to pay to the applicants the amounts specified in the Appendixes as just satisfaction. The payments were to cover any pecuniary and non‑pecuniary damage as well as costs and expenses. They would be converted into Russian roubles at the rate applicable on the date of payment and would be free of any taxes that may be applicable. They would be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay the sums within the said period, the Government undertook 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. The payments would constitute the final resolution of the case.
They further requested the Court to strike out the application.
The Government provided copies of the relevant contracts concluded with each of the applicants as evidence of the enforcement of the judgment.
In their letters received on the dates indicated in Appendix I, some of the applicants informed the Court that they agreed to the terms of the Government’s declarations.
The applicants listed in Appendix II either did not submit their comments on the unilateral declarations or refused to accept the declarations.
On 27 May 2016 the Court received a reply to the unilateral declaration in respect of Ms I.M. Orekhova (see Appendix III) submitted by a private person, Mr M. He stated in his letter that on 30 June 2011 Ms Orekhova ceded the rights arising out of the shared-construction agreement dated 15 June 2009 to Mr O. under a cession agreement. On 18 September 2012 O. further ceded the rights arising out of that shared-construction agreement to M. No correspondence from the applicant Ms Orekhova concerning the above developments has been received by the Court.
By letter of 6 July 2016, sent by registered post, the Court requested Ms Orekhova to submit comments and information on the recent developments in her case. The applicant’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The applicant received the Court’s letter on 22 July 2016. She did not reply.
THE LAW
The applicants complained about the non-enforcement of the judgment of 23 January 2007 in their favour.
A. Complaints lodged by Ms Orekhova
The Court does not need to decide on the issue of standing of M., who has never been admitted as a party to the case, for the following reason. The Court notes that the applicant Ms Orekhova was explicitly requested to provide updates on the developments in her case. It was incumbent on her to inform the Court of any important developments, including the alleged cession. However, she had not submitted any correspondence to the Court after 2007. Further, she received the Court’s latest request for information and comments on the recent developments in her case, sent by registered post and containing a reference to Article 37 § 1 (a) of the Convention (see above), but failed to reply.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue her application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to strike the case out of the list under Article 37 § 1 (a) of the Convention in the part concerning Ms Orekhova.
B. Complaints lodged by other applicants
1. Complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement
(a) In respect of the applicants who agreed to the terms of the unilateral declarations
The Court notes that the applicants listed in Appendix I expressly agreed to the terms of the declarations submitted by the Government. The Court finds that such agreement shall be considered as a friendly settlement between the parties (see Cēsnieks v. Latvia (dec.), no. 9278/06, § 34, 6 March 2012, and Bakal and Others v. Turkey (dec.), no. 8243/08, 5 June 2012).
The Court therefore takes formal note of the friendly settlement reached between the parties. The Court further considers that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
In any event the Committee of Ministers remains competent to supervise the execution of the terms of the friendly settlement as set out in the present decision (Article 39 § 4 of the Convention and Rule 43 § 3 of the Rules of Court). Further, in any event the Court’s present ruling is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the present application to its list of cases.
In view of the above, it is appropriate to strike the case out of the list in accordance with Article 39 of the Convention in so far as it concerns the applicants listed in Appendix I.
(b) In respect of the applicants who did not comment on the terms of the unilateral declarations or disagreed
The Court notes that the applicants listed in Appendix II either disagreed with the terms of the declarations made by the Government, or did not reply. The applicants who expressed their disagreement with the declarations argued that the contracts concluded with them had not been subsequently executed, and that the domestic authorities evaded payment of penalty for the failure to comply with the contracts. They further stated, without further details, that the building had been sold on auction in the absence of the applicants’ agreement.
The Court notes that the scope of the initial domestic award was clearly limited to an obligation to conclude a shared-construction agreement (see above). It follows from the documents submitted by the Government – and it has not been disputed by the applicants – that the contracts were concluded on various dates in 2009, as listed in the Appendixes. Accordingly, the Court rejects the objections pertaining to further compliance with the contracts, the alleged sale of the premises, or application of subsequent penalties as falling outside the scope of the present case. In any event, the Court reiterates its settled case-law to the effect that the arguments as to proper enforcement of domestic decisions should be brought before domestic courts, who are better placed and equipped to assess the particular manner in which the enforcement should be carried out and the debtor’ s compliance with the enforcement modalities (see, among many others, Kravchenko and other “military housing” cases v. Russia, nos. 11609/05 and 22 others, § 32, 16 September 2010; Belkin and Others v. Russia (dec.), no. 14330/07, 5 February 2009; and Elinna Shevchenko v. Russia (dec.), no. 1250/05, 14 October 2010). In the absence of any such proceedings, the Court lends credence to the Government’s submissions and accepts that the judgments were enforced in full on the dates set out in Appendix II.
The Court further 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.
It also reiterates that in certain circumstances it may strike out an applications under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
Article 37 § 1 (c) of the Convention 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.”
Article 37 § 1 in fine states:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”
To this end, the Court will examine carefully the declarations in the light of the principles emerging from its case-law.
The Court is satisfied that the excessive length of the execution of the judgment in the applicants’ favour has been acknowledged by the Government. The Court also notes that the compensation amounts offered are comparable with Court awards in similar cases, taking account, inter alia, of the specific enforcement delay in this particular case, as well as the nature of the domestic awards.
