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FIRST
SECTION
CASE OF KOTLYAROV v. RUSSIA
(Application
no. 750/02)
JUDGMENT
STRASBOURG
18 December 2008
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 Kotlyarov v. Russia,
The
European Court of Human Rights (First Section), sitting 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
deliberated in private on 27 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 750/02) 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, Mr Yuriy Grigoryevich
Kotlyarov (“the applicant”), on 14 September 2001.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev and subsequently by Ms V. Milinchuk, both
former Representatives of the Russian Federation at the European
Court of Human Rights.
- On
27 April 2004 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Perm, the Perm Region. He is
a retired military officer.
1. Proceeding concerning payment of the food allowance for the
period until 31 July 1998
- At
the material time the applicant performed his military service at the
Department of Military Science of the Perm State Technical
University. He sued the authorities for repayment of arrears in
respect of the food allowance.
- On
15 July 1998 the Perm Garrison Military Court granted the applicant's
action in part. The court established that the applicant was
receiving the food allowance from military unit 04163 of the
Privolzhskiy Military Circuit and ordered the Catering Service of the
Privolzhskiy Military Circuit to pay him monetary compensation
instead of uncollected food allowance for the period from 1 January
1997 to 31 July 1998, the amount of compensation to be
calculated on the basis of the real value of the food allowance at
the day of payment. The judgment was not appealed against and became
final on 25 July 1998.
- On
15 March 1999 the Perm Garrison Military Court amended the operative
part of the judgment and ordered the respondent authority to pay to
the applicant 9,807.27 Russian Roubles (RUB) in arrears relating to
the food allowance. The judgment entered into force ten days later.
- On
16 March 1999 the writ of execution was issued in respect of the
judgment and on 29 March 1999 the enforcement proceedings were opened
by the bailiffs.
- As
from 22 November 1999 the employees of the Department of Military
Science of the Perm State Technical University started receiving the
food allowance from the Perm Military Missile Force Institute (“the
Institute”). The applicant forwarded the judgments of 15 July
1998 and 15 March 1999 to the Institute, for repayment of the
allowances due to him before his dismissal from the military service.
- On
14 April 2000 the Institute proposed to pay the applicant
RUB 4,853.33 of the uncollected food allowance in respect of the
period specified in the judgment of 15 July 1998. The applicant
refused to accept the payment, since he was entitled to a bigger sum
pursuant to the judgment.
- On
15 April 2000 the applicant was dismissed from military service.
- At
some point he asked the Perm Garrison Military Court to replace the
defendant in his case by the Catering Service of the Institute.
- On
4 May 2000 the Perm Garrison Military Court informed the applicant
that his motion could not be examined, since the enforcement
proceedings were pending in respect of the judgment and the writ of
execution was with the bailiffs' office, and invited the applicant to
address his inquiries directly to the bailiffs.
- On
12 May 2000 the Missile Force Institute paid to the applicant RUB
11,840 in respect of the food allowance for the period from August
1998 to April 2000. According to the applicant, the Institute refused
to make any payments in respect of the period between 1
January 1997 to 31 July 1998, since the compensation for the
unpaid allowance in respect of this period should have been paid to
him by the Catering Service of the Privolzhskiy Military Circuit, as
ordered by the judgments of 15 July 1998 and 15 March 1999.
- On
15 June 2000 and 15 August 2000 the bailiff fined the Head of the
respondent service for the failure to comply with the judgment. The
decisions to impose the fines were annulled by the Leninskiy District
Court of Samara, on 6 July 2000 and 2 October 2000 respectively.
- On
31 July 2001 the bailiffs concluded that the execution was
impossible, due to the respondent authority's lack of funds,
discontinued the enforcement proceedings and returned the unexecuted
writ to the domestic court.
- On
18 October 2001 the Perm Garrison Military Court found that the
shortage of funds could not be regarded as justification for delayed
enforcement of the judgment. The court further ordered the
replacement of the respondent by the Catering Service of the
Privolzhsko-Uralskiy Military Circuit, on account or re-organisation
of the military circuits. The decision entered into force ten days
later.
