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FIRST
SECTION
CASE OF USTALOV v. RUSSIA
(Application
no. 24770/04)
JUDGMENT
STRASBOURG
6
December 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 Ustalov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24770/04) 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 Alekseyevich
Ustalov (“the applicant”), on 25 May 2004.
- 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 new Representative, Mrs V. Milinchuk.
- The
applicant complained about non-enforcement of the judgment in his
favour.
- On
9 October 2006 the Court decided to communicate 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
applicant is an active officer of the Russian
army in the rank of captain. He lives in St Petersburg.
- On
4 February 2004 the Military Court of the Sertolovo Garrison granted
the applicant's action against his military unit and awarded him
304,487 Russian roubles (RUB) in wage arrears. The judgment was not
appealed against and became final on 17 February 2004.
- On 29 March 2004 the applicant sent a copy of the
judgment to the military unit. According to the
acknowledgment-of-receipt card, the military unit received the letter
on 29 April 2004.
- The
applicant complained about non-enforcement to the local department of
the Ministry of Defence. By letter of 25 May 2004, the local
department of the Ministry of Defence instructed the military unit to
pay the judgment debt.
- The
judgment has not been enforced to date.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained about non-enforcement of the judgment of the
Military Court of the Sertolovo Garrison of 4 February 2004. He
relied on Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1, the relevant parts of which 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
1. The Government's objection as to applicability of
Article 6 of the Convention
- The
Government, relying on the Court's judgment in the case of Pellegrin
v. France ([GC], no. 28541/95, ECHR 1999-VIII), argued that
the applicant's complaint under Article 6 of the Convention was
incompatible ratione materiae
because the applicant was a military officer and the judgment award
had concerned wage arrears for his military service.
- The
Court accepts that in the
Pellegrin judgment
it attempted to establish an autonomous interpretation of the
term “civil service”. To that end the Court introduced a
functional criterion based on the nature of the employee's duties and
responsibilities. However, in its recent judgment in
the case of Vilho
Eskelinen and Others v. Finland ([GC],
no. 63235/00, 19 April 2007), the Court found that the
functional criterion, adopted in the
Pellegrin judgment,
did not simplify the analysis of the applicability of Article 6 in
proceedings to which a civil servant was a party or brought about a
greater degree of certainty in this area as intended (§ 55). For
these reasons the Court decided to further develop the functional
criterion set out in Pellegrin
and adopted the
following approach (see Vilho
Eskelinen, cited
above, § 62):
“To
recapitulate, in order for the respondent State to be able to rely
before the Court on the applicant's status as a civil servant in
excluding the protection embodied in Article 6, two conditions must
be fulfilled. Firstly, the State in its national law must have
expressly excluded access to a court for the post or category of
staff in question. Secondly, the exclusion must be justified on
objective grounds in the State's interest. The mere fact that the
applicant is in a sector or department which participates in the
exercise of power conferred by public law is not in itself decisive.
In order for the exclusion to be justified, it is not enough for the
State to establish that the civil servant in question participates in
the exercise of public power or that there exists, to use the words
of the Court in the Pellegrin
judgment, a “special bond of trust and loyalty” between
the civil servant and the State, as employer. It is also for the
State to show that the subject matter of the dispute in issue is
related to the exercise of State power or that it has called into
question the special bond. Thus, there can in principle be no
justification for the exclusion from the guarantees of Article 6 of
ordinary labour disputes, such as those relating to salaries,
allowances or similar entitlements, on the basis of the special
nature of relationship between the particular civil servant and the
State in question. There will, in effect, be a presumption that
Article 6 applies. It will be for the respondent Government to
demonstrate, first, that a civil-servant applicant does not have a
right of access to a court under national law and, second, that the
exclusion of the rights under Article 6 for the civil servant is
justified”.
- Turning
to the facts of the present case, the Court notes that the applicant
had access to a court under national law. He made use of his right
and introduced an action against his employer. The Military Court of
the Sertolovo Garrison examined the applicant's claims and accepted
them, awarding wage arrears to the applicant. Neither the domestic
courts nor the Government indicated that the domestic system barred
the applicant's access to a court. Accordingly, Article 6 is
applicable (compare Dovguchits v. Russia, no. 2999/03,
§ 24, 7 June 2007).
