Last Updated on October 3, 2020 by LawEuro
THIRD SECTION
DECISION
Application no. 40125/08
Mihai MOROȘANU
against Russia
The European Court of Human Rights (Third Section), sitting on 25 September 2018 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 July 2008,
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
1. The applicant, Mr Mihai Moroşanu, is a Moldovan national, who was born in 1939 and lives in Chişinău. He was represented before the Court by Mr A. Postică, a lawyer practising in Chişinău.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. The Government of Moldova did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Judgment of 12 July 1991 and its enforcement
4. In 1955 the applicant was injured while working on the Krasnogorskiy sovkhoz collective farm in the Kurgan Region of the Russian Soviet Federative Socialist Republic (the RSFSR). On 27 December 1989 medical experts established that the applicant had lost 60% of his occupational capacity. The applicant sued the collective farm for damages.
5. On 2 April 1990 the People’s Court of the Sovetskiy District of Chişinău in the Moldavian Soviet Socialist Republic (the Sovetskiy District Court) granted his claims and ordered the Krasnogorskiy sovkhoz to pay the applicant compensation for the period from 21 December 1955 until 1 April 1990. The judgment was fully enforced in February 1991.
6. On 12 July 1991 the Sovetskiy District Court granted similar claims by the applicant in respect of another period and ordered the Krasnogorskiy sovkhoz’s alleged successor, namely the “Cheremushskiy” sovkhoz (as spelt in the court’s decision) to pay the applicant 2,211 Russian roubles (RUB) in compensation, and RUB 391.7 in legal costs. In total, the applicant was awarded RUB 2,602.7. No appeal was lodged against the judgment and it became directly enforceable throughout the entire territory of the Union of Soviet Socialist Republics (the USSR) (see paragraph 18 below)[1].
7. According to the applicant, on 20 January 1992 the Botanica District Court of Chişinău (successor to the Sovetskiy District Court) forwarded the writ of execution to the Lebyazhyevskiy Court of the Kurgan Region (the Lebyazhyevskiy Court) with a view to beginning enforcement proceedings.
8. On an unspecified date the Lebyazhyevskiy Court requested the Court of Botanica of Chişinău to provide bank details for transferring the money. The court’s letter read that in case of failure to provide the relevant bank information, the awarded sum would be transferred to the budget of the town Lebyazhye.
9. The applicant submitted that on 16 April 1992 he sent his bank details to the Lebyazhyevskiy Court, and provided the Court with a copy of his letter. The Government, with reference to the Lebyazhyevskiy Court’s reply, stated that no letter containing the applicant’s banking details could be found in the archives of the Lebyazhyevskiy Court.
10. In 1995 the applicant inquired about the status of the enforcement proceedings. On 15 November 1995 the Lebyazhyevskiy Court informed the applicant in reply that the writ of execution for RUB 2,211 in his favour had not been received by the court, and asked him to clarify when the writ of execution had been sent to the court. The applicant did not reply.
11. The Government submitted, with reference to the Russian authorities’ submissions to the Moldovan court (see paragraph 12 below) that on an unspecified date the money was recovered from the respondent collective farm and three years later transferred to the municipal budget, in the absence of information concerning the applicant’s banking details.
2. Judgment of 8 November 2004 and its enforcement
12. On an unspecified date the applicant asked the Centru District Court in Chişinău, the Republic of Moldova, to index‑link the debt under the judgment of 12 July 1991. During these proceedings, the representatives of the collective farms involved claimed that they were not successors in the matter, that the archives had been destroyed, and that the limitation period for the action had expired. The representative of the Russian Department of Justice submitted that a writ of execution for RUB 2,971, including a State fee of RUB 391.70, had been issued. As no bank details were available in respect of the creditor, this amount had been transferred to the municipal budget. The representatives of the Lebyazhyevskiy Court did not deny that there had been a writ of execution and that a letter had been sent to the applicant with a request to provide bank details (see paragraph 8 above). The Financial Department of the Kurgan Region also contested the claims, and stated that, according to the available documents, they had never received RUB 2,211, but that this amount had been transferred to the budget of the Lebyazhyevskiy district.
13. On 8 November 2004 the Centru District Court decided, referring to the intergovernmental agreement of 9 September 1994 on mutual recognition of entitlement to compensation for damage caused by occupational injury or disease or other work-related impairments to health, that impairment to health was to be compensated in accordance with the laws of the party whose laws had been applicable at the time that the injury was sustained. The court further found that the Russian authorities were not entitled to discontinue the enforcement proceedings in the absence of the creditor’s banking details; nor could they transfer the amount of the debt to the local budget. As a result, the Centru District Court granted the applicant’s claims and ordered the finance body of the Kurgan Region and the Department of the Ministry of Justice in the Kurgan Region to pay the applicant RUB 77,602.71.
