FIRST SECTION
Application no.13684/06
Aleksey VladimirovichBABURIN against Russia
and 6 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the
appendix.
A. The circumstances of the case
The facts of the case, as submitted by the
applicants, may be summarised as follows.
1. 13684/06 Baburin (II) v. Russia, lodged on 14 March
2006
On 27 May 2005 the Kuybyshevskiy Court of
Tsentralniy District of Saint Petersburg ruled in favour of the applicant and
awarded 30,380 United States dollars (USD) in damages from Yu. Ltd. On
10 August 2005 the judgment was upheld on appeal by the Saint Petersburg
City Court.
The applicant submitted the writ of execution to
the Bailiffs’ Service and the enforcement proceedings were initiated on 7 June
2005. The bailiff sent the inquiries and attached certain property of the
debtor for the sum of 8,560 Russian roubles (RUB). However, on 18
July 2005 the proceedings were terminated because the debtor had no property
from which the debt could be recovered.
The applicant challenged the bailiff’s decision
in court. On 9 December 2005 the Oktyabrskiy District Court of Saint
Petersburg ruled in his favour. The District Court established that while the
bailiff performed certain actions aimed at enforcement of the judgment she
failed to seize at least RUB 1,058,218, which were transferred through the
debtor’s bank accounts. The bailiff’s decision to terminate the proceedings was
recognized unlawful.
It appears from the materials in the Court’s
possession that the enforcement proceedings were re-initiated and lasted until
7 June 2007, when Yu. Ltd. was declared bankrupt by the judgment of the
Commercial Court of Saint Petersburg.
The applicant initiated civil proceedings aimed
at recovery of RUB 2,050,000 in damages (almost three times the sum of the
main debt) and RUB 100,000 in compensation for psychological distress
caused by inaction of the Bailiffs’ Service. On 4 September 2007 the
Oktyabrskiy District Court of Saint Petersburg ruled in his favour in part and
awarded RUB 777,412.04 in damages.
The District Court reasoned that in 2005-06
several million roubles were transferred through the debtor’s bank accounts,
but lack of necessary bailiffs’ actions prevented enforcement of the judgment
in the applicant’s favour. The bankruptcy of Yu. Ltd. precluded any reasonable
possibility of enforcement. At the same time the district court refused to
award damages in the amount claimed by the applicant as excessive and the award
was limited to the sum equal to the main debt. Finally, no compensation for
psychological distress caused by inaction of the Bailiffs’ Service was awarded
as having no basis in the domestic law.
On 7 November 2007 the judgment was upheld on
appeal by the Saint Petersburg City Court.
2. 11589/09 Ignatenko v. Russia, lodged on 26 January
2009
The applicant is a former employee of a private
entrepreneur Mr I. In 2003 he brought a civil action aimed at recovery of
arrears, compensations for psychological distress, change of employment
records, and issuance of employment and termination orders.
On 3 November 2004 the Justice of the Peace for
the 27th Circuit of Yuzhno-Sakhalinsk, Sakhalin Region ruled in his favour in
part, awarded RUB 12,310 in arrears on salary, RUB 3,537.16 in compensation for
the unused leave, RUB 1,000 in compensation for psychological distress, and
ordered issuance of employment and termination orders.
The applicant submitted the writ of execution to
the Bailiffs’ Service and the enforcement proceedings were initiated on 4 March
2005. The bailiff sent inquiries and after locating the debtor’s monthly income
ordered deduction of 50% from it. On 16 March 2005 the enforcement proceedings
were closed and by June 2006 the judgment was gradually enforced in part
concerning the payments. As regards issuance of employment and termination
orders the judgment remained unenforced.
The applicant initiated civil proceedings
challenging failure of the bailiffs to enforce the judgment in full. On 16
November 2006 the Justice of the Peace for the 27th Circuit of
Yuzhno-Sakhalinsk, Sakhalin Region ruled in his favour in part.
The Justice of the Peace established that the
enforcement proceedings as regards monetary payments were complete, but no
actions to compel issuance of employment and termination orders were taken by
the bailiffs. The Bailiffs’ Service was ordered to enforce the remainder of the
judgment.
