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FIRST
SECTION
CASE OF SHLEPKIN v. RUSSIA
(Application
no. 3046/03)
JUDGMENT
STRASBOURG
1
February 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shlepkin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 11 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3046/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Aleksandr Grigoryevich
Shlepkin (“the applicant”), on 15 December 2002.
- The
applicant was represented by Ms V.A. Gerasimova, a lawyer
practising in Inza in the Ulyanovsk Region. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
22 February 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in the village of Troitskoe in
the Ulyanovsk Region.
- On
23 March 2001 the Chernovskiy District Court of Chita partly allowed
the applicant's claim against the State enterprise “Stroitelniy
Kompleks” (государственное
предприятие
“Строительный
Комплекс”)
for recovery of the unpaid amount of compensation for a work-related
injury. The court awarded him 7,500 roubles (“RUR”) in
respect of the period from 1996 to 1999. The judgment was not
appealed against and became enforceable on 3 April 2001.
- As
the applicant had not been able to attend the hearing, on
6 April 2001 the District Court sent a writ of execution to
the Chita bailiffs for enforcement. It appears that some time in May
2002 the applicant was informed for the first time that the judgment
had been adopted and that the writ had been sent to the bailiffs.
- In
the meantime, on 21 June 2001 the Commercial Court of the Chita
Region ordered liquidation of the State enterprise “Stroitelniy
Kompleks” because it had gone bankrupt.
- On
31 May 2002 the applicant lodged a complaint concerning the
non-enforcement of the judgment with the Supreme Court of the Russian
Federation, which forwarded it to the Chita local authorities.
- Having
examined the issue, in July 2002 the local authorities discovered
that in 2001 the writ of execution had been lost and had never
reached the Chita bailiffs' service.
- On
23 July 2002 the District Court sent a duplicate writ of execution to
the bailiffs.
- On
9 September 2002 the bailiffs commenced the enforcement proceedings.
- On
20 May 2003 the Chernovskiy District Court discontinued the
enforcement proceedings as the debtor company had ceased to exist.
The applicant did not appeal against that judgment.
- It
appears that the judgment of 23 March 2001 remains unenforced to
date.
- In
the meantime, on 30 September 2002 the Inzenskiy District Court of
the Ulyanovsk Region awarded the applicant the unpaid amounts of
compensation for the period from 2000 to 2002, payable by the local
social insurance foundation. It appears that this judgment was duly
enforced by the national authorities.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL No. 1
- The
applicant complained about the continued non-enforcement of the
judgment of 23 March 2001 in his favour. This complaint falls to be
examined under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1. The relevant parts of these provisions read as
follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
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 preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government raised two objections as to the non-exhaustion of the
domestic remedies. They submitted firstly that the applicant had not
sued the postal service for the loss of the writ and secondly that he
had failed to appeal against the judicial decision of 20 May 2003, by
which the enforcement proceedings were discontinued.
- The
applicant disagreed on the both points.
- The Court notes that the
debtor in the instant case is a State enterprise, and the judgment
against it could only have been enforced if the State took the
appropriate legislative measures, that is, if they introduced
appropriate provisions in the Civil Code and the Budget Act. It was
the lack of legislative measures rather than misconduct of the
bailiffs or the postal service which made the enforcement of the
judgment in question impossible. The applicant cannot therefore be
reproached for not having taken proceedings against the bailiffs or
the postal service (see, mutatis mutandis, Shestakov v.
Russia (dec.), no. 48757/99, 18 June 2002).
- The
Court concludes that the remedies suggested by the Government would
have been ineffective.
- For
the above reasons, the Court finds that the application cannot
be rejected for non-exhaustion of domestic remedies. It considers, in
the light of the parties' submissions, that the application raises
serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It
concludes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. No other
ground for declaring it inadmissible has been established.
B. Merits
- The Government denied their responsibility for the
continued failure to enforce the judgment referring to the fact that
the State enterprise “Stroitelniy Kompleks” had been
liquidated. They submitted that national authorities had shown due
diligence in enforcement of the judgment and could not be held
responsible for any delay.
- The applicant insisted that the State responsibility
did not cease following the bankruptcy of the State enterprise.
- The
Court observes that on 23 March 2001 the applicant obtained an
enforceable judgment by which the State enterprise “Stroitelniy
Kompleks” was to pay him a substantial amount. The judgment has
not been enforced to date.
- The
Court notes that the Government have not demonstrated that the State
enterprise enjoyed sufficient institutional and operational
independence from the State to absolve the latter from responsibility
under the Convention for its acts and omissions (see Mykhaylenky
and Others v. Ukraine, nos. 35091/02, 35196/02,
35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02
and 42814/02, §§ 41-46, ECHR 2004 XII; and Lisyanskiy
v. Ukraine, no. 17899/02, §§ 17-20,
4 April 2006). The Court further observes that it is
not open to a State authority to cite the lack of funds or other
resources as an excuse for not honouring a court award (see, mutatis
mutandis, Burdov v. Russia, no. 59498/00, § 35,
ECHR 2002 III).
- The
Court therefore concludes that the State cannot justify its failure
to enforce the judgment against the State enterprise by reference to
the liquidation of the company.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No.
1 in cases raising issues similar to the ones in the present case
(see, for example, Burdov v. Russia, cited above, §§ 33-42;
Gerasimova v. Russia, no. 24669/02, §§
14-22, 13 October 2005; Gizzatova
v. Russia, no. 5124/03, §§
18-29, 13 January 2005).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
justifying the failure to enforce the
judgment. It finds that by failing to comply with the enforceable
judgment in the applicant's favour the domestic authorities impaired
the essence of his “right to a court” and prevented him
from receiving the money he had legitimately expected to receive.