14. On 24 June 2005 the Kurgan Regional Court refused the applicant’s request for enforcement of the judgment of 8 November 2004 in Russia. The court found that the defendant party had not been duly summoned and considered, with reference to the Code of Civil Procedure and the Convention on Legal Assistance in Civil, Family and Criminal Cases of the Commonwealth of Independent States (see paragraphs 22-23 below) that in any event the case was subject to exclusive jurisdiction of the courts of the Russian Federation. The court noted from the Centru District Court’s judgment that the case had not dealt with the impairment to health caused in a work-related accident as alleged by the applicant, but with compensation for the alleged failure of the Russian enforcement authorities to transfer the judgment debt to the applicant. Such cases, therefore, had to be examined exclusively by Russian courts.
15. On 29 November 2005 the Supreme Court of Russia upheld the decision of the Kurgan Regional Court in the final instance.
16. In 2006 the applicant asked the Tverskoy District Court of Moscow to index-link the amount awarded on 8 November 2004 by the Centru District Court.
17. On 30 October 2006 the Tverskoy District Court of Moscow returned the application, explaining that claims for index-linking were to be submitted to the court which had awarded the initial amount. On 27 February 2007 the Moscow City Court upheld the decision to return the application.
B. Relevant domestic law and international material
1. Code of Civil Procedure of the RSFSR and Fundamental Principles of Civil Procedure of the USSR
18. Article 13 of the Code of Civil Procedure of the RSFSR of 1964, in force until 1 February 2003, and Article 15 of the Fundamental Principles of Civil Procedure of the USSR and the Union Republics provided that final judicial decisions were binding on the parties and enforceable throughout the entire territory of the USSR.
2. Code of Civil Procedure of Russia, in force as of 1 February 2003
19. Article 409 provides that judgments of foreign courts concerning civil matters are recognised and enforced in Russia pursuant to a pertinent international treaty. It further stipulates that such judgments may be submitted for enforcement within three years after their adoption.
20. Article 410 provides that a request for enforcement of a foreign judgment should be filed with a regional court or other court of equal standing at the place of the debtor’s residence or location.
21. Article 411 sets out the rules of procedure applying to requests for enforcement of foreign judgments. According to Article 412 § 1(3) of the Code, the court may refuse a request for enforcement of a foreign court judgment if Russian courts have exclusive jurisdiction over the case.
3. Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases of the Commonwealth of Independent States of 22 January 1993 (“the Minsk Convention”)
22. The Minsk Convention, to which Russia and the Republic of Moldova are parties, requires that that all parties to that Convention grant the citizens of the other member States the same legal protection as that enjoyed by their own citizens. Section III of the Minsk Convention determines the reciprocal order of recognition and enforcement of the decisions taken by legal bodies in civil, family and criminal cases. In particular, pursuant to Article 54 § 3 of the Convention, enforcement procedure is determined in accordance with the domestic law of the Contracting Party on the territory of which enforcement is to take place. Article 55 of the Convention (“Refusal to recognise and enforce decisions”) provides, inter alia, that the recognition of the judicial decisions and the request for enforcement may be refused ‒ in line with the Convention or, in cases not provided for therein, according to the domestic law of the Contracting Party on the territory of which the decision is to be recognised and enforced ‒ where the State bodies (“учреждения”) of the Contracting Party have exclusive jurisdiction over the case.
23. Article 42 § 1 of the Minsk Convention provides that the obligation to provide compensation for damage, except where it arises out of contracts and other lawful actions, is to be determined in accordance with the domestic law of the Contracting Party on the territory of which the circumstances forming the basis of the compensation claimoccurred. Article 42 § 3 stipulates that such claims are subject to the jurisdiction of a court in the Contracting Party on the territory of which the circumstances forming the basis of the compensation claim occurred. An aggrieved party may also bring such claims before a court in the Contracting Party where the respondent resides.
4. Bilateral Treaty between the Republic of Moldova and the Russian Federation on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases of 25 February 1993
24. Article 3 of the Bilateral Treaty signed on 25 February 1993 stipulated that the recognition and enforcement of domestic decisions fall within the legal assistance which the Contracting Parties agreed to provide on a mutual basis.
COMPLAINTS
25. The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the judgments in his favour delivered on 12 July 1991 and 8 November 2004.
THE LAW
26. The applicant complained about the non-enforcement of the judgments in his favour delivered on 12 July 1991 and 8 November 2004. He referred to Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time 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.