The applicant initiated another set of civil
proceedings seeking to obtain compensation for psychological distress caused by
the debtor, Mr I., for failing to issue employment and termination orders. On 8
June 2007 the Yuzhno-Sakhalinskiy Town Court, Sakhalin Region ruled in his
favour and awarded RUB 2,000 from the debtor. The sum was increased on
appeal to RUB 5,000 by the Sakhalin Regional Court on 28 August 2007.
In 2008 the applicant lodged a lawsuit against
the Bailiffs’ Service seeking RUB 833,040 in pecuniary damages and
RUB 1,000,000 in compensation for psychological distress for the failure
to enforce the judgment of 3 November 2004 as regards issuance of employment
and termination orders. On 10 July 2008 the Yuzhno-Sakhalinskiy Town Court,
Sakhalin Region ruled in his favour in part, awarded RUB 10,000 in
compensation for psychological distress, and dismissed the applicant’s claims
of pecuniary damages as wholly ill-founded.
The Town Court reasoned that persistent failure
of the bailiffs to enforce the judgment of 3 November 2004 as regards issuance
of orders violates the applicant’s right to fair trial under Article 6 of the
Convention. On 21 October 2008 the Sakhalin Regional Court upheld the
judgment, but increased the sum of compensation to RUB 20,000.
The judgment of 3 November 2004 appears to
remain unenforced in part concerning issuance of employment and termination
orders.
3. 18550/09 Gulidov v. Russia, lodged on 1 March 2009
The applicant is a former employee of O. Ltd. In
2003 and 2005 he brought two civil actions aimed at recovery of arrears on
salary, compensations for psychological distress, change of employment records.
On 21 January 2004 and 22 July 2005 the
Kuybyshevskiy District Court of Omsk ruled in his favour, awarded RUB 70,087.17
in arrears on salary, RUB 1,300 in compensation for psychological distress,
ordered to alter the employment records to termination of contract upon
initiative of an employee, and to inform the Pension Fund about pension
payments of the applicant in 2001-03.
The applicant submitted the writs of execution
to the Bailiffs’ Service and the enforcement proceedings were initiated on 13
May 2004 and 3 August 2005 respectively. The bailiff sent inquiries and
after locating certain property seized and transferred to the applicant
RUB 31,298.01. On 2 July 2004 the employment records were altered in
line with the judgment.
The applicant discontent with the progress of
the enforcement proceedings repeatedly challenged the bailiffs’ inaction. On 1
February and 4 April 2005 the Tsentralniy District Court of Omsk ruled in
his favour and recognized the inaction unlawful.
On 20 January 2006 the bailiffs returned the
writs of execution to the applicant and terminated the enforcement proceedings
due to absence of the debtor’s property.
In 2006 and 2007 the applicant instituted civil
proceedings challenging the actions of the bailiffs. On 19 April 2006 and
8 October 2007 the Tsentralniy District Court of Omsk ruled in his favour.
The District Court established that the bailiffs terminated the proceedings
without sufficient reasons and failing to take all steps compelling the debtor
to comply with the judgments.
On 19 July 2006 by the judgment of the
Commercial Court of Omsk Region bankruptcy proceedings were initiated against
O. Ltd.
On 3 July 2007 the bailiff forwarded the
applicant’s writs of execution to the bankruptcy administrator, but they were
not included in the list of creditors’ claims because two days later, on 5 July
2007, the bankruptcy administrator closed the proceedings and the debtor was
liquidated. On 6 August 2007 the debtor, O. Ltd., was taken off the register of
legal persons.
In 2007 and 2008 the applicant initiated civil
proceedings aimed at recovery from the State of damages and compensation for
psychological distress caused by lengthy inaction and unlawful actions of the Bailiffs’
Service. On 6 February 2007 and 3 June 2008 the Tsentralniy District Court of
Omsk dismissed the applicant’s claims. The District Court reasoned that while
certain actions of the bailiffs were unlawful there is no causal link between
them and failure of the debtor to pay. The Omsk Regional Court upheld the
judgments on 2 May 2007 and 3 September 2008 respectively.
In 2009 the applicant brought a civil action
against the bailiff challenging his failure to transfer the writs of execution
to the bankruptcy administrator in time. On 31 March 2009 the Tsentralniy
District Court of Omsk dismissed the applicant’s action. However, on
13 May 2009 the Omsk Regional Court reversed the lower court’s judgment in
part and found for the applicant in part. The appellate court reasoned that the
bailiff was aware of the bankruptcy proceedings against the debtor and thus he
should have transferred the writs of execution in due time.
