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FIRST
SECTION
CASE OF VERETENNIKOV v. RUSSIA
(Application
no. 8363/03)
JUDGMENT
STRASBOURG
12 March 2009
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 Veretennikov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8363/03) 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 Vasiliy Andreyevich
Veretennikov (“the applicant”), on 27 January 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
24 January 2006 the President of the First Section decided to
communicate the complaints concerning non-enforcement of a final
judgment in the applicant's favour and excessive length of the
proceedings to the Government. It was 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 1953 and lives in the town of Novaya Usman,
Voronezh Region.
A. First round of the case examination
- On
17 or 20 March 1998 the applicant brought an action against
his former employer, a municipal enterprise, claiming his
reinstatement in the post and damages. On 3 June 1998 the applicant
amended his claims and sought to obtain certain documents from the
respondent company.
- On
8 February 2000 the Chaunskiy District Court of the Chukotka Region
dismissed the applicant's action. On 6 April 2000 the Chukotka
Regional Court set aside the judgment and remitted the case for a
fresh examination.
B. Second round of the proceedings
- In
May and July 2000 and January 2001 the applicant amended his claims,
reiterated his claim for documents from the respondent and asked the
court to call witnesses. On 1 February 2001 the District Court
granted the applicant's claims in part. On 24 May 2001 the Regional
Court quashed the judgment and remitted the case for a re-trial.
C. Third round of the proceedings
- In
July 2001 and February 2002 the applicant amended his claims. On 22
February 2002 the District Court found for the applicant. The court
reinstated him and awarded him 67,960 Russian roubles (RUB) on
account of leave payment, RUB 39,766.09 for salary arrears and
inflation losses, and RUB 10,000 in respect of non-pecuniary damage.
On 16 May 2002 the Regional Court remitted the case for a new
examination in the part of leave payment and upheld the remainder of
the judgment.
- On
30 November 2002 the applicant received RUB 39,766.09 as awarded
by the court and another payment of RUB 17,397.14.
D. Fourth round of the court proceedings and
enforcement proceedings
- On
9 January 2003 the District Court awarded the applicant RUB 48,247
in leave payment. The judgment was not appealed against and became
final on 20 January 2003.
- On
24 January 2003 the bailiffs' office opened enforcement proceedings.
On 21 March 2003 the District Court instructed the bailiffs' office
to collect RUB 30,849.86 from the respondent company because due to a
mistake the applicant had already received RUB 17,397.14.
- On
5 May 2003 the bailiffs' office closed the enforcement proceedings.
They held that the judgment could not be enforced because the
respondent had no property or funds; on 2 July 2002 the enterprise
had been restructured so that its assets had been transferred to the
municipality.
- The
judgment of 9 January 2003 was enforced in full on 14 April
2006.
II. RELEVANT DOMESTIC LAW
- The Civil Code defines State and municipal unitary
enterprises as a special form of legal entities that do not exercise
the right of ownership in respect of the property allocated to them
by the property owner (Article 113 § 1). The State or municipal
authority retains ownership of the property but the enterprise may
exercise in respect of that property the right of economic control or
operative management (Article 113 § 2).
- The manager of a unitary enterprise is appointed by,
and reports to, the owner (Article 113 § 4). The owner has the
right to restructure or liquidate the enterprise. The owner's consent
is required for any transaction that may lead to encumbrance or
alienation of the property.
- The
owner of an enterprise having the right of economic control is not
liable for the enterprise's debts unless the owner has caused
insolvency of the enterprise or violated the procedure for its
liquidation (Article 114 § 7). Such enterprise
may be declared insolvent in accordance with the insolvency procedure
applicable to private companies.
- The owner of an enterprise having the right of
operative management is liable for the enterprise's debts in case of
insufficiency of their funds (Article 115). Such enterprise may
not be declared insolvent (Article 65).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF NON-ENFORCEMENT OF THE
JUDGMENT OF 9 JANUARY 2003
- The
applicant complained that the judgment of 9 January 2003 was not
enforced in good time. The Court considers that this complaint should
be examined under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 (see Burdov v.
Russia, no. 59498/00, § 26,
ECHR 2002 III). 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 within a
reasonable time... 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...”
A. Admissibility
- The
Government argued that in Russian law the State was liable for unpaid
debts of a municipal unitary enterprise only where the owner had
caused the enterprise's insolvency, which had not happened in the
present case.
- The
applicant maintained his complaint.
- The
Court notes that under Russian law the owner of a unitary enterprise
retains ownership of the property of that enterprise, approves all
transactions with that property, controls the management of the
enterprise and decides whether the enterprise should continue its
activity or be liquidated (see paragraphs 14 - 17 above). The
Government have not demonstrated that the enterprise in the present
case enjoyed sufficient institutional and operational independence
from the State to absolve the latter from responsibility under the
Convention for its acts and omissions (see Aleksandrova v. Russia,
no. 28965/02, § 17, 6 December 2007, with further
references). Thus, the Court considers that the State is liable
for the proper enforcement of the judgment in the applicant's favour.
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government asserted that the judgment of 9 January 2003 had not been
enforced because the municipal enterprise had been restructured and
lacked funds to comply with the judicial award.
