BOLOTINY v. RUSSIA - 35786/04 - Committee Judgment [2015] ECHR 707 (16 July 2015)

In the case of Bolotiny v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Erik Møse,
          Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 23 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 35786/04) 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 two Russian nationals, Mr Vitaliy Vasilyevich Bolotin (“the first applicant”) and Mrs Lyudmila Aleksandrovna Bolotina (“the second applicant”), on 26 July 2004.

2. The applicants were represented by R. I. Mukhametshin, a lawyer practising in Izhevsk. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 23 April 2008 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The first applicant was born in 1953 and the second applicant was born on 1957. They live in Izhevsk.

5. In 1986 the first applicant was called up to take part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result, he suffered from extensive exposure to radioactive emissions. In October 1996 experts established a causal link between the applicant’s disability and his involvement in the Chernobyl events.

A. Judgment of 3 May 2000

6. Under domestic law the first applicant is entitled to monthly payments in compensation for health damage. He brought court proceedings against local authorities claiming adjustment of the monthly payments in line with the increase of a statutory minimum wage for the period between October 1996 and April 2000.

7. On 3 May 2000 the Oktryabrskiy District Court of Izhevsk of the Udmurtia Republic allowed his claim in part and ordered the Pensions and Social Allowances Department of the Oktyabrskiy District of Izhevsk and the Ministry of Social Welfare of the Republic of Udmurtia to pay the applicant a lump sum of 9,823.37 Russian roubles (RUB) in respect of the debt accrued as a result of previous underpayment. The court ordered that the award be paid at the expense of the federal budget. On 15 May 2000 the judgment became final and entered into force.

8. On 13 June 2000 the bailiffs’ office opened the enforcement proceedings. On 10 December 2003 those proceedings were discontinued on account of the respondent authority’s lack of funds.

9. On 24 May 2004 the amount awarded was paid to the first applicant in full.

B. Judgment of 15 November 2004

10. Being a victim of the Chernobyl nuclear disaster, the first applicant is entitled to additional housing. As he was not offered any, he brought an action against the local authorities claiming to provide him with housing.

11. On 15 November 2004 the Oktyabrskiy District Court of Izhevsk found for the first applicant and ordered the Ministry of Architecture, Construction and Housing Policy of the Republic of Udmurtia to grant him a separate room which should meet sanitary and technical requirements and be well-equipped in accordance with the set standards.

12. The judgment was not appealed against and entered into force ten days later.

13. The Ministry of Construction of the Republic of Udmurtia did not execute the judgment due to lack of available housing.

14. On 31 January 2005 the respondent authority informed the first applicant that as of 15 December 2004 the competence to distribute the social housing to the victims of the Chernobyl nuclear disaster had been transferred to the Ministry for Disaster Relief of the Republic of Udmurtia, and since that date the Ministry of Construction had accordingly been unable to execute the judgment in his favour.

15. On 20 April 2005 the first applicant filed a claim to alter the mode of enforcement of the judgment of 15 November 2004 from in-kind provision of the room to monetary compensation for its acquisition. His claim was granted by the Oktyabrskiy District Court of Izhevsk on 11 May 2005 and he was awarded RUB 230,000 to be paid by the Ministry for Disaster Relief of the Republic of Udmurtia at the expense of the federal budget.

16. On 27 July 2006 the Federal Treasury Department at the Ministry of Finance informed the applicant that the debtor had not enforced the judgment and proposed to bring actions against the Ministry for Disaster Relief of the Russian Federation.

17. Since 25 April 2007 the State compensations for acquisition of housing to the victims of the Chernobyl disaster are provided only in form of housing certificates.

18. On 29 August 2008 the Oktyabrskiy District Court of Izhevsk ordered indexation of the awarded amount to RUB 547,400. That decision entered into force on 9 September 2008.

19. The award granted by the judgment of 15 November 2004 as amended by the indexation order of 29 August 2008 has not been paid to date.

II. RELEVANT DOMESTIC LAW

20. For the relevant domestic law see Butenko and Others v. Russia, nos. 2109/07 et al., §§ 13-14, 20 May 2010.

THE LAW

I. LOCUS STANDI OF THE SECOND APPLICANT

21. The applicants complained under various Articles in relation to the aforementioned proceedings.

22. The Government submitted that in relation to the applicants’ complaints the second applicant did not have victim status as she had not been party to the proceedings in question and that none of her rights had been violated by the non-enforcement of the judgments.

23. The applicants argued that the second applicant suffered distress and frustration due to the authorities’ lengthy failure to honor the State’s debt to the first applicant.

24. The Court finds that the second applicant cannot be considered a “victim” of the alleged violations related to the non-enforcement of the judgments since she was not a party to the proceedings and did not obtain an enforceable award in her favour. There is nothing to suggest that she has a sufficiently established claim amounting to a possession in respect of the additional housing (see Teteriny v. Russia, no. 11931/03, § 30, 30 June 2005).

