SHTOLTS AND OTHERS v. RUSSIA (European Court of Human Rights)

Last Updated on November 5, 2019 by LawEuro

THIRD SECTION
DECISION
Application no. 77056/14
Eduard Nikolayevich SHTOLTS against Russia
and 2 other applications
(see list appended)

The European Court of Human Rights (Third Section), sitting on 30 January 2018 as a Chamber composed of:

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are three Russian nationals. A list of the applicants is set out in the Appendix.

2. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Domestic judgments in the applicants’ favour and their enforcement status

(a) Mr Shtolts (application no. 77056/14)

4. In 2010 the applicant’s house was destroyed in a fire. On 26 November 2012 the Syktyvkar Town Court ordered the administration of Syktyvkar to provide him with housing in the city measuring no less than 48.1 sq.m. in size and complying with the necessary sanitary and technical requirements. On an unspecified date the judgment became enforceable, and on 7 February 2013 enforcement proceedings were started. Several requests by the applicant to have the judgment enforced and complaints to the authorities did not produce any tangible results.

5. As the judgment remained unenforced, the applicant asked the court to change the manner of execution of the judgment. On 28 May 2014 the court dismissed his application, and on 21 July 2014 the refusal was upheld on appeal. The court held that enforcement of the initial obligation in kind “was not impossible” and observed that compulsory enforcement proceedings were underway, that unspecified authorities were “sending requests on the availability of housing” in Syktyvkar and “making claims” to provide the applicant with housing, and that the respondent administration had enforced some thirty similar judgments in 2014.

6. The judgment of 26 November 2012 remains unenforced to date.

(b) Mr Kotkov (application no. 17236/15)

7. On 21 June 2013 the Syktyvkar Town Court ordered the administration of Syktyvkar to provide the applicant with housing in the city measuring no less than 11,1 sq.m. in size and complying with the necessary sanitary and technical requirements, having regard to the applicant’s daughter’s right of use in respect of the flat, instead of their flat unlawfully seized and pulled down by the authorities as unsuitable for living. The judgment became enforceable ten days later, and on 11 September 2013 the bailiffs started the enforcement proceedings.

8. It transpires from the letters of the Bailiffs’ Service Department of the Komi Republic dated 28 October 2013 and 28 November 2014, sent to the applicant in reply to his several inquiries, that the enforcement proceedings in his case were pending at the material time along with more than 470 other similar judgments against the town administration.

9. In 2013 the bailiffs’ service made repeated attempts to secure the enforcement of those judgments by the town administration, including warnings, several compulsory requests (выставлениетребования) for enforcement in respect of each jugment concerned, and requests for information. They put in place unspecified limitations in respect of sixty items of real estate belonging to the debtor and in June 2013 they seized two items of the debtor’s real estate. The bailiffs conducted weekly checks of the status of the enforcement proceedings in housing cases and participated in the quarterly meetings with the administration on the matter.

10. In 2014 the enforcement proceedings included mandatory orders for the allocation of flats, the inclusion of additional funds in the budget and the identification of available housing with a view to its allocation in accordance with the waiting list.

11. By both letters the bailiffs’ service advised the applicant that the delay in enforcement could be explained, in particular, by the high number of judgments to be enforced, the lack of available flats and insufficient funding allocated for the building or purchase of new flats, as well as the existence of the waiting-list of different categories of persons entitled to social housing. The applicant’s position on the waiting list was 462 in 2013 and 312 in 2014.

12. It appears that the bailiffs’ repeated requests to the respondent authorities did not result in any action being taken. The judgment of 21 June 2013 in the applicant’s favour remains unenforced to date.

13. In 2013 a prosecutor applied to the court on behalf of the applicant and her children, seeking the allocation of a flat to her family on a priority basis, as the applicant’s son suffered from a chronic illness. The defendant authority, the administration of the Koporskoye settlement of the Lomonosov District of the Leningrad Region, acknowledged a violation of the applicants’ rights.

14. On 27 March 2013 the Lomonosovskiy District Court of the Leningrad Region (“the District Court”) allowed the application and ordered the administration of the Koporskoye settlement to provide the applicant and her children with priority housing under a social tenancy agreement.

15. It appears that on or around 30 May 2013 the judgment became enforceable. On 18 July 2013 enforcement proceedings were started.

16. As no suitable housing was available, on 3 June 2015 the debtor administration proposed to provide the applicant with a flat smaller than required by the relevant regulations, and pay her for the remaining square metres. On 16 June 2015 the District Court rejected the proposal, in line with the wishes of the applicant, who insisted on being provided with a flat measuring no less than 70 sq.m. in size.

17. On 23 June 2015 the bailiffs discontinued the enforcement proceedings, as the debtor lacked assets “the execution could be levied on”.

18. On 29 June 2015 the applicant asked the District Court to change the manner of execution of the judgment, claiming the market value of the flat. The administration argued in reply that there was one flat complying with the judgment criteria in Koporskoye, and that eviction proceedings were pending against its tenants for failure to pay the charges.

19. On 12 August 2015 the District Court dismissed her application, finding that the debtor administration had not been inactive and that there was no evidence to suggest that execution of the obligation in kind would be impossible. On 10 September 2015 the Leningrad Regional Court upheld the decision on appeal.

20. On 29 October 2015 the Moscow Regional Court refused leave to have a cassation appeal lodged by the applicant examined by the Presidium. On 9 December 2015 the Supreme Court of the Russian Federation refused leave to have a subsequent cassation appeal examined by the Presidium.

21. On 1 March 2016 the judgment of 27 March 2013 was enforced.

2. The Gerasimov pilot judgment and its consequences for similar cases

22. In the pilot judgment Gerasimov and Othersv. Russia (nos. 29920/05 and 10 others, 1 July 2014) the Court concluded that there was a structural problem in the enforcement of judgments imposing obligations in kind on the State authorities, and no effective remedy at domestic level allowing for acceleration of – or compensation for delays in – the enforcement of domestic judgments by which the respondent State authorities were ordered to provide the applicants with housing or comply with other obligations in kind (see Gerasimov and Others, cited above, §§ 210-18 and point 11 of the operative part).

23. The Court further ordered the respondent State to set up, in cooperation with the Committee of Ministers and within one year from the date on which the judgment became final, an effective domestic remedy or combination of remedies which secured adequate and sufficient redress for non‑enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State authorities in line with the Convention principles as established in the Court’s case-law (see Gerasimov and Others, cited above, §§ 223-26 and point 12 of the operative part). In so far as the remedy was concerned, the Court found, inter alia, as follows:

“224. There are several avenues by which this goal can be achieved in Russian law and the Court would not impose any specific option, having regard to the respondent State’s discretion to choose the means it will use to comply with the judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII). The Russian authorities may obviously choose the most straightforward solution, extending the scope of the Compensation Act to all cases concerning non‑enforcement of judgments delivered against the State and the Court welcomes the recent legislative initiatives to that end (see paragraphs 107‑108 above). The authorities may nonetheless choose to introduce changes to other legal texts that would produce the same effect. Any legislative exercise would benefit from the Constitutional Court’s case-law (see paragraphs 97 and 101), the Supreme Court’s experience that resulted in its draft law of 2008 (Burdov (no. 2), cited above, §§ 34‑37), the Committee of Ministers’ texts adopted under Article 46 of the Convention (see paragraph 113 above) and its more general Recommendations CM/Rec (2004) 6 and CM/Rec (2010) 3 on effective domestic remedies. It would be, for instance, quite appropriate for the authorities to seek, by any means, to combine a compensatory remedy with an acceleratory one (see Nagovitsyn and Nalgiyev, cited above, § 35), at least for certain cases involving persistent enforcement delays or requiring special diligence in the enforcement process (see, in particular, paragraphs 152 and 170 above).