A. Alleged non-enforcement of the judgment of 12 July 1991
1. Parties’ submissions
27. The Government submitted that the judgment of 12 July 1991 had been adopted when the Moldavian Soviet Socialist Republic was still a part of the USSR, and, therefore, had to be enforced as a national judicial decision without a request for exequatur. However, they contested the lawfulness of that judgment as being rendered in respect of a wrong defendant which had not taken part in the proceedings. They further submitted that the fact of receipt by the Lebyazhyevskiy Court of the writ of execution could not be established as all the files had been destroyed due to the expiration of the storage period. Neither could it be confirmed that the court had received the applicant’s bank details. The Government further referred to the judgment of 8 November 2004 where it was established that the amount of the debt had been transferred to the local budget as no information had been received concerning the applicant’s bank details. In addition, the Government submitted that the applicant had not made any attempt to enforce the judgment since 1995. They claimed that the complaint was incompatible ratione temporis and noted that the applicant had not exhausted the domestic remedies and had failed to comply with the six-month time-limit for lodging the application before the Court.
28. The applicant reiterated his complaint, arguing, in particular, that the Government had not presented evidence showing that the judgment had been enforced.
2. General principles
29. 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 has been the Court’s constant position 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). The Court held that the burden to ensure compliance with a judgment against the State lies primarily with the State authorities starting from the date on which the judgment becomes binding and enforceable (see Burdov v. Russia (no. 2), no. 33509/04, § 69, ECHR 2009). 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).
30. In previous Russian non-enforcement cases, the Court has considered that it can not, as a general rule, accept arguments that a domestic decision has not been properly enforced without an internal judicial decision, save in the case of a flagrant inconsistency. The Court has required that the arguments as to proper enforcement of domestic decisions be brought before domestic courts, who are better placed and equipped to assess the particular manner in which the enforcement should be carried out and the debtor’s compliance with the enforcement modalities (see, for example, Kravchenko and other “military housing” cases v. Russia, nos. 11609/05 and 22 others, § 32, 16 September 2010; Parkhomov v. Russia, no. 19589/02, § 27, 20 October 2005; Belkin and Others v. Russia (dec.), no. 14330/07, 5 February 2009; and Elinna Shevchenko v. Russia (dec.), no. 1250/05, 14 October 2010).
3. Application to the present case
31. The Court first observes that the judgment of 12 July 1991 was delivered before 5 May 1998, the date on which the Convention entered into force in respect of Russia. It appears that in 1992 a writ of execution was issued and forwarded to the Lebyazhyevskiy Court, which, in turn, requested the applicant’s bank details in order to transfer the judgment debt to him. It is disputed between the parties whether the Lebyazhyevskiy Court had received the applicant’s bank details, and whether the State had fulfilled its obligation to enforce the judgment prior to 5 May 1998 (see paragraphs 7-10 above).
32. As regards the Government’s objection that the applicant had failed to use the domestic remedies, the Court reiterates its previous finding that at the time when the applicant brought his application to the Court there was no effective remedy under Russian law capable of affording redress for prolonged non-enforcement of judicial decisions delivered against the State or its entities (see Burdov v. Russia (no. 2), no. 33509/04, § 117, ECHR 2009). As regards the domestic remedy introduced in response to the aforementioned pilot judgment (the Compensation Act, which entered into force on 4 May 2010), the Court reiterates its position that it would be unfair to request 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 Burdov (no. 2), cited above, § 144). In line with this principle, the Court decides to proceed with the examination of the present case (see, mutatis mutandis, Utyuzhnikova v. Russia, no. 25957/03, §§ 48-52, 7 October 2010; compare with Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, § 41, 23 September 2010) and, accordingly, dismisses the Government’s objection as regards the non-exhaustion of domestic remedies by the applicant.
33. The Court further reiterates that, in accordance with the general rules of international law, the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (see Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006‑III). From the ratification date onwards, however, all the State’s alleged acts and omissions must conform to the Convention or its Protocols and subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see Broniowski v. Poland (dec.) [GC], no. 31443/96, § 74, ECHR 2002‑X). Accordingly, the Court is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 5 May 1998, the date of ratification of the Convention and Protocol No. 1 by the Russian Federation. It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date.
34. The Court notes the parties’ disagreement as to whether the judgment debt had been transferred to the municipal budget in the absence of the applicant’s bank details. The applicant claimed that he had sent the required bank information, but that no transfer had ensued. Be that as it may, the Court notes – and it is not disputed between the parties – that as early as in 1995 the applicant was informed that the Lebyazhyevskiy Court had not received the writ of execution (see paragraph 10 above). Thus, even assuming that the applicant did send his bank details to that court in 1992, in November 1995 he should have become aware that there were no enforcement proceedings pending in Russia in respect of the 1991 judgment. However, it does not appear that since that time the applicant took any action with a view to obtaining execution of the judgment, such as, for instance, requesting a duplicate of the writ of execution.