- The
applicant submitted that the delay in the enforcement of the award
had been unreasonably long.
- The
Court observes that the sum under judgment of 9 January 2003 was paid
to the applicant on 14 April 2006, that is, with a delay of nearly
three years and three months. The Court reiterates that it is not
open to a State authority to cite the lack of funds as an excuse for
not honouring a court award.
- 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 Aleksandrova, cited above, §§
20-26; Gizzatova
v. Russia, no. 5124/03,
§§ 18-29, 13 January
2005; and Yavorivskaya v.
Russia, no. 34687/02, §§ 24-29, 21 July
2005).
- 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. It
finds that by failing, for years, to comply with the final 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that his case against the former employer had
not been examined within a reasonable time contrary to Article 6 §
1 of the Convention.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into account
- Although
the parties disagreed as to the exact date when the action was lodged
in March 1998, the Court does not have to determine this matter
because the Convention entered into force in respect of Russia only
on 5 May 1998. That being so, in assessing the reasonableness of
the duration of the proceedings after that date, account may be taken
of the state of proceedings at the time. The Court considers
that the period of enforcement does not fall within the period to be
taken into account in respect of the complaint concerning the length
of the proceedings because the applicant has made a separate
complaint about the non-enforcement proper (see Malama v. Greece,
no. 43622/98, § 34 ECHR 2001 II, and Alekseyev
v. Russia (dec.), no. 5836/05, 13 November 2008).
Accordingly, the Court finds that the period to be taken into
consideration ended on 20 January 2003, when the judgment of 9
January 2003 became final. Therefore, the relevant period amounts to
over 4 years and 8 months.
2. Reasonableness of the length of proceedings
- The Government argued that certain delays were
attributable to the applicant because on several occasions he had
amended his claims, sought to obtain documents and to call witnesses.
At the same time the Government acknowledged that the courts had not
respected national procedural time-limits for the examination of
civil cases and that the applicant's right under Article 6 § 1
had been violated.
- The
applicant maintained his complaint.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court observes that the proceedings concerned claims for
reinstatement in the post and payment of damages; they were not
particularly complex. In any event, the complexity of a case could
not, in itself, justify the overall duration of the proceedings of
nearly five years.
- As
to the applicant's conduct, the Court is not convinced by the
Government's argument that the applicant should be held responsible
for amending his claims and seeking to obtain documentary and witness
evidence. It has been the Court's constant approach that an applicant
cannot been blamed for taking full advantage of the resources
afforded by national law in the defence of his interests (see, as a
recent authority, Ignatyeva v. Russia, no. 10277/05, §
38, 3 April 2008). There is nothing to indicate that the applicant's
requests were vexatious or led to any substantial delays in the
examination of his case.
- The
Court also notes that the length of the proceedings was mainly due to
the fact that the case was re-examined several times. Although
the Court is not in a position to analyse the juridical quality of
the domestic courts' decisions, it considers that, since the remittal
of cases for re-examination is frequently ordered as a result of
errors committed by lower courts, the repetition of such orders
within one set of proceedings may disclose a serious deficiency in
the judicial system (see Wierciszewska v. Poland, no.
41431/98, § 46, 25 November 2003; Yurtayev v. Ukraine,
no. 11336/02, § 41, 31 January 2006; Matica v. Romania,
no. 19567/02, § 24, 2 November 2006; and Maruseva
v. Russia, no. 28602/02, §
32, 29 May 2008). It is incumbent on respondent States to
organise their legal systems in such a way that their courts can meet
the requirements of Article 6 of the Convention, including the
obligation to hear cases within a reasonable time (see Sürmeli
v. Germany [GC], no. 75529/01, § 129, 8 June
2006).
- Lastly, the Court recalls that the employment disputes
generally require particular diligence on the part of the domestic
courts (see Ruotolo v. Italy, 27 February 1992, § 17,
Series A no. 230 D). Having regard to the overall length of the
proceedings and what was at stake for the applicant, the Court
concludes that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a breach of Article 6 §
1.
III. OTHER ALLEGED VIOLATIONS
OF THE CONVENTION
- The
applicant also complained about his employment conditions and the
alleged unfairness of the proceedings. The Court has examined those
complaints and considers that, in the light of all the material in
its possession and in so far as the matters complained of are within
its competence, they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application should be declared
inadmissible pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. 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 1,470,589 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the authorities' failure to determine his
claim within a reasonable time and to enforce the judgment of 9
January 2003 in good time. However, the amount claimed appears
excessive. Making its assessment on an equitable basis, the Court
awards the applicant EUR 4,800 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 120 in respect of costs and expenses
incurred before the Court.
- The
Government regarded these costs and expenses as substantiated.
- Regard
being had to the information in its possession and the above
criteria, the Court awards the sum claimed.
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 complaints concerning the delay in
the enforcement of the judgment of 9 January 2003 and the length of
the civil proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
delayed enforcement of the judgment of 9 January 2003;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,800 (four
thousand eight hundred euros), plus any tax that may be chargeable,
in respect of non pecuniary damage and EUR 120 (one hundred and
twenty euros) in respect of costs and expenses, both sums 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
