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FIRST
SECTION
CASE OF NIKOLENKO v. RUSSIA
(Application
no. 38103/04)
JUDGMENT
STRASBOURG
26 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 Nikolenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 5 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38103/04) 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, Ms Larisa Aleksandrovna
Nikolenko (“the applicant”), on 1 September 2004.
- The
applicant was represented by Ms N. Lonert, a lawyer practising in
Azov, a town in the Rostov Region of Russia. The Russian Government
(“the Government”) were represented by Mrs V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights.
- On
12 June 2007 the President of the First Section decided to
communicate to the Government the complaints concerning
non-enforcement of judgments, supervisory review, and compulsory
labour. 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 1967 and lives in Armavir, a town in Armenia.
- A
warrant officer of the Russian Border Guard Service (“Service”),
she serves in a unit stationed in Armenia.
- In
June 2000 the applicant requested an early discharge because of
structural changes in her service. Under domestic law, long-serving
personnel in need of better housing (the applicant met these
conditions) could be discharged against their will only if the
command provided them with such housing. When asking for discharge,
the applicant specified that she wished to receive the housing.
- As
no housing was provided, in November 2003 the applicant sued the
Director of the Service for provision of housing and an early
discharge. On behalf of the defendant the trial was attended by X, a
major of military justice acting on the basis of a power of attorney.
X accepted the applicant's claim and on 15 March 2004 the Fifth
Garrison Military Court ordered the Director to provide the
applicant's family with housing in Moscow and to discharge her. This
judgment became enforceable immediately, but was not enforced.
- In
July 2004 the Bailiff's Service investigated the applicant's
allegation that the delayed enforcement constituted an offence under
section 315 of the Criminal Code (ignoring judgments), but found that
the Director had no case to answer.
- On
the Director's request, on 18 January 2005 the Presidium of the
North-Caucasian Military Court quashed the judgment on supervisory
review and ordered a rehearing. The Presidium justified the quashing
with four reasons.
First,
the judgment had been based solely on the defendant's acceptance of
the claim and had not explored whether the claim as such had been
lawful and compatible with third parties' interests.
Second,
X had not been duly authorised by the defendant proper, i.e. by the
Director; he was authorised by the Service's local branch only.
Third,
the acceptance of the claim had not been formally recorded.
Fourth,
the Garrison Court had misevaluated facts and material law.
- After
the rehearing, on 1 June 2006 the Garrison Court ordered the Director
to provide the applicant's family with housing in Moscow by
means of a first-priority queue (в первоочередном
порядке). The court
dismissed the applicant's claim for discharge because this matter was
within the authority of her unit, not that of the Director. This
judgment became binding on 25 October 2006.
- To
enforce the judgment, in November 2006 the logistics department of
the Service sent to the applicant's unit a list of documents
necessary for putting her in the queue. In February 2007 the unit
provided a part of these documents. In May 2007 the logistics
department reminded the applicant that to complete her file she had
to provide further documents, among them an extract from the register
of tenants, her children's birth certificates, and proof of
entitlement to privileges. In September 2007 the applicant completed
the file, and on 2 November 2007 the housing commission of the
Service put the applicant's family in the first-priority housing
queue.
II. RELEVANT DOMESTIC LAW
- Under
section 23 § 1 of the Federal Law on the Status of Servicemen,
servicemen who have served ten years and more and whose housing needs
to be improved, cannot be discharged against their will without the
provision of such housing.
- According
to the Ruling of the Constitutional Court 322-O of 30 September
2004, after expiry of a serviceman's contract and in the absence of
his written agreement to discharge without provision of housing, he
should be considered as serving voluntarily only until the provision
of housing.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF
SUPERVISORY REVIEW
- The
applicant complained under Article 6 of the Convention about the
supervisory-review quashing of the judgment of 15 March 2004. The
Court will examine this complaint under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1. Insofar as relevant,
these Articles 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.”
A. Admissibility
- The
Government argued that this complaint was inadmissible. Article 6 had
not applied to the proceedings in question because they had concerned
military service. The supervisory review had been compatible with the
Convention because it had been lawful under domestic law and had been
meant to correct judicial mistakes. The reasons cited by the
supervisory-review court had justified the quashing. The domestic
procedure had been respected. Civil procedure of other countries, for
example Austria, Germany, and Switzerland had also allowed for the
annulment of binding judgments. Besides, the Council of Europe had
been satisfied with reforms of the supervisory-review procedure.
- The
applicant maintained her complaint.
- The
Court reiterates that Article 6 does apply to cases similar to the
case at hand (see Tetsen v. Russia, no.
11589/04, § 18, 3 April 2008).
18. 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
Court reiterates that for the sake of legal certainty implicitly
required by Article 6, final judgments should generally be left
intact. They may be disturbed only to correct fundamental defects
(see Ryabykh v. Russia, no. 52854/99, § 51–52,
ECHR 2003 IX). To answer this complaint the Court will hence
have to determine if the grounds for the quashing of the applicant's
judgment fell within this exception (see Protsenko v. Russia,
no. 13151/04, § 29, 31 July
2008).
- In
the case at hand, none of the grounds cited by the Presidium of the
North-Caucasian Military Court were fundamental.
First,
the trial court's approval of the settlement as reached by the
parties conforms with the civil-law principle that parties are free
to settle their case.
Second,
the Service was represented by a high ranking officer who acted on
the basis of a power of attorney given by the local branch of the
Service. In those circumstances the officer had ostensible authority
and there was nothing to indicate to the trial court that the
requirements of representation of the defendant were not met. The
responsibility lay with the Director who could have made other
arrangements if he had so wished.