35. Even assuming, despite the applicant’s inaction after 1995 and in the absence of any enforcement proceedings pending on 5 May 1998, that the non-enforcement of the judgment of 12 July 1991 created a situation extending beyond the ratification date, the Court notes the following. In the course of the proceedings in Chişinău in 2004 concerning the index-linking of the debt, the applicant clearly learnt about the Russian authorities’ position that they considered the judgment enforced, as the money had been recovered from the debtor and subsequently transferred to the municipal budget in 1995 (see paragraph 12 above). Thus, at that time it should yet again have become apparent to the applicant that, ten years after enforcement had been discontinued in Russia and in the absence of any relevant subsequent proceedings, there were no reasonable prospects of enforcement of the judgment of 12 July 1991.The Court observes, however, that the applicant lodged his non-enforcement complaint only in 2008 and that he had not attempted in the meantime to challenge the mode of execution referred to by the Russian authorities before any Russian courts, or request reinstatement of the time-limit for challenging it. Prior to lodging this application, the applicant had not tried to recover the judgment debt from the municipal budget, where it had been transferred. He had not complained about the authorities’ actions before the competent Russian courts, and, in his application, he did not point to any objective circumstance that would have made it impossible for him to bring such proceedings in Russia within the time-limits and in line with the procedural requirements set out in the domestic law.
36. In these circumstances, the Court considers that the complaint has been lodged out of time. In any event, in the particular circumstances of this case, the Court does not have at its disposal sufficient information or documents dated after 5 May 1998, which would point to the authorities’ inaction in enforcement of the judicial award in the applicant’s favour in breach of Article 6 of the Convention and Article 1 of Protocol No. 1 thereto.
37. The Court therefore considers that the complaint must be rejected in accordance with Article 35 §§ 1, 3(a) and 4 of the Convention.
B. Alleged non-enforcement of the judgment of 8 November 2004
38. The Government argued that the judgment of 8 November 2004 had been delivered in violation of the international law on jurisdictional immunity. They also argued, in particular, that the applicant had missed the six-month time-limit for lodging his complaint before the Court.
39. The applicant reiterated his complaint.
40. The Court notes that, in contrast to the judgment of 12 July 1991 which had been delivered by a USSR court and was therefore directly enforceable in Russia, the enforcement of the 2004 judicial award by a Moldovan court was subject to a special implementation procedure in respect of judgments adopted by other States. As noted above, a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt – especially in cases such as the present one, where the link between a court of one State and the authorities of another State is not as immediate and evident as that between the judicial and enforcement authorities of the same State (see Petr Korolev v. Russia, no. 38112/04, §§ 49-50, 21 October 2010). In Petr Korolev the Court found that in order to have a judgment by a foreign court enforced in Russia an applicant is required to file a request with a national court for enforcement of that judgment (ibid., § 52).
41. The Court notes that in the present case the applicant has attempted to make use of such a procedure. On 24 June 2005 his request for enforcement of the judgment of the foreign court was rejected by the Kurgan Regional Court, as upheld on 29 November 2005 by the Supreme Court of Russia (see paragraphs 14-15 above). It does not follow from the parties’ submissions or any other available material that after that date the applicant had any other legal avenues of action to have the judgment of 8 November 2004 enforced, or that he learned about the Supreme Court’s final decision with any delay. In the Court’s view, it should then have become apparent to the applicant as early as 29 November 2005 that he had no longer had a realistic hope of enforcement of the impugned judgment in his favour in Russia and should not therefore have waited until July 2008 in order to apply to the Court (see, for instance, Babich and Azhogin v. Russia (dec.), nos. 9457/09 and 9531/09, §§ 47‑54 and 57‑58, 15 October 2013, and Bichenok v. Russia (dec.), no. 13731/08, 31 March 2015).
42. The Court further notes that the applicant’s subsequent claims before the Russian courts concerned index-linking of the awarded amount, rather than attempts to enforce the judgment at issue (see paragraphs 16-17 above), and the Court accordingly finds the fact of the applicant’s involvement in these proceedings irrelevant for the determination of the six‑month issue in respect of the present non-enforcement complaint.
43. The Court therefore considers that the complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Other alleged violations of the Convention
44. The applicant also complained under Article 13 of the Convention that there had been no effective remedy at his disposal in respect of the delayed enforcement of the judgments in his favour.
45. Having regard to all the material in its possession in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Fatoş Aracı Branko Lubarda
Deputy Registrar President
________________
[1]. On 27 August 1991 the Moldovan parliament adopted the Declaration of Independence of the Republic of Moldova. In December 1991 the USSR ceased to exist through the establishment of the Commonwealth of Independent States, and Moldova became an independent State.
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