25. It follows that the complaints of the second applicant are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 thereof. The Court will henceforth refer to the first applicant as “the applicant”.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

A. Admissibility

26. The Government argued that the applicant had not exhausted the domestic remedies. They relied, in particular, on three examples from domestic practice where domestic courts found violation of the complainants’ rights on the account of delayed enforcement of the judgments in their favour and granted in some cases respective compensations for non-pecuniary damage (ranging from RUB 65,000 to RUB 357,018.11) caused by prolonged non-enforcement of binding civil judgments.

27. The applicant did not comment.

28. The Court reiterates that it earlier concluded that there was no effective domestic remedy in Russia, either preventive or compensatory, that allowed for adequate and sufficient redress in the event of violations of the Convention on account of prolonged non-enforcement of judicial decisions delivered against the State or its entities either ordering monetary payments (see Burdov v. Russia (no. 2), no. 33509/04, § 117, ECHR 2009), or imposing obligation in kind, including provision of housing (see, mutatis mutandis, Gerasimov and Others v. Russia, nos. 29920/05 et al., § 166, 1 July 2014).

29. In so far as the argument of the Government on non-exhaustion supported by three examples of awards of non-pecuniary damage compensations for delayed enforcement of judgments, the Court has analysed it in some previous cases and dismissed it (see Butenko and Others, cited above, § 20).

30. 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. This complaint must therefore be declared admissible.

B. Merits

1. Non-enforcement of the judgment of 3 May 2000

31. The Government did not contest the delayed enforcement of the judgment of 3 May 2000.

32. The applicant contested the calculation method applied in the judgment.

33. 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, among other authorities, Burdov v. Russia, no. 59498/00, ECHR 2002-III, and Poznakhirina v. Russia, no. 25964/02, 24 February 2005).

34. Having examined the material submitted to it, the Court notes that the Government did 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 for years to comply with the enforceable judgment in the applicant’s favour the domestic authorities prevented him from receiving the money which he was entitled to receive under final and binding judgment.

35. As to the applicant’s argument concerning the calculation method applied by domestic courts, the Court reiterates that it is not its task to deal with errors of fact or law allegedly committed by a national court (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

36. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of lengthy non-enforcement of the judgment of 3 May 2000.

2. Non-enforcement of the judgment of 15 November 2004

37. Concerning the complaint of the applicant about lengthy non-enforcement of the judgment of 15 November 2004, the Government suggested that the enforcement period to be taken into account should start running from 11 May 2005, the day on which the mode of enforcement of the judgments had been modified and set in monetary amount. The Government further argued with reference to the case Filonenko v. Russia (no. 22094/04, 31 July 2008) that the enforcement was impossible because the applicant abstained from getting a housing certificate, which was the only possible way to enforce a judgment awarding housing.

38. The applicant maintained his complaint and argued that he refused to receive the housing certificate because the amount awarded to him by the judgment of 15 November 2004 for a housing acquisition did not correspond to the market prices which existed at that moment and that the delay in enforcement and the growth of prices made it absolutely impossible to acquire any housing on the awarded sum.

39. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov, cited above). 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).

40. The Court considers that the justifications put forward by the Government are unconvincing. The length of the enforcement of a binding judgment should be calculated as of the moment when it became binding regardless of further change of the mode of enforcement (see Butenko and Others, cited above, § 25, and Krestyaninovy v. Russia, no. 27049/05, § 14, 25 September 2008).

41. The applicant cannot be blamed for having refused to accept the housing certificate. First, it does not transpire from the operative part of the judgment that grant of the housing certificate was an appropriate way of enforcement of the judgment (see Butenko and Others, cited above, § 26). Second, the state authority never sought in domestic courts changing of the mode of execution of the judgments from monetary payment to delivery of the housing certificate.

42. The Court has not at its disposal a domestic judicial decision or other authority that would confirm that under domestic law the applicant should necessarily have accepted the housing certificate in order to have the judgment of 15 November 2004 properly enforced. Thus, the Court cannot conclude that the applicant obstructed the only possible mode of enforcement of the judgment (see Yeldashev v. Russia, no. 5730/03, § 19, 12 May 2010).

43. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.

44. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Burdov, cited above, § 40, and Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, p. 84, § 59, Series A no. 301-B). It follows that the impossibility for the applicant to have the decision enforced for a substantial period of time constituted an interference with his right to peaceful enjoyment of his possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

45. The applicant also complained that he had no effective remedies for his complaints concerning the non-enforcement. He relied on Article 13 of the Convention.

