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You are here: BAILII >> Databases >> European Court of Human Rights >> SHMATKO AND OTHERS v. RUSSIA - 20857/05 (Judgment : Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings Article 6-1 - Access to court) Violation ...) [2017] ECHR 628 (06 July 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/628.html Cite as: [2017] ECHR 628

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THIRD SECTION

 

 

 

CASE OF SHMATKO AND OTHERS v. RUSSIA

(Applications nos. 20857/05 and 6 others - see appended list)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

6 July 2017

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Shmatko and Others v. Russia,

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

          Luis López Guerra, President,
          Dmitry Dedov,
          Jolien Schukking, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 15 June 2017,

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

PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2.  The applications were communicated to the Russian Government (“the Government”).

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. The applicant in application no. 20857/05 also raised other complaints under the provisions of the Convention.

THE LAW

I.  JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  THE LOCUS STANDI ISSUE FOR APPLICATION No. 23211/06

6.  The applicant, Mr Zherebtsov, (application no. 23211/06) died while the case was pending before the Court. The applicant’s wife, Ms M. Zherebtsova, expressed her intention to pursue the application. The Government did not object to that request.

7.  The Court considers that the applicant’s wife has a legitimate interest in obtaining a finding of a breach of her husband’s right related to the non-enforcement or delayed enforcement of the final judgment (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, nos. 8549/06 and 86 others, §§ 36-42, 29 July 2010; Sobelin and Others v. Russia, nos. 30672/03 and 11 others, §§ 43-45, 3 May 2007; and Shiryayeva v. Russia, no. 21417/04, §§ 8-9, 13 July 2006).

8.  Accordingly, the Court holds that Ms Zherebtsova has standing to continue the proceedings in respect of application no. 23211/06 on behalf of her late husband.

III.  THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION

9.  The Government submitted unilateral declarations which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the cases (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the merits of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI).

IV.  ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

10.  The applicants complained principally of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

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.”

11.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997-II).

12.  In the leading case of Gerasimov and Others v. Russia, no. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case.

13. Having regard to the nature of the judicial awards in the applicants’ favour (see the appended table for details of court orders), the Court considers that the applicants had, by virtue of these judgments, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.

14.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour.

15.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

16.  The applicants also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non-enforcement. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no. 35555/05 and 6 others, 2 May 2017). Even though the remedy was - or still is - available to the applicants, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230).

17.  However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no. 44387/04 and 11 others, §§ 21-24, 25 October 2011). This ruling is without prejudice to the Court’s future assessment of the new remedy.

V.  REMAINING COMPLAINTS

18.  The applicant in application no. 20857/05 also raised other complaints under Article 6 of the Convention.

19.  The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of application no. 20857/05 must be rejected in accordance with Article 35 § 4 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  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.”

21.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sums indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicants.

22.  The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable.

23.  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.  Decides to join the applications;

 

2.  Decides that Ms Zherebtsova, the wife of the applicant in application no. 23211/06, has locus standi in the proceedings;

 

3.  Rejects the Government’s request to strike the applications out of its list of cases under Article 37 of the Convention on the basis of the unilateral declarations which they submitted;

 

4.  Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions admissible, and the remainder of the application no. 20857/05 inadmissible;

 

5.  Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the non-enforcement or delayed enforcement of domestic decisions;

 

6.  Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention;

 

7.  Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table;

 

8.  Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

 

9.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 6 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt                                                              Luis López Guerra
Acting Deputy Registrar                                                            President




APPENDIX

List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1

(non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law)

No.	Application no. Date of introduction	Applicant name Date of birth	Relevant domestic decision	Start date of non-enforcement period	End date of non-enforcement period Length of enforcement proceedings	Domestic order	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant / household (in euros)[1]
1.	20857/05 12/05/2005	Tamara Konstantinovna Shmatko 19/10/1948	Zyuzino District Court of Moscow, 31/12/2001	20/12/2001	pending More than 15 year(s) and 5 month(s) and 1 day(s)	“... the local administration to provide the applicant with a garage ...”	6,000
2.	9680/06 21/02/2006	Boris Borisovich Sharapov 24/05/1965	Leninskiy District Court of Voronezh, 10/10/2005	01/12/2005	05/05/2010 4 year(s) and 5 month(s) and 5 day(s)	“... to lift the confiscation order in respect of [the applicant’s] property ; to pay [the applicant] compensation for damage resulting from the unlawful criminal prosecution ...”	4,000
3.	23211/06 13/04/2006	Vasiliy Nikonorovich Zherebtsov 10/08/1927	Pravoberezhniy District Court of Lipetsk, 16/03/2005	26/03/2005	29/11/2007 2 year(s) and 8 month(s) and 4 day(s)	" ... [the Administration of Lipetsk Region] to provide [the applicant] with a car ... "	2,500
4.	24314/07 26/03/2007	Grigoriy Yegorovich Belous 29/10/1950	Novozybkov Town Court of the Bryansk Region, 22/03/2005	02/04/2005	12/04/2010 5 year(s) and 11 day(s)	" ... [the Administration of Novozybkov] to provide [the applicant] with [housing] ... "	6,000
5.	2639/10 10/12/2009	Vladimir Borisovich Martynov 09/05/1952	Nizhnekamskiy Town Court of the republic of Tatarstan, 30/11/2005   Nizhnekamskiy Town Court of the republic of Tatarstan, 05/10/2006	19/01/2006           06/11/2006	18/12/2009 3 year(s) and 11 month(s)       18/12/2009 3 year(s) and 1 month(s) and 3 day(s)	1) "... [The Ministry of Internal Affairs] to appoint [a pension] to [the applicant] ... as from 28/06/2002 ... ";    2) "... [The Ministry of Internal Affairs] to appoint [a pension] to [the applicant] ... as from 19/10/1997 ... "	4,600
6.	28294/13 09/04/2013 (3 applicants)	Aleksandr Vladimirovich Averin 07/06/1963 Valeriy Vladimirovich Solovyev 30/07/1968 Nataliya Borisovna Mayer 24/06/1975	Solombalskiy District Court of Arkhangelsk, 27/10/2011	16/01/2012	pending More than 5 year(s) and 4 month(s) and 5 day(s)	"... the Administration of Arkhangelsk to conduct capital repairs of the house...and pay non-pecuniary damages ...[to the applicants]; OOO Kredo to conduct current repairs of the house .... and pay non-pecuniary damages ...[to the applicants]"	6,000
7.	78568/13 11/11/2013	Viktor Ivanovich Bogomolov 20/04/1964	Vyborg Town Court of the Leningrad Region, 07/04/2011	19/04/2011	pending More than 6 year(s) and 1 month(s) and 2 day(s)	" ... the St Petersburg and the Leningrad Regional Department of the Border Service of the Federal Security Service to recalculate public utility charge due to pay by [the applicant] ... "	6,000

 




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1.  Plus any tax that may be chargeable to the applicants.