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FIRST
SECTION
CASE OF GADZHIKHANOV AND SAUKOV v. RUSSIA
(Applications
nos. 10511/08 and 5866/09)
JUDGMENT
STRASBOURG
31
January 2012
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 Gadzhikhanov and
Saukov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 10511/08 and
5866/09) 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 two
Russian nationals, Mr Gadzhimirza
Idayatovich Gadzhikhanov and Mr Vadim Stanislavovich Saukov
(“the applicants”), on 26 December 2007 and 15 November
2008 respectively.
2. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
6 November 2009 and 25 November 2010, respectively,
the President of the First Section decided to
give notice of the applications to the Government. It
was also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
4. In
accordance with the pilot judgment Burdov v. Russia (no. 2)
(no. 33509/04, ECHR 2009 ...), the applications were
adjourned pending their resolution at the domestic level.
- The
Government later informed the Court that they saw no possibility of
enforcing the judgments in the applicants’ favour. The Court
therefore decided to resume examination of the present applications.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
first applicant was born in 1927 and lives in Derbent,
Republic of Dagestan. The second applicant was born in1977 and lives
in Severodvinsk, Arkhangelsk Region.
Application of Mr Gadzhikhanov, no. 10511/08
- By
a judgment of 20 December 1999 the Derbent Town Court of the Republic
of Dagestan granted in part the applicant’s claim against the
town administration, recognized that the State had unlawfully
confiscated the house owned by his father and awarded him
compensation in the amount of 8,349 Russian roubles (RUB).
- On
2 February 2000 the Supreme Court of the Republic of Dagestan upheld
that judgment on appeal, and on the same day the trial court
forwarded the applicant a writ of execution. The trial court
specified in the writ of execution that the debtor was the Commission
for Restoration of the Rights of the Rehabilitated Victims of
Political Repressions at the town administration.
- The
applicant did not take any further steps to recover the judicial
award. As a result, the judgment of 20 December 1999 remains
unenforced.
Application of Mr Saukov, no. 5866/09
- By a judgment of 19 July 2005 the Arkhangelsk Regional
Court convicted the applicant of various crimes and sentenced him to
imprisonment. That judgment was quashed by way of supervisory review
on 11 April 2007 by the Presidium of the Arkhangelsk Regional Court
(“the Presidium”). Having found that the lower courts had
incorrectly assessed evidence in the case, the Presidium decided to
discontinue the criminal proceedings against the applicant.
- The
applicant sued the State for damages. By a judgment of 20 March
2008 the Severodvinsk Town Court of the Arkhangelsk Region awarded
the applicant compensation for unlawful detention in the amount of
RUB 1,000. On 19 June 2008 the trial court issued a writ of execution
and sent it to the applicant. The above judgment was upheld on appeal
by the Arkhangelsk Regional Court on 2 October 2008. By a letter of
23 December 2008 the Legal Department of the Ministry of Finance
informed the applicant of the domestic procedure to follow in order
to recover the judicial award in his favour.
- Despite
that information the applicant did not take any further steps to
recover the judicial award. As a result, the judgment of 20 March
2008 remains unenforced.
II. RELEVANT DOMESTIC LAW
- Article
242.1 § 1 of the Budget Code of the Russian Federation provides
that enforcement of judicial decisions recovering funds from the
budgetary system of the Russian Federation is held on the basis of
the enforcement documents (writ of execution, court order).
- Article
242.1 § 2 of the same Code provides that along with the writ of
execution the creditor or the court acting on his or her behalf
should submit a duly certified copy of the judicial decision and a
written request containing the creditor’s bank account details.
THE LAW
I. JOINDER OF APPLICATIONS
- Given
that the applications at hand concern similar complaints and raise
identical issues under the Convention, the Court decides to join them
pursuant to Rule 42 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL No. 1
- The
applicants complained that the authorities had
failed to enforce the judgments in their favour. The Court will
examine these complaints under Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1, which in the relevant part 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.”
- The
Government referred to the domestic legislation and submitted that
the authorities could not enforce the judgments in question, since
the applicants had failed to cooperate with a view to recovery of the
awards. They referred in particular to the applicants’
continuing failure to submit the writs of execution to the competent
authorities.
- The
first applicant did not dispute the Government’s allegation but
disagreed with the judgment adopted by the domestic court on his
claims and asserted that the Commission for Restoration of the Rights
of the Rehabilitated Victims of Political Repressions had not been
competent to enforce it. The second applicant did not provide any
comment.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
parties’ submissions are summarised in paragraphs
17 and 18 above.
- The
Court reiterates that an unreasonably long delay in the enforcement
of a binding judgment may breach the Convention (see Burdov v.
Russia, no. 59498/00, ECHR
2002 III). It has been the Court’s constant
position that a person who has obtained a judgment against the State
may not be expected to bring separate enforcement proceedings (see
Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). In
such cases, the defendant State authority must be duly notified
of the judgment and is thus well placed to take all necessary
initiatives to comply with it or to transmit it to another competent
State authority responsible for execution. This is particularly
relevant in a situation where, in view of the complexities and
possible overlapping of the execution and enforcement procedures, an
applicant may have reasonable doubts about which authority is
responsible for the execution or enforcement of the judgment (see
Akashev v. Russia, no. 30616/05, § 21, 12 June
2008, and Burdov (no. 2), cited above, § 68).
Consequently, the Court held that the burden to ensure compliance
with a judgment against the State lies primarily with the State
authorities starting from the date on which the judgment becomes
binding and enforceable (Burdov (no. 2), cited above, § 69).