225. In any event, it will remain for the State to ensure, under the supervision of the Committee of Ministers, that such a remedy or combination of remedies respects both in theory and in practice the requirements of the Convention set out in the Court’s case-law (see Burdov (no. 2), cited above, §§ 96‑100, with further references).”

24. The Court further decided to adjourn, for two years from the date the pilot judgment became final, proceedings on all new applications concerning non-enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State authorities lodged after 1 July 2014, the date of delivery of the pilot judgment (see Gerasimov and Others, cited above, § 229 and point 14 of the operative part).

25. Consequently, like several applicants in the same position, the applicants in the present cases were informed that their cases would remain adjourned until 1 October 2016 and that the subsequent procedure would be determined in the light of the implementation of the pilot judgment by the Russian authorities.

3. Introduction of a new domestic compensatory remedy

26. On 14 December 2016 Russian Parliament enacted Federal Law no. 450-FZ amending Federal Law no. 68-FZ on Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time (“the new Law” amending “the Compensation Act”). The new Lawentered into force on 1 January 2017 (for a summary of its provisions, see paragraphs 31-41 below).

4. Subsequent developments

27. By letters dated 10 February 2017 the Registry of the Court informed the applicants in the three present cases and all other applicants in the same position of the new remedy and of the possibility to make use of it within the time-limits set by the new Law (see paragraph 41 below).

(a) Mr Shtolts (application no. 77056/14) and Mr Kotkov (no. 17236/15)

28. By letters dated 15 March and 5 April 2017 the applicants informed the Court that they would not make use of the new remedy and wished to maintain their applications before the Court. They reiterated that they had complained to the Court in 2014-15, long before the amendments to the Compensation Act were introduced, and argued that they were required to use only the remedies available at the time their applications to the Court were lodged.

(b) Ms Shumakova (application no. 14023/16)

29. By a letter dated 12 April 2017 the applicant informed the Court that she would make use of the new remedy. She did not update the Court on the subsequent proceedings.

B. Relevant domestic law and practice

1. Compensation Act, binding clarifications of the Supreme Court of Russia and domestic case-law examples

(a) Provisions of 2010 Compensation Act

30. On 30 April 2010 Russian Parliament enacted Federal Law no. 68‑FZ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). A summary of its provisions, which at the material time concerned monetary claims against the State, may be found in the Court’s decision in Nagovitsyn and Nalgiyev v. Russia ((dec.), nos. 27451/09 and 60650/09, §§ 15-19, 23 September 2010).

(b) Amendments to the Compensation Act introduced by Federal Law no. 450‑FZ

31. As already noted (see paragraph 26 above), on 14 December 2016 the Russian Parliament enacted Federal Law no. 450-FZ amending Federal Law no. 68-FZ on Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time (“the new Law” amending “the Compensation Act”). An explanatory note appended to the draft law contained a reference to Court’s findings in Gerasimov and Others concerning the structural problem of non‑enforcement of domestic judgments imposing obligations in kind and the lack of effective remedies.

32. The amendments introduced provisions in the Act concerning compensation for violation of the right to enforcement within a reasonable time of a judgment ordering the State to fulfil obligations of a pecuniary and/or non-pecuniary nature. The new Law, signed by the President of the Russian Federation on 19 December 2016, entered into force on 1 January 2017. It extends the scope of the Compensation Act to cases concerning the non-enforcement of domestic judgments imposing obligations of a pecuniary or non-pecuniary nature on various domestic authorities, as follows.

33. The Compensation Act entitles a party (“an applicant”) to bring an action seeking compensation for the violation of his or her right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets, or a judgment ordering the federal authorities, authorities of the federal entities of the Russian Federation, local authorities, other bodies and organisations endowed with specific State or other public powers, or public and municipal servants to fulfil “other obligations of a pecuniary nature and (or) obligations of a non-pecuniary nature” (section 1(1) of the Compensation Act).

34. Such compensation can only be awarded if the alleged violation took place independently of the applicant’s own actions. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or the right to enforcement of a judgment within a reasonable time (section 1(2) of the Compensation Act). A compensation award is not dependent on the courts establishing fault on the part of the competent authorities (section 1(3) of the Compensation Act).

35. Compensation is awarded in monetary form (section 2(1) of the Compensation Act). The amount of compensation awarded should be determined by the courts in accordance with the applicant’s claims, the circumstances of the case, the length of the period during which the violation took place, the significance of its consequences for the applicant, the principles of reasonableness and fairness, and the practice of the European Court of Human Rights (section 2(2) of the Compensation Act).

36. Section 3 of the Compensation Act sets out the rules of jurisdiction and procedure. It provides, in particular, that a claim for compensation on account of delayed enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment ordering that compensation be paid from the State budget. A claim may also be lodged at the end of the proceedings or after the compulsory enforcement of a judicial act imposing other obligations of a pecuniary or non-pecuniary nature on the authorities, but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the enforcement proceedings.

37. In the respective court proceedings the Russian Federation, a federal entity or a municipality is represented by a relevant financial authority and the main administrator of the relevant budget (section 3(9) of the Compensation Act as amended and supplemented by section 1(2)(b) of the new Law).

38. A court decision awarding compensation is subject to immediate enforcement (section 4(4) of the Compensation Act). It may be appealed against in accordance with the procedural legislation in force (section 4(5)).

39. A judgment ordering different authorities to fulfil other obligations of a pecuniary or non-pecuniary nature is executed by the relevant financial body (section 5(2)(2) of the Compensation Act). The costs of compensation awards are included in the federal budget, in the budgets of the federal entities and in local budgets (section 5(3) of the Compensation Act).

40. Costs related to the implementation of the new Law should be recovered from the funds of the relevant budgets of the Russian Federation allocated for that purpose (section 2 of the new Law).

41. All individuals who have complained to the European Court of Human Rights that their right to enforcement of a judgment within a reasonable time has been violated may claim compensation in the domestic courts under the Compensation Act within six months of the new Law’s entry into force, provided that the Court has not ruled on the admissibility or merits of the complaint (section 3(2) of the new Law).

