[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SHAKIRZYANOV v. RUSSIA
(Application
no. 39888/02)
JUDGMENT
STRASBOURG
20
November 2008
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 Shakirzyanov v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Anatoly Kovler,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39888/02) 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 Rasim Renatovich
Shakirzyanov (“the applicant”), on 26 September 2002.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Ms V. Milinchuk.
- On
14 March 2006 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1980 and lives in the village
Shakhterskiy of the Tula Region.
- The applicant is a former
serviceman. Upon his dismissal certain pecuniary benefits were not
paid to him. He instituted civil proceedings for their recovery
against military unit no. 23132.
- He had a military rank of junior
sergeant in reserve at the material time.
- On 6 August 2001 the Tula
Garrison Military Court granted the applicant’s claim. The
court established that from 24 March 2000 to 4 November 2000 the
applicant had performed military service in the North Caucasus Region
and from 24 March 2000 to 1 May 2000 participated in the military
operations in that region. The court found that the applicant was
entitled to monetary compensation and the failure to pay it to him in
good time constituted a violation of his rights. In
its analysis the domestic court referred,
inter alia,
to the Law on the Status of Military
Servicemen (see paragraph 19 below) which provides for entitlement of
certain categories of military servicemen to additional monetary
compensation, and to Decree of the
Federal Government of 20 August 1999 no. 930-54 establishing the
amounts of compensation due to military personnel of different ranks
for their participation in the military operations on the territory
of Dagestan. The court ordered the
commander of the military unit concerned to pay the applicant
remuneration for his participation in the military operations between
24 March and 1 May 2000 and pecuniary benefits for his service in the
North Caucasus Region. An exact amount
to be paid was not specified in the operative part of the judgment.
- The judgment entered into force
on 17 September 2001.
- On 9 October 2001 and 5 April
2002 the Tula Garrison Military Court invited the commander of the
military unit to report whether the judgment of 6 August 2001 had
been executed and notified him of his responsibility for
non-execution of the judgment. By letter of 5 April 2002 the court
also advised the applicant of his right to ask for a writ of
execution to be issued in respect of the judgment.
- At some point the applicant complied with the
instruction and asked for a writ. On 7 May 2002 the Tula Garrison
Military Court issued the writ of execution, and the enforcement
proceedings were opened in respect of the judgment.
- Since
the respondent military unit was based in Shali, Chechnya, on 19 June
2002 the Bailiffs’ Office of the Chechen Republic forwarded the
writ to the Chief Bailiff of the Shali District of Chechnya.
- In
their observations dated 14 July 2006 the Government submitted that
the judgment of 6 August 2001 had not been enforced.
- In
their further observations of 25 May 2007 the Government informed the
Court that the amounts of 25,110 Russian roubles (RUB) and RUB 74,520
of pecuniary benefits for the applicant’s participation in the
military operations in the North Caucasus Region were paid to the
applicant by the command of the military unit no. 23132 on an
unspecified date at his discharge from the military service. They did
not submit any documents in this respect.
II. RELEVANT DOMESTIC LAW
A. Enforcement of judgments against budget-funded institutions
- Section 9 of the Federal Law on
Enforcement Proceedings of 21 July 1997 provides that a bailiff’s
order on the institution of enforcement proceedings must fix a
time-limit for the defendant’s voluntary compliance with a writ
of execution. The time-limit may not exceed five days. The bailiff
must also warn the defendant that coercive action will follow, should
the defendant fail to comply with the time-limit.
- Under section 13 of the Law, the
enforcement proceedings should be completed within two months of the
receipt of the writ of enforcement by the bailiff.
- Under special rules governing
enforcement of execution writs against the recipients of allocations
from the federal budget, adopted by the Federal Government on 22
February 2001 (Decree No. 143, as in force at the relevant time), a
creditor is to apply to a relevant branch of the Federal Treasury
holding debtor’s accounts (Sections 1 to 4).
- Within
the next five days the branch examines the application and notifies
the debtor of the writ, compelling the latter to abide by the
respective court decisions (Sections 7 to 12). In case of the
debtor’s failure to comply within two months, the branch may
temporarily freeze the debtor’s accounts (Section 13).
B. Entitlement to additional compensation for military personnel.
- Articles 12 and 13 of the Federal Law
on the Status of Military Servicemen (no. 76-FZ of 27 May
1998, as in force at the relevant time) provide for
the entitlement of the military servicemen to additional payments.
Article 13 of the Law stipulates that the amount of the
compensation should be determined by the Federal Government.