On 6 May 2009 the enforcement proceedings were
definitively terminated by the Omsk Regional Court due to bankruptcy of the
debtor.
The applicant did not lodge any lawsuits aimed
at compensation for the failure to transfer the writs of execution to the
bankruptcy administrator.
The judgments appear to remain unenforced except
for the sum of RUB 31,298.01.
4. 40618/10 Markova v. Russia, lodged on 10 July 2010
On 31 January 2005 the Primorskiy District Court
of Saint Petersburg ruled in favour of the applicant in a consumer dispute with
E. Ltd and awarded her RUB 28,282.35.
The applicant submitted the writ of execution to
the Bailiffs’ Service and the enforcement proceedings were initiated on 23 May
2005.
On 25 August 2008 in absence of information on
enforcement of the judgment the applicant requested the prosecutor’s office to
review the proceedings. On 31 October 2008 she was informed by the prosecutor
that the review had been conducted and a warning was issued to the Bailiffs’
Service. The review established that the bailiff responsible for the applicant’s
file left his office in 2007 and did not transfer the file to any other
bailiff, and the enforcement proceedings were effectively lost.
On 20 February 2009 the applicant received a
copy of the writ of execution and repeatedly submitted it to the Bailiffs’
Service. On 18 March 2009 the enforcement proceedings were initiated.
On 10 and 20 June and 12 October 2009 the
bailiffs attempted to visit E. Ltd. at its business address, but the debtor was
absent from the premises. The inquiries sent to responsible authorities and
registers showed that E. Ltd. had no immovable property or vehicles, had not
submitted tax declarations since 2004, and closed four bank accounts between
2006 and 2008.
The applicant initiated civil proceedings aimed
at recovery of RUB 28,282.35 in damages (equal to the sum of the main
debt), RUB 10,000 in compensation for psychological distress caused by
lengthy inaction of the Bailiffs’ Service, and RUB 575 in costs and legal fees.
On 25 November 2009 the Oktyabrskiy District Court of Saint Petersburg
dismissed her action in part related to damages, but awarded her RUB 2,000
in compensation for psychological distress and RUB 875 in costs, legal and
court fees.
The District Court reasoned that while the fact
of the loss of enforcement proceedings was proven by the applicant she still
retained the possibility to have the judgment enforced, because the bailiffs
did not perform all the possible actions under the legislation in force. On the
other hand the loss of the enforcement proceedings and the delay caused by it
violated the applicant’s right to trial within a reasonable time and thus
compensation should be awarded. On 2 February 2010 the judgment was upheld on
appeal by the Saint Petersburg City Court.
The judgment appears to remain unenforced.
5. 54805/10 Mironov v. Russia, lodged on 19 August
2010
The applicant is a victim of a traffic accident
caused by Mr Ch. On 30 May 2005 Mr Ch. was convicted of causing grave injuries
by negligence and sentenced to three months’ correctional labour.
On 15 June 2006 the Leninskiy District Court of
Chelyabinsk awarded from Mr Ch. in favour of the applicant RUB 100,000 in
compensation for psychological distress caused by the accident.
The applicant submitted the writ of execution to
the Bailiffs’ Service and the enforcement proceedings were initiated on 6
October 2006. The bailiff sent inquiries, attached and sold movable property of
the debtor (TV, video-player, microwave oven). The proceeds of RUB 700 were
paid to the applicant.
Further, the bailiff located a vehicle belonging
to Mr Ch. and ordered him to submit it for attachment and sale. Since the
debtor failed to comply with the order he was administratively fined on 2
February 2007 by the Justice of the Peace for the 3rd Circuit of the
Leninskiy District of Chelyabinsk. After the search the vehicle was located,
however it was heavily damaged.
On 14 March 2007, 5 May 2008, and 22 January
2010 the Leninskiy District Court of Chelyabinsk indexed the sum awarded to the
applicant by RUB 3,614.52, RUB 14,001.30, and RUB 17,477 respectively.