42. On 29 March 2016 – that is, before the entry into force of the amendments to the Compensation Act on 1 January 2017 – the Plenary Supreme Court of Russia issued Ruling no. 11, clarifying various issues arising in Compensation Act proceedings. It appears that those clarifications apply to compensation proceedings under the amended Compensation Act.

43. The Supreme Court reiterated that compensation was not conditional on the authorities’ fault being established. The purpose of compensation proceedings was to compensate the non-pecuniary – but not pecuniary – damage caused to a person. The Compensation Act procedure did not replace compensation for pecuniary damage caused by unlawful actions or inaction on the part of the State authorities (§ 1 of the Ruling).

44. There is no requirement for claimants in such proceedings to be represented or to hold a law degree (§ 12).

45. A claim for compensation for failure to enforce a judgment within a reasonable time may be lodged within six months from the date of termination of the enforcement. If the judgment remains unenforced, the claim may be lodged not earlier than six months after the expiry of the statutory time-limit for enforcement. That time-limit, in turn, is calculated from the date the writ of execution and other relevant documents are received (§ 19). If the claim is lodged before the expiry of the above‑mentioned six-month time-limit, it has to be returned to the claimant (§ 27).

46. In preparing a case for examination, the court determines the participants of the case. These include the persons under an obligation to enforce the judgment, as well as the authorities in charge of organising enforcement of the judgment in line with Russian budgetary laws – such as a relevant financial body, a Federal Treasury organ or a body administering the accounts of a regional treasury institution or a municipal treasury institution – or the Federal Bailiffs Service (§ 34). Financial bodies representing the interests of public-law entities and, in certain cases, administrators of budgetary funds, should participate in the proceedings (§ 35).

47. A decision in a compensation case does not preclude a person from lodging another claim for compensation, if it concerns different circumstances, such as for instance a different period of non-enforcement. The parties do not have to prove circumstances established in the earlier set of proceedings. The overall duration of the non-enforcement is taken into account by the court (§ 39).

48. A violation of a right to enforcement within a reasonable time is in itself proof that non-pecuniary damage was caused; accordingly, the person concerned is under no obligation to prove the damage (§ 40).

49. Measures taken by authorities are considered sufficient and effective if they are taken with the purpose of enforcing the judgment in good time. The court takes into account, in particular, delays in issuing a writ of execution and transferring it to a competent authority, as well as the claimant’s conduct, such as for instance delays in providing bank details (§ 46). A lack of funds is not a valid reason for delayed enforcement (§ 48).

50. The period of enforcement is calculated from either the date a claimant requests a court to issue and send a writ of execution to a debtor or the date the claimant submits the writ to a debtor (§ 55). The period of adjournment and suspension of the enforcement proceedings or enforcement by instalments should be included in the overall length of the enforcement period (§§ 55-56).

51. In determining the amount of compensation the court takes into account the amount claimed, the circumstances of the case, the length of the period of enforcement, the consequences of the violation and their significance for the claimant, and the amounts awarded by the Court in similar cases (§ 60).

52. If compensation is awarded, the operative part of the judgment should specify the amount, the body in charge of execution of the award, as well as the claimant’s bank details (§ 62). The court issues a writ of execution and sends it to the debtor authority, irrespective of whether the claimant has made a request to that effect and within one day of delivery of the judgment in administrative proceedings, or five days in commercial proceedings (§ 64).

53. The judgment is executed within the time-limits set out in Chapter 24.1 of the Budget Code (§ 65).

(d) Available examples of the domestic practice under the amended Compensation Act

54. In May 2017 Mr K. claimed compensation under the amended Compensation Act for one year and eleven months of non-enforcement of a domestic judgment obliging local authorities to provide him with social housing, still unenforced at the material time. On 12 July 2017 the Krasnodar Regional Court allowed his claim in part in the first instance. Referring to the Court’s case-law and the Supreme Court’s Ruling of 29 March 2016 the domestic court found confirmed that established proof of non-enforcement was the basis for a compensation award. It accordingly rejected the respondent authority’s argument that the non-enforcement had occurred through no fault of the debtor, and the debtor administration’s reference to a lack of resources for execution of the judgment. The court further noted from the Ruling that the Compensation Act procedure was not aimed at compensating any pecuniary damage caused by non-enforcement and did not replace compensation for such damage to a person. The court established the main administrators of the relevant budget and ordered them to pay K. 50,000 Russian roubles (RUB), approximately 722 euros (EUR).

55. Ms A. and Ms B. claimed compensation under the amended Compensation Act as the judgment in their favour ordering the authorities to provide them with social housing had remained unenforced for three years and five months by the date of their application to the domestic court. On 3 July 2017 the Supreme Court of the Republic of Karelia in the appeal instance allowed their claim in part and awarded each claimant RUB 200,000 (approximately EUR 2,968).

56. Ms S. claimed compensation under the amended Compensation Act as the judicial decision obliging to provide her with a flat had remained unenforced for two years and eleven months by the date of her application to the domestic court. On 17 July 2017 the Arkhangelsk Regional Court by the first-instance decision granted her claim in part and awarded her RUB 95,000 (approximately EUR 1,400). In case of K., by the appeal judgment of 26 June 2017 the same court awarded the claimant RUB 120,000 (approximately EUR 1,750) in the compensation proceedings, as the domestic judgment in her favour had remained unenforced for four years and ten months.

2. Budget Code

57. Chapter 24.1 of the Budget Code sets out the procedure for the execution of judgments delivered against public authorities. In particular, it empowers the Federal Treasury to execute judgments against legal entities funded by the federal budget and the Ministry of Finance to execute judgments against the State. Under Article 242.2 § 6, the judgments must be executed within three months of receipt of the necessary documents.

58. A writ of execution issued in respect of a judgment awarding compensation for a violation of the right to enforcement within a reasonable time, together with a copy of the judgment, is sent to the competent authority by the court, irrespective of whether the claimant has made a request to that effect (Article 242.1 § 2).

3. Code of Administrative Procedure

59. On 15 September 2015 a new Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015, “the CAP”) entered into force.

60. The burden of proof of lawfulness of a decision rests with the respondent authorities. Authorities must prove the facts they refer to in support of their counter-arguments (Article 62 § 2).

61. The court may request evidence at the request of parties or of its own initiative (Article 63 § 1; see further Chapter 22, governing complaints about authorities’ inaction, Article 226 § 12).

62. Once an administrative claim about bailiffs’ decisions, actions or omissions is lodged with the court, it must be examined within ten days (Article 226 § 3).

63. The court may summon representatives of the respondent authorities to appear at the hearing. If they fail to appear, a court fine may be applied (Article 226 § 7).