19. The Decree
of the Federal Government of 20 August 1999 no. 930-54 (as
in force at the relevant time), established, with reference to
Article 13 of the Law on the Status of Military Servicemen, the
amounts of compensation the military personnel was entitled to on
account of their participation in the military operations in the
Republic of Dagestan, to be paid as from 1 August 1999. In
particular, military
personnel performing contractual military
service in the rank of soldiers, were entitled to
additional monetary compensation in the amount of RUB 810 per day of
participation in the military activities, sergeants were entitled to
RUB 830 per day, etc.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE
CONVENTION
- The
applicant complained under Article 1 of Protocol No. 1 that the
judgment of 6 August 2001 had not been enforced in good time. The
relevant part of the invoked provision reads as follows:
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 argued that the judgment of 6 August 2001 could not be
enforced since it did not specify the exact amount due to the
applicant. They contended that the applicant should have asked a
domestic court for clarification of the judgment, but he had failed
to do so. Furthermore, the application was manifestly ill-founded,
since the applicant had not submitted a writ of execution together
with a copy of the judgment and his bank account information either
to a bank or directly to the military unit, as required by the Decree
no. 143 of on 22 February 2001 (see
Relevant Domestic Law, § 16 above). The applicant maintained his
claim.
- As
regards the argument that the domestic judgment did not contain an
exact sum to be paid, and insofar as the Government may be understood
as raising a ratione materiae objection, the Court reiterates
that to constitute an “asset” or “possessions”
within the meaning of Article 1 of Protocol No. 1 and,
consequently, to attract the guarantees of this provision, a claim,
for example, a judgment debt, should be sufficiently established to
be enforceable (see, among other authorities, Kopecký v.
Slovakia [GC], no. 44912/98, §§ 35 et seq., ECHR
2004-IX; and Stran Greek Refineries and Stratis Andreadis v.
Greece, judgment of 9 December 1994, Series A no. 301-B, p.
84, § 59).
- Turning
to the facts of the present case, the Court observes that, although
the judgment of 6 August 2001 did not specify the amount of the claim
or the modalities of payment of any sum due, it clearly indicated the
number of days the applicant had served in Dagestan and also
contained an unambiguous reference to the Government Decree of 20
August 1999 no. 930-54 establishing the rate of daily
compensation for military servicemen of different ranks, including
the applicant’s military rank. Accordingly, in the Court’s
view, the judgment contained all information necessary to calculate
the amount due to the applicant, and it has not been shown that the
respondent authority had any discretion in this respect (see, mutatis
mutandis, Bulgakova v. Russia, no. 69524/01, § 29, 18
January 2007). Furthermore, the enforcement proceedings were
initiated, and as follows from the writ of execution, the bailiffs
invited the respondent military unit to pay money to the applicant.
Therefore, even if the indication of the precise amount was missing
from the judgment, the proceedings at issue established a particular
pecuniary obligation of the State vis-à-vis the applicant. The
Court concludes that the judgment was sufficiently clear and specific
to be enforceable (see, mutatis mutandis, Bulgakova v.
Russia, cited above, §§ 29-31). Accordingly, from the
date of the judgment of 6 August 2001 the applicant had an
established “legitimate expectation” to acquire a
pecuniary asset. The Court is therefore satisfied that the
applicant’s claim for unpaid wages and benefits was
sufficiently established to constitute a “possession”
falling within the ambit of Article 1 of Protocol No. 1 (see, insofar
as relevant, Malinovskiy v. Russia, no. 41302/02, §§
45-46, ECHR 2005 VII (extracts)). The Court concludes that the
applicant’s complaint cannot be rejected as incompatible
ratione materiae.
- Insofar as the Government may be understood as
claiming non-exhaustion in that the applicant had failed to ask for
clarification of the judgment, the Court reiterates that in the
absence of clear instructions as to the enforcement procedure to be
followed, the applicant cannot be blamed for the delay in submitting
the writ of execution to the competent agency (see Fitisov
v. Russia, no. 41842/04, § 28,
8 November 2007). There is nothing in the present case to
suggest that the applicant was at any time informed by the
authorities that they had been unable to enforce the judgment for the
reason that it had not contained an exact sum of the award. In the
Court’s view, in these circumstances the applicant could not be
expected to ask for clarifications on his own motion. The
Government’s argument should accordingly be dismissed.
- Similarly,
as regards the objection concerning the applicant’s alleged
failure to submit the enforcement documents to a due authority, the
Court reiterates that as soon as the judgment in the applicant’s
favour became enforceable, it was incumbent on the State to comply
with it (see insofar as relevant, Reynbakh v. Russia, no.
