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THIRD
SECTION
DECISION
Application no.
11456/05
by Lermik GURURYAN
against
Armenia
The
European Court of Human Rights (Third Section), sitting
on 24 January 2012 as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Kristina Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 2 March 2005,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The applicant, Ms Lermik Gururyan, is an
Armenian national who was born in 1940 and lives in Hrazdan. She was
represented before the Court by Mr A. Grigoryan, a lawyer practising
in Yerevan. The Armenian Government were represented by their
Agent, Mr G. Kostanyan, Representative of the Republic of
Armenia at the European Court of Human Rights.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties,
may be summarised as follows.
1. Background to the case
- The
applicant’s late husband had worked for Hrazdanmash Closed
Joint-Stock Company (hereafter “Hrazdanmash”), a company
involved in manufacturing various machinery and equipment and whose
majority shareholder is the State.
- No
salary was paid to the staff for the years 1998-2000, since
Hrazdanmash was experiencing financial problems. In 2000 the majority
of Hrazdanmash’s staff were ordered to take unpaid leave for an
indefinite period.
2. Judgment of 2 July 2001
- On 17 May 2001 the relevant trade union instituted
court proceedings against Hrazdanmash in the interests of the staff,
seeking arrears for unpaid salary and other benefits.
- On
2 July 2001 the Kotayk Regional Court granted the claim and ordered
Hrazdanmash to pay a total of AMD 58,060,925, including
AMD 327,073.73 to the applicant’s late husband. No appeal
was lodged against this judgment which became final.
- On
18 July 2001 the Regional Court issued the writ of execution
(կատարողական
թերթ).
- On
23 July 2001 the bailiff instituted enforcement proceedings no. 738.
In the course of these proceedings the bailiff decided to freeze
Hrazdanmash’s property and bank accounts.
- On
13 September 2001 the bailiff decided to stay enforcement proceedings
no. 738 on the ground that bankruptcy proceedings had been instituted
in respect of Hrazdanmash. It appears, however, that the enforcement
proceedings were resumed on 19 October 2001 and that part of
Hrazdanmash’s frozen property was sold at a public auction. On
4 February 2002 the Commercial Court decided to terminate
the bankruptcy proceedings.
- On
22 February 2002 the bailiff once again decided to stay enforcement
proceedings no. 738, but later resumed them on 23 January 2003.
- On
27 March 2003 the Government adopted decree no. 329-A, on the basis
of which Hrazdanmash was allowed to sell its property. The proceeds
of the sale were to be directed by the company towards paying off its
debts in respect of the State budget.
- On
7 July 2003 the bailiff stayed the enforcement proceedings on the
basis of this decree.
- On
23 July 2003 the Government adopted decree no. 955-A, according to
which it decided to sell its shares in Hrazdanmash to a private
company. The buyer in return undertook an obligation towards the
State to make investments of various amounts, including creation of
jobs.
- It
appears that enforcement proceedings no. 738 remained stayed on the
basis of this decree for several years but were later resumed on
9 November 2006.
3. Judgment of 16 December 2002
- On
9 November 2002 the applicant’s late husband was ordered to
take unpaid leave.
- On
an unspecified date thereafter he instituted proceedings against
Hrazdanmash, seeking unpaid salary for the period between 1 April
2001 and 1 November 2002.
- On
16 December 2002 the Kotayk Regional Court granted the claim and
ordered Hrazdanmash to pay AMD 152,847 to the applicant’s late
husband. No appeal was lodged against this judgment which became
final.
- On
8 January 2003 the Regional Court issued the writ of execution upon
the request of the applicant’s late husband.
- On
7 March 2003 the applicant’s late husband submitted the writ of
execution to the bailiff.
- On
10 March 2003 the bailiff instituted enforcement proceedings no. 353
on the basis of the above writ of execution.
- On
14 May 2003 the applicant’s late husband requested the
withdrawal of the writ of execution.