64. In examining an administrative claim challenging the decisions, actions or omissions of the authorities, the court verifies the lawfulness of the contested decisions, actions or omissions in the part specified in the administrative claim. The court is not bound by the grounds and arguments contained in the administrative claim and establishes the relevant circumstances in full (Article 226 § 8). The court has to establish whether the rights of the claimant have been violated, whether the time-limits have been respected, and whether the requirements of the normative regulations have been complied with in so far as the authority’s competence, decision making procedure, and grounds for the decision are concerned. The court also verifies whether the content of the contested decision or nature of the disputed action is in accordance with the relevant normative regulations (Article 226 § 9). The claimant has to prove that his or her rights have been violated and that the claim was lodged in good time. The burden of proof is on the authorities as concerns their competence to issue the contested decision or take the disputed action, respect for domestic procedure, the grounds for the decision and compliance with domestic law (Article 226 § 11).

65. If an administrative claim is allowed, the court specifies the actions to be taken and sets a time-limit (Article 227 § 3).

66. Chapter 26 governs proceedings concerning compensation for violation of the right to fair trial or enforcement of a judicial decision within a reasonable time.

67. A claim for compensation may be made to a court during the period of enforcement, but not earlier than six months from the statutory time-limit for enforcement (Article 250 § 4).

68. The court will return an administrative claim to a claimant if it has been lodged by an undue person, or outside the time-limits set for this purpose, or in violation of the procedural rules, or the delay in enforcement of the domestic judgment “clearly evidences” (сочевидностьюсвидетельствует) that there has been no violation of the right to enforcement within a reasonable time.

69. An administrative claim for compensation for a violation of a right to have a judgment enforced within a reasonable time is to be lodged with the court which issued the first-instance judgment, irrespective of the place of execution of the judicial award. That court forwards the claim to the competent court for examination within three days of receipt (Article 251 §§ 1 and 4). The court examines an administrative claim for compensation within two months of receipt (Article 256).

70. In preparing the case for examination the court defines the parties and sets a time-limit for submission of their observations. Persons defined by the court as participants in the administrative proceedings must submit their observations within that time-limit. Failure to do so may result in a court fine being imposed (Article 257 § 1).

71. In establishing whether there has been a violation of the right to enforcement within a reasonable time, the court has regard to the following factors: the legal and factual complexity of the case, the conduct of the parties, the sufficiency and effectiveness of the measures taken by the authorities to enforce the judgment, and the overall delay in enforcement (Article 258 § 3).

72. The judgment in a compensation case must contain information about the relevant judicial acts, the reasons to award compensation or to refuse the claim, and an explanation as to the amount of compensation awarded. The operative part must specify the amount of compensation and the authorities liable to pay it.

73. A decision awarding compensation is immediately enforceable in accordance with the budgetary legislation of the Russian Federation.

74. A court forwards a writ of execution in respect of a court decision awarding compensation for a violation of the right to fair trial within a reasonable time and enforcement of a judicial decision within a reasonable time, together with a copy of the relevant court decision, to the authority in charge of execution of the decision awarding compensation. The court forwards the writ within one day of the date of the judgment and irrespective of whether a claimant has made a request to that effect. The writ must contain the bank details of the claimant (Article 353 § 1 (3.1) of the CAP, introduced by Federal Law no. 303-FZ on 3 July 2016).

4. Civil Code and binding clarifications by the Supreme Court of Russia

(a) Civil Code provision on court penalty

75. Article 308.3 of the Civil Code, introduced on 8 March 2015 and in force as of 1 June 2015, provides that if a debtor fails to execute an obligation, the creditor is entitled to sue him or her in court for failure to comply with the obligation and request compliance, unless the Code, other legislation or the contract provides otherwise, or it is contrary to the nature of the obligation. If the debtor fails to execute that judicial act, the court is entitled, at the creditor’s request, to award a monetary sum as a penalty, to be fixed by the court on the basis of the principles of fairness, proportionality and not profiting from unlawful or unfair conduct (Article 308.3 § 1). The protection by the creditor of his rights in compliance with Article 308.3 § 1 does not relieve the debtor from liability for failure to execute or improper execution of the obligations set out in Chapter 25 of the Code (Article 308.3 § 2).

(b) Clarifications by the Plenary Supreme Court of the Russian Federation

76. Ruling no. 7 of 24 March 2016 of the Plenary Supreme Court of Russia clarified certain issues arising from the application of the above‑mentioned provision. In order to incite a debtor to comply with a judicial act making good a violation of a property right and not concerning a deprivation of possessions, the court can apply a monetary amount in the event of a failure to comply with the relevant judicial decision, known as a court penalty. Payment of the court penalty does not put an end to the main (initial) obligation or absolve the debtor from complying with it or from responsibility for its non-enforcement or improper enforcement (§ 28 of the Ruling). The provisions on court penalties do not apply to non-enforcement of monetary obligations. As the court penalty under Article 308.3 § 1 can only apply in cases of non-execution of civil-law obligations, it does not apply in disputes of an administrative nature, decided within the administrative proceedings and Chapter 24 of the Code of Commercial Proceedings[1], or in labour, pension and family disputes arising out of personal non-material relationships between family members or disputes concerning social protection (связанныхссоциальнойподдержкой) (§ 30).The amount of the court penalty will not be taken into account in determining losses caused by the non-enforcement of the obligation in kind. Such losses are recoverable in addition to the court penalty (§ 28 of the Ruling). The court cannot refuse to apply the court penalty in cases where it has allowed a claim for compulsory enforcement of an obligation in kind (опонуждениикисполнениюобязательствавнатуре). The court specifies the amount of the penalty and/or method for its determination. The amount is determined on the basis of the principles of fairness, proportionality and the debtor not profiting from unlawful conduct or acting in bad faith. If a court penalty is applied, enforcement of the judicial decision should be clearly more advantageous (явноболеевыгодным) for the debtor than its non-enforcement (§ 32 of the Ruling). Non-enforcement or improper enforcement of an obligation in kind is established by the bailiffs (§ 33 of the Ruling).

5. Code of Administrative Offences

77. If a debtor fails to comply with an obligation in kind within the time-limit set by a bailiff after the imposition of an obligation to pay an execution fee, an administrative fine will be imposed, ranging from RUB 10,000 to RUB 25,000 for public officials and between RUB 30,000 and 50,000 for legal entities (Article 17.15 § 1).

6. Tax Code

78. Article 333.19 § 15 of the Tax Code stipulates that the court fee for proceedings concerning compensation for violation of the right to a trial within a reasonable time or the right to enforcement of a judgment within a reasonable time is fixed at RUB 300.

C. Relevant materials of the Committee of Ministers of the Council of Europe

1. 2017 action report by the Russian authorities concerning the state of execution of the Gerasimov and Others pilot judgment

79. On 10 April 2017 the Russian authorities submitted an action report to the Committee of Ministers concerning the state of execution of the Court’s judgment in Gerasimov and Others. The report, in so far as general measures are concerned, may be summarised as follows.

80. As to the compensatory remedy, the federal law amending the 2010 Compensation Act extended the scope of the Compensation Act to cases of delayed enforcement of judicial decisions concerning both pecuniary and non-pecuniary obligations in kind. Under the Budget Code, compensation will be paid from the appropriate budgetary resources, which can be reviewed if the estimated amounts are exceeded. The 2015 Code of Administrative Procedure and several other laws facilitate the procedure for claimants to receive compensation awarded by the courts under the Compensation Act. On 29 March 2016 the Plenary Supreme Court adopted Ruling no. 11, containing binding clarifications for the courts’ examination of compensation claims for delayed enforcement of judicial decisions, in line with the Court’s case-law.

