Yuriy Aleksandrovich NAGOVITSYN and Magometgiri Khakyashevich NALGIYEV v Russia - 27451/09 [2011] ECHR 1905 (18 October 2011)

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by Yuriy Aleksandrovich NAGOVITSYN and
Magometgiri Khakyashevich NALGIYEV
against Russia

The European Court of Human Rights (First Section), sitting on 23 September 2010 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and André Wampach, Deputy Registrar,

Having regard to the above applications lodged on 7 May 2009 and 20 October 2009 respectively;

1. The applicants are Russian nationals. The first applicant, Mr Yuriy Aleksandrovich Nagovitsyn (application no. 27451/09, lodged on 7 May 2009), was born in 1950 and lives in Kirov. The second applicant, Mr Magometgiri Khakyashevich Nalgiyev (application no. 60650/09 lodged on 20 October 2009), was born in 1949 and lives in Mayskoye, the Republic of Northern Osetiya-Alaniya.

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

5. In the case of Nalgiyev, the Nazranovskiy District Court of the Republic of Ingushetiya on 7 March 2007 awarded the applicant a lump sum of RUB 1,146,356 in salary arrears on account of his service on a territory subject to emergency rule.

6. The judgments in the applicants' favour became binding and enforceable on 10 July and 3 May 2007 respectively but remain unexecuted, either fully or in part. According to Mr Nagovitsyn, the monthly payments have not been index-linked by the debtor authority (the Kirov Federal Treasury Department), contrary to the court order. In the case of Nalgiyev, the defendant authority (the Prosecutor's Office of the Republic of Ingushetiya) failed to pay any of the judgment debt.

7. On 15 January 2009 the Court delivered the Burdov pilot judgment (see Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009 ...). The pilot judgment ordered the respondent State, inter alia, to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. The Court also decided to adjourn, for one year from the date on which the judgment became final, the proceedings in all cases concerning solely the non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by the State authorities (see Burdov (no. 2), cited above, § 143, and point 8 of the operative part).

8. Consequently, like numerous other persons in the same position, Mr Nagovitsyn and Mr Nalgiyev were informed by letters of 21 October 2009 and 29 January 2010 respectively that their cases would remain adjourned until 4 May 2010 and that the subsequent procedure would be determined in the light of the implementation of the pilot judgment by the Russian authorities.

9. On 4 May 2010 the Government informed the Court that in response to the pilot judgment two federal laws had been enacted, introducing a new domestic remedy in respect of lengthy judicial proceedings and delayed enforcement of domestic judgments against the State. The laws entered into force on the same date (“the Compensation Act”, see part B below).

10. In May 2010 the Registry of the Court informed the applicants in the present cases and all other applicants in the same position of the new remedy, advising them to make use of it within the six-month time-limit set by the Compensation Act (see paragraph 20 below).

11. By a letter of 21 June 2010 Mr Nagovitsyn informed the Court in response that he had brought proceedings under the Compensation Act and obtained a judgment in his favour. On 21 June 2010 the Kirov Regional Court granted the applicant's claim in part. It found that the Russian authorities had violated his right by delaying the enforcement of the judgment of 31 May 2007 and awarded him RUB 40,000 in compensation. The court took account of the amount of outstanding arrears due (RUB 3,900), the applicant's claims (RUB 140,000), the ambiguity of the domestic case-law concerning the index for adjustment of court awards, considerations of reasonableness and equity and judgments of the European Court of Human Rights in similar cases.

15. On 30 April 2010 Russian Parliament adopted a Federal Law, no. 68-ФЗ, “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). On the same date the Parliament adopted a Federal Law, no. 69-ФЗ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010.

16. The Compensation Act entitles a party concerned (“an applicant”) to bring an action for compensation of the violation of his or her right to a trial within a reasonable time or of the right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets (Section 1, § 1). Such compensation can only be awarded if the alleged violation took place independently of the applicant's own actions except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or right to enforcement of a judgment within a reasonable time (Section 1, § 2). A compensation award is not dependent on the competent authorities' fault (Section 1, § 3).

