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You are here: BAILII >> Databases >> European Court of Human Rights >> BAYKINA AND OTHERS v. RUSSIA - 33614/12 (Judgment : Violation of Right to a fair trial ( Enforcement proceedings Access to court) (Ar...) [2017] ECHR 883 (12 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/883.html Cite as: [2017] ECHR 883

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THIRD SECTION

 

 

 

 

CASE OF BAYKINA AND OTHERS v. RUSSIA

(Applications nos. 33614/12 and 5 others -

see appended list)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

12 October 2017

 

 

 

 

 

 

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

 




In the case of Baykina 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 21 September 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 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.  ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

6.  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.”

7.  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).

8.  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.

9.  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.

10.  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, listed in the appended table below.

11.  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.

12.  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).

13.  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, Korotyayeva and Others v. Russia, nos. 13122/11 and 2 others, §§ 36-40, 27 June 2017; 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.

III.  REMAINING COMPLAINTS

14.  In application no. 67355/12 the applicant also complained about the non-enforcement of the final judgment of 28 August 2009 by which he was to be provided with a housing certificate. As follows from the parties’ submissions, that judgment was enforced on 8 June 2010, outside the six-month period, as the application was only lodged with the Court on 30 September 2012.

15.  It follows that this part of the application was submitted too late and that it therefore is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  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.”

17.  Regard being had to the documents in its possession and to its case-law), and insofar as claims for just satisfaction were lodged by the applicants (see, in particular, Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 187-200, 1 July 2014; and Korotyayeva and Others, cited above), the Court considers it reasonable to award the sums indicated in the appended table.

18.  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.

19.  The Court further notes from the Government’s submissions that the domestic judgments in certain applications have remained unenforced to date (see the appended table). The State’s obligation to enforce those judgments is not in dispute. The Court considers that the respondent State has an outstanding obligation to secure, by appropriate means, enforcement of the judgment in the applicants’ favour (see Pridatchenko and Others v. Russia, nos. 2191/03 and 3 others, § 68, 21 June 2007, and Salikova v. Russia, no. 25270/06, § 83, 15 July 2010).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions, as indicated in the appended table, admissible, and the remainder of the application no. 67355/12 inadmissible;

 

3.  Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non-enforcement or delayed enforcement of domestic decisions, listed in the appended table;

 

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

 

5.  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;

 

6.  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.

 

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

Done in English, and notified in writing on 12 October 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 (in euros)[1]
1.	33614/12 05/05/2012	Lyudmila Ivanovna Baykina 25/05/1961	Moscow Garrison Military Court, 01/09/2009	19/09/2009	Pending. More than 7 year(s) and 10 month(s) and 29 day(s).	" ... FGU Medical Centre of the General Staff of the Russian Armed Forces to provide [the applicant] with housing in Moscow... "	6,000
2.	51165/12 23/07/2012	Marks Feliksavich Vakkaus 15/04/1955	Moscow Garrison Military Court, 29/01/2007	08/02/2007	Pending. More than 10 year(s) and 6 month(s) and 9 day(s).	"... the Head of the Military Academy ... to provide the applicant with housing... "	6,000
3.	67355/12 30/09/2012	Vladimir Vasilyevich Danshin 06/12/1957	Kuzminskiy District Court of Moscow, 09/12/2010	29/12/2010	Pending. More than 6 year(s) and 7 month(s) and 19 day(s).	" ... Housing Department of Moscow to enter into a flat sales contract ... with [the applicant]..."	6,200
4.	72229/13 29/10/2013	Lyubov Vasilyevna Zamyatina 29/06/1959	Oktyabrskiy District Court of Arkhangelsk, 05/05/2011	17/05/2011	Pending. More than 6 year(s) and 3 month(s).	“... The Mayor’s Office of the Town of Arkhangelsk to provide [the applicant] with housing [under the social tenancy agreement]...”	6,000
5.	76562/13 10/09/2013	Aleksey Alekseyevich Grinko 25/07/1978	Moscow Garrison Military Court, 11/05/2012       Odintsovo Garrison Military Court, 06/07/2012	19/06/2012           08/08/2012	03/03/2016 3 year(s) and 8 month(s) and 14 day(s).     03/03/2016 3 year(s) and 6 month(s) and 25 day(s).	"... the Head of the Housing Department of the Ministry of Defence ... to consider [the applicant’s] application ... on the merits ..."   "... the Head of [the 1st Department of the Western Regional Housing Authority] of the Ministry of Defence... to revoke his decision of 23 November 2011 ..."	2,060
6.	20387/14 20/02/2014	Irina Vladimirovna Sukhanova 12/04/1961	Justice of the Peace of the Court Circuit No. 42 of Yakutsk, 03/07/2001	08/08/2001	Pending. More than 16 year(s) and 9 day(s).	"... the Municipality of Yakutsk to provide the applicant and her family with housing according to applicable standards..."	6,000

 

 




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