The applicant initiated civil proceedings
seeking recovery of lost earnings due to his injuries. On 11 September 2007 the
Leninskiy District Court of Chelyabinsk awarded from Mr Ch. RUB 122,498.02 in
compensation for sick leaves and lost earnings.
On 31 January 2008 the applicant requested a
comprehensive search of the debtor and his property; however the search
rendered no results.
On 28 December 2009 the Leninskiy District Court
of Chelyabinsk indexed the sum awarded by the judgment of 11 September 2007 to
the applicant by RUB 35,156.93.
Following lengthy non-enforcement of the
judgment the applicant brought a civil action against the bailiff challenging
his inaction. On 5 May 2010 the Leninskiy District Court of Chelyabinsk
ruled in his favour.
The District Court established that the bailiff
failed to send the inquiries about the applicant’s property to all responsible
authorities and registers and also failed to do so in a timely manner, failed
to question relatives and neighbours of the debtor, and failed to organize the
search of the debtor and his property without the applicant’s request. The
bailiff’s inaction was recognized unlawful.
Relying on the abovementioned judgment the
applicant brought a civil action aimed at recovery of RUB 52,633 in damages
from lengthy inaction of the Bailiffs’ Service. On 6 July 2010 the Leninskiy
District Court of Chelyabinsk dismissed his action.
The District Court reasoned that under the civil
legislation in force the damages could be recovered from the Bailiffs’ Service
only if damages in fact, unlawfulness of the action, guilt, and the causal link
could be established. In the present case the unlawfulness of the action
(inaction) was established by the earlier judgment against the bailiff, while
no damages in fact or causal link between the inaction of the bailiff and the
loss were demonstrated by the applicant.
On 13 August 2010 the judgment was upheld on
appeal by the Chelyabinsk Regional Court.
All the judgments appear to remain unenforced
except for the sum of RUB 700.
6. 18831/11 Yesaulkova v. Russia, lodged on 16 March
2011
On 24 June 2008 the Krasnoturyinskiy Town Court
of Sverdlovsk Region ruled in favour of the applicant in a consumer dispute
with Mr A. and awarded her RUB 114,840.
The applicant submitted the writ of execution to
the Bailiffs’ Service and the enforcement proceedings were initiated on 10 July
2008. The bailiff sent inquiries and attachment orders to the tax authorities,
vehicle and immovable property registers, banks, but no property of the debtor
could be located. Further, the bailiff tried to visit Mr A.’s residence, but
was not allowed to enter the apartment. In July 2009 the debtor was summoned
for interview by the bailiff.
Following lengthy non-enforcement of the
judgment the applicant brought a civil action against challenging the bailiff’s
inaction. On 15 January 2010 the Krasnoturyinskiy Town Court of Sverdlovsk
Region ruled in her favour.
The Town Court established that the bailiff
failed to send the inquiry to the Pension Fund, re-send inquiries to the tax
authorities, vehicle and immovable property registers, banks, and further
failed to establish whether the debtor had any non-severed common marital
property with his former wife. The bailiff’s inaction was recognized unlawful
and she was ordered to remedy the established defects of the enforcement
proceedings.
On 18 June 2010 the Bailiffs’ Service terminated
the proceedings due to impossibility to recover the debt.
In June 2010 a prosecutor brought in the name of
the applicant essentially similar civil action against the bailiff’s inaction.
On 28 June 2010 the Krasnoturyinskiy Town Court of Sverdlovsk Region ruled
in his favour. The Town Court established that the bailiff remained inactive
and did not comply with its judgment of 15 January 2010. Further, it
highlighted that since the debtor Mr A. paid alimonies he had property and that
the bailiff did not use any of the legally available means to compel
enforcement of the judgment.
On 27 August 2010 the Krasnoturyinskiy Town
Court of Sverdlovsk Region indexed the sum awarded to the applicant by RUB
21,265.81.
The applicant initiated civil proceedings aimed
at recovery of RUB 136,105.81 in damages (equal to the sum of the main
debt) and RUB 100,000 in compensation for psychological distress caused by
lengthy inaction of the Bailiffs’ Service. On 29 November 2010 the
Krasnoturyinskiy Town Court of Sverdlovsk Region dismissed her action.