17. The compensation is awarded in monetary form (Section 2, § 1). The amount of the compensation should be determined by courts according to the applicant's claims, the circumstances of the case, the length of the period during which the violation took place, the significance of its consequences for the applicant, the principles of reasonableness and fairness, and the practice of the European Court of Human Rights (Section 2, § 2).

18. Section 3 sets out the rules of jurisdiction and procedure. It states in particular that a claim for compensation on account of lengthy enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the procedure for enforcement.

19. A court decision granting compensation is subject to immediate enforcement (Section 4, § 4). It may be appealed against in accordance with the procedural legislation in force (Section 4, § 5). The costs of payment of compensation awards are included in the federal budget, in the budgets of federal entities and in local budgets (Section 5, § 3).

20. All individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the Compensation Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint (Section 6 § 2).

21. Referring to Article 6 of the Convention and Article 1 of Protocol No. 1, the applicants complained that the State had failed to comply with the binding and enforceable judgments in their favour.

22. The Court will first determine whether the applicants complied with the rule of exhaustion of domestic remedies set out in Article 35 of the Convention, which provides, in so far as relevant:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

23. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. (see, among many other authorities, Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24; Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 IV; and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999 I).

24. Nevertheless, the only remedies which Article 35 of the Convention requires to be used are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66, and Dalia v. France, 19 February 1998, § 38, Reports 1998 I). In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Van Oosterwijck v. Belgium, 6 November 1980, § 36, Series A no. 40, A, and Akdivar and Others, cited above, § 67). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Van Oosterwijck , cited above, § 37; Akdivar and Others, cited above, § 71, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001 IX).

25. An assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001, and Brusco, cited above).

26. Relying on the well-established principles set out above, the Grand Chamber vigorously reiterated in a recent decision the subsidiary role of the Convention system and the ensuing limits attached to the Court's function (see Demopoulos and Others v. Turkey (dec.), nos. 46113/99 et al., § 69, ECHR 2010 ...):

“69. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. (...) The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions.”

27. The Court notes at the outset that the first applicant has already brought proceedings for compensation relying on the new Compensation Act. According to the latest information received from the applicant, the proceedings were still pending. The second applicant indicated that he would lodge such a claim with the domestic court.

28. While disputing the effectiveness of the new remedy before the Court, the applicants showed no doubt that it was available to them. Nor does the Court see any reason to doubt that the applicants were entitled to bring their claims to domestic courts in accordance with the Compensation Act. First, the applicants' complaints to the Court concern delays in enforcement of the binding and enforceable judgments ordering the State to make payments from the State budget (see section 1 § 1, paragraph 16 above). Second, their actions in domestic courts do not appear to be barred in any way by the time-limits set in Section 3 of the Compensation Act (see paragraph 18 above). Moreover, the applicants were in any event entitled until 4 November 2010 to benefit from the transitional provision of the Compensation Act as their applications had been lodged with the Court before its entry into force and the Court had not ruled on their admissibility (see section 6 § 2, paragraph 20 above).

29. As regards the effectiveness of the new remedy available to the applicants, it is evident from the Compensation Act that when deciding compensation claims, domestic courts are required to apply the Convention criteria as established in the Court's case-law. In particular, compensation is awarded in monetary form; its amount should be determined having regard to the applicant's claims, the circumstances of the case, the length of the period during which the violation took place, the significance of its consequences for the applicant, the principles of reasonableness and fairness, and the Court's case-law (section 2). Finally, compensation is awarded irrespective of the authorities' fault (section 1 § 3).

30. In view of these elements, the Court accepts that the Compensation Act was designed, in principle, to address the issue of delayed enforcement of judgments in an effective and meaningful manner, taking account of the Convention requirements. It is true that domestic courts have not been able yet to establish any stable practice under this Act within several months since its entry into force (see Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII). However, the Court does not see at this stage any reason to believe that the new remedy would not afford the applicants the opportunity to obtain adequate and sufficient compensation for their grievances or that it would offer no reasonable prospect of success. The applicants' mere doubts about the capacity of the new remedy to provide adequate compensation cannot alter the Court's conclusion.