- On
15 May 2003 the bailiff decided to discontinue the enforcement
proceedings (ավարտել
կատարողական
վարույթը)
on the ground that the applicant’s late husband had requested
the withdrawal of the writ of execution.
- On
2 December 2003 the applicant’s husband passed away.
4. Judgment of 18 February 2005
- On
an unspecified date the applicant instituted proceedings against
Hrazdanmash, claiming that the respondent owed her late husband
AMD 429,955 in unpaid salary and seeking to be awarded that
amount.
- In
her submissions made before the Kotayk Regional Court the applicant
modified her claim, seeking a smaller amount, namely AMD 102,882,
in view of the fact that a sum of money had already been awarded to
her late husband by the judgment of 2 July 2001.
- A
representative of Hrazdanmash who was present at the hearing did not
object to the applicant’s claim.
- On 18 February 2005 the Kotayk Regional Court, having
examined the materials of the case, including the applicant’s
marriage certificate and the certificate concerning unpaid salary,
found the applicant’s claim to be substantiated and ordered
Hrazdanmash to pay AMD 102,882 to the applicant. No appeal was lodged
against this judgment which became final.
- It
appears that the applicant did not request the Regional Court to
issue a writ of execution in order to submit it to the bailiff for
enforcement purposes.
5. Further developments
- On
2 May 2007 the application was communicated to the respondent
Government.
- On
30 July 2007 the Government submitted their observations.
- On
25 September 2007 the applicant submitted her observations and just
satisfaction claims.
- On
29 November 2007 the Government submitted their comments on the
applicant’s just satisfaction claims.
- By
a letter of 12 December 2007 the Government informed the Court that
on 23 October 2007 the applicant had been recognised as her late
husband’s heir. The Government submitted a copy of an
inheritance certificate dated 23 October 2007 which had been issued
upon the applicant’s application. The certificate was issued by
the local notary in respect of the applicant and her three children
and mentioned as the estate the deceased’s flat, as well as
unpaid salary and other lump-sum payments owed to him by Hrazdanmash.
The Government further stated that on 26 October 2007 the
applicant had filed a request with the bailiff, seeking to reopen
enforcement proceedings no. 353, which had been granted. As a result,
all three judgments had been enforced and the applicant had received
all the corresponding outstanding amounts.
- By
a letter of 4 February 2008 the applicant confirmed that the judgment
debts had been paid to her on 29 November 2007.
B. Relevant domestic law
1. Summary of the relevant domestic provisions
- For
a summary of the relevant domestic provisions see the judgment in the
case of Khachatryan v. Armenia (no.
31761/04, §§ 37-44, 1 December 2009).
2. Other relevant domestic provisions not cited in that
judgment read as follows
(a) The Law on Enforcement of Judicial
Acts (in force from 1 January 1999)
- According
to Section 9 § 1, if a party to enforcement proceedings dies,
the bailiff is obliged to replace him with a legal successor as
determined by law, a court judgment or an agreement.
- According
to Section 41 § 1 (1), the bailiff shall discontinue the
enforcement proceedings if the creditor has requested the withdrawal
of the writ of execution.
- According
to Section 42 § 1 (2), the bailiff shall terminate the
enforcement proceedings (կարճել
կատարողական
վարույթը)
if the creditor waives his claim for recovery of the judgment award.
- According
to Section 42 § 1 (4), the bailiff shall terminate the
enforcement proceedings if the creditor or the debtor has died and
the claims or the debts established by the judicial act may not be
transferred to his legal successor.
(b) The Labour Code (adopted on 9 November
2004 and in force from 21 June 2005)
- Article
197 provides that, if an employee dies, his outstanding salary and
other similar payments shall be paid to a family member, provided
that the latter submits the death certificate and other necessary
documents certifying the family link within six months after the date
of the person’s death.
