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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Elinna Mikhaylovna SHEVCHENKO v Russia - 1250/05 [2010] ECHR 1707 (14 October 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1707.html Cite as: [2010] ECHR 1707 |
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
1250/05
by Elinna Mikhaylovna SHEVCHENKO
and 5 other
applications
(nos. 8865/05,
10811/06, 33714/06, 34864/06
and 52698/07)
against Russia
The European Court of Human Rights (First Section), sitting on 14 October 2010 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 regard to the above applications,
Having regard to the observations submitted by the Government and the comments in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are the private company “OOO Inform-X” and five Russian nationals, whose names and dates of birth are shown in the Annex. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows. The applicants sued the State authorities in domestic courts for payment of various monetary sums due under the Russian law. The courts held for the applicants and ordered the authorities to pay various amounts in the form of lump sums and/or of periodic payments to be upgraded in line with the inflation in the country. These judgments became binding on the dates indicated below. They were executed, according to the Government, on the dates set out in the Annex.
In case no. 34864/06 by Mr Kovalev, on 17 November 2004 the authorities paid to the applicant 46,036 Russian roubles (RUB) of RUB 52,916.06 awarded to him by the judgment of 27 May 2004 (see Annex for further details). The remaining RUB 6,879.09 were not paid to applicant but transferred to the federal budget as income tax.
The applicant sued the respondent authority for payment of the remaining part of the judgment debt. On 7 July 2006 the Tsentralnyy District Court of Kalininigrad in the final instance rejected his claim. The court found that the initial award was made in respect of wages taxable under the domestic law. Therefore, RUB 6,879.09 had been lawfully retained from the applicant as income tax.
COMPLAINTS
The applicants complained under various Convention Articles about the delayed enforcement of the judgments and submitted that their efforts to obtain the enforcement of the judgments by domestic means proved ineffective.
The applicants also made accessory complaints under assorted Articles of the Convention.
THE LAW
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 argued that the complaints were inadmissible because of non-exhaustion of domestic remedies, the loss of victim status, the full enforcement of the judgments, and the reasonableness of the periods of enforcement.
The applicants maintained their complaints. Several applicants contested the fact of the full enforcement of the judgments. In particular, Mr Kovalev (case no. 34864/06) claimed that the income tax had unlawfully been deducted from the judgment debt.
The Court reiterates at the outset that as from 4 May 2009, the date on which the judgment in the case of Burdov v. Russia (no. 2) became final, it adjourned the adversarial proceedings on all applications lodged with the Court in which the applicants complained of non-enforcement or delayed enforcement of domestic judgments ordering monetary payments by State authorities pending the adoption of domestic remedial measures. However, such adjournment is without prejudice to the Court's power at any moment to declare inadmissible any such case (see Burdov v. Russia (no. 2), no. 33509/04, § 146, 15 January 2009).
The Court considers it possible to leave the questions of domestic remedies and victim status open, because the applications are in any event inadmissible as follows.
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 present six applications, the periods of enforcement were up to one year. In the circumstances of the case, the Court considers that these periods complied with the requirements of the Convention (see, for example, Belkin and Others v. Russia (dec.), no. 14330/07 et al., 5 February 2009).
Insofar as several applicants contest the execution modalities, the Court reiterates that such grievances must be first and foremost submitted to domestic courts, which are better placed than the Court to ascertain the compliance with the Russian law in this area, including the specific index-linking requirements provided therein (see Belkin (dec.), cited above, and (see Sirotin v. Russia (dec.), no. 38712/03, 14 September 2006).).
Turning to the application no. 34864/06 by Mr Kovalev, the Court observes that the domestic courts examined the issue of taxability of the judgment debt and confirmed lawfulness of the tax retention from the overall amount of the domestic court award. There is nothing in the case materials to depart from these findings, nor is there anything to suggest that the respective domestic court proceedings were unfair from the Convention standpoint. In these circumstances the Court accepts that the tax had been retained from the applicant in compliance with the domestic law. Therefore, the judgment in the applicant's favour had been fully executed on 17 November 2004, that is within less than two months from its entry into force.
As regards the remaining applicants contesting the fact of the full enforcement of their judgments, the Court lends credence to the Government's statement because the applicants have not submitted this argument to domestic courts (see Sirotin (dec.), and Belkin (dec.), both cited above).
It follows that the non-enforcement complaint raised by the applicants is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“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.”
The Government argued that this complaint was inadmissible because the applicants did have at their disposal several effective remedies. The applicants maintained their complaint.
The Court reiterates that Article 13 requires domestic remedies only with regard to complaints arguable in the terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). Since the Court has found above that the applicants' complaint about the delayed enforcement is manifestly ill-founded, Article 13 has no application in the present case.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
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 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Søren Nielsen Christos Rozakis
Registrar President
A N N E X
Applicants and final judgments in their favour
|
Application no., date of introduction |
Applicant's name, year of birth and place of residence |
Nature of the dispute |
Domestic court |
Judgment (s) of |
Final on |
Date of full enforcement |
Enforcement delay |
|
1250/05 21/11/2004 |
Elinna Mikhaylovna Shevchenko, 1968, Republic of Kalmykiya |
Recalculation of salary by the Ministry of the Emergency Response |
Elista Town Cout of the Republic of Kalmykiya |
31/05/2004 |
Same date |
19/10/2004 |
4 months 19 days |
|
Justice of the Peace of the 4th Court Circuit of Elista |
09/12/2004 |
27/01/2005 |
18/04/2005 |
2 months 20 days |
|||
|
Increase of the award of 17/03/2004 |
Presidium of the Supreme Court of the Republic of Kalmykiya |
16/02/2005 |
Same date |
28/04/2005 |
2 months 12 days |
||
|
8865/2005 04/02/05
|
OOO Inform-X, limited liability company, Moscow |
Civil claim against the Ministry of Finance of the Saratov Region |
Federal Commercial Court of Moscow |
17/03/2004 |
17/04/2004 |
28/05/2004 |
1 month 10 days |
|
10811/06 01/02/2006
|
Aleksandr Pavlovich Borshchevskiy, 1941, Moscow Region |
Compensation for health damage |
Korenovskiy District Court of the Krasnodar Region |
17/08/2005 |
30/08/2005, amended on 06/04/2006
|
21/07/2006 |
10 months 21 days |
|
33714/06 16/06/2006
|
Aleksey Ivanovich Garkusha, 1952, Vologda Region |
Remuneration for the applicant's work as an insolvency official |
Commercial Court of the Vologda Region |
19/12/2005 |
30/12/2005 |
08/11/2006 |
10 months 9 days |
|
34864/06 29/06/2006
|
Gennadiy Vasilyevich Kovalev, 1965, Kaliningrad
|
Challenge of dismissal, namely reinstatement in the previous position of a police officer, payment of salary for the period of unlawful dismissal |
Leningradskiy District Court of Kaliningrad |
27/05/2004 |
29/09/2004 |
17/11/2004 |
1 month 18 days |
|
52698/07 12/10/2007
|
Vyacheslav Fyodorovich Kosygin (no.3), 1948, Rostov Region |
Compensation for health damage to be paid by a local welfare authority |
Shakhty Town Court of the Rostov Region
|
27/03/07
|
09/04/07
|
03/12/2007 |
7 months 25 days |