- At
the same time, the Court has accepted that a successful litigant may
be required to undertake certain procedural steps in order to recover
the judgment debt (see Shvedov v. Russia, no. 69306/01, § 32,
20 October 2005) Accordingly, it is not unreasonable that the
authorities request the applicant to produce additional documents,
such as bank details, to allow or speed up the execution of a
judgment (see, mutatis mutandis, Kosmidis and Kosmidou v.
Greece, no. 32141/04, § 24, 8 November 2007, and Burdov (no.
2), cited above, § 69). The creditor’s
uncooperative behaviour may be an obstacle to timely enforcement of a
judgment, thus alleviating the authorities’ responsibility for
delays (see Belayev v. Russia (dec.), 36020/02, 22 March
2011). The requirement of the creditor’s cooperation must not,
however, go beyond what is strictly necessary and, in any event, does
not relieve the authorities of their obligation under the Convention
to take timely action of their own motion, on the basis of the
information available to them, with a view to honouring the judgment
against the State (see Akashev, cited above, § 22,
and Burdov (no. 2), cited above, § 69).
- The
Court has been frequently led to apply the above principles in
numerous non-enforcement cases brought against Russia, notably for
calculation of enforcement delays for which the State was responsible
under the Convention. It thus systematically found that the time
taken by the authorities to comply with a judgment should be
calculated from the moment on which it became final and enforceable
until the moment when the judicial award was paid to the applicant
(see Burdov (no. 2), cited above, § 73).
Thus, the Court did not accept, for instance, the State’s
attempts to justify the enforcement delays by an erroneous
transmission of the writ of execution by one authority to another
(see Akashev, cited above, § 19-20). Nor was the
applicant to blame for successive transmissions of the writ of
execution to various State authorities after fruitless attempts to
secure the respondent’s voluntary compliance with the judgment
(Burdov (no. 2), cited above, § 75).
- The
issue to be resolved by the Court in the present case is however
different. It must first and foremost ascertain the existence of the
State’s responsibility for non-enforcement of the judgments in
a situation where the applicants, since 2000 and 2008 respectively,
have not taken any steps to recover the judgment debts. The
Government argued that the applicants’ failure to comply with
the necessary formalities made it impossible for the State to pay the
judicial awards.
- The
Court observes that the requirement for the creditor to submit the
writ of execution along with a duly certified copy of the judgment
and his bank details is established in clear terms by Article 242.1
of the Budget Code (see paragraphs 13-14 above). As it has already
mentioned above, the submission by the creditor of bank details
appears as a necessary and reasonable step required from the
applicant (see paragraph 22 above). As to the certified copy of the
judgment, the Court has already found that the defendant State
authority intervenes as a party in court proceedings and must
automatically receive the original text of the judgment from the
domestic court itself (see paragraph 21 above). The Court does not
discern, therefore, any need for the applicant to assist the State
authorities in obtaining a duly certified copy of the judgment for a
second time.
- The
situation may be different, however, with regard to the requirement
to submit the writ of execution. The Court observes that
Article 242.1 of the Budget Code makes it possible for a
successful litigant to request the trial court to forward the writ of
execution directly to the competent State authority. In the Court’s
understanding, this option was meant to facilitate and accelerate the
payment of judicial awards by the State. If, however, the applicant
for any reason obtains himself the writ of execution from the trial
court, it would appear logical, in the Court’s view, to require
that he submits it to the competent authority with a view to
enforcement of the judgment.
- Turning
to the facts of the present case, the Court notes that the applicants
have never contested their persistent failure to take any action in
order to recover the judgment debts. Neither of the applicants
claimed to be unaware of the procedure to follow or to have
difficulties with understanding it. Nor did they claim the legal
requirement to impose a disproportionate burden on them or to be
otherwise unreasonable or unnecessary. Finally, they neither
elucidated their position before the Court, nor pointed to any valid
circumstance preventing or dispensing them from complying with the
enforcement procedure.
- In
this last mentioned respect the Court cannot accept the first
applicant’s assumption that a specialised agency of the town
administration was not competent to deal with the enforcement of the
judgment in his favour as a sound ground for forgoing of the domestic
legal procedure altogether. The behaviour of the second applicant was
also objectionable in the Court’s view. On 23 December 2008,
that is two months after the judgment in his favour became final, the
Legal Department of the Ministry of Finance sent him a letter setting
out a list of the documents that should be provided for recovery of
the judicial award (see paragraph 11 above). The applicant, however,
did not react at all.
- In
view of the above circumstances, the Court agrees with the Government
that the applicants’ failure to take reasonable procedural
steps constituted an obstacle to enforcement of the judgments in
their favour. While the primary responsibility for enforcement of a
judgment against the State lies with the authorities, they cannot
comply with their obligations without the applicants’ minimal
cooperation to that effect. In the absence of any explanation from
the applicants, the Government’s assumption that they had
deliberately withheld the writs of execution for several years does
not appear unfounded. In the Court’s view, the present
situation strikingly differs from that observed in virtually all
other non-enforcement cases decided against Russia, in which the
applicants took the necessary steps with a view to payment of the
judicial awards by the State.
- In
view of the foregoing, the Court concludes that the applicants’
behaviour in the present case was an obstacle to enforcement of the
judgments in their favour. Consequently, the authorities cannot be
held responsible under the Convention for the non-enforcement of
those judgments.
- There
has accordingly been no violation of Article 6 § 1 and Article 1
of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants also raised other complaints under Articles 6, 13 and 14
of the Convention and Article 3 of Protocol No. 7.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that 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 applications is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
2. Declares the complaint concerning
non-enforcement of the judgments admissible and the remainder of the
applications inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
Done in English, and notified in writing on 31 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