(c) The Civil Code (in force from 1
January 1999)
- According
to Articles 1186, 1188, 1226 and 1227, the estate encompasses the
property belonging to the testator on the date of opening the
inheritance, including funds, securities and proprietary rights and
obligations. The inheritance shall be opened on the date of a
person’s death. An heir accepts inheritance by submitting an
application on accepting the inheritance or on receiving an
inheritance certificate from the notary of the district where the
inheritance was opened. Inheritance can be accepted within six months
after the date of opening the inheritance.
- According
to Article 1228, the court may recognise the acceptance of
inheritance by an heir who has missed the prescribed time-limit, if
it finds the reasons for missing the time-limit to be valid. An heir
may accept the inheritance after the expiry of the prescribed
time-limit without applying to the courts, if all other heirs who
have accepted the inheritance agree. Such agreement signed by the
heirs must be notarised. Based on such agreement, the notary shall
annul the previous inheritance certificate and issue a new one.
- According
to Article 1249, family members of the deceased, as well as his
dependents who are incapacitated, have the right to receive the
outstanding salary, pensions, benefits and compensation for damage to
life or health which, for whatever reason, were not paid to the
deceased in his lifetime. Requests to receive these payments must be
submitted within six months after the date of opening the
inheritance. If no such claim is submitted within the prescribed
time-limit, the relevant sums shall be included in the estate and be
inherited under the general conditions prescribed by this Code.
COMPLAINT
- The
applicant complained under Article 1 of Protocol No. 1 that the State
had failed to enforce the final judgments of 2 July 2001, 16 December
2002 and 18 February 2005.
THE LAW
The
applicant complained of the non-enforcement of three final judgments
and relied on Article 1 of Protocol No. 1. The Court considers it
necessary to examine her complaints both under that provision and
Article 6 § 1 of the Convention, the relevant parts of
which read as follows:
Article 6 § 1 of the Convention
“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. The parties’ submissions
(a) The Government
- The
Government submitted that the applicant could not claim to be a
victim of an alleged violation of the Convention and Protocol No. 1
as far as the judgments of 2 July 2001 and 16 December 2002 were
concerned for the following reasons.
- Firstly,
as regards the judgment of 2 July 2001, this judgment was adopted in
respect of the applicant’s late husband but not the applicant
herself. The applicant could not be considered as her late husband’s
legal successor for enforcement purposes. In particular, Section 9 of
the Law on Enforcement of Judicial Acts prescribed a possibility for
legal succession in enforcement proceedings. However, in order to be
recognised as such, the applicant had to follow the procedure
prescribed by the Labour Code and the Civil Code. Thus, within six
months after her husband’s death the applicant should have
submitted to the bailiff the documents required under Article 197 of
the Labour Code and asked the bailiff to apply the above Section 9
or, having failed to do so within six months, she should have then
requested the recognition of her inheritance rights in accordance
with the procedure prescribed by the Civil Code, after which she
could have applied to the bailiff. The applicant has, however, failed
to follow any of these procedures and, in consequence, none of her
rights guaranteed by the Convention have been affected. The
Government admitted in this respect that the Kotayk Regional Court,
by its judgment of 18 February 2005, did recognise the applicant as
her late husband’s legal successor in respect of the
Hrazdanmash’s obligations towards her late husband, but only as
far as the amount awarded by that judgment was concerned. This fact
therefore did not affect the situation. The Government argued that,
by having failed to pursue the appropriate procedures in order to be
recognised as her late husband’s legal successor, the applicant
also failed to exhaust the domestic remedies.
- Secondly,
as regards the judgment of 16 December 2002, the applicant’s
late husband, who was the beneficiary, had voluntarily waived his
rights by requesting the withdrawal of the writ of execution.
Moreover, in this case the applicant could not be considered as her
late husband’s legal successor either, since legal succession
could arise only in respect of existing rights, while no legal
succession was possible in respect of enforcement proceedings which
had already been discontinued.