81. In addition, Article 308.3 of the Civil Code, introduced on 1 June 2015, allows domestic courts to apply a court penalty where debtors, including public authorities, have failed to comply in due time with obligations in kind (see paragraph 75 above). Further, in November 2015 the Plenary Supreme Court adopted Ruling no. 50 streamlining the courts’ practice on the examination of complaints concerning bailiffs’ actions or inaction. Furthermore, the 2015 Code of Administrative Procedure provides for a substantially improved procedure for complaining about the action or inaction of State authorities, including bailiffs (see paragraphs 60-64 above). Claims in such cases should be examined within ten days of introduction; the burden of proof lies with the respondent; the court enjoys a wide range of powers enabling it, inter alia, to go beyond the scope of the claim to obtain additional information, fine the respondent for failure to appear or to produce evidence or order specific preventive or remedial measures.

82. As regards measures addressing the origin of the violations, the authorities submitted detailed information concerning the measures taken by, inter alia, the Ministry of Defence, the Ministry of the Interior, the Ministry for Emergency Situations, the Federal Bailiffs Service, the State Real Estate Register, the Prosecutor General’s Office, the Chief Military Prosecutor’s Office, as well as various regional and municipal authorities. The number of unexecuted judicial decisions concerning obligations in kind delivered between January 2014 and July 2016 decreased.

83. More specifically, as regards provision of housing, in February 2017 the special-purpose federal programme aimed at providing housing to those entitled to it by law, via subsidies to purchase housing or the allocation of flats, was extended until 2020 (at which point over 215,000 families will have been provided with housing). Over RUB 663 billion (over EUR 11 billion at the exchange rate of 12 April 2017) was spent on this programme between 2011 and 2015. As a result of the measures undertaken by the Ministry of Defence in cooperation with other authorities, the number of unenforced judicial decisions for the provision of housing to military personnel dropped by over 75% between January 2013 and July 2016. The number of such decisions against the Ministry of the Interior dropped during the same period by almost 100%. The same rate of decrease was recorded for the similar judicial decisions against the Ministry for Emergency Situations between 2014 and 2016. As regards the provision of housing to orphans and children left without parental care, additional budgetary resources were allocated for this purpose. The enforcement of judicial decisions of this kind was also put under the regular control of the Prosecutor General’s Office and the Federal Bailiffs Service. Lastly, as a result of the real estate registration reform aimed principally at improving the functioning of the State real estate registering body, in 2015, 99% of all judicial decisions against that body were enforced.

2. The Committee of Ministers’ latest assessment of the execution of the Gerasimov and Others pilot judgment

84. The most recent Decision by the Committee of Ministers No. CM/Del/Dec(2017)1288/H46-25 of 7 June 2017 reads as follows:

“The Deputies

[…]

3. welcomed the setting up of both compensatory and acceleratory domestic remedies which appear prima facie to be effective, noted with interest the other improved procedures and, in the light of this, decided to close their examination concerning the adoption of remedies;

4. further welcomed the important progress achieved in addressing and removing the origin of the violations established by the European Court, in particular as regards the enforcement of judicial decisions awarding housing to military servicemen; in the light of this, decided to close their examination of this aspect, with the exception of the outstanding question indicated below;

5. invited the authorities to provide information on the practical impact of the measures taken to prevent delays in the enforcement of judicial decisions concerning other categories of social housing;

6. in the light of the substantial progress achieved, decided to pursue their supervision of the two outstanding issues (the settlement of the remaining applications communicated by the Court and the practical impact of the measures taken for the execution of judicial decisions concerning the remaining categories of social housing) under the standard procedure.”

COMPLAINTS

85. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No.1 to the Convention thereto about the non-enforcement of judgments in their favour. They further complained under Article 13 of the Convention of a lack of a domestic remedy in that regard.

THE LAW

A. Joinder of the applications

86. Given that the applications at hand concern similar facts and complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of Court.

B. Complaint about non-enforcement of domestic judgments

87. The applicants complained under Article 6 and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of domestic judgments in their favour.

88. The Court should first determine whether, as required by Article 35 § 1 of the Convention, the applicants have exhausted the domestic remedies which were available to them, in the light of, inter alia, the principles stated in Gerasimov and Others pilot judgment and the entry into force of the amendments to the Compensation Act. The relevant parts of Article 35 of the Convention provide as follows:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

1. General principles

(a) Exhaustion of domestic remedies

89. According to the Court’s settled case-law, it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. The Court is concerned with supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged breach. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014). States do not have to answer before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (ibid., § 70). The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Demopoulos and Others v. Turkey [GC] (dec.), nos. 46113/99 and 7 others, § 69, ECHR 2010).

90. The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Vučković and Others, cited above, §§ 71-74; Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II). In accordance with the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999‑V). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others, cited above, § 74; see also, among many other authorities, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009; Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX; and Grzinčič v. Slovenia, no. 26867/02, § 84, 3 May 2007).

91. An assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Demopoulos and Others, cited above, § 87, with further references therein). Among such exceptions are situations where, following a pilot judgment on the merits in which the Court found a systemic violation of the Convention, the respondent State has made a specific remedy available to redress at domestic level grievances of persons in a similar situation (for an application of this principle to the initial Compensation Act introduced in the wake of the Burdov v. Russia (no. 2) pilot judgment, no. 33509/04, ECHR 2009, see Nagovitsyn and Nalgiyev, cited above, § 40; see also, among other authorities, Demopoulos and Others, cited above, §§ 87‑88; Balan v. Moldova (dec.), no. 44746/08, §§ 23-25, 24 January 2012; Łatak v. Poland (dec.), no. 52070/08, § 79, 12 October 2010; Stella and Others v. Italy (dec.), no. 49169/09, § 41, 16 September 2014; and the recent cases of Muratović v. Serbia (dec.), no. 41698/06, 21 March 2017, and Domján v. Hungary (dec.), no. 5433/17, § 35, 14 November 2017).

(b) Criteria of the effectiveness of a compensatory remedy as regards non‑enforcement complaints

92. The Court has already given an extensive interpretation of the requirements of Article 13 of the Convention as regards complaints of non‑enforcement of domestic court decisions in Burdov (no. 2) (cited above, §§ 98-100), the relevant parts of which read as follows:

“98. As regards more particularly length-of-proceedings cases, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution (see Scordino v. Italy (no. 1) [GC], no 36813/97, § 183, ECHR 2006‑…). Likewise, in cases concerning non-enforcement of judicial decisions, any domestic means to prevent a violation by ensuring timely enforcement is, in principle, of greatest value. However, where a judgment is delivered in favour of an individual against the State, the former should not, in principle, be compelled to use such means (see, mutatis mutandis, Metaxas, cited above, § 19): the burden to comply with such a judgment lies primarily with the State authorities, which should use all means available in the domestic legal system in order to speed up the enforcement, thus preventing violations of the Convention (see, mutatis mutandis, Akashev, cited above, §§ 21-22).

