{"id":17604,"date":"2021-12-14T21:30:41","date_gmt":"2021-12-14T21:30:41","guid":{"rendered":"https:\/\/laweuro.com\/?p=17604"},"modified":"2021-12-14T21:30:41","modified_gmt":"2021-12-14T21:30:41","slug":"case-of-troitskaya-mirkovich-and-others-v-russia-european-court-of-human-rights-38874-05-and-3-others","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=17604","title":{"rendered":"CASE OF TROITSKAYA-MIRKOVICH AND OTHERS v. RUSSIA (European Court of Human Rights) 38874\/05 and 3 others"},"content":{"rendered":"

THIRD SECTION
\nCASE OF TROITSKAYA-MIRKOVICH AND OTHERS v. RUSSIA<\/strong>
\n(Applications nos. 38874\/05 and 3 others \u2013 see appended list)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n14 December 2021<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Troitskaya-Mirkovich and Others v. Russia,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n

Mar\u00eda El\u00f3segui, President,
\nDarian Pavli,
\nFr\u00e9d\u00e9ric Krenc, judges,
\nand Olga Chernishova, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the applications (nos.\u00a038874\/05, 27193\/07, 4726\/14, 54986\/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on various date by Russian nationals (\u201cthe applicants\u201d, a list of the applicants is set out in the appendix);<\/p>\n

the decision to give notice of the application to the Russian Government (\u201cthe Government\u201d), represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office;<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 23 November 2021,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n

1. The present cases concern the national authorities\u2019 alleged failure to provide the applicants with the necessary assistance in enforcement of the final judgments against private parties.<\/p>\n

2. On various dates the applicants had final judgments against private parties rendered by national courts in their favour to be enforced. They submitted the writs of execution for these decisions to the bailiffs\u2019 service and enforcement proceedings were initiated, which brough no or insufficient results. The applicants lodged civil actions against the bailiffs\u2019 service, seeking compensation for non-pecuniary damage by the lengthy non\u2011enforcement of the judgments. The particulars of the relevant domestic proceedings are presented in the appended table.<\/p>\n

3. The provisions of domestic law concerning execution of judgments were previously set out in the case Kunashko v. Russia (no. 36337\/03, \u00a7\u00a7\u00a027\u201130, 17 December 2009) and concerning compensation for damage caused by public authorities and their officials in the case Smagilov v.\u00a0Russia ((dec.), no. 24324\/05, \u00a7\u00a7 17-31, 13 November 2014).<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/p>\n

4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n

5. The applicants complained under Article 6 of the Convention that the national authorities had failed to assist them in the enforcement of the final judgments against private parties. In the relevant part that Article 6 reads as follows:<\/p>\n

\u201c1. In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …\u201d<\/p>\n

6. The Government contested that argument.<\/p>\n

A. Admissibility<\/strong><\/p>\n

7. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n

B. Merits<\/strong><\/p>\n

8. The Court notes that the applicable general principles are well\u2011established in the case-law. Notably, when final judgments are issued against \u201cprivate\u201d defendants, the State\u2019s positive obligation consists of providing a legal arsenal allowing individuals to obtain, from their evading debtors, payment of sums awarded by those judgments, however this positive obligation is not that of result, but one of means (see among many other authorities see\u00a0Scollo v. Italy, 28 September 1995, \u00a7 44, Series A no.\u00a0315\u2011C, Dachar v. France\u00a0(dec.), no.\u00a042338\/98, 6 June 2000, Fuklev v.\u00a0Ukraine, no.\u00a071186\/01, \u00a7 84, 7 June 2005). When it is established that the measures taken by the authorities were adequate and sufficient, the State cannot be held responsible for a failure by a \u201cprivate\u201d defendant to pay the judgment debt. Only when irregularities and defects attributable to the authorities had a deleterious effect on the enforcement proceedings in their entirety is the State\u2019s responsibility under Article 6 of the Convention engaged (see mutatis mutandis Kunashko,\u00a0cited above, \u00a7\u00a7 38-39).<\/p>\n

