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You are here: BAILII >> Databases >> European Court of Human Rights >> KANAYEV v. RUSSIA - 43726/02 [2006] ECHR 746 (27 July 2006) URL: http://www.bailii.org/eu/cases/ECHR/2006/746.html Cite as: [2006] ECHR 746

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FIRST SECTION

CASE OF KANAYEV v. RUSSIA

(Application no. 43726/02)

JUDGMENT

STRASBOURG

27 July 2006

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 Kanayev v. Russia,

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

Mr C.L. Rozakis, President,

Mr L. Loucaides,

Mrs F. Tulkens,

Mrs N. Vajić,

Mr A. Kovler,

Mrs E. Steiner,

Mr K. Hajiyev, judges,

and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 6 July 2006,

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

PROCEDURE

THE FACTS

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

Article 6

“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

1.  Scope of the case

2.  Article 6 § 1 of the Convention

3.  Article 1 of Protocol no. 1 to the Convention

B.  Merits

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“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.  Pecuniary damage

B.  Non-pecuniary damage

FOR THESE REASONS, THE COURT

2.  Declares by five votes to two inadmissible the remainder of the application;

Done in English, and notified in writing on 27 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  partly dissenting opinion of Mr Loucaides;

(b)  concurring opinion of Mrs Tulkens;

(c)  partly dissenting opinion of Mr Kovler.

S.N
C.L.R.

PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the finding in the judgment that Article 6 § 1 of the Convention is not applicable in the present case. The majority based their finding on Pellegrin v. France (no. 28541/95, §§ 65-67, ECHR 1999-VIII), which established the rule that “employment disputes between the authorities and public servants whose duties typify the specific activities of the public service, in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State, are not ‘civil’ and are excluded from the scope of Article 6 § 1 of the Convention” (see paragraph 16 of the judgment).

As I understand it the philosophy behind this rule is that disputes involving questions of public authority or relating to the general interests of the State as governed by public law and government policies should not be the subject of judicial disputes. The Court however proceeded to state in the present case that on the basis of the same case-law, Article 6 § 1 of the Convention is also not applicable “to the dispute between the applicant and his command and the ensuing enforcement proceedings, which must be regarded as an integral part of the ‘trial’ for the purposes of Article 6” (see paragraph 19 of the judgment). That is exactly where my approach differs from that of the majority.

The “ensuing enforcement proceedings” concern the execution of the judgment. The relevant judicial proceedings ended with a judgment debt, which legally amounts to a separate autonomous legal act which by itself creates rights or duties and whose execution is unrelated to the legal or other principles and considerations involved and applied by the court in adopting the initial judgment. Indeed, the execution of a judgment is governed by different legal principles and considerations.

Therefore, the grounds which were given by the majority and which amount to the raison d’être of the Pellegrin jurisprudence do not apply in this case. A judgment may of course be considered procedurally to be part of a trial but that does not, in my opinion, mean that its execution is governed, or even influenced, by the principles which led to its adoption. Seeing that the principles which lead to the conclusion that a certain judicial dispute is not to be regarded as “civil” do not extend to the separate autonomous act of the enforcement of the judgment, I cannot see why such enforcement must necessarily be regarded itself as not “civil” purely because it concerns a judgment delivered following the dispute in question.

What creates the requirement for the execution of the judgment is simply the separate obligation resulting directly and exclusively from the judgment itself (as with any other judgment), regardless of the preceding judicial examination or even the reasons on which it was based.

In other words, here we are simply concerned with the enforcement of a right to collect a judgment debt by virtue of a judgment delivered by a

competent court that had acquired the force of res judicata. This situation in my opinion is unaffected by the Pellegrin case and falls within the concept of the “determination of a civil right” for the purposes of Article 6 § 1 of the Convention. It is useful to point out here that the Pellegrin rule amounts to a jurisprudential restriction of the principle of access to a court and must therefore be interpreted narrowly.

CONCURRING OPINION OF JUDGE TULKENS

(Translation)

I voted for the non-applicability of Article 6 in this case solely in deference to the Grand Chamber judgment Martinie c. France of 12 April 2006.

PARTLY DISSENTING OPINION OF JUDGE KOVLER

My dissenting opinion concerns, first of all, the question of the applicability of Article 6 § 1 of the Convention to the dispute between the applicant and the Ministry of Defence. In my view, the previous case-law in this respect, especially the Pellegrin v. France case ([GC]. no. 28541/95, ECHR 1999-VIII), raised more questions than gave answers.

First, it should be noted that at the moment of the events the applicant was an active military officer. In this respect the Court recalled that employment disputes between the authorities and public servants whose duties typify the specific activities of the public service, in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State, are not “civil” and are excluded from the scope of Article 6 § 1 of the Convention (see Pellegrin v. France, cited above, §§ 65-67). In the Pellegrin case the Court further noted that the manifest example of such activities was provided by the armed forces and the police. Therefore, the question has arisen whether the Court had competence ratione materiae to examine the complaint from the standpoint of Article 6 of the Convention.

