GACHMA v. RUSSIA - 9589/06 (Judgment : Violation of Right to a fair trial (Enforcement proceedings Access to court) Violation ...) [2017] ECHR 899 (17 October 2017)

In the case of Gachma v. Russia,

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

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 26 September 2017,

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

PROCEDURE

1. The case originated in an application (no. 9589/06) 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 Mr Vasiliy Alekseyevich Gachma (“the applicant”) on 25 January 2006.

2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 18 May 2015 the application was communicated to the Government in accordance with the pilot judgment Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009).

4. On 21 September 2015 the Government informed the Court that the judgment in the applicant’s favour had not been fully enforced due to, inter alia, the applicant’s behaviour. They requested to consider the application on the merits. The Court therefore decided to resume examination of the present case.

THE FACTS

5. The applicant was born in 1955 and lives in Budenovsk, the Stavropol Region of the Russian Federation. He is a former military officer.

6. On an unspecified date the applicant sued his former employer military unit.

7. On 3 May 2001 the Military Court of the Pyatigorsk Garrison (“the military court”) ordered, inter alia, the head of the respondent military unit to re-calculate the period of the applicant’s service, applying the favourable terms of such calculation for the time when the applicant had participated in a military operation. The military court obliged the head of the military unit to issue the relevant orders, to calculate and to pay the applicant some additional payments and field allowance for the periods specified in the judgment. The judgment contained information on the indexes and other parameters that should be applied for the awarded amounts to be calculated.

8. On 14 May 2001 the judgment came into force.

9. In March 2002 the applicant obtained the writ of execution and submitted it to the Department of the Federal Treasury in Budenovsk.

10. On 19 March 2002 the Department of the Federal Treasury returned the writ of execution to the applicant on the ground that the military unit did not have an account there, and the judgment contained no specific amounts awarded to the applicant.

11. On 21 March 2002 the applicant submitted the writ of execution to the bailiffs’ service. On the same day the enforcement proceedings were initiated.

12. On 19 February 2003 the enforcement proceedings were terminated and the writ was returned to the applicant without enforcement following his request to withdraw the writ.

13. In 2004-2005 the applicant applied to the domestic courts for clarification of the initial judgment with the view to establish the specific amounts due to him. The applicant’s requests were dismissed as being lodged out of time. The courts noted that, in any case, the matter concerning the awarded amounts should have been resolved by way of an additional decision rather than clarification of a final judgment, and informed that an application for an additional decision should have been lodged before the entry into force of the main judgment.

14. It is not disputed between the parties that the judgment of 3 May 2001 remained unenforced in the part concerning the payment to the applicant of the second salary and the field allowances for the periods specified in the judgment.

15. On 24 March 2016, after communication of the present case, the Ministry of Finance of Russia calculated the amount due to the applicant under the judgment of 3 May 2001. According to this calculation, the main debt amounted to 80,220.74 Russian roubles.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

16. The applicant complained about non-enforcement of the above judgment. This complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, as far as relevant, 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 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...”

A. Admissibility

17. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

18. The Government acknowledged that the judgment in the applicant’s favour was not fully enforced (see paragraphs 14-15 above). They argued, however, that the non-enforcement was due to the applicant’s behaviour. According to the Government, by his withdrawal of the writ of execution from the bailiffs’ service in 2003 the applicant impeded any further enforcement of the judgment in his favour.

19. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III). It further reiterates that a person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). Where a judgment is against the State, the defendant State authority must be duly notiﬁed thereof and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for compliance (see Akashev v. Russia, no. 30616/05, § 21, 12 June 2008). The complexity of the domestic enforcement procedure or of the State budgetary system cannot relieve the State of its obligation under the Convention to guarantee to everyone the right to have a binding and enforceable judicial decision enforced within a reasonable time (Burdov (no. 2), cited above, § 70).

20. At the same time, the Court has accepted that a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt (see Shvedov v. Russia, no. 69306/01, § 32, 20 October 2005). The creditor’s uncooperative behaviour may be an obstacle to timely enforcement of a judgment, thus alleviating the authorities’ responsibility for delays (see Belayev v. Russia (dec.), no. 36020/02, 22 March 2011).