- On
22 March 2002 the Perm Garrison Military
Court ordered the replacement of the defendant in the applicant's
case by the Financial and Economics Department of the
Privolzhsko-Uralskiy Military Circuit. The decision was not appealed
against and entered into force on 2 April 2002.
- On
31 May 2002 the Financial and Economics Department asked the court to
reopen the case due to the newly established circumstances, to
replace the defendant by the Institute and to stay the execution of
the judgment.
- By
letter of 8 July 2002 a judge of the Perm Garrison Military Court
informed the defendant, inter alia, that its motion could not
be granted. The court found it established that during the period at
stake the applicant was receiving the food
allowance from military unit 04163 of the Privolzhskiy Military
Circuit, and there was no ground to replace the Catering Service of
the respective circuit by the Institute. The court urged the
defendant to pay the judgment debt without further delay.
- On
26 August 2002 the amount awarded by the judgment of 15 July 1998, as
modified on 15 March 1999, was paid to the applicant in full.
2. Proceedings concerning the applicant's dismissal
-
The applicant challenged at the court his dismissal of 15 April 2000
from the military service. He argued that he could not have been
dismissed from the military service until all the allowances were
paid to him in full.
- On
11 May 2000 the Perm Garrison Military Court rejected his claim as
having no grounds under the domestic law. The court acknowledged that
the allowances he was entitled to had not been paid to him in their
entirety by the date of dismissal. However, in the court's view, that
this fact did not affect lawfulness of the dismissal, since the
applicant himself had refused to receive a part of the allowance
proposed to him.
- On
14 June 2000 the Privolzhskiy Circuit Military Court upheld the
judgment on appeal.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION
- The
applicant complained under Article 6 of the
Convention and Article 1 of Protocol No. 1 that the judgment of 15
July 1998, as amended by the decision of 15 March 1999, had not been
enforced in good time. The relevant parts of the invoked provisions
read as follows:
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
- The
Government, relying on the Court's judgment in the case of Pellegrin
v. France ([GC], no. 28541/95, ECHR 1999-VIII), argued that
the applicant's complaint under Article 6 of the Convention was
inadmissible ratione materiae.
The applicant had been a military officer and the dispute concerned
an allowance paid to him in connection with the obligations he
performed in the sphere of State defence. The disputes
raised by servants of the State such as military officers over their
conditions of service could not be regarded as “civil”
and were excluded from the ambit
of Article 6.
- The applicant contested that argument. He submitted
that the case had concerned the respondent authorities' failure to
perform their contractual obligations and had been examined within
the civil proceedings. There was nothing in his case to suggest that
Article 6 would not apply.
- The
Court reiterates that this Article does not apply to cases where
domestic law expressly excludes access to a court for the category of
staff in question, and where this exclusion is justified by the
State's objective interest (see Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, § 62, ECHR
2007 ...). In the case at hand, however, the applicant did have
access to a court under domestic law. He made use of this right and
sued the respondent Service. The Military Court examined and granted
the applicant's claim. Nothing suggests that domestic law barred the
applicant's access to a court. Accordingly, Article 6 is applicable
(compare with Dovguchits v. Russia, no. 2999/03, § 24, 7
June 2007), and the Government's objection must be dismissed.
- The Court further notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court observes that the judgment of 15 July 1998, as clarified on 15
March 1999, was enforced on 26 August 2002.
- The
Government submitted that in 2000 the Institute had invited the
applicant to receive RUB 11,840 of unpaid food allowance in respect
of the entire period of his service, but he himself had refused to
receive that sum. Accordingly, the subsequent period of
non-enforcement had not been attributable to the authorities.
- The
applicant contested that argument. He submitted that in April 2000
the Institute has indeed proposed to pay him arrears in the food
allowance for a period specified in the judgment. However, the
Institute was not a defendant in the case, and the proposal had been
made outside the framework of the enforcement proceedings. On 4 May
2000 the domestic court clearly refused to replace the defendant by
the Catering Service of the Institute. Pursuant to the domestic
court's clarifications of 4 May 2000, the Institute refused to make
any payment in respect of the period between 1 January
1997 and 31 July 1998. In any event, the amount proposed
by the Institute was smaller than ordered by the judgment of 15 March
1999, and under the domestic law the applicant was not under
obligation to accept a partial enforcement of the judgment. As
regards RUB 11,840, contrary to the Government's submissions, he had
duly received that sum. However, that payment had been made in
respect of the period from 1 August 1998 to 14 April 2000. Thus, it
had been unrelated to the applicant's non-enforcement grievance and
had had no impact on his victim status.