31. The Kirov Regional Court judgment of 21 June 2010 in the case of Nagovitsyn corroborates the above assessment. The regional court found a violation of the applicant's right to enforcement of the judgment of 31 May 2007 within a reasonable time and awarded him RUB 40,000 (approximately 1,030 euros (EUR)) in compensation. Although its judgment has not yet become final because of the appeal lodged by the applicant, the Court is satisfied, without prejudice to the pending domestic proceedings, that the way in which the regional court applied the Compensation Act is consistent with Russia's obligations under the Convention (see paragraph 11 above).

32. The Court furthermore has considered the applicants' argument that the new remedy is only designed to compensate for enforcement delays but does not ensure the ultimate recovery of a judgment debt. It refers, in this context, to its previous findings that there was no remedy in the Russian legal system which would allow effective prevention of a violation on account of non-enforcement of a judgment against the State (see Burdov (no. 2), cited above, §§ 101-104). The Court is mindful that the enactment of the Compensation Act has not improved this situation.

33. The Court reiterates that prevention of a violation is, in absolute terms, the best solution in many spheres. A remedy designed to prevent enforcement delays and to hasten the ultimate recovery of the judgment debt would therefore be most desirable. Such a remedy would offer an undeniable advantage over a remedy affording only compensation, since it would prevent a finding of successive violations in the same case and would not merely repair the breach a posteriori, as does a compensatory remedy of the type provided for under the Compensation Act. (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 183-184, ECHR 2006 V). It is also true, at the same time, that a remedy designed to expedite the enforcement of a judgment would not provide adequate redress in numerous cases in which the enforcement of judgments has already been delayed (ibid.). Finally, the Contracting States are afforded some discretion as to which remedy should be introduced in a given situation (see Kudła v. Poland [GC], no. 30210/96, §§ 154-155, ECHR 2000 XI, and Scordino (no. 1), cited above, §§ 188).

34. The Court therefore concludes, as it has repeatedly done in previous cases, that the States can choose to introduce only a compensatory remedy in respect of the non-enforcement of judgments without that remedy being regarded as ineffective (see, mutatis mutandis, Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002 VIII; Scordino (no. 1), cited above, § 187, and Burdov (no. 2), cited above, § 99). In the Court's view, the pecuniary compensation that may be awarded to applicants under the Compensation Act would at least be capable of providing adequate and sufficient redress for those violations of the Convention which have allegedly occurred in their cases to date.

35. The Court is mindful that an issue may subsequently arise whether the new compensatory remedy would still be effective in a situation in which the defendant State authority persistently failed to honour the judgment debt notwithstanding a compensation award or even repeated awards made by domestic courts under the Compensation Act. That was indeed a hypothesis suggested by the applicants (see paragraph 14 above), but the Court does not find it appropriate to anticipate such an event, nor to decide this issue in abstracto at the present stage.

36. Finally, the Court has paid attention to the fact that the new remedy only became available after the introduction of the present applications and that only exceptional circumstances may compel the applicants to exhaust such a remedy (see paragraph 25 above). It observes that there have been several cases concerning the length of proceedings in various countries, in which such exceptional circumstances were found to exist (see Brusco, cited above; Nogolica, cited above; Andrášik and Others v. Slovakia (dec.), nos. 57984/00 et al., ECHR 2002-IX; Michalak v. Poland (dec.), no. 24549/03, §§ 41-43, 1 March 2005; and Korenjak v. Slovenia, no. 463/03, §§ 63-71, 15 May 2007). The Court stresses that the nature of the remedy and the context in which it was introduced weighs heavily in its assessment of such exceptions (see Scordino (no. 1), cited above, § 144).

37. As in the cases mentioned above, the Court considers it appropriate and justified in the circumstances of the present cases to require that the applicants use the new domestic remedy introduced by the Compensation Act. This conclusion is supported by the following reasons.