23405/03, § 23, 29 September 2005). Furthermore, it is incumbent
on the State to organise its legal system in such a way that ensures
co-ordination between various enforcement agencies and secures
honouring of the State’s judgment debts in good time (see
Reynbakh v. Russia, cited above). In the present case, it is
not disputed that the respondent military unit was aware of the
contents of the judgment in 2001 (see §§ 7-9 above).
Accordingly, it has been under an obligation to execute the award. In
addition, the Court notes that there is nothing in the present case
to suggest that the applicant at any point received any instructions
as regards the necessity to forward the writ of execution directly to
the respondent military unit. Indeed, it follows from the case file
that in 2002 he was advised of a possibility to lodge a request for a
writ of execution with the Tula Garrison Military Court. The
applicant complied with this instruction and duly asked for the writ.
The latter was subsequently transferred to the bailiffs’
office, a competent state agency, which proceeded with the
enforcement. There is nothing in the case to suggest that the writ
was subsequently returned to the applicant, or that he was in any way
notified of a change in the enforcement procedure. Accordingly, the
Government’s objection should be dismissed.
- The Court concludes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
Court observes that on 6 August 2001 the applicant obtained a
judgment in his favour by which he was to receive monetary
compensation of unpaid wages and social benefits against the military
unit. The judgment became enforceable on 17 September 2001.
- As
regards the date of enforcement of the judgment, in their
observations dated 14 July 2006 the Government
submitted that the judgment of 6 August 2001 had not been executed.
However, in their further observations dated 25 May 2007 the
Government asserted that two lump sums in respect of compensation for
the applicant’s participation in the military operations in the
North Caucasus Region had been paid to him on an unspecified date at
his dismissal from the military service.
- The
Court notes that the Government’s submissions as to whether the
judgment had been enforced are self-contradictory. In any event, as
regards the allegation that a certain payment was made to the
applicant pursuant to the judgment, the Government failed to submit
any documents evidencing either the very fact of such payment or any
link between the payment and the judgment of 6 August
2001. They did not specify the dates of either the alleged transfer
of the amount due to the applicant’s bank account or the
applicant’s dismissal from the military service. Finally, the
Court does not lose sight of the Government’s earlier
submissions that the judgment of 6
August 2001 had not been enforced. In the absence of any
evidence to the contrary, the Court assumes that the judgment of 6
August 2001 has not been executed to date. Accordingly, the award in
the applicant’s favour has remained without enforcement for six
years and nine months.
- The Court has frequently found
violation of Article 1 of Protocol No. 1 in cases raising issues
similar to the ones in the present case (see, among others, Burdov
v. Russia, no. 59498/00, § 35,
ECHR 2002 III). Having examined the material submitted to
it, the Court notes that the Government have not put forward any fact
or argument capable of persuading it to reach a different conclusion
in the present case. Having regard to its case-law on the subject,
the Court finds that by failing, for six years and nine months, to
comply with the enforceable judgment in the applicant’s favour
the domestic authorities prevented him from receiving the money he
could reasonably have expected to receive.
- There has accordingly been a violation of 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 contended that he had suffered
non-pecuniary damage as a result of non-enforcement of the judgment
in his favour. The Government submitted that finding a violation
would in itself constitute a sufficient just satisfaction.
- The
Court notes that the applicant did not submit any claim in respect of
pecuniary damage. However, the Court observes that the Government has
provided no evidence that it had complied with its obligation to
execute the judicial decision at issue. The Court reiterates that the
violation found is best redressed by putting the applicant in the
position he would have been if the Convention had been respected. The
Government shall therefore secure, by appropriate means, the
enforcement of the domestic court’s award (see, among others,
Dorozhko v. Russia, no. 5761/03, § 19, 26 June 2008 and
Denisov v. Russia, no. 21823/03, § 29, 25 January
2007).
- The Court further considers that the applicant
must have suffered distress and frustration resulting from the
authorities’ failure to enforce in good time the judgment in
his favour. Taking into account the length of the enforcement
proceedings, and making its assessment on an equitable basis, the
Court awards the applicant EUR 3,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses.
- The
applicant did not make any claim in respect of the costs and expenses
incurred before the domestic courts and before the Court within the
time-limits set by the Court. Accordingly, the Court considers that
there is no call to award her any sum on that account.
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 UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No.1 of the Convention;
3. Holds:
(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 secure, by appropriate means, the enforcement
of the award made by the domestic court on 6 August 2001, and in
addition pay the applicant EUR 3,000 (three thousand euros) in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 20 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
