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FIRST
SECTION
CASE OF POGULYAYEV v. RUSSIA
(Application
no. 34150/04)
JUDGMENT
STRASBOURG
3
April 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 Pogulyayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34150/04) 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 Yuriy Dmitriyevich
Pogulyayev (“the applicant”), on 30 July 2004.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained about non-enforcement of judgments in his
favour.
- On
9 March 2007 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
applicant was born in 1946 and lives in Chelyabinsk.
- On
13 May 2002 the Justice of the Peace of Court Circuit no. 2 of the
Sovetskiy District of Chelyabinsk granted the applicant's claim
against the Chelyabinsk Tank Institute for compensation for the
purchase of teaching aids. The applicant was awarded 9,600 Russian
roubles (“RUB”). According to the Government, the Tank
Institute is a State institution for higher education owned by the
Ministry of Defence and funded from the federal budget.
- On
12 August 2002 the applicant submitted the writ of execution to the
Tank Institute. By letter of 15 December 2002, the applicant was
informed that the writ had not been received.
- The
applicant brought a further claim against Tank Institute, seeking
adjustment of the award for inflation and recovery of the interest
for the period of non-enforcement.
- On
15 August 2003 the Justice of the Peace granted the claim and
additionally awarded him RUR 8,350.22 in respect of the period from
13 August 2002 to 15 August 2003.
- On
3 November 2003 a court bailiff issued decision to discontinue
enforcement proceedings because the Tank Institute had no assets from
which recovery could be made.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about non-enforcement of the judgments of 13 May
2002 and 15 August 2003. 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
- The
Government claimed that the applicant had not exhausted the domestic
remedies because he had not sued the Ministry of Defence, which was
vicariously liable for the Tank Institute's debts as its owner, and
because he had not brought a claim for inflation losses arising out
of protracted enforcement of the judgments.
- As regards the possibility of
suing the institutional owner of a State-funded organisation under
the vicarious liability provisions, the Court recalls that it has
already examined and rejected a similar objection in the case of
Yavorivskaya v. Russia (dec., no. 34687/02, 13 May
2004) since the Government were unable to produce any case-law
showing the effectiveness of that remedy. In the present case the
Government's objection was again confined to the assertion that such
a claim would have been an effective remedy, without reference to any
judicial practice. In this connection the Court reiterates that
it is incumbent on the Government claiming non exhaustion to
satisfy the Court that the remedy was an effective one, available in
theory and in practice at the relevant time, that is to say, that it
was accessible, was one which was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see Selmouni v.
France [GC], no. 25803/94, §
76, ECHR 1999-V, and Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002 VIII). Furthermore,
as regards the possibility of lodging a claim for inflation losses,
such an action would only have produced repetitive results,
namely a writ of execution which would not be enforceable because of
insufficient funding of the Tank Institute. In fact, the applicant
had availed himself of that remedy on one occasion but the judgment
he had obtained remained without enforcement, for the same reasons as
the original one. In these circumstances, the Court dismisses the
Government's objection as to the non-exhaustion of domestic remedies.
- The Court notes that the application 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 submitted that, following the discontinuation of the
enforcement proceedings on 3 November 2003, the applicant did not
resubmit the writs of execution to the local branch of the federal
treasury. Thus, he had not shown due diligence in pursuing the
enforcement proceedings.
- The
applicant maintained that it had been incumbent on court bailiffs to
forward the writs to the competent body.
- The
Court observes that on 13 May 2002 and 15 August 2003 the applicant
obtained two judgments in his favour which he submitted to court
bailiffs for enforcement. The judgments have not been enforced to
date because the Tank Institute did not have sufficient funding.
- 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).
- In
particular, 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. The State authorities were aware of the
applicant's claims, and, as soon as the judgments in the applicant's
favour became enforceable, it was incumbent on the State to comply
with them. It would impose an excessive burden on the applicant if he
were required to follow every change in the domestic law and forward
the writ of execution from one competent State agency to another (see
Reynbakh, §§ 23-24, cited above).
-
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 awards in the applicant's
favour had not been paid to him. 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, and 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 judgments of 13 May 2002
and 15 August 2003;
- Decides to make no other award under Article 41
of the Convention.
Done in English, and notified in writing on 3 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
