Last Updated on June 17, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 43028/09
Anna Kuzminichna KOLOBUTINA and Others
against Russia
The European Court of Human Rights (Third Section), sitting on 3 July 2018 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
andFatoşAracı, Deputy Section Registrar,
Having regard to the above application lodged on 23 May 2009,
Having regard to the rectified declarations submitted by the respondent Government on 18 October 2017 requesting the Court to strike the application out of the list of cases and the applicants’ replies to that declarations,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
Two lists of the applicants are set out in the appended tables. In particular, Mr Kolobutin lodged complaints on his own behalf and on behalf of his late mother, MsKolobutina (see line 1 of Appendix I below). Ms Moroz lodged complaints on her own behalf and on behalf of her late relative, Ms Markova (see line 5 of Appendix I below).
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 applicants complained, among other matters, about the delayed enforcement of the judgments of the Zelenogradskiy District Court of the Kaliningrad Region of 25 May 2004 and of 20 July 2004 ordering the domestic authorities to allot a land plot to each of them. The applicants also complained about the lack of the effective remedies in respect of the non‑enforcement complaint.
As four initial claimants in the domestic proceedings died, on various dates in 2009 the Zelenogradskiy District Court of the Kaliningrad Region declared Mr Kolobutin, Mr Vlasov, Mr Toskuyev,and Ms Moroz as legal successors in respect of the initial judgment debts in the domestic enforcement proceedings initiated pursuant to the above two judgments.
On 18 October 2017 the Government submitted their rectified unilateral declarations with a view to resolving the issues raised by the application.
In their declarations they acknowledged the lengthy enforcement of the judgments of 25 May 2004 and of 20 July 2004. The unilateral declarations further contained the dates of each judgment, their entry into force and their full enforcement, as well as the overall enforcement delays.
The authorities stated their readiness to pay to each applicant 4,000 euros as just satisfaction. The payments were to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, and would be free of any taxes that may be applicable. They would be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay the sums within the said period, the Government undertook to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payments would constitute the final resolution of the case.
They further requested the Court to strike out the application.
In their letters received on the dates indicated in Appendix I, some of the applicants or their legal heirs informed the Court that they agreed to the terms of the Government’s declarations. Some of the applicants (see Appendix II) did not submit their comments on the unilateral declarations.
THE LAW
A. Locus standi
The Court notes that MsKolobutina and Ms Markova died before the date of lodging of the present application (see Appendix I). The Court notes that a deceased person cannot, even through a representative, lodge an application with the Court (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 96 and 102, ECHR 2014). The Court does not discern any exceptional circumstances in the present case to depart from this approach.
Therefore, the application in the part concerning MsKolobutina and Ms Markova is incompatible ratione personae with the provisions of the Convention and the Additional Protocols and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
On the other hand, and as a matter of clarification, the Court notes that MrKolobutin and Ms Moroz entered the domestic enforcement proceedings as MsKolobutina’sand Ms Markova’s legal heirs, respectively, in respect of the judgment debts, which was acknowledged by the domestic decisions to that effect. Their standing as Ms Kolobutina’s and Ms Markova’s legal successors in the domestic enforcement proceedings concerning the initial judgment debt transferred to them as a matter of legal succession has never been disputed either by the domestic authorities or the Government. Accordingly, the Court will examine the complaints lodged byMr Kolobutin and Ms Moroz in so far as their own claims in respect of the judgment debt inherited from their late relatives are concerned.
The Court further takes note ofMs Vlasova’s death and of the wish of her legal heir, Mr Vlasov, to pursue the proceedings in her stead.
The Court reiterates that where an applicant dies during the examination of a case his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX; Shiryayeva v. Russia, no. 21417/04, §§ 8-9, 13 July 2006; and Horváthová v. Slovakia, no. 74456/01, § 26, 17 May 2005). Nothing suggests that the rights the applicant sought to protect through the Convention mechanism were eminently personal and non-transferable (see Malhous v. the Czech Republic [GC], no. 33071/96, § 1, 12 July 2001). It follows from the submitted documents that the domestic courts admitted Mr Vlasov in the enforcement proceedings in the capacity of creditor instead of his deceased relative. The Government did not contend that Mr Vlasovhad no standing to pursue the application. Therefore, the Court considers that MrVlasov has a legitimate interest in pursuing the application in Ms Vlasova’s stead.