The Town Court reasoned that under the civil
legislation in force the damages could be recovered from the Bailiffs’ Service
only if damages in fact, unlawfulness of the action, guilt, and the causal link
could be established. In the present case the unlawfulness of the action
(inaction) was established by the earlier judgment against the bailiff, while
the damages were caused by the debtor, and no causal link between the inaction
of the bailiff and the loss was proven by the applicant. Further, the court
reasoned that since no damages caused by the bailiff were proven, no
compensation for psychological distress could be awarded.
On 1 February 2011 the judgment was upheld on
appeal by the Sverdlovsk Regional Court.
On 18 February and 3 June 2011 the
Krasnoturyinskiy Town Court of Sverdlovsk Region further indexed the sums
awarded to the applicant by RUB 5,526.43 and RUB 6,165.60 respectively.
All the judgments appear to remain unenforced.
7. 75416/11 Lopatina v. Russia, lodged on 30 November
2011
The applicant is a former employee of M. Ltd. In
2009-11 she initiated several civil actions regarding reinstatement at work,
recovery of arrears, compensation for psychological distress and other related
matters.
The Nizhegorodskiy District Court gave the following
judgments in the applicant’s favour and issued the writs of execution:
- on
13 November 2009: reinstatement at work and RUB 10,000 in compensation for
psychological distress;
- on
21 April 2010: RUB 99,252.20 in arrears on salary;
- on
8 June 2010: reinstatement at work, change of employment records, RUB 233,054
in arrears on salary, and RUB 15,000 in compensation for psychological
distress;
- on
30 June 2010: RUB 115,000 in arrears on salary, RUB 14,285.76 for unused
leave, RUB 2,399.19 of interest on late payment of salary, and RUB 10,000 in
compensation for psychological distress;
- on
25 October 2010: RUB 179,800 in arrears on salary, RUB 53,689.47 of
interest on late payment of salary, and RUB 15,000 in compensation for
psychological distress;
- on
25 February 2011: RUB 131,053.45 in arrears on salary, RUB 1,950.43 of
interest on late payment of salary, and RUB 15,000 in compensation for
psychological distress;
- on
18 April 2011: to terminate the labour contract on the employee’s initiative
and to provide her with respective employment records.
The applicant submitted the writs of execution
to the Bailiffs’ Service and the respective enforcement proceedings were
initiated. Later eight applicant’s writs of execution for the sum of
RUB 895,485 were included in the joint enforcement proceedings against M.
Ltd with 60 writs of execution for the overall sum of RUB 16,235,000.
Following lengthy non-enforcement of judgments
the applicant brought a civil action for lengthy non-enforcement of judgments
against the Ministry of Finance and Federal Treasury under the scheme designed
to compensate non-enforcement of judgments against the State. On 2 May
2011 her action was dismissed by the Nizhniy Novgorod Regional Court as falling
outside of the compensation scheme, because the judgments in the applicant’s
favour were against a private party. She did not appeal against the dismissal.
The applicant initiated another set of civil
proceedings and challenged inaction of the bailiffs. On 6 June 2011 the
Sormovskiy District Court of Nizhniy Novgorod ruled in her favour. The District
Court established that the enforcement proceedings were essentially limited to
inquiries about the property of M. Ltd. without any follow-up on these
inquiries or attempts to compel payments by the debtor.
The applicant did not lodge any lawsuit seeking
compensation for failure of the bailiffs to assist her in enforcement of
judgments in her favour.
All the judgments appear to remain unenforced.
B. Relevant domestic law and practice
Constitutional and statutory provisions
The Constitution of the Russian Federation of 1993 in Articles 53 provides that everyone is entitled to compensation of
damages caused by unlawful actions (inaction) of State bodies and their
officials. Article 52 secures the abovementioned right with a
constitutional obligation of the State to ensure access to court and
compensation of damages in cases when public power bodies and their officials
infringe the rights protected by law.
The Code of Civil Procedure of the Russian Federation of 2002 (CCP), which entered into force on 1 February 2003, establishes
the framework for challenging the decisions, actions (inaction) of any State or
local self-government body or official.
