Last Updated on May 30, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 39109/07
Magomed Ibragimovich MAKAZHI
against Russia
The European Court of Human Rights (Third Section), sitting on 4 September 2018 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 7 July 2007,
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, Mr Magomed Ibragimovich Makazhi, is a Russian national, who was born in 1936 and lives in Makhachkala.
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.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 November 2003 the Kirovskiy District Court of Makhachkala ordered to recalculate the applicant’s old-age pension applying the coefficient of 0.75, to index-link the pension and apply the bank interest, for the period as of 1 January 2002. The judgment became final ten days later.
On 20 July 2004 the same court excluded a reference to the application of the bank interest to the applicant’s pension from the operative part of the judgment of 24 November 2003.
The Government submitted that on 2 August 2004 the enforcement proceedings were completed on account of the full enforcement of the judicial award. They submitted a copy of the bailiffs’ service’s decision to discontinue the enforcement proceedings in respect of the judgment of 24 November 2003.
In the meantime, at some point criminal proceedings were brought against the applicant for deliberate provision of false information to the pension authorities. On 20 July 2005 the Kirovskiy District Court of Makhachkala found that the applicant had deliberately provided false information to the pension authorities concerning his employment in 1949‑1954 and as a result had received 5,596 Russian roubles of supplement to his pension for the period between April 2001 and February 2005. The court discontinued the proceedings against the applicant as he had acknowledged his guilt and had reimbursed the amount overpaid to him to the authorities.
At some point, apparently in 2006 or 2007, the pension authorities applied to the same court with a request to reopen the proceedings re‑examine the case which ended up with the judgment of 23 November 2003, due to the newly-discovered circumstances. The pension authority claimed that the applicant had produced false information to justify his pension claims.
On 28 June 2007 the first-instance court refused the request as lodged out of time. It found that the pension authority had become aware of the relevant circumstances as early as in August-September 2004 and, moreover, the relevant documents had been included in the applicant’s pension file in 2005. It appears that the decision was not appealed against and became final.
In 2010 the applicant claimed compensation for delayed enforcement under the Compensation Act. On 9 June 2010 a judge of the Supreme Court of the Republic of Dagestan refused to accept the application for examination as lodged with a wrong court, out of time and not supported with necessary documents. In particular, the judge observed that the judgment of 24 November 2003 had been enforced in August 2004. It appears that the applicant did not appeal.
COMPLAINTS
On 7 July 2007 the applicant complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgment of 24 November 2003 in his favour and about unlawfulness of the decision of 20 July 2004.
THE LAW
The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the judgment of 24 November 2003 has remained unenforced, as the bank interest was not applied to his pension for the reference period. The Government claimed, with reference to the decision to discontinue the proceedings, that the judgment had been enforced in full in August 2004, and pointed out that the applicant had provided false information to the pension authorities.
In the Court’s view, there is nothing in the case file to suggest that the outcome of the criminal proceedings concerning the provision of false information had any bearing on the contents or the binding force of judgment of 24 November 2003, or on its subsequent enforcement. Indeed, that judgment has never been set aside or amended on account of the courts’ findings in the above criminal proceedings – on the contrary, the pension authority’s request to that effect was dismissed on 28 June 2007 as belated. In these circumstances, the Court rejects the Government’s submissions in this part as having no relevance to the applicant’s non-enforcement complaint under examination.
On the other hand, the Court reiterates its constant approach that that in determining whether or not the judgment was enforced, the Court should, in principle, rely on the findings made by the domestic courts, since its role in this matter is essentially subsidiary to that of the domestic authorities, 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 Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, § 173, 1 July 2014; Belkin and Others v. Russia (dec.), no. 14330/07, 5 February 2009; and Elinna Shevchenko v. Russia (dec.), no 1250/05, 14 October 2010).
The Court observes that the applicant has not brought any proceedings before the domestic courts concerning the manner of enforcement of the judgment of 24 November 2003, as amended by the decision of 20 July 2004. In particular, it is not disputed that he has not challenged the decision to discontinue the enforcement proceedings.
In these circumstances, the Court lends credence to the Government’s submissions and accepts that the judgment of 24 November 2003, as amended on 20 July 2004, was fully enforced on 2 August 2004.
The Court notes at the outset that the judgment was executed within less than nine months, which was reasonable in accordance with the Court’s case-law (see Belkin and Others, cited above). In any event, the Court reiterates that in cases of non-enforcement six months run from the date of execution of the judgment (see Gorokhov and Rusyayev v. Russia, no. 38305/02, § 27, 17 March 2005). However, the applicant only lodged his non-enforcement complaint in 2007, that is more than six months from the enforcement date.
It follows that this part of an application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court further notes that the applicant complains, in essence, about the outcome of the proceedings of 20 July 2004 by which the initial wording of the judgment of 23 November 2004 in his favour was modified to exclude a reference to the bank interest. It appears that he did not challenge the decision of 20 July 2004 on appeal, and it became final ten days later, that is more than six months before the introduction of his application with the Court.
It follows that this part of an application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Finally, in so far as Article 13 is concerned, the Court has found above that the non-enforcement complaint did not give rise to an arguable claim of a breach of a Convention right. Accordingly, Article 13 of the Convention does not apply.
It follows that this part of the application is incompatible rationemateriae and must be rejected in accordance with 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 27 September 2018.
Stephen Phillips BrankoLubarda
Registrar President
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