- The
Government further raised a number of other objections. First, they
requested the Court to strike the application out of its list of
cases, taking into account that the judgments in question had been
enforced and the matter had therefore been resolved. Second, they
submitted that Hrazdanmash was a separate legal entity and the State
as its shareholder was not liable for its debts pursuant to the
domestic law. Third, they claimed that the applicant had failed to
exhaust the domestic remedies by not contesting the bailiff’s
inaction and by failing to request that enforcement proceedings be
instituted in respect of the judgment of 18 February 2005.
(b) The applicant
- The
applicant contested the Government’s first objection, claiming,
with reference to the judgment of 18 February 2005, that the
authorities had recognised her as her late husband’s legal
successor. She could therefore claim to be a victim of an alleged
violation of the Convention and Protocol No. 1.
- The
applicant further objected to the Government’s request to
strike out the application, arguing that, while the judgments in
question had been eventually enforced, the authorities had failed to
take adequate steps for that purpose and did so only during the
proceedings before the Court. She was therefore entitled to claim
non-pecuniary damage. The applicant did not comment on the remaining
points.
2. The Court’s assessment
- The
Court does not consider it necessary to resolve all of the above
objections raised by the Government since the application is in any
event inadmissible for the following reasons.
(a) The judgments of 2 July 2001 and 16
December 2002
- The
Court notes at the outset that the applicant introduced the
application in her own name, alleging a violation of her rights and
not those of her late husband. The present case must therefore be
distinguished from the cases in which an application was introduced
on behalf of the deceased person by his next-of-kin or heirs (see,
for example, Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR
2000 XI; Marie-Louise Loyen and Bruneel v. France,
no. 55929/00, §§ 21-22, 5 July 2005; Fairfield v. the
United Kingdom (dec.), no. 24790/04, ECHR 2005 VI; Biç
and Others v. Turkey, no. 55955/00, §§ 17 and 20-21, 2
February 2006; and Micallef v. Malta [GC], no.
17056/06, §§ 33 and 49, ECHR 2009 ...). It is
therefore necessary to determine whether the applicant personally can
claim to be a victim in connection with the enforcement process of
the judgments given in favour of her late husband.
- The
Court reiterates that execution of a judgment given by any court is
an integral part of the “trial” for the purpose of
Article 6 of the Convention and a delay in the execution must not be
such as to impair the essence of the right to a court protected by
that Article (see Burdov v. Russia, no. 59498/00, §§
34 and 35, ECHR 2002-III). It further 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 Stran Greek Refineries and Stratis Andreadis v.
Greece, 9 December 1994, § 59, Series A no. 301 B).
- In
the present case, the judgments of 2 July 2001 and 16 December 2002
delivered in respect of the applicant’s late husband
constituted enforceable claims and it is evident that Hrazdanmash’s
obligation to pay the debts owed under those judgments did not cease
with his death. On the contrary, the relevant judgment debts were
eventually paid, albeit after a considerable delay, to the applicant
as her late husband’s heir.
- The
Government alleged, however, that this delay was wholly attributable
to the applicant who had failed to pursue any procedures to be
recognised as her late husband’s heir. The Court notes that the
applicant’s husband passed away on 2 December 2003. Section 9
of the Law on Enforcement of Judicial Acts indeed provided for a
possibility of legal succession in case of death of a party to
enforcement proceedings (see paragraph 36 above). Furthermore, the
Civil Code prescribed the rules for claiming inheritance following
the testator’s death (see paragraph 41-43 above). The Court
observes that, following her husband’s death, the applicant
failed to resort to any of these procedures for the purpose of legal
succession in respect of the salary debts owed to her late husband.