99. States can also choose to introduce only a compensatory remedy, without that remedy being regarded as ineffective. Where such a compensatory remedy is available in the domestic legal system, the Court must leave a wider margin of appreciation to the State to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned. The Court is nonetheless required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the Convention principles, as interpreted in the light of the Court’s case-law (see Scordino, cited above, §§ 187-191). The Court has set key criteria for verification of the effectiveness of a compensatory remedy in respect of the excessive length of judicial proceedings. These criteria, which also apply to non-enforcement cases (see Wasserman, cited above, §§ 49 and 51), are as follows:

· an action for compensation must be heard within a reasonable time (see Scordino, cited above, § 195 in fine);

· the compensation must be paid promptly and generally no later than six months from the date on which the decision awarding compensation becomes enforceable (ibid., § 198);

· the procedural rules governing an action for compensation must conform to the principle of fairness guaranteed by Article 6 of the Convention (ibid., § 200);

· the rules regarding legal costs must not place an excessive burden on litigants where their action is justified (ibid., § 201);

· the level of compensation must not be unreasonable in comparison with the awards made by the Court in similar cases (ibid., §§ 202-206 and 213).

100. On this last criterion, the Court indicated that, with regard to pecuniary damage, the domestic courts are clearly in a better position to determine the existence and quantum. The situation is, however, different with regard to non-pecuniary damage. There exists a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage (see Scordino, cited above, §§ 203‑204, and Wasserman, cited above, §50).”

93. Where a State has made a significant move by introducing a compensatory remedy, the Court must leave it a wider margin of appreciation to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned. It will, in particular, be easier for the domestic courts to refer to the amounts awarded at domestic level for other types of damage – personal injury, damage relating to a relative’s death or damage in defamation cases for example – and rely on their innermost conviction, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see, among many other authorities, Musci v. Italy [GC], no. 64699/01, § 81, ECHR 2006‑V (extracts)).

2. Application to the present cases

94. According to the latest statistics, there are eighty-five cases on the Court’s case list raising issues similar to those dealt with in the Gerasimov and Others pilot judgment and lodged after 1 July 2014, the date of delivery of that judgment. More than half of those cases still concern the non‑enforcement of domestic judgments ordering the State to allocate housing to categories of the population other than military servicemen. However, the influx of applications, and, in particular, cases raising the issue of delays in the provision of housing to ex-members of the armed forces – which, before Gerasimov and Others, constituted an important portion of the non-enforcement cases and were a matter of the Court’s specific concern (see, among others, Kalinkin and Others v. Russia, nos. 16967/10 and 20 others, 17 April 2012, and Ilyushkin and Others v. Russia, nos. 5734/08 and 28 others, 17 April 2012) – has significantly decreased in the past three years. In the meantime, a number of important legislative amendments, and above all the December 2016 amendments to the Compensation Act were introduced at domestic level (see paragraphs 31-41 above). These positive developments were welcomed by the Committee of Ministers in their recent decision of 7 June 2017 (see paragraph 84 above).

95. While the compliance of the improved compensatory mechanism with the Convention requirements will be examined by the Court below (see paragraphs 103-115), the Court is bound to observe that the situation in the present group of Russian post-pilot cases is visibly different – both from the standpoint of the progress achieved at domestic level (see paragraphs 84 and 94 above) and the caseload – from the recent case of Burmych and Others v. Ukraine ([GC], nos. 46852/13 and 4 others, §§ 182‑84, 12 October 2017), in which the Grand Chamber concluded that the pilot judgment in Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, 15 October 2009) dealing with repetitive non-enforcement cases lodged against Ukraine had “clearly not succeeded in achieving its aims” (contrast Burmych and Others,cited above, §§ 43, 146-47 and 182-84). Therefore, the Court discerns no exceptional circumstances at this stage calling for redefinition of the Court’s role after the delivery of the pilot judgment in Gerasimov and Others (contrast Burmych and Others,cited above, §§ 182‑84 et seq., 12 October 2017). The Court will accordingly proceed with an examination of the individual applications at hand in its usual manner.

(a) Assessment of the remedies available to the applicants

(i) Introductory remarks concerning prevention of the alleged violations

96. The Court reiterates that a remedy designed to prevent enforcement delays and hasten the ultimate recovery of a judgment debt would be most desirable. Such a remedy would offer an undeniable advantage over a remedy affording only compensation, since it would prevent a finding of successive violations in the same case and would not merely repair the breach a posteriori, as a compensatory remedy of the type provided for under the Compensation Act does(see, mutatis mutandis,Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 183-84, ECHR 2006‑V). It is also true, at the same time, that a remedy designed to expedite the enforcement of a judgment would not provide adequate redress in numerous cases in which the enforcement of judgments has already been delayed (ibid.).

97. The Court reiterates its previous findings that there was no remedy in the Russian legal system which would allow effective prevention of a violation on account of non-enforcement of a judgment against the State (see, among others, Burdov (no. 2), cited above, § 101, and Nagovitsyn and Nalgiyev, cited above, § 32). It appears from the facts of the present cases that the situation has not significantly improved.

98. For instance, in cases of Mr Shtolts and Mr Kotkov, the domestic judgments providing the applicants with social housing have remained unenforced to date. The authorities consistently referred to lack of funds and available housing as the reason for their incapacity to comply with the obligations imposed by the domestic judgments (see paragraphs 5 and 11 above; for the Committee of Ministers’ conclusion on non-enforcement cases concerning housing allocated to categories of the population other than military servicemen, see paragraph 84 above). The bailiffs’ incapacity to influence in any way the enforcement of the judgments in the applicant’s favour, let alone to bring him relief, was demonstrated in Mr Kotkov’s case. On the one hand, there is nothing in Mr Kotkov’s case – or in the two other cases at hand – to suggest that the bailiffs were inactive, and at no point did any of the three applicants allege in their complaints to the Court that the bailiffs had failed in their tasks or protracted enforcement by specific unlawful acts or omissions (which could have been challenged). On the other hand, it appears that in Mr Kotkov’s case the bailiffs were clearly unable to compel the respondent authorities to comply with the judgment within a reasonable time or to accelerate the enforcement of the initial order (see, for the assessment of a similar situation, Gerasimov and Others, cited above, §§ 214-15). Even though the bailiffs on several occasions issued formal inquiries, compulsory requests and warnings in connection with the debtor authority’s failing to comply with its obligations arising out of the judgment (see paragraphs 9-10 above), that does not appear to have brought the applicant closer to his desired goal, namely enforcement of the judicial decisions providing them with housing (see paragraph 11 above; see also, mutatis mutandis, Burdov (no. 2), cited above, § 101).