21. Turning to the present case, the Court notes that on 19 March 2002 the writ of execution was returned to the applicant from the Federal Treasury with the reasoning that, inter alia, the judgment contained no specific amounts due to him. The applicant further submitted the writ of execution to the bailiffs’ service, and, having waited for approximately eleven months, decided to apply for clarification of the judgment of 3 May 2001, considering that the main obstacle for its enforcement in the part concerning the outstanding payments had been the absence of the specific amounts in its text (see paragraphs 10-15 above).

22. In the view of the foregoing, the Court does not consider that the applicant failed to undertake the necessary procedural steps in order to recover the judgment debt.

23. The Court accordingly finds that the arguments advanced by the Government do not justify prolonged non-enforcement of the judgment in the applicant’s favour.

24. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in cases raising similar issues to the ones in the present case (see, for example, Kochalidze v. Russia, no. 44038/05, §§ 12-15, 10 April 2012, and Bezborodov v. Russia, no. 36765/03, §§ 45-51, 20 November 2008).

25. Having examined the material submitted to it, the Court sees no reason for reaching a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for over fourteen 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 had reasonably expected to receive.

26. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27. 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

28. The applicant claimed 18,000 euros (EUR) in respect of pecuniary damage relating to the loss of value of the judgment debt due to inflation following the lengthy non-enforcement. He submitted a calculation of his claims. It was based on the amount of the main debt, calculated by the applicant as 280,788 Russian roubles, multiplied by the consumer price index in the Stavropol Region for the period from May 2001 until November 2015. The applicant submitted a letter from the Stavropol Regional Department of the State Statistics of 26 November 2015 showing the consumer price index for each month during the reference period. At the same time, the applicant did not explain the method of his calculation of the amount of the main debt in accordance with the judgment of 3 May 2001. The applicant also claimed that the judgment 3 May 2001 in his favour should be enforced, and EUR 50,000 in respect of non-pecuniary damage.

29. The Government submitted that the applicant’s rights in the present case had not been violated. They further disagreed with the claims, with reference to the letter from the Ministry of Defence of 24 March 2016 (see paragraph 15 above). They pointed out that the applicant’s calculation of the debt payable under the initial judgment had been wrong, and, therefore, the inflation losses claimed by him were excessive. At the same time, the Government did not contest in principle the method of the applicant’s calculation of the pecuniary damage in this part and the index applied to the amount of the main debt. They submitted no alternative calculation of pecuniary damage sustained as a result of the depreciation of that amount. The Government also disputed the amount claimed for non-pecuniary damage as excessive and unreasonable.

30. The Court notes that the State’s outstanding obligation to enforce the judgment in respect of certain payments is not in dispute (see paragraph 14 above). Accordingly, the applicant is still entitled to recover the outstanding amounts under the judgment. The Court reiterates that the best redress in respect of the violation found would be to put the applicant as far as possible in the position he would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). The Court finds that in the present case this principle applies as well, having regard to the violation found. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment of 3 May 2001 in the parts, in which it remained unenforced.

31. The Court notes that the applicant’s calculation of the main debt according to the judgment is not itemised or otherwise explained, while the Government provided a more detailed calculation of the amount of the debt, prepared by the Ministry of Defence (see paragraph 15 above). The Court accepts the calculation of the outstanding amounts submitted by the Government.

32. The Court notes that the judgment debt depreciated as a result of the prolonged non-enforcement. The Court accepts the applicant’s argument relating to the loss of value of that award, as well as the method of calculation suggested by the applicant and not disputed by the Government.

33. In these circumstances, the Court considers that the respective calculation of losses of value of the initial award for the period of non-enforcement should be made based on the Government’s calculation of the main debt. Making its estimate on the basis of information at its disposal and decides to award the applicant EUR 3,852 under this head, plus any tax that may be chargeable.

34. As to the claim for non-pecuniary damage, the Court accepts that the applicant suffered distress from the non-enforcement of the judgment in his favour. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 under this head, plus any tax that may be chargeable.

B. Costs and expenses

35. The applicant did not submit any claim for costs and expenses. The Court will therefore make no award under this head.

C. Default interest

36. 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. Declares the application admissible;

2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,852 (three thousand eight hundred and fifty-two euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helen Keller
Deputy Registrar President

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