B. Complaints about the delayed enforcement
1. In respect of the applicants who agreed to the terms of the unilateral declarations
The Court attaches particular weight to the express agreement by applicants or their legal heirs listed in Appendix I to the terms of the declarations made by the Government. It finds that such agreement shall be considered as a friendly settlement between the parties (see Cēsnieks v. Latvia (dec.), no. 9278/06, § 34, 6 March 2012, and Bakal and Others v. Turkey (dec.), no. 8243/08, 5 June 2012).
The Court therefore takes formal note of the friendly settlement reached between the parties. The Court further considers that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
In any event the Committee of Ministers remains competent to supervise the execution of the terms of the friendly settlement as set out in the present decision (Article 39 § 4 of the Convention and Rule 43 § 3 of the Rules of Court). Further, in any event the Court’s present ruling is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the present application to its list of cases.
In view of the above, it is appropriate to strike the case out of the list in accordance with Article 39 of the Convention in so far as it concerns the applicants who had agreed to the terms of the unilateral declarations (listed in Appendix I).
The Court considers that the amounts proposed by the Government should be converted into the currency of the respondent Stateat the rate applicable on the date of payment.
2. In respect of the applicants who did not comment on the terms of the unilateral declarations
In respect of the applicants who did not comment on the Government’s declarations (see Appendix II), the Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1(c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
Article 37 § 1 (c) of the Convention enables the Court in particular to strike a case out of its list if:
“… for any other reason established by the Court, it is no longer justified to continue the examination of the applications.”
Article 37 § 1 in fine states:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”
To this end, the Court will examine carefully the declarations in the light of the principles emerging from its case-law.
The Court is satisfied that the excessive length of the execution of the judgments in the applicants’ favour has been acknowledged by the Government. The Court also notes that the compensation amounts offered are comparable with Court awards in similar cases, taking account, inter alia, of the specific enforcement delay in this particular case.
As to whether the respect for human rights as defined in the Convention and the Protocols thereto requires the Court to continue the examination of the application, it notes that in a number of analogous cases the Court found that it was not required to continue the examination the applications in accordance with Article 37 § 1 in fine (see Mikheyeva and Others v. Russia (dec.), nos. 36933/07 and 6 others, 24 March 2015, and Sultanova and Others v. Russia (dec.), nos. 16200/07 and 11 others, 15 April 2014). The Court does not see any reason to depart from that approach in the present cases.
In view of the above, it is appropriate to strike that part of the application out of the list in accordance with Article 37 § 1 (c) of the Convention in so far as the non-enforcement complaint is concerned.
The Court considers that the amounts proposed by the Government should be converted into the currency of the respondent Stateat the rate applicable on the date of payment.
C. Complaint about the lack of the domestic remedy in respect of the non-enforcement complaints
Some applicants further complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non-enforcement complaint. The Government did not specify their position in relation to this complaint.
The Court has previously found that it was not necessary to examine separately the admissibility and merits of the complaints under Article 13 in other similar cases (see Kamneva and Others v. Russia (dec.), nos. 35555/05 and 6 others, 2 May 2017, §§ 33-37).
In these circumstances, the Court does not find it necessary to examine the admissibility and merits of the complaint under Article 13 of the Convention.
For these reasons, the Court, unanimously,
Declares the complaints in the name ofMsKolobutina andMs Markova inadmissible;
Decides that Mr Vlasovhas standing to continue the proceedings in his late relative’s stead, as specified in Appendix I;
Takes note of the terms of the respondent Government’s declarations;
Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention in so far as it concerns the applicants listed in Appendix I who had agreed to the terms of the unilateral declarations;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in the part concerning the applicants listed in Appendix II, and in so far as their non-enforcement complaint was concerned;
Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention.
Done in English and notified in writing on 26 July 2018.