Once she did so in October 2007 and had her inheritance right
recognised, the amounts owed to her late husband were paid to her
almost immediately (see paragraph 35 above). Furthermore, the
judgment of 18 February 2005, contrary to the applicant’s
claim, did not determine questions of her legal succession in respect
of the judgment debts owed to her late husband and concerned
exclusively the new claim lodged by the applicant against
Hrazdanmash. In such circumstances, the Court considers that the
authorities cannot be blamed for the delayed enforcement of the
judgments adopted in favour of the applicant’s late husband.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
(b) The judgment of 18 February 2005
- The
Court notes at the outset that the applicant indeed appears not to
have attempted to institute enforcement proceedings in respect of the
judgment of 18 February 2005. It points out, however, that a person
who has obtained an enforceable judgment against the State as a
result of successful litigation cannot be required to resort to
enforcement proceedings in order to have it executed (see Metaxas
v. Greece, no. 8415/02, § 19, 27 May 2004; Koltsov,
cited above, § 16; Cocchiarella v. Italy [GC],
no. 64886/01, § 89, ECHR 2006 V; Cooperativa
Agricola Slobozia-Hanesei v. Moldova, cited above, § 20; and
Trapeznikova v. Russia,
no. 21539/02, § 93, 11 December 2008). The Court is
mindful of its finding made in the case of Khachatryan to the
effect that, despite the fact that Hrazdanmash was formally a
separate legal entity, it did not enjoy sufficient institutional and
operational independence from the State and the latter was
responsible for its salary debts (see Khachatryan, cited
above, § 54).
- The
judgment of 18 February 2005 was similarly adopted against
Hrazdanmash. Hence, it was incumbent on the State to comply with it
as soon as the judgment became enforceable, regardless of the fact
whether the applicant had requested institution of enforcement
proceedings (see, mutatis mutandis, Reynbakh v. Russia,
no. 23405/03, § 24, 29 September 2005, and Cooperativa
Agricola Slobozia-Hanesei v. Moldova, cited above, § 20). It
follows that this complaint cannot be dismissed for failure to
exhaust the domestic remedies as requested by the Government.
- However,
having regard to the entry into force of Protocol No. 14, the Court
finds it necessary to examine of its own motion whether in this
respect it should apply the new inadmissibility criterion provided
for in Article 35 § 3 (b) of the Convention as amended (see
Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, §
30, 1 June 2010). In accordance with Article 20 of the Protocol, the
new provision shall apply from the date of its entry into force to
all applications pending before the Court, except those declared
admissible.
- The
main element contained in the new admissibility criterion is the
question of whether the applicant has suffered a “significant
disadvantage”. The Court has previously held that this
criterion applies where, notwithstanding a potential violation of a
right from a purely legal point of view, the level of severity
attained does not warrant consideration by an international court
(see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010, and
Gaftoniuc v. Romania (dec.), no. 30934/05, 22 February 2011).
The level of severity shall be assessed in the light of the financial
impact of the matter in dispute and the importance of the case for
the applicant.
- In
the present case, the Court notes that the salary debt of AMD 102,882
awarded to the applicant by the final judgment of 18 February
2005 was paid on 29 November 2007, that is with a delay of about two
years and nine months. While the delay is not insignificant, the
Court cannot, nevertheless, overlook the fact that this delay
concerned the payment of a relatively small award. The applicant did
not submit any arguments or evidence to suggest that the delay in the
payment of such an award had a significant impact on her personal
life. Thus, considering the relatively minor nature of the award and
the fact that it was eventually paid, the Court is of the opinion
that the applicant did not suffer significant disadvantage as a
result of the delayed enforcement of the final judgment of 18
February 2005.
- The
Court further observes that the problem of non-enforcement of final
judgments adopted against Hrazdanmash has already been addressed in
its judgment adopted in the case of Khachatryan, cited above,
and concludes that respect for human rights, as defined in the
Convention and the Protocols thereto, does not require examination of
the present complaint on the merits. Finally, it observes that the
applicant’s case was duly considered by a domestic tribunal
within the meaning of Article 35 § 3 (b) as evidenced by the
judgment of 18 February 2005 (see Vasilchenko v. Russia,
no. 34784/02, § 49, 23 September 2010).
- In
view of the foregoing, this complaint should be rejected as
inadmissible in accordance with Article 35 § 3 (b) of the
Convention, as amended by Protocol No. 14.
For these reasons, the Court unanimously
Declares the application
inadmissible.
Santiago Quesada Josep
Casadevall
Registrar President