The Court’s reasoning in Pellegrin was based on the idea of "a special bond of trust and loyalty" existing between the State and certain categories of State officials. The Court recognised that the State had almost unlimited discretion in administration of its personnel. Consequently, industrial disputes between the State and its employees exercising public functions may escape the Strasbourg control.

At the same time the Pellegrin judgment contained an important reservation. It stated that "disputes concerning pensions all come within the ambit of Article 6 § 1 because on retirement employees break the special bond between themselves and the authorities; they [...] then find themselves in a situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State has ceased to exist and the employee can no longer wield a portion of the State’s sovereign power" (§ 67).

Therefore, the "functional approach", introduced by Pellegrin, requires that Article 6 be applicable to the disputes where the position of the applicant, even a State official, does not differ from the position of any other litigant, or, in other words, where the dispute between the employee and the employer is not marked by the "special bond of trust and loyalty".

This line of reasoning was later adopted in the case Novikov v. Ukraine (dec., no. 65514/01, 17 September 2002), where the Court concluded that the dispute between a dismissed military officer and his command concerning certain payments due to him for the period of his service (emphasis added) was of a purely pecuniary nature, and, therefore, Article 6 applied.

I share the position of my colleagues judges Tulkens, Maruste and Fura-Sandström, expressed in their joint concurring opinion in the Grand Chamber’s judgment of Martinie case:

“On a more general level, the fact is that the Court is more and more frequently confronted with the question of the scope or, more specifically, the limits or frontiers of the Pellegrin judgment.

In this case the issue that needs to be determined is whether any dispute between a public servant and the authorities employing him or her falls outside the scope of Article 6 where the post involves “direct or indirect participation in the exercise of powers conferred by public law” or only disputes relating to the post of the person concerned. Thus, for example, in the former case a policeman or police officer who is in litigation with the authority employing him on grounds of the insalubrious condition of his official residence could not, on account of his status, rely on Article 6 § 1 to claim a right of access to a tribunal. Nor, for example, could a soldier who has obtained judgment awarding him a transport allowance rely on Article 6 § 1 to seek enforcement of it, on account of his status as soldier. Taken out of context, a literal interpretation of Pellegrin, which refers to “no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law” (ibid., 67), might well lead to results that are unreasonable and contrary to the purpose and aim of the Convention.” (Martinie v. France [GC], no. 58675/00, judgment 12 April 2006).

I could also mention two Greek cases, where the applicants, retired State officials, complained about the failure of the authorities to comply with the court judgments. In these cases the Court found that Article 6 was applicable, inter alia, because the applicants’ claims concerned not the dispute over the increase of the amounts of their pensions, but the non-enforcement of courts’ judgments recognising their right to this increase (Logothetis v. Greece (dec.), no. 46352/99, 9 March 2000; Marinacos v. Greece (dec.), no. 49282/99, 29 March 2001).

Turning to the circumstances of the present case I would like to note the following. The application of Article 6 to the proceedings initiated by the applicant against the military command may be contested (see Amoxopoulos and other v. Greece, (dec.), no. 68141/01, 6 February 2003). However it may be, once the case had been resolved and the court had established the State’s obligation to pay a certain amount to the applicant, his situation became identical to that of any other successful claimant in a civil dispute. I see no reason, and the Government did not advance any arguments to the contrary, to depart from its position in the cases Logothetis and Marinacos.

In any event, even without dissociating the enforcement proceedings from the main dispute, I would like to note that the “functional” approach, in my view, introduced by the Pellegrin judgment, should be applied with due regard to the nature of the dispute. In the present case the judgment to be enforced concerned the non-payment of travel expenses and legal costs incurred during the domestic proceedings. I do not see how this dispute related to the sphere of special relationships between a public servant and his employer, the State, which Pellegrin was supposed to protect.

Finally, as regards applicability of Article 1 of Protocol no. 1 to the Convention, the Court reiterated 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 v. Russia, cited above, § 40; Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). In the present case, the applicant’s right to the amount sought was established by a final court judgment. The impossibility for the applicant to have the judgment in his favour fully enforced, which persisted for a relatively long period of time, constituted an interference with his right to peaceful enjoyment of his possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

The Court holds in its reasoning that “there has been a violation of Article 1 of Protocol 1 on account of the lengthy non-enforcement of the judgment in the applicant’s favour” (§ 29). Thus, it is quite inevitable to recognise that the Article 6 § 1 is not only applicable, but violated if we strictly follow the Court’s case-law.

For these reasons I am not persuaded that finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage. The long-term dispute between military and State officials inevitably provoked distress and frustration resulting from this conflict. The fact that the amount due to the applicant was not very significant (§ 36) is not relevant in this particular circumstances.