99. Furthermore, in these circumstances, and having regard to all the material at its disposal, the Court is not persuaded that a court action against the bailiffs or, for instance, a court complaint about the authorities’ inaction would be capable of producing a preventive or acceleratory effect in a case where, as in Shtolts and Kotkov, the non-enforcement problem is not necessarily the fault of or caused by omissions on the part of a particular authority but rather a consequence of a scarcity of available resources.

100. As regards the court penalty mechanism provided for in Article 308.3 of the Civil Code (see paragraphs 75-76 above), at the present stage the Court does not have sufficient material in its disposal to assess its effectiveness, and it will examine this issue if it arises in other cases.

101. Bearing this in mind, the Court will now proceed with an assessment of the new compensatory remedy.

(ii) The new compensatory remedy

102. As the Court has repeatedly reiterated, States can choose to introduce only a compensatory remedy in respect of the non-enforcement of judgments, without that remedy being regarded as ineffective. In the present case, the Court will, accordingly, examine whether the amended Compensation Act fulfils the criteria summarised in paragraph 92 above.

(α) Availability of the remedy

103. As in Nagovitsyn and Nalgiyev (cited above, § 28), the Court finds nothing either in the text of the new Law or in the case materials to suggest that the new remedy was not available to the applicants. Nor does the Court see any reason to doubt that they were entitled to bring claims before the domestic courts in accordance with the amended Compensation Act. Their complaints to the Court concern delays in enforcement of the binding and enforceable judgments ordering the State to provide them with housing (see section 1(1), paragraph 33 above), and their actions before the domestic courts do not appear to be barred in any way by the time-limits set in section 3 of the Compensation Act (see paragraph 36 above; see further, for the corresponding provisions of the Code of Administrative Procedure, paragraph 67 above). Firstly, it appears that the domestic judgments in favour of Mr Shtolts and Mr Kotkov remain unenforced, and they are still entitled to lodge a claim under the amended Compensation Act (see paragraph 36 above). Secondly, in the three applications at hand – and this is especially important in the case of Ms Shumakova, where the domestic judgment was enforced in March 2016 – the applicants were in any event entitled until 1 July 2017 to benefit from the transitional provision of the Compensation Act as their applications had been lodged with the Court before its entry into force and the Court had not ruled on their admissibility (see section 6(2) of Federal Law no. 450-FZ, paragraph 41 above). The Court concludes that the new remedy was available to the applicants.

(β) Effectiveness of the remedy

104. As regards the effectiveness of the new remedy available to the applicants, in Nagovitsyn and Nalgiyev (cited above, § 29) the Court found as follows:

“[Ii]t is evident from the Compensation Act that when deciding compensation claims, domestic courts are required to apply the Convention criteria as established in the Court’s case-law […]. In particular, compensation is awarded in monetary form; its amount should be determined having regard to the applicant’s claims, the circumstances of the case, the length of the period during which the violation took place, the significance of its consequences for the applicant, the principles of reasonableness and fairness, and the Court’s case-law (section 2). Finally, compensation is awarded irrespective of the authorities’ fault (section 1(3) of the Compensation Act).”

105. The Court does not find any reason to depart from these findings. In fact, those provisions, contained in the initial Compensation Act and analysed in Nagovitsyn and Nalgiyev (cited above), now apply to cases of non-enforcement of domestic judgments ordering various obligations in kind to be performed (see paragraph 33 above).The Court is further satisfied that the criteria for the examination of the applications, as set out in sections 1(3) and 2(1) of the Act (see paragraphs 34 and 35 above) and clarified by the Supreme Court of Russia in March 2016 (see paragraphs 49‑51 above) appear analogous to those laid down in the Court’s case‑law.

106. The Court notes, however, the difference in the approach to the calculation of the starting date of the non-enforcement in the Court’s case‑law and the domestic law and practice. Indeed, while it has been a well-established practice for the Court to take the date of a judgment’s entry into force as the starting date for the purposes of calculating the enforcement delay (see, among many other authorities, Magomedov v. Russia, no. 20111/03, § 21, 4 December 2008), it transpires from the clarifications by the Supreme Court that the period of enforcement is to be calculated from either the date a claimant requests a court to issue and send a writ of execution to a debtor or the date the claimant submits the writ to the debtor (see paragraph 50 above). However, the Court is satisfied that delays in issuing a writ of execution and transferring it to a competent authority are to be taken into account by the domestic courts in their assessment of the authorities’ conduct in compensation proceedings (see paragraph 49 above). The Court further notes that the Supreme Court’s interpretation is consonant with the Court’s own position to the effect that, if the applicant for any reason obtains the writ of execution from the trial court him or herself and fails to resubmit it to the competent authority, the authorities cannot be held responsible for his or her subsequent unexplained failure to follow the domestic enforcement procedure (see Gadzhikhanov and Saukov v. Russia, nos. 10511/08 and 5866/09, § 22, 31 January 2012, with further references).

107. Further, turning to the Scordino criteria (cited in paragraph 92 above), the Court observes that the procedure for the examination of claims for compensation is set out, in particular, in the Code of Administrative Procedure, providing for the various safeguards available in adversarial judicial proceedings (see, for instance, paragraphs 60-61, 63 and 70 above). The Court does not have any reason to doubt that those rules conform to the principle of fairness guaranteed by Article 6 of the Convention.

108. The court fee for proceedings of this type is fixed at RUB 300 (approximately EUR 4, see paragraph 78 above). Therefore, the Court is satisfied that going back to the domestic courts would not constitute an excessive burden for the applicants in the present cases, or for other applicants in a similar position (see, mutatis mutandis, Balan, cited above).

109. Domestic law provides that a case must be heard within two months of introduction (see paragraph 69 above) and stipulates that a judgment in a compensation case is to be enforced within a three-month period (see paragraphs 38,53 and 73 in conjunction with paragraph 57 above). The Court notes that, in accordance with the relevant provisions of the Code of Administrative Procedure and the Budget Code, a court must automatically forward the writ of execution to the respondent authority, within one day of delivery of the judgment and irrespective of whether the claimant has made a request to that effect (see paragraphs 74 and 58 above), thus further reducing the delay to a bare minimum. At this point in time there is no reason to assume that the Russian courts will be unable to deal with such claims within a reasonable time, or that the compensation would not be paid promptly.

110. Finally, as regards the amount of compensation, it is also true that the Court does not have extensive material in its possession. It appears from a small number of isolated examples of the domestic decisions available to the Court, some of them apparently not yet final, that the amounts awarded by domestic courts are either comparable with the Court’s awards in similar cases or lower than such awards (see paragraphs 54-56 above; see further, for the summary of the Court’s approach to the assessment of the domestic compensatory awards in similar situations, paragraph 93 above). In any event, the Court emphasises that the object of the present decision is the potential effectiveness of the domestic remedy under the amended Compensation Act, and not the question of whether, in view of the sums awarded at the domestic level, the applicant has lost his or her victim status. This second type of assessment can be made, in every individual case, only after the relevant national remedy has been tried (see, mutatis mutandis,Bizjak v. Slovenia (dec.), no. 25516/12, § 43, 8 July 2014).