Third,
the trial court's failure to formally record the acceptance of the
claim was not a substantive shortcoming.
Fourth,
misevaluation of facts and material law does not justify a quashing
either (see Kot v. Russia, no. 20887/03, § 29, 18 January
2007).
- As
none of the grounds were based on a fundamental defect, the Court
concludes that the Presidium was not justified to set the judgment
aside. There has accordingly been a violation of Article 6 of the
Convention and of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF
NON-ENFORCEMENT
- The
applicant complained under Article 6 of the Convention and Article 2
of Protocol No. 4 about the delayed enforcement of the judgments. The
Court finds it more appropriate to examine this complaint under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
only.
A. Admissibility
- The
Government argued that this complaint was inadmissible. The judgment
of 15 March 2004 could not have been enforced because it had been
quashed on supervisory review. The enforcement of the judgment of 1
June 2006 had been delayed by the applicant's failure to submit the
necessary documents.
- The
applicant maintained her complaint. The authorities had not sought to
enforce the judgment of 15 March 2004 while it had still been
binding. It had been the applicant's unit, not the applicant herself,
from whom the logistics department had requested the documents.
Hence, she had not been responsible for the delayed submission of the
documents.
- 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
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). To decide if the delay was
reasonable, the Court will look at how complex the enforcement
proceedings were, how the applicant and the authorities behaved, and
what the nature of the award was (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
- In
the case at hand, with regard to the judgment of 15 March 2004, the
Court considers that the issue of non-enforcement is absorbed by the
issue of quashing, and hence this part of the complaint needs not to
be examined.
- As
to the judgment of 1 June 2006, its enforcement lasted one year: from
the day this judgment became enforceable to the day the housing
commission put the applicant in the queue. This period is compatible
with the requirements of the Convention, especially since a part of
the delay was caused by the applicant's failure to submit the
necessary documents. Given the nature of the award, the authorities'
requirement to submit these documents did not go beyond what is
strictly necessary for the enforcement (see Akashev
v. Russia, no. 30616/05, § 22,
12 June 2008).
- There
has, accordingly, been no violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that she had
no effective domestic remedy against the delayed enforcement of the
judgments. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government argued that this complaint was manifestly ill-founded
because the Bailiff's Service had investigated the applicant's
complaints.
- The
applicant maintained her complaint.
- 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
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for a prolonged non-enforcement of a
binding judgment (see, mutatis mutandis, Kudła v.
Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). With
respect to the Court's finding that the prolonged non-enforcement did
not in itself amount to a violation (see § 29 above), it should
be noted that it suffices for Article 13 to be applicable that the
applicant's claim that Article 6 § 1 and Article 1 of Protocol
No. 1 had been violated, was arguable (see Boyle and Rice v. the
United Kingdom, 27 April 1988, § 54, Series A no. 131).
- The Government have not
specified how recourse to the criminal prosecution would provide
preventive or compensatory relief against the non-enforcement. Nor
have the Government given an example from domestic practice of a
successful application of that remedy (see Kudła,
cited above, § 159).
- It
follows that there has been a violation of Article 13.
IV. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION
- The
applicant complained under Article 4 of the Convention that she had
to continue to serve against her will awaiting the provision of the
housing. Insofar as relevant, this Article reads as follows:
“2. No one shall be required to perform
forced or compulsory labour.
3. For the purpose of this article the term
'forced or compulsory labour' shall not include:
...
(b) any service of a military character....”
- The
Government argued that this complaint was inadmissible. The
applicant's continuing service had been lawful under the domestic
law, because the applicant had preferred to continue to serve
awaiting the provision of the housing. The applicant maintained her
complaint.
- The
Court notes that the applicant is a professional servicewoman who had
joined the army voluntarily. It also notes that when asking for
discharge the applicant had preferred to continue to serve awaiting
the provision of the housing. In such circumstances, it is impossible
to consider her service as compulsory within the meaning of Article 4
of the Convention (see Sladkov v. Russia,
no. 13979/03, § 36, 18 December 2008;
Levishchev v. Russia, no. 34672/03,
§ 32, 29 January 2009).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
V. 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 10,000 euros (EUR) in respect of non-pecuniary
damage. She also claimed 247,174.95 Russian roubles (RUB) in respect
of pecuniary damage. This amount represented her estimate of
allegedly underpaid emoluments.
- The
Government argued that these claims were excessive, arbitrary, and
unsupported by evidence.
- The
Court accepts that the applicant must have been distressed by the
quashing of the judgment. Making its assessment on an equitable
basis, the Court awards EUR 3,000 in respect of non-pecuniary damage.
On the other hand, the Court discerns no causal link between the
violations found and the pecuniary damage alleged; it therefore
rejects this claim.
B. Costs and expenses
- The
applicant also claimed RUB 61,956.78 for the costs and expenses
incurred before the domestic courts and the Court.
- The
Government argued that this claim was unsupported by evidence.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,500 for the
proceedings before the Court.
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 supervisory
review, non-enforcement, and the lack of remedies against
non-enforcement admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 in
respect of the supervisory review;
- Holds that there is no need to examine the
complaint concerning the non-enforcement of the judgment of 15 March
2004;
- Holds that there has been no violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in respect of the non-enforcement of the judgment of 1 June 2006;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 1,500 (one thousand five
hundred euros), plus any tax that may be chargeable to the applicant,
in respect of costs and expenses;
(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 26 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
