THIRD SECTION
DECISION
Application no. 39011/11
TEKHNOLOGII XXI VEKA
against Russia
The European Court of Human Rights (Third Section), sitting on 9 November 2021 as a Committee composed of:
María Elósegui, President,
Darian Pavli,
Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above application lodged on 17 June 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the additional information submitted by the respondent Government and by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, the regional fund Tekhnologii XXI Veka, is a private non-profit organisation incorporated in the Republic of Ingushetia (“the applicant fund”). It was represented before the Court by Memorial Human Rights Centre, Moscow.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights and lately by Mr M. Vinogradov, his successor in that office.
The circumstances of the case3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 11 July 2007 the Supreme Court of Ingushetia approved a friendly settlement between the applicant fund and the Ministry of Economy of the Republic of Ingushetia (“the Ministry”), according to which the Ministry undertook an obligation to pay the debt of 3,500,000 Russian roubles (RUB) to the applicant (“the judgment”).
5. On 17 October 2007 the applicant submitted a writ of execution of the judgment to the Federal Treasury.
6. Between October 2007 and June 2010 the Sunzhenskiy District Court of Ingushetia suspended the enforcement of the judgment several times, the last suspension to take effect until 1 September 2011.
7. In 2010 the applicant fund lodged a compensation claim for non‑enforcement of the judgment on the basis of 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” of 30 April 2010 (“the Compensation Act”) (see paragraph 10 below).
8. On 17 December 2010 the Supreme Court of Ingushetia partly granted the claim and awarded the applicant fund RUB 30,000 for the non-enforcement of the judgment. No appeal was lodged by the applicant fund. On 4 February 2011 this judgment was executed.
9. On 26 February 2020 the Tax Inspection struck out the Ministry of the State Register of Legal Entities.
Relevant domestic law and practice10. The relevant provisions of the Compensation Act are exposed in the judgment Gerasimov and Others v. Russia (nos. 29920/05 and 10 others, § 93, 1 July 2014).
11. Articles 120 and 399 of the Civil Code related to vicarious liability are exposed in the decision Solonskiy and Petrova v. Russia ((dec.) nos. 3752/08 and 22723/09, §§ 17-18, 17 March 2020).
12. On 23 January 2015 the Commercial Court of Ingushetia, in case no. A18-350/2014, granted a claim of a sole entrepreneur to recover a judgment debt of the Ministry by way of vicarious liability from another Ministry of the regional government, the Ministry of Finance of Ingushetia. On 1 April and 19 June 2015 the court of appeal and the court of cassation upheld the judgment respectively. In this case, the claimant was not required to prove that the failure of the Ministry to enforce the judgment had been caused by the acts of the State. The Ministry of Finance of Ingushetia objected to the claim stating that the right defendant should have been another regional Ministry. The domestic courts rejected this objection and granted the claim on the basis of, inter alia, Articles 120 and 399 of the Civil Code (see paragraph 11 above).
COMPLAINTS
13. The applicant fund complained of the non-enforcement of the judgment in its favour and of the lack of an effective remedy in this respect. It relied on Article 6 § 1 and Article 13 of the Convention, and on Article 1 of Protocol No. 1, which read as follows in their pertinent parts:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law ...”
THE LAW
14. Referring to the domestic courts’ case-law (see paragraph 12 above), the Government pleaded non-exhaustion of domestic remedies pointing out, inter alia, that the applicant fund failed to lodge a claim for the recovery of the debt by way of vicarious liability against the Republic of Ingushetia as well as to lodge a cassation appeal against the judgment of the Supreme Court of Ingushetia of 17 December 2010 (see paragraph 7 above).
15. The applicant fund reiterated its claims, referring to the judgment in the Liseytseva and Maslov v. Russia case (nos. 39483/05 and 40527/10, § 176, 9 October 2014), where the Court found the recourse to vicarious liability impracticable, as the use of this remedy was conditional on the debtor’s fault. It further argued that the recourse to this procedure could have become feasible only after the liquidation of the Ministry.
16. The Court reiterates that it has already found that a claim for vicarious liability would have reasonable prospects of success (see Solonskiy and Petrova v. Russia (dec.), nos. 3752/08 and 22723/09, §§ 34‑40, 17 March 2020). By contrast with the Liseytseva and Maslov case referred to by the applicant fund and related to unitary enterprises (commercial entities under the economic control of the State), this case concerns the State body (a part of the State). The example from domestic case-law provided by the Government (see paragraph 12 above) confirms the non-conditional character of vicarious liability of the direct defendant. The Court therefore rejects the applicant fund’s argument as to the impracticability of this recourse.
17. Furthermore, the Court notes that, even after the Ministry had been struck out of the State Register of Legal Entities (see paragraph 9 above), the applicant fund did not make an attempt to bring a claim for vicarious liability against the relevant authority. Thus, it has remained passive in respect of the enforcement of the judgment at the domestic level since 2011 to date, that is for almost ten years.
18. It follows that the non-enforcement complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
19. In the view of the previous findings of the Court in this regard in the Solonskiy and Petrova case, cited above, and of the above findings concerning the remedy proposed by the Government in the present case the Court considers that the applicant fund’s complaint under Article 13 is manifestly ill-founded. It therefore must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
20. This conclusion makes it unnecessary for the Court to rule on the Government’s plea for non-exhaustion related to the compensation proceedings.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 December 2021.
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Olga Chernishova María Elósegui
Deputy Registrar President