Chapter 25 of the Code in the relevant part
provides as follows:
Chapter 25. Proceedings on challenging decisions, actions
(inaction) of State authorities, local self-government authorities, officials,
State or municipal servants
Article 254. Submission of application challenging
decision, action (inaction) of State authority, local self-government
authority, official, State or municipal servant
“1. A citizen, a legal person may challenge in court
decision, action (inaction) of State authority, local self-government
authority, official, State or municipal servant if they consider that their
rights and freedoms were violated. A citizen, a legal person may bring an
application directly to court or to superior in order of subordination State
authority, local self-government authority, official, State or municipal
servant. ...
4. The court may suspend enforcement of the challenged
decision until entry of the judicial decision in force.”
Article 255. Decisions, actions (inaction) of State
authorities, local self-government authorities, officials, State or municipal
servants which may be challenged in civil proceedings
“The decisions, actions (inaction) of State authorities, local
self-government authorities, officials, State or municipal servants which may
be challenged in civil proceedings are collective and independent decisions,
actions (inaction) resulting in:
- violation of a citizen’s rights and freedoms,
- restriction on exercise by a citizen of his rights
and freedoms,
- obligation or legal responsibility of a citizen
devoid of lawful basis.”
Article 258. Judicial decision and its enforcement
“1. If the court shall establish that an application
is well-founded it adopts a decision ordering respective State authority, local
self-government authority, official, State or municipal servant to remedy in
full violation of the rights and freedoms or restriction on exercise by a
citizen of his rights and freedoms. ...
4. The court shall dismiss an application if it
establishes that the challenged decision or action was adopted or performed
within the scope of powers of a State authority, local self-government
authority, official, State or municipal servant and the rights and freedoms of
a citizen were not violated.”
The Code of Commercial Procedure of the Russian
Federation of 2002 (CCmP), which entered into force on 1 September 2003, in
Chapter 24 establishes essentially similar framework for challenging the
decisions, actions (inaction) of any State or local self-government body or
official in cases falling within the jurisdiction of commercial courts
(disputes of legal entities and persons involved in entrepreneurial activities).
Title II of the Civil Code of the Russian Federation of 1995 (CC), which entered into force on 1 March 1996, establishes
that any damages caused by a State or local self-government authority or
official shall be compensated.
Article 1069 of the Code provides as follows:
Article 1069 Responsibility for damages caused by State
authorities, local self-government authorities and their officials
“Damages caused to an individual or a legal entity as a result
of unlawful actions (inaction) of State authorities, local self-government
authorities or their officials, including damages resulting from the issuance
of an act of a State authority or local self-government authority contrary to a
law or other legal act, shall be subject to compensation. The damages shall be
compensated at the expense of the Treasury of the Russian Federation, a
treasury of the subject of the Russian Federation, or a treasury of a municipal
authority, respectively.”
Jurisprudence of the Constitutional Court of the Russian Federation
The Constitutional Court in its judgments and
decisions provided the constitutional interpretation of Article 1069 of the
Civil Code in conjunction with Articles 52 and 53 of the Russian Constitution
(see Judgments No. 1-P of 4 June 2009, No. 9-P of 16 June 2009, and
Decisions No. 22-O of 20 February 2002, No. 1005-O-O of 4 June 2009),
including the following principles.
a. Article 1069 of the Civil Code in its constitutional
meaning ensures the full and effective restoration of rights, which presumes
award of damages even if a specific type of damage is not explicitly mentioned
in a legal provision.
b. The State assumes responsibility for the
unlawful actions (inaction) of its bodies and officials and compensates damages
caused by their actions (inaction), but only if all elements of legal
responsibility (unlawfulness of an action or inaction, damages in fact, guilt,
and the causal link between them) are present. Responsibility without guilt is
possible only if explicitly prescribed by law.
c. The exercise of the right to compensation
presumes not only formal review of an action (inaction) as falling within or
outside of powers of a specific body or official, but also assessment of its
reasonableness as defined by the constitutional requirements of fairness, proportionality,
and legal security.
In the decision of 4 October 2005 No. 338-O the
Constitutional Court emphasized with reference to the case-law of the Court
that enforcement of a judgment is an integral part of the judicial protection
of rights and that review of bailiffs’ actions (inaction) shall be performed by
the superiors and the courts.
Jurisprudence of the Supreme Court of the Russian federation and
the Supreme Commercial Court of the Russian Federation
Both the Supreme Court and the Supreme
Commercial Court of the Russian Federation issued case-law reviews and
guidelines clarifying various procedural and substantive aspects of the right
to receive compensation under Article 1069 of the Civil Code as established in
practice of Russian courts.