9. The Court, having carefully examined the applications listed in the appended table and having regard to its case-law, concludes that, in the light of aforementioned and the material in its possession, and in so far as the matters complained of are within it competence, the Russian authorities had failed to provide the applicants with requisite legal assistance in the enforcement of the judgments against private parties and the measures taken by the bailiffs\u2019 service had not been adequate and sufficient.<\/p>\n

10. There has accordingly been a violation of the applicants\u2019 rights under Article\u00a06 of the Convention.<\/p>\n

III. ALLEGED VIOLATION OF ARTICLE 1 of protocol No. 1<\/p>\n

11. The applicants complained that the authorities\u2019 failure to assist them in the enforcement of the judgments against private parties had resulted in violation of their rights under Article 1 of Protocol No. 1, which in the relevant part reads as follows:<\/p>\n

\u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions …\u201d<\/p>\n

12. The Government contested that argument.<\/p>\n

A. Admissibility<\/strong><\/p>\n

13. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n

B. Merits<\/strong><\/p>\n

14. The Court notes that it well-established that when a case concerns enforcement of a final judgment and the debtor is a private party the State cannot be expected to take on the debts of a private party, which having become insolvent or having encountered financial problems is no longer able to pay off the debts (see, for example, Bobrova v. Russia, no.\u00a024654\/03, \u00a7 16, 17 November 2005). Each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it. The Court\u2019s sole task in cases like the present one is to consider whether the measures taken by the authorities were adequate and effective (see P\u0103duraru v. Romania, no. 63252\/00, \u00a7 93, ECHR\u00a02005\u2011XII (extracts), with further references). In this context the State\u2019s duties under Article 6 of the Convention and Article 1 of Protocol\u00a0No. 1 overlap. However, under the Court\u2019s case-law, in order to find a violation of Article 1 of Protocol No. 1 in such cases it is necessary for the unfairness established under Article\u00a06 of the Convention to have a \u201cdirect impact\u201d on the applicant\u2019s property rights (see Zagreba\u010dka banka\u00a0d.d. v.\u00a0Croatia, no.\u00a039544\/05, \u00a7\u00a7\u00a0269\u201170, 12\u00a0December 2013, with further references).<\/p>\n

15. An applicant would first have to demonstrate that he had lost a chance of receiving the award, or a certain part of it, and then that the loss could be ascribed, solely or largely, to the impugned act, having the above\u2011mentioned \u201cdirect impact\u201d (see Krivonogova v. Russia (dec.), no.\u00a074694\/01, 1 April 2004). Accordingly, if there remains a prospect of enforcement of a judgment, it would in principle be unwarranted to conclude that there has been a violation of Article 1 of Protocol No. 1<\/p>\n

16. The Court, having carefully examined the applications and having regard to its case-law and the materials in its possession, finds that there are no grounds to establish that the authorities\u2019 actions had a \u201cdirect impact\u201d on the enforcement proceedings, which could preclude enforcement of the judgments in these applicants\u2019 favour.<\/p>\n

17. There has accordingly been no violation of the applicants\u2019 right under Article\u00a01 of Protocol No. 1 that provision.<\/p>\n

IV. REMAINING COMPLAINTS<\/p>\n

18. The applicants in cases Sablina v. Russia (no. 4726\/14) and Ivanyuk v. Russia (no.\u00a054986\/15) also lodged an accessory complaint under Article\u00a013 of the Convention. However, having regard to all the available material, the submissions of the parties and its findings under Article 6 of the Convention and Article 1 of Protocol No. 1, the Court finds that this complaint is manifestly ill-founded and must be declared inadmissible under Article 35 \u00a7\u00a03 (a) of the Convention.<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

19. The applicants claimed various amounts in respect of pecuniary and non-pecuniary damages as well as costs and expenses.<\/p>\n

20. The Government considered the claims to be unsubstantiated and indicated that the awards should be made in line with the Court\u2019s established practice.<\/p>\n

21. The Court, having regard to its practice, the nature of the established violations of the applicants\u2019 rights, and acting on an equitable basis, awards the applicants the amounts indicated in the appended table.<\/p>\n

22. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Declares the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 admissible and the complaint under Article 13 of the Convention inadmissible;<\/p>\n

3. Holds that there has been a violation of Article 6 of the Convention in all of the present applications;<\/p>\n

4. Holds that there has been no violation of Article 1 of Protocol No. 1 in all of the present applications;<\/p>\n

5. Holds<\/p>\n

(a) that in respect of costs and expenses paid by Ms Sablina (app.\u00a0no.\u00a04726\/14) and in respect of non-pecuniary damage sustained by all the applicants the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated below at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

6. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 14 December 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Olga Chernishova \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Mar\u00eda El\u00f3segui
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

__________<\/p>\n

APPENDIX<\/strong><\/p>\n

List of applications raising complaints under Article 6 \u00a7 1 and Article 1 of the Protocol No. 1<\/p>\n

(non-enforcement or delayed enforcement of domestic judgments against private parties)<\/p>\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication<\/strong><\/p>\n

no.<\/strong><\/td>\n

Applicant name<\/strong><\/p>\n

Year of birth<\/strong><\/p>\n

Place of residence<\/strong><\/p>\n

Nationality<\/strong><\/p>\n

Represented by <\/strong><\/td>\n

Domestic judgment in applicant\u2019s favour (court, date, award)<\/strong><\/p>\n

\u00a0<\/strong>Article 1069 proceedings (final decision \u2013 court, date, award\/reason to refuse)<\/strong><\/td>\n

Grounds for the Court\u2019s finding<\/strong>\u00a0<\/strong><\/td>\nJust satisfaction award<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1<\/td>\n38874\/05<\/td>\nOlga Serafimovna TROITSKAYA-MIRKOVICH<\/strong><\/p>\n

1952<\/p>\n

Dolgoprudniy, Moscow Region<\/p>\n

Russian<\/p>\n

 <\/td>\n

National award<\/strong><\/p>\n

Dmitrov Town Court<\/p>\n

05\/11\/2001<\/p>\n

RUB\u00a0171 519,52<\/p>\n

entered into force: 06\/05\/2002<\/p>\n

Article 1069<\/strong><\/p>\n

None<\/p>\n

Unlawful omission recognised:<\/p>\n

Babushkinskiy District Court of Moscow<\/p>\n

14\/06\/2007<\/td>\n

Article 6 \u2013 the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by losing the case file and substituting the debtor with his heirs only six years after his death.<\/p>\n

Article 1 of Protocol No. 1 \u2013 the actions of the authorities\u2019 had no \u201cdirect impact\u201d on the enforcement proceedings, the judgment was fully enforced.<\/td>\n

EUR 1,000 non-pecuniary damage<\/td>\n<\/tr>\n
2<\/td>\n27193\/07<\/td>\nIvan Stepanovich<\/p>\n

REVES<\/strong><\/p>\n

1924<\/p>\n

Moscow<\/p>\n

Russian<\/p>\n

 <\/td>\n

National award<\/strong><\/p>\n

Presnenskiy District Court of Moscow<\/p>\n

10\/04\/2002<\/p>\n

RUB\u00a0592,500<\/p>\n

Article 1069<\/strong><\/p>\n

Declined<\/p>\n

Moscow City Court<\/p>\n

18\/04\/2006<\/p>\n

(final)<\/p>\n

No evidence of damages<\/td>\n

Article 6 \u2013 the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by losing twice the case file.<\/p>\n

Article 1 of Protocol No. 1 \u2013<\/p>\n

the actions of the authorities\u2019 had no \u201cdirect impact\u201d on the enforcement proceedings, which could preclude further enforcement of the judgment. The applicant maintains a possibility to have the judgment in her favour enforced.<\/td>\n

EUR 1,000 non-pecuniary damage<\/td>\n<\/tr>\n
3<\/td>\n4726\/14<\/td>\nValentina Fedorovna SABLINA<\/strong><\/p>\n