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed RUR 74,769 in respect of
pecuniary damage, representing the original award adjusted in line
with increases of the minimum monthly wage since 2001. He also
claimed 6,000 euros (“EUR”) in respect of non-pecuniary
damage.
-
The Government contested the applicant's claims in respect of
pecuniary damage, stating that he had allegedly received the amount
due in separate proceedings and regarded the applicant's claims for
non-pecuniary damage as excessive and unreasonable.
- The Court notes that the applicant has not received
the original award of RUR 7,500. As, under national legislation, it
does not appear possible to enforce the judgment concerned due to the
liquidation of the State enterprise the Court awards the applicant
this amount in respect of pecuniary damage (see Yavorivskaya v.
Russia, no. 34687/02, §§ 31-33, 21 July 2005).
- As
regards the applicant's claim for adjustment of the award, the Court
notes that the judgment of 23 March 2001 covered the period from 1996
to 1999, whereas the applicant's claim for adjustment of the award is
based on increases of the minimum monthly wage between 2001 and 2006.
The Court therefore rejects the applicant's claim for adjustment.
- Turning
to the applicant's claim in respect of non-pecuniary damage, the
Court considers that the applicant suffered distress because of the
State authorities' failure to secure payment of the award in his
favour. Making its assessment on an equitable basis, the Court awards
the applicant
EUR 1,500, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed EUR 2,000 in respect of legal fees and EUR 200
for postal expenses.
- The
Government submitted that the applicant had not entered into a
contract with his lawyer and was not entitled to reimbursement of any
costs and expenses. They claimed that the applicant had submitted no
document which would substantiate his postal expenses.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. The applicant did not produce to the Court a contract with
his lawyer Ms Gerasimova setting out her fees or an account of the
time she had spent on the applicant's case. Furthermore, her
signature only appears on the submissions which were
not included in the case file for the consideration of the Court.
The applicant produced postal receipts for RUR 128. Having
regard to all relevant factors, the Court awards the applicant
RUR 128 in respect of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares, by a majority, the application
admissible;
- Holds, by six votes to one, that there has been
a violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1;
3. Holds, by six votes to one,
(a) that
the respondent State, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, shall pay the applicant the following amounts:
(i)
RUR 7,500 (seven thousand five hundred Russian roubles) in respect of
pecuniary damage;
(ii)
EUR 1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(iii)
RUR 128 (one hundred and twenty-eight Russian roubles) in respect of
costs and expenses;
(iv)
any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 1 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mr Kovler
is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE KOVLER
To my
regret, I cannot share the majority's view, even though I am certain,
that in the present case the non-enforcement of a judgment in the
applicant's favour has entailed violations of Article 6 § 1 of
the Convention and of Article 1 of Protocol No. 1.
In my
opinion, the Court should not have declared the application
admissible and should not have examined it on the merits for the
following reasons.
The
applicant has made full use of the domestic civil procedure and has
challenged in the Supreme Court the non-enforcement of the judgment
against the State enterprise Stroitelniy Kompleks (later it
turned out, that the judgment was not enforced because the mail
service had lost the writ of enforcement). As a result, the case was
returned to the first-instance court (§ 8), a new writ of
enforcement was issued (§ 10), the execution proceedings
were resumed (§ 11), and even the allowance arrears for
2000–02 were partly paid (§ 14).
But
the applicant has failed to challenge the discontinuation of the
enforcement proceedings due to the enterprise's bankruptcy, and the
Court points this out directly (§ 12). Still, under
domestic law he could do it. The Federal Law on enforcement
proceedings of 31 December 1999 states that 'a decision on the
discontinuation or adjournment of enforcement proceedings may be
challenged as established in the Codes of Civil and Commercial
Procedures' (article 24, part 4 of the Law).
As
the enforcement proceedings had been discontinued due to the
enterprise's bankruptcy, a challenge of this decision could have had
certain legal implications. Under the Russian Civil Code, when a
company is wound up, 'first are paid debts to the individuals arising
from damage to life or health, by way of capitalisation of relevant
instalments' (Article 64, Part 1 of Civil Code). To this end, the
wound-up company (or its appointed manager) must capitalise the funds
needed for compensating the damage in future and transfer it to State
social security. The Law on Insolvency (bankruptcy) states: 'On the
individual's consent, his claim to the debtor in the amount of
capitalised instalments passes to the State. In this case, the claim
is also paid first' (article 135, part 3 of the Law). Hence, when the
enforcement proceedings were discontinued on 20 May 2003, the
applicant's rights were protected by domestic means. The applicant
has not used these means, apparently believing that they may be
replaced by his application to the European Court. In my opinion,
there is a manifest disrespect of the admissibility criteria of
Article 35 § 1 of the Convention.
The
Court should have examined the merits of the application, only if it
were manifestly admissible.
But
even assuming that the application is admissible, it is hard to agree
with the Court's findings set out in §§ 18–19 of the
judgment. Instead of investigating the existing legal remedies
against the non-payment of social allowances (above I have tried to
show some), the Court has hastily concluded that these remedies were
inefficient. It is a pity that the text of the judgment has no
section 'Relevant domestic law and practice'. If it did have it, the
colleagues' findings might have been different.