38. Regarding the underlying context, the Court finds it significant that Russia has passed the legal reform introducing the new domestic remedy in response to the Burdov pilot judgment under the supervision of the Committee of Ministers (see, inter alia, its Interim Resolution CM/ResDH(2009)158 of 3 December 2009). The new remedy became operational on 4 May 2010, the date on which the time-limit set by the pilot judgment for adjournment of similar cases expired (see paragraphs 11-12 above). One of the aims of the pilot judgment procedure was precisely to allow the speediest possible redress to be granted at the domestic level to the large numbers of people suffering from the structural problem of non-enforcement (see Burdov (no. 2), cited above §§ 127 and 142).

39. Pending the introduction of an effective domestic remedy, the Court decided to take no action in the cases introduced after 15 January 2009, in which the applicants complained solely of non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by State authorities (see Burdov (no .2), cited above, § 143). The applicants in all such cases including the present ones were warned that the subsequent procedure would be determined in the light of the implementation of the pilot judgment by the Russian authorities. In the Court's view, it would be in line with the spirit and the logic of the pilot judgment that they now claim redress for their grievances in the first place through the new domestic remedy.

40. Furthermore, the Court attaches particular importance to the transitional provision of the Compensation Act (see paragraph 20 above) which reflects the Russian authorities' intention to grant redress at the domestic level to those people who had already applied to the Court before the entry into force of the Act (compare Brusco, cited above). In these circumstances, the continuation of the proceedings before the Court in the applicants' cases and hundreds of similar ones would be at odds with the principle of subsidiarity, which is paramount in the Convention system. The consideration of such cases mainly involves the establishment of basic facts and calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Demopoulos and others, cited above, § 69). The Court reiterates that its task, as defined by Article 19, would not be best achieved by taking such cases to judgment in the place of domestic courts, let alone considering them in parallel with the domestic proceedings (see, mutatis mutandis, E.G. v. Poland (dec.), no. 50425/99, § 27, 23 September 2008, and Burdov (no. 2), cited above, § 127).

41. While the Court may exceptionally decide, for the sake of fairness and effectiveness, to conclude its proceedings by a judgment in certain cases of this kind, which remain on its list for a long time or have already reached an advanced stage of proceedings (see, mutatis mutandis, Burdov (no. 2), cited above, § 144), it will require, as a matter of principle, that all new cases introduced after the pilot judgment and falling under the Compensation Act be submitted in the first place to the national courts.

42. However, the Court's position may be subject to review in the future depending, in particular, on the domestic courts' capacity to establish consistent case-law under the Compensation Act in line with the Convention requirements (see Korenjak, cited above, § 73). Furthermore, the burden of proof as to the effectiveness of the new remedy in practice will lie with the respondent Government (ibid.). The Convention requirements in this regard are well established in the Court's case-law (see Scordino (no. 1), cited above, §§ 195-207; Wasserman v. Russia (no. 2), no. 21071/05, §§ 49-50, 10 April 2008, and Burdov (no. 2), cited above, §§ 99-100).

43. Finally, the Court will not lose sight of the more general context and, notably, of the respondent State's compliance with its legal obligation under Article 46 to solve the underlying structural problems (see Broniowski v. Poland [GC], no. 31443/96, § 191, ECHR 2004 V; Korenjak, cited above, § 74, and Burdov (no. 2), cited above, § 125). It is reiterated in this respect that the Russian authorities remain under the obligation to implement the necessary reforms under the supervision of the Committee of Ministers so as to ensure timely enforcement of domestic judgments (see Burdov (no. 2), cited above, § 137; see also the Committee of Ministers' Interim Resolution CM/ResDH(2009)43 of 19 March 2009 reiterating the Convention organs' consistent position that the setting up of domestic remedies, however important, does not relieve States from their general obligation to solve the structural problems underlying violations).

44. Having regard to all the above considerations, the Court concludes that the applicants are required by Article 35 § 1 to avail themselves of the new domestic remedy by pursuing the domestic proceedings under the Compensation Act. It notes, however, that such proceedings have not been completed at the national level.

45. It follows that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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