1946<\/p>\n

Saratov<\/p>\n

Russian<\/p>\n

Oleg Olegovich ANISHCHIK<\/p>\n

 <\/td>\n

National award<\/strong><\/p>\n

Leninskiy District Court of Saratov<\/p>\n

09\/12\/1999<\/p>\n

RUB 98 168,86<\/p>\n

Leninskiy District Court of Saratov<\/p>\n

13\/02\/2003<\/p>\n

RUB 63 278,00<\/p>\n

Leninskiy District Court of Saratov<\/p>\n

05\/05\/2015<\/p>\n

indexation of the sums awarded under the two judgments<\/p>\n

Article 1069<\/strong><\/p>\n

Compensation proceedings:<\/p>\n

Frunzenskiy District Court of Saratov<\/p>\n

27\/02\/2013<\/p>\n

RUB\u00a015,000<\/p>\n

Unlawful omission recognized:<\/p>\n

Leninskiy District Court of Saratov<\/p>\n

15\/08\/2012<\/td>\n

Article 6 \u2013 the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by losing twice the case file.<\/p>\n

Article 1 of Protocol No. 1 \u2013 the actions of the authorities\u2019 had no \u201cdirect impact\u201d on the enforcement proceedings, the judgments were fully enforced.<\/p>\n

Art. 13 \u2013 manifestly ill-founded, since the applicant clearly used the relevant domestic remedy and even obtained compensation. The applicant\u2019s discontent with the outcome of proceedings does not demonstrate ineffectiveness of a remedy as such.<\/p>\n

 <\/td>\n

EUR 1,000 non-pecuniary damage<\/p>\n

EUR 600 in respect of costs and expenses<\/td>\n<\/tr>\n

4<\/td>\n54986\/15<\/td>\nYuriy Lvovich<\/p>\n

IVANYUK<\/strong><\/p>\n

1960<\/p>\n

Snezhinsk, Chelyabinsk Region<\/p>\n

Russian<\/td>\n

National award<\/strong><\/p>\n

Kurchatovskiy District Court of Chelyabinsk<\/p>\n

27.02.02 (came into force on 29.04.02)<\/p>\n

RUB\u00a0225,861<\/p>\n

Kurchatovskiy District Court of Chelyabinsk<\/p>\n

24.02.04 (came into force on 09.03.04)<\/p>\n

RUB 220,695<\/p>\n

Kurchatovskiy District Court of Chelyabinsk<\/p>\n

12.05.04 (came into force on 25.05.04)<\/p>\n

RUB 81,982<\/p>\n

Kurchatovskiy District Court of Chelyabinsk<\/p>\n

30.03.05 (came into force on 19.04.05)<\/p>\n

RUB 141,188<\/p>\n

Kurchatovskiy District Court of Chelyabinsk<\/p>\n

09.03.07 (came into force on 20.03.07)<\/p>\n

RUB 114,111<\/p>\n

Article 1069<\/strong><\/p>\n

Compensation proceedings:<\/p>\n

Leninskiy District Court of Chelyabinsk<\/p>\n

07.07.14 (final decision \u2013 Supreme Court, 05.06.15)<\/p>\n

RUB 20,000<\/p>\n

Unlawful omission recognised:<\/p>\n

Kurchatovskiy District Court of Chelyabinsk<\/p>\n

14\/06\/2007<\/p>\n

Kurchatovskiy District Court of Chelyabinsk<\/p>\n

12\/04\/2011<\/td>\n

Article 6 \u2013 the State authorities failed to provide requisite assistance to the applicant in the enforcement, notably by letting the debtor\u2019s spouse to acquire a vast amount of property.<\/p>\n

Article 1 of Protocol No. 1 \u2013 the actions of the authorities\u2019 had no \u201cdirect impact\u201d on the enforcement proceedings, the judgments were fully enforced.<\/p>\n

Art. 13 \u2013 manifestly ill-founded, since the applicant clearly used the relevant domestic remedy and even obtained compensation. The applicant\u2019s discontent with the outcome of proceedings does not demonstrate ineffectiveness of a remedy as such.<\/p>\n

 <\/td>\n

EUR 7,700 non-pecuniary damage<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n