-
The Court observes, first, that the payment of RUB 11,840 referred to
by the Government was made in respect of a different period of time
than that specified in the judgment, and was of no connection to the
enforcement proceedings at stake. As regards the proposal of
compensation in respect of the period between 1 January 1997 and 31
July 1998, it was made by the Institute which was not a respondent in
the case. Moreover, on 4 May 2000 the domestic court refused to
examine the applicant's request for replacement of the initial
defendant in the case by the Institute and on 8 July 2002 rejected
the defendant service's motion in this respect. Furthermore,
the Institute accepted to pay the applicant an amount which was
manifestly smaller than that ordered by the domestic court on 15
March. Thus, it cannot be said that the amount at stake was
indeed proposed pursuant to the judgment of 15 July 1998, as
clarified on 15 March 1999. Therefore, there is nothing in the
present case to suggest that any delay in paying the amount due was
caused by the applicant's opposition to the execution of the
judgment.
- The
Court further observes that the judgment in the applicant's favour
has remained without execution for more than 4 years and 1 month. The
Government did not point out at any circumstances justifying such a
delay.
- 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 Pridatchenko and Others v.
Russia, nos. 2191/03 et seq., 21 June 2007).
Having regard to its case-law on the subject, the Court finds that by
failing, for more than four years, to comply with the enforceable
judgment in the applicant's favour the domestic authorities impaired
the essence of his right to a court and prevented him from receiving
the money he could reasonably have expected to receive.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No.1 thereto.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 about unfair outcome and
incorrect application of the domestic law in the proceedings
concerning his dismissal. He averred, in particular, that he had been
unlawfully dismissed from the military service on 15 April 2000,
while he should have remained in service until 26 August 2002, the
date than the judgment awarding him with arrears in allowances had
been enforced in full. He complained under Article 13 that his
attempts to challenge the judgment by way of supervisory review
procedure had been unsuccessful.
- As
regards the unfairness of the dismissal proceedings, Court notes that
the applicant introduced this complaint to the Court on 14 September
2001 and the final judgment in the proceedings was taken on 14 June
2000. It follows that this part of the application is inadmissible
for failure to observe the six months' time-limit in Article 35 §
1 of the Convention and must be rejected pursuant to Article 35 §
4.
- The
Court has further examined the remaining complaints as submitted by
the applicant. Having regard to all the material in its possession,
it finds that these complaints 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 being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. 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 RUB 230,804 (6,411 euro) of the allowance he could
have received if he had not been dismissed from the military service
and RUB 39,072 (1,085 euro) of compensation for the loss in the
amount of pension as a result of unlawful early dismissal. He further
claimed 20,000 euro (EUR) in respect of non-pecuniary damage. The
Government contested the claim for pecuniary damage as
unsubstantiated and having no causal link with the alleged violations
and submitted that the claim for non-pecuniary damage was excessive
and unreasonable.
- As
regards the claim of pecuniary damage, the Court does not discern any
link between the amounts claimed and the violation found and
therefore dismisses the applicant's claim under this head. At the
same time, the Court considers that the applicant suffered distress
and frustration because of the State authorities' failure to enforce
the judgments in his favour in good time. The Court takes into
account the amount and nature of the award in the instant case and
the period of the authorities' inactivity. Making its assessment on
an equitable basis, it awards the applicant EUR 1,200, plus any
tax that may be chargeable on it, and dismisses the remainder of his
claim for just satisfaction.
B. Costs and expenses
- The applicant did not claim costs or expenses within
the specified time-limit. Accordingly, there is no call to make an
award under this head.
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 complaint under Article 6 and
Article 1 of Protocol no.1 about non-enforcement of the judgment in
the applicant's favour admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No.1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