111. The Court accepts that the domestic courts have not yet been able to establish any stable practice under the amended Compensation Act since its entry into force one year ago. However, the Court has reiterated on several occasions (see paragraph 90 above) that doubts about the prospects of a remedy, which appears to offer a reasonable possibility of redress, are not a sufficient reason to eschew it.

112. In sum, at this point it appears that the Compensation Act as amended by Federal Law no. 450-FZ of 19 December 2016 in principle meets the criteria set out in the Gerasimov and Others pilot judgment.

113. However, the Court is prepared to change its approach as to the potential effectiveness of the remedy in question, should the practice of the domestic courts show, in the long run, that applicants are being refused on formalistic grounds, that compensation proceedings are excessively long, that compensation awards are insufficient or are not paid promptly, or that domestic case-law is not in compliance with the requirements of the Convention (see, mutatis mutandis, Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, §§ 179 et seq., 7 July 2015; Stella and Others, cited above, § 63; Atanasov and Apostolov, cited above, § 66; Bizjak,cited above, § 44; and Uzun v. Turkey (dec.), no. 10755/13, § 41, 30 April 2013, and the authorities cited therein). Any such future review will involve determining whether the national authorities have applied the amended Compensation Act in a manner that is in conformity with the pilot judgment and the Convention standards in general.

114. Furthermore, the Court is mindful that an issue may subsequently arise as to whether the new compensatory remedy would still be effective in a situation in which the defendant State authority persistently failed to honour the judgment debt notwithstanding a compensation award or even repeated awards made by the domestic courts under the Compensation Act (for the Supreme Court’s clarifications on the ability to bring several consecutive claims for compensation, see paragraph 47 above). Indeed, it appears that the domestic judgments in Shtolts and Kotkov have remained unenforced to date. For the time being, as in Nagovitsyn and Nalgiyev (cited above, § 35), the Court does not find it appropriate to anticipate such an event, nor to decide this issue in abstracto at the present stage. On the other hand, the Court emphasises that it is ready to reconsider its position, should subsequent applications reveal the authorities’ persistent failure to honour the initial domestic judgments for considerable periods of time, even after payment of the compensation for non-enforcement (see, mutatis mutandis, Gerasimov and Others, cited above, § 152). The Court will not lose sight of the more general context and, notably, of the respondent State’s compliance with its legal obligation under Article 46 to solve the underlying structural problems (see Gerasimov and Others, cited above, §§ 214-15 and 219-20), in particular, in so far as the issue of delayed enforcement of judgments awarding housing to groups of the population other than military servicemen is concerned (for the latest decision of the Committee of Ministers, see paragraph 84 above).

115. The Court notes in addition that under the Compensation Act, as well as in line with the clarifications by the Supreme Court of Russia, applicants can only claim compensation in respect of non-pecuniary damage, but not for pecuniary losses (see paragraph 43 above). However, this does not automatically call into question the remedial effectiveness of claims under the amended Compensation Act in so far as non-pecuniary damage resulting from lengthy non-enforcement is concerned. Furthermore, in the absence of any final domestic decision on the matter in the cases under consideration, and in the absence of any substantiating documents, or itemised information on losses actually sustained in the present three cases, the Court will not address the issue of compensation of pecuniary damage in abstracto.

(b) Application of an exception to the principle of exhaustion of the domestic remedies

116. The Court has found in paragraphs 105-12 above that the Compensation Act as amended by Federal Law no. 450-FZ of 19 December 2016 meets in principle the criteria set out in the Gerasimov and Others pilot judgment.

117. Consequently, the Court considers it justified to apply the exception to the rule of exhaustion of domestic remedies. As in Nagovitsyn and Nalgiyev, the Court finds that the continuation of the proceedings before the Court in the applicants’ cases and dozens of similar ones would be at odds with the principle of subsidiarity, which is paramount in the Convention system. The consideration of such cases mainly involves the establishment of basic facts and calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions. The Court reiterates that its task, as defined by Article 19, would not be best achieved by taking such cases to judgment in the place of domestic courts, let alone considering them in parallel with the domestic proceedings (see Nagovitsyn and Nalgiyev, cited above, § 40, and the case-law cited therein; as well as several other cases referred to in paragraph 91 above).

118. While the Court may exceptionally decide, for the sake of fairness and effectiveness, to conclude its proceedings by a judgment in certain cases of this kind, which remain on its list for a long time or have already reached an advanced stage of proceedings (see Nagovitsyn and Nalgiyev, cited above, § 41, with further references; see also, mutatis mutandis, Gerasimov and Others, cited above, § 230), it will require, as a matter of principle, that all new cases introduced after the pilot judgment and falling under the Compensation Act as amended by Federal Law no. 450-FZ of 19 December 2016 be brought in the first place before the domestic courts.

119. In sum, the Court finds that the applicants in the present three cases and all others in their position must use the remedy introduced by the amended Compensation Act.

120. The Court notes Mr Shtolts’ and Mr Kotkov’s submissions that they did not wish to bring an action under the amended Compensation Act. The Court further notes that Ms Shumakova did wish to apply to the domestic courts, but did not update the Court on the outcome of the proceedings. Accordingly, their non-enforcement complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.

121. This ruling is without prejudice to the applicants’ right to lodge a fresh application under Article 34 of the Convention if they are unable to obtain appropriate redress in domestic proceedings instituted under the Compensation Act as amended by Federal Law no. 450-FZ of 19 December 2016, within the period laid down in Article 35 § 1 of the Convention from the date on which the final domestic decision in the compensation proceedings was taken.

C. Other complaints raised by the applicants

122. The applicants further referred to Article 13 of the Convention, alleging that they had no effective remedy at their disposal in respect of their non-enforcement complaint. Article 13 reads as follows:

“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.”

123. The Court has already found that a claim for compensation under the Compensation Act as amended by Federal Law no. 450-FZ of 19 December 2016 would have provided the applicants with a potentially effective remedy for their non-enforcement complaint. That finding is valid also in the context of the complaint under Article 13 of the Convention.

124. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 22 February 2018.

Stephen Phillips Helena Jäderblom
Registrar President

_______________

APPENDIX

No.	Application no.	Lodged on	Applicant Date of birth Place of residence	Represented by
1.	77056/14	25/11/2014	Eduard Nikolayevich SHTOLTS 18/08/1971 Syktyvkar	Aleksey Leonidovich SHEVELEV
2.	17236/15	27/03/2015	Eduard Ivanovich KOTKOV 05/10/1980 Syktyvkar	Aleksey Leonidovich SHEVELEV
3.	14023/16	09/03/2016	Irina Valentinovna SHUMAKOVA 30/07/1975 Koporye, the Leningrad Region

[1]. Chapter 24 of the Code of Commercial Proceedings sets out rules for examination of cases concerning challenge of non-normative regulations/acts, decisions and actions or inaction of authorities.

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