46. The Court considers that this complaint is linked to the above issues of non-enforcement to such an extent that it should be declared admissible as well. However, having regard to the findings relating to Article 6 § 1 (see paragraphs 36 and 43 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

47. The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it 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 application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

48. 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

1. Pecuniary damage

(a) Non-enforcement of the judgment of 3 May 2000

49. In respect of pecuniary damage concerning the delayed enforcement of the judgment the applicant claimed 21,350 Russian roubles (RUB) for his losses caused by inflation (RUB 13,360 for the losses for the period of the non-enforcement from May 2000 till May 2004 and RUB 7,990 as adjustment of that amount to the date of the claim (July 2008) according with the inflation), as well as 18,425 euros (EUR) as compensation for lost of his earning capacity since 2003.

50. The Government submitted that the applicant’s claims for pecuniary damage were excessive and unsubstantiated, but has not made any comment in respect of the method used by the applicant for the calculation of these losses.

51. The Court accepts that the judgment debt depreciated as a result of the delayed enforcement. The applicant was prevented from receiving the amount he had legitimately expected to receive under the binding and enforceable judgment. The Court accepts the applicant’s argument relating to the loss of value of that award between 2000 and 2004. However, the respective calculation of the losses should be made at the moment of the enforcement of the judgment, i.e. at May 2004 (see paragraph 9 above), and not 2008 as suggested by the applicant.

52. The Court decides to grant the applicant EUR 390 in losses for the period of the non-enforcement of the judgment on the basis of the calculations proposed by him. However, as to the claim of EUR 18,425 the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the claim in this part.

(b) Non-enforcement of the judgment of 15 November 2004

53. Concerning the delayed enforcement of the judgment the applicant claimed EUR 8,000 in respect of pecuniary damage (the difference between the market price of a room in a flat in Izhevsk and the amount awarded to him by the judgment). In support of his claims the applicant submitted the information provided by an Izhevsk Real Estate Agency as regards the increase of the price of a square metre in Izhevsk.

54. The Government contested the claim arguing that the information provided by the applicant about the price of a square metre in Izhevsk cannot be considered as official. Moreover, the applicant was awarded indexation of the outstanding amount which may be considered as sufficient compensation for the pecuniary damage related to inflation. Any award of the compensation related to the applicant’s losses due to change in prices would be a reconsideration of the judgment taken by the domestic court and the national authorities are in a better position to calculate the sum of the compensation to be paid.

55. The Court observes that the applicant’s calculations in the case of delayed enforcement of the judgment of 15 November 2004 are based on what the applicant presents as the evolution of the price per square metre on the local housing market. However, the Court is ill-equipped to engage in, or verify, the valuation of residential property across Russia; nor indeed would it be appropriate for the Court to do so, given that the applicant was free to choose his place of residence. The Court notes in addition that the judgment awarded a fixed amount which was not based on any price per square metre. Consequently, the Court cannot accept the applicant’s claim in respect of pecuniary damage based on a price per square metre (see Baygayev v. Russia, no. 36398/04, § 28, 5 July 2007). Moreover, the awarded amount was increased by an order of a domestic court concerning the indexation of that amount (see paragraph 18 above). Therefore the Court rejects the claim.

56. The Court recalls that in general the most appropriate form of redress in respect of violations found is to put applicants as far as possible in the position they would have been in if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003; and also Dovguchits v. Russia, no. 2999/03, § 48, 7 June 2007). The Court therefore considers that the Government shall pay the outstanding amount awarded by the judgment of 15 November 2004 as amended by the judgment of 29 August 2008.

2. Non-pecuniary damage

57. As regards the non-pecuniary damage, the applicant claimed EUR 5,000 in respect of the delayed enforcement of the judgment of 3 May 2000 and EUR 10,000 in respect of the non-enforcement of the judgment of 15 November 2004.

58. The Government submitted that there was no casual link between the length of the enforcement proceedings and distress and frustration suffered by the applicant and that no related documents to corroborate those sufferings had been provided by him.

59. The Court considers that the applicant must have suffered certain distress and frustration resulting from the State’s authorities’ failure to enforce the judgments in his favour in good time. The Court takes into account the applicant’s claim for non-pecuniary damage, the nature of the award at stake in the present case, the length of the enforcement proceedings and other relevant aspects. Making its assessment on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

60. The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head.

C. Default interest

61. The Court considers it appropriate that the default interest rate 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,

1. Declares that the complaints of the delayed enforcement of the judgments of 3 May 2000 and 15 November 2004 in the first applicant’s favour admissible and the reminder of the application inadmissible;

2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the non-enforcement of those judgments;

3. Holds that there is no need to examine the complaint about lack of an effective remedy in respect of the non-enforcement of the judgments under Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the award made by the domestic court under the judgment of 15 November 2004, as indexed on 29 August 2008;

(b) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 390 (three hundred and ninety euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(c) 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Khanlar Hajiyev
Deputy Registrar President

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