In the Decree of the Plenum of the Supreme
Commercial Court No. 23 of 2006 it was stressed that the defendant in
lawsuits under Article 1069 should always be a public entity, but not its
structural unit or official in personal capacity. The compensation,
accordingly, shall be recovered only from the public entity.
In the joint Decree of the Plenum of the Supreme
Court and the Plenum of the Supreme Commercial Court No. 30 / 64 of
23 December 2010 the courts highlighted that while the post-Burdov 2
legislative scheme only guarantees compensation for non-enforcement of
judgments against the State, nothing precludes lawsuits to be brought in other
disputes concerning non-enforcement of judgments under Articles 151 and 1069 of
the Civil Code.
Information Letter of the Presidium of the
Supreme Commercial Court No. 145 of 31 May 2011 in particular mentioned the
following points:
a. if unlawfulness of an action (inaction) has been
previously established by a court, then in compensation proceedings this
conclusion may not be re-examined and stays on res judicata grounds;
b. nothing prevents a court from considering a
compensation claim if no previous judicial decision established unlawfulness of
an action (inaction), because this issue may well be considered in compensation
proceedings;
c. the burden of proof regarding unlawfulness of an
action (inaction) rests with the plaintiff, while the burden of proof regarding
reasonableness of an action (inaction) rests with the defendant;
d. if enforcement of a judgment is precluded by the
actions (inaction) of the bailiffs the damages shall be recovered, while they
should be limited to the amount that would have been recoverable in enforcement
proceedings unhindered by the bailiffs.
COMPLAINTS
The applicants complain under Article 6 § 1 of
the Convention about failure of the State to provide them adequate and
efficient legal assistance in enforcement of judgments against private parties.
Mr Baburin, Ms Yesaulkova, and Ms Lopatina also complain under Article 1
of Protocol No. 1 that failure of the State to assist them in enforcement
of the judgments resulted in violation of their property rights. The applicants
also submit other complaints under Articles 6 and 13 of the Convention.
QUESTIONS TO THE PARTIES
Have the judgments
given in the applicants’ favour been fully enforced? If yes, what is the date
of the full enforcement of each judgment?
Did the State
authorities duly assist the applicants in enforcement of the judgments against
private parties, as required by Article 6 § 1 of the Convention? (see Kunashkov. Russia, no. 36337/03, §§ 38-39,
17 December 2009)
Did the applicants exhaust the available domestic
remedies, as required by Article 35 § 1 of the Convention, in respect of their
complaints concerning the State’s assistance in enforcement of judgments in
their favour? If yes, were they provided with an appropriate
redress?
Did the actions or inaction of the State
authorities in enforcement proceedings against private parties preclude further
enforcement of judgments and thus result in a violation of Article 1 of
Protocol No. 1 rights of MrBaburin, Ms Yesaulkova, and Ms
Lopatina? (see Krivonogova v. Russia (dec.), no. 74694/01, 1
April 2004)
Appendix
|
No
|
Application No
|
Lodged on
|
Applicant
Date of birth
Place of residence
|
|
1.
|
13684/06
|
13/03/2006
|
Aleksey Vladimirovich BABURIN
24/12/1968
Saint Petersburg
|
|
2.
|
11589/09
|
26/01/2009
|
AnatoliyFedorovich IGNATENKO
22/04/1952
Yuzhno-Sakhalinsk
|
|
3.
|
18550/09
|
01/03/2009
|
YuriyPavlovich GULIDOV
03/02/1951
Omsk
|
|
4.
|
40618/10
|
10/07/2010
|
Tatyana Nikolayevna MARKOVA
15/07/1950
Saint Petersburg
|
|
5.
|
54805/10
|
19/08/2010
|
AndreyVladimirovich MIRONOV
15/01/1964
Chelyabinsk
|
|
6.
|
18831/11
|
16/03/2011
|
Irina Aleksandrovna YESAULKOVA
06/06/1980
Krasnoturyinsk
|
|
7.
|
75416/11
|
30/11/2011
|
Larisa Nikolayevna LOPATINA
20/12/1957
Nizhniy Novgorod
|