The Court further notes that in a number of analogous cases the Court found that the respect for human rights as defined in the Convention and the Protocols thereto did not require to continue the examination the applications in accordance with Article 37 § 1 in fine (see, among many others, Kamneva and Others v. Russia (dec.), nos. 35555/05 and 6 others, § 30, 2 May 2017). The Court does not see any reason to depart from that approach in the present case.
In view of the above, it is appropriate to strike this part of the application out of the list in accordance with Article 37 § 1 (c) of the Convention in so far as the non-enforcement complaint of the applicants listed in Appendix II is concerned.
2. Complaint under Article 13 of the Convention
Some applicants further complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non‑enforcement complaint. The Government did not specify their position in relation to this complaint. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian 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 Kamneva and Others, cited above). The Court has found that the amended Compensation Act in principle meets the criteria set out in the Gerasimov and Others pilot judgment and provides the applicants with a potentially effective remedy for their non-enforcement complaint (see Shtolts and Others v. Russia (dec.), nos. 77056/14 and 2 others, §§ 87-116 and § 123, 30 January 2018).
In these circumstances, the Court does not find it necessary to examine the admissibility and merits of the complaint under Article 13 of the Convention in the present case (see Kamneva and Others, cited above, §§ 33-37).
For these reasons, the Court, unanimously,
Decides to strike the case in the part concerning the complaints brought by Ms Inna Mikhaylovna Orekhova out of the list under Article 37 § 1 (a) of the Convention;
Takes note of the terms of the respondent Government’s declarations in respect of the applicants listed in Appendixes I and II and of the arrangements for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention in so far as it concerns the applicants listed in Appendix I who had agreed to the terms of the unilateral declarations;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in the part concerning the applicants listed in Appendix II, in so far as their non-enforcement complaint was concerned;
Decides that it is not necessary to examine the admissibility and merits of the complaint under Article 13 of the Convention lodged by the applicants listed in Appendices I and II.
Done in English and notified in writing on 29 November 2018.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
APPENDIX I
List of the applicants who agreed to the terms of the unilateral declarations
No.
Applicant’s name
Birth date
Place of residence
Date of enforcement
Enforcement delay, as specified in the unilateral declarations
Remedial offers by the Government, as specified in the unilateral declarations (in euros)
Date of the applicant’s acceptance of the unilateral declaration
Natalya Aleksandrovna STROGANOVA
06/01/1954
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
01/06/2016
Irina Yevgenyevna BURAKOVA
13/12/1971
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
02/06/2016
Nadezhda Ivanovna CHEKHA
23/04/1962
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
Undated, received on 10/06/2016
Aleksandr Yevgenyevich KOLESNIKOV
09/01/1958
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
02/06/2016
Vladimir Anatolyevich KOMPANIYETS
21/10/1981
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
31/05/2016
Sergey Vladimirovich KOVALEV
15/11/1953
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
01/06/2016
Larisa Yuryevna KOVALEVA
09/08/1962
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
25/05/2016
Georgiy Shamilyevich KOZIN
17/02/1977
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
06/06/2016
Yekaterina Yuryevna NIKOLAYEVA
12/03/1977
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
31/05/2016
Aleksandr Nikolayevich PENCHUK
13/12/1963
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
01/06/2016
Yevgeniy Viktorovich YAKOVENKO
21/03/1969
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
31/05/2016
Aleksey Vladimirovich ZEMLYAKOV
05/05/1978
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
25/05/2016
APPENDIX II
List of the applicants who disagreed with the terms of the unilateral declarations
No.
Applicant’s name
Birth date
Place of residence
Date of enforcement
Enforcement delay, as specified in the unilateral declarations
Remedial offers by the Government, as specified in the unilateral declarations
(in euros)
Date of the applicant’s reply to the unilateral declarations (where relevant)
Yelena Ivanovna
BILYK
14/10/1967
Yeysk
08/06/2009
2 years 2 months 26 days
1,415
No reply received
Stepan Valeryevich DEMAKOV
06/11/1981 Novocherkassk
08/06/2009
2 years 2 months 26 days
1,415
04/06/2016
Andrey Aleksandrovich DROBYAZKO
16/07/1971
Rostov-na-Donu
30/11/2009
2 years 8 months 17 days
1,717
01/06/2016
Larisa Borisovna DUDARENOK
17/09/1973
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415 jointly to the applicants
No reply received
Stanislav Stanislavovich DUDARENOK
09/08/1973
Rostov-na-Donu
Svetlana Vladimirovna KUZNETSOVA
24/11/1949
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
No reply received
Sergey Engelsovich MALIYEVSKIY
31/08/1956
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
No reply received
Sergey Ivanovich MASYCHEV
30/04/1954
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
01/06/2016
Olga Sergeyevna NOVIKOVA
21/02/1975
Shakhty
08/06/2009
2 years 2 months 26 days
1,415
No reply received
Eduard Vladimirovich POPOV
03/09/1963
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
No reply received
Sergey Gennadyevich RYBALCHENKO
08/12/1978
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
01/06/2016
Vladimir Pavlovich TKACHENKO
28/01/1959
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
Undated, received on 10/06/2016
Nadezhda Petrovna YEFIMOVA
23/09/1958
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
1,415
01/06/2016
APPENDIX III
No.
Applicant’s name
Birth date
Place of residence
Date of enforcement
Enforcement delay, as specified in the unilateral declaration
Date of the Court’s request for information
Date of receipt of the Court’s letter by the applicant
Inna Mikhaylovna OREKHOVA
23/12/1983
Rostov-na-Donu
08/06/2009
2 years 2 months 26 days
06/07/2016
22/07/2016
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