2. The Government's
objection as to applicability of Article 1 of Protocol No. 1
- The
Government claimed that the applicant had received the wage arrears
in full in 2003. The Military Court of the Sertolovo Garrison had
made the award on the basis of untrue information submitted by the
applicant. Therefore, the claim established by the judgment of 4
February 2004 did not constitute a “possession” within
the meaning of Article 1 of Protocol No. 1.
- The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment constitutes the judgment beneficiary's
“possession” within the meaning of Article 1 of Protocol
No. 1 (see Burdov v. Russia, no. 59498/00, § 40,
ECHR 2002 III). On 4 February 2004 the applicant obtained a
judgment by which the military unit was to pay him wage arrears. The
judgment had become final and enforceable as no ordinary appeal was
made against it. The Court concludes that the applicant's claim was
sufficiently established to constitute a “possession” in
the meaning of Article 1 of Protocol No. 1. That Article was
therefore applicable.
3. The Government's objection as to the exhaustion of
domestic remedies
- The
Government argued that the applicant had not exhausted domestic
remedies. He had not submitted the writ of execution to the debtor.
The debtor had had no knowledge of the judgment of 4 February 2004
and had not therefore had an opportunity to enforce it.
- The
Court reiterates that a person who has obtained an enforceable
judgment against the State as a result of successful litigation
cannot be required to resort to enforcement proceedings in order to
have it executed (see Koltsov v. Russia, no. 41304/02, § 16,
24 February 2005; Petrushko v. Russia, no. 36494/02, § 18,
24 February 2005; and Metaxas v. Greece, no.
8415/02, § 19, 27 May 2004). The applicant sent a copy of
the judgment to the debtor (see paragraph 7 above). The State
authorities were thus made aware of the applicant's claims, and, as
soon as the judgment in his favour became enforceable, it was
incumbent on the State to comply with it. The Court therefore
dismisses the Government's objection.
4. Conclusion
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government made no comments on the merits of the complaint.
- The
applicant maintained his claims.
- The
Court observes that that on 4 February 2004 the applicant obtained a
judgment in his favour against his military unit. However, it has not
been enforced to date.
- 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 Reynbakh v.
Russia, no. 23405/03, § 23 et seq., 29 September
2005; Gizzatova v. Russia, no. 5124/03, § 19 et seq.,
13 January 2005; Petrushko v. Russia, no. 36494/02,
§ 23 et seq., 24 February 2005; Gorokhov and Rusyayev v.
Russia, no. 38305/02, § 30 et seq., 17 March 2005;
Wasserman v. Russia, no. 15021/02, § 35 et seq.,
18 November 2004; Burdov v. Russia, no. 59498/00, §
34 et seq., 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 to comply with the enforceable judgment in the applicant's
favour the domestic authorities violated his right to a court and
prevented him from receiving the money he could reasonably have
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
- The Court observes, however, that in the present case
it found a violation of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 in that the award in the applicant's
favour had not been paid to him. The Court notes that the State's
outstanding obligation to enforce the judgment of 4 February 2004 is
undisputed. Accordingly, the applicant remains entitled to recover
the judgment debts in the domestic proceedings. The Court reiterates
that the most appropriate form of redress in respect of a violation
of Article 6 is to ensure that the applicant is put as far as
possible in the position in which he would have been had the
requirements of Article 6 not been disregarded. It finds that this
principle applies in the present case too, having regard to the
violation found. It therefore considers that the Government should
secure, by appropriate means, the enforcement of the award made by
the domestic courts (see Poznakhirina v. Russia, no. 25964/02,
§ 33; Makarova and Others v. Russia, no. 7023/03, §
37, judgments of 24 February 2005).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1;
- Holds 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 domestic courts'
judgment of 4 February 2004;
- Decides to make no other award under Article 41
of the Convention.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