FatoşAracı BrankoLubarda
Deputy Registrar President
Appendix I
| No. | Applicant
Date of birth – Date if demise Legal heir |
Enforcement date
Enforcement delay |
Date of receipt by the Court of the acceptance to the terms of the unilateral declaration |
| 1. | Anna Kuzminichna KOLOBUTINA
10/07/1933 – 01/12/2007 |
n/a (see the Law part on Locus Standi) | |
| 2. | AleksandrFailovich KOLOBUTIN
15/05/1966
Legal heir of Anna Kuzminichna KOLOBUTINA in respect of the initial judgment debt |
07/12/2012
8 years 5 months 7 days |
05/12/2017 |
| 3. | Lyudmila Vasilyevna KUZYAKINA
08/02/1951 |
07/12/2012
8 years 6 months |
08/12/2017 |
| 4. | Natalya Mikhaylovna ZHOKHOVA
27/07/1954 |
07/12/2012
8 years 6 months |
11/12/2017 |
| 5. | Tamara Andreyevna TOCHILKINA
10/04/1957 |
07/12/2012
8 years 6 months |
11/12/2017 |
| 6. | UlyanaKonstantinovna MARKOVA
26/07/1933 – 23/03/2009 |
n/a (see the Law part on Locus Standi) | |
| 7. | Larisa Mironovna MOROZ
01/09/1956
Legal heir of UlyanaKonstantinovna MARKOVA in respect of the initial judgment debt |
07/12/2012
8 years 6 months |
08/12/2017 |
| 8. | Valentina Georgiyevna STREKACH
02/05/1943 |
07/12/2012
8 years 6 months |
08/12/2017 |
| 9. | Nina Vilisovna IVANOVA
21/09/1959 |
07/12/2012
8 years 6 months |
11/12/2017 |
| 10. | Yelena Nikolayevna GRIGORENKO
14/07/1966 |
07/12/2012
8 years 6 months |
19/01/2018 |
| 11. | Yelena Alekseyevna NENASHEVA
08/05/1967 |
07/12/2012
8 years 6 months |
07/12/2017 |
| 12. | Yelena Nikolayevna SMURYGINA
04/08/1967 |
07/12/2012
8 years 6 months |
18/12/2017 |
| 13. | NadezhdaDmitriyevna KRAVCHENKO
18/03/1944 |
07/12/2012
8 years 6 months |
11/12/2017 |
| 14. | Valentina Gavrilovna VLASOVA
n/a
Legal heir: Mikhail Ivanovich VLASOV 23/11/1939 |
07/12/2012
8 years 6 months |
11/12/2017 |
| 15. | Nikolay Andreyevich GUMENYUK
12/08/1942 |
07/12/2012
8 years 6 months |
08/12/2017 |
| 16. | Yelena Yuryevna SOLOPCHUK
24/12/1964 |
07/12/2012
8 years 6 months |
08/12/2017 |
| 17. | Valentina Ivanovna TOKAREVA
09/04/1939 |
07/12/2012
8 years 6 months |
20/02/2018 |
APPENDIX II
| No. | Applicant
Date of birth Legal heir |
Enforcement date
Enforcement delay |
| 1. | Svetlana Nikolayevna SEMCHUK
22/11/1949 |
07/12/2012
8 years 6 months |
| 2. | Irina Stepanovna NECHAY
19/02/1939 |
07/12/2012
8 years 6 months |
| 3. | Aleksandra Dmitriyevna ROMANOVA
10/11/1928 |
07/12/2012
8 years 6 months |
| 4. | Lidiya Stepanovna ZHIGALINA
11/02/1923 |
07/12/2012
8 years 6 months |
| 5. | Yelena Petrovna SHENETS
08/04/1966 |
07/12/2012
8 years 6 months |
| 6. | Valentin Lazarevich TOSKUYEV[1]
06/10/1946 |
07/12/2012
8 years 6 months |
[1]. MrToskuyev entered the enforcement proceedings in respect of the initial judgment debt as a legal successor of Svetlana AnatolyevnaToskuyeva, who died on an unspecified date before September 2009.
Leave a Reply