AS TO THE ADMISSIBILITY OF
by Anatoliy Gavrilovich BOGATYREV
The European Court of Human Rights (First Section), sitting on 27 August 2009 as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 22 March 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Anatoliy Gavrilovich Bogatyrev, is a Russian national who was born in 1960 and lives in Novosibirsk-95, the Novosibirsk Region. The respondent Government were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a retired military serviceman.
By a final and binding judgment of 27 September 2001 the Military Section of the Supreme Court of the Russian Federation allowed the applicant’s challenge of his dismissal from military service and ordered the military unit to reinstate him in his previous position as of 15 September 1999 until the delivery of the housing certificate. The court also awarded him all the allowances due over the period of his dismissal without listing them.
In 2002 the applicant applied on several occasions for the writs of execution to the Garrison Military Court No. 61 of the Novosibirsk-95 (“the Garrison Court”) and the Supreme Court, but to no avail.
On 4 April 2002 the applicant was reinstated in his previous position. He had not received an officer’s identity document. In July-August 2002 he started to receive his salary, was provided with the housing certificate and granted annual leave for 2001-2002. On 16 December 2002 he received arrears for the period from 15 September 1999 to 20 June 2002 and was dismissed from the military service.
On 29 January 2003 the Garrison Court issued the writs of execution in respect of the judgment. It appears that in the meantime the respondent military unit submitted to the court documents evidencing payment of the allowances. On 16 April 2003 the Garrison Court revoked the writs from the bailiffs, since the judgment had been executed in full.
On 5 February 2003 the Military Court of the 3rd Circuit in the final instance rejected the applicant’s claim for damages resulting from the failure to issue him with an officer’s identity document as unsubstantiated.
B. Relevant domestic law
Under Article 205 § 2 of the Code of the Civil Procedure of the RSFSR (1964), in force at the material time, a court which delivered a judgment could, upon request by the parties to the case or of its own initiative, issue an additional decision, in case where the amount awarded had not been specified in the initial judgment. Under Article 206 of the Code, a court which delivered a judgment could, upon request by the parties to the case or the bailiff, issue clarifications of the judgment, without changing its substance. Similar provisions are contained in Articles 201 and 202 of the Code of the Civil Procedure of the Russian Federation (in force as of 1 February 2003).
Without referring to the Convention the applicant complained that the final judgment of the 27 September 2001 had not been fully enforced. In particular, he alleged that the allowances paid to him had been wrongly calculated, additional payments and one-time monetary awards not paid to him, the housing certificate had been unlawfully issued on him had and lost its value through the period of non-enforcement. He further complained that he had not been issued with an officer’s identity document.
1. The applicant complained, in substance, about non-enforcement of the judgment of 27 September 2001 in his favour and various deficiencies accompanying the enforcement procedure. The Court will examine the complaint under Article 6 of the Convention and Article 1 of Protocol No.1 which, in the relevant parts, read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
The Government claimed that the application had been lodged out of time, since the judgment in the applicant’s favour had been enforced in full on 16 December 2002, while he had only complained to the Court in 2004. The allowances and the housing certificate had been granted in accordance with the domestic law. The applicant’s allegations as to the deficiencies of the enforcement were unfounded. He could have raised these allegations and requested clarifications from the court which has issued a judgment in his favour, that is the Supreme Court of Russia, but had never done so. The complaint was incompatible ratione materiae, since the applicant had been a military serviceman, and, in any event, it was manifestly ill-founded, because the applicant had failed to apply for the writ in good time.
The applicant maintained his complaints.
The Court reiterates at the outset that as from 4 May 2009, the date on which the judgment in the case of Burdov v. Russia (no. 2) became final, it adjourned the adversarial proceedings on all applications lodged with the Court in which the applicants complained of non-enforcement or delayed enforcement of domestic judgments ordering monetary payments by State authorities pending the adoption of domestic remedial measures. However, the adjournment is without prejudice to the Court’s power at any moment to declare inadmissible any such case (see Burdov v. Russia (no. 2), no. 33509/04, § 146, 15 January 2009).
Turning to the present case, the Court does not find it necessary to examine the Government’s ratione materiae objection, as well as the parties’ arguments as regards delayed issuing of the writ of execution, since the complaint is in any event inadmissible for the following reasons.
The Court reiterates that in cases of non-enforcement six months run from the date of execution of the judgment (see Gorokhov and Rusyayev v. Russia, no. 38305/02, § 27, 17 March 2005). It is not disputed that by 16 December 2002 the applicant had obtained the housing certificate, received arrears and had been in receipt of the monthly payments. It remains to be ascertained whether on the latter date the judgment was enforced in full.
The Court reiterates in this respect that domestic authorities are better placed to assess the calculation of the applicant’s benefits, including the types and amounts of the allowances he was entitled to (see, mutatis mutandis, Sirotin v. Russia (dec.), no. 38712/03, 14 September 2006). In the absence of any evidence to the contrary, the Court accepts the Government’s argument that a request for clarification of the judgment of 27 September 2001 lodged with a competent domestic court, that is the Supreme Court of the Russian Federation, with a view to determining an exact scope of the judgment, would have offered more prospect of establishing the facts and throwing light on the conduct reasonably to be expected from the respondent military unit in executing the judgment. In the absence of such clarification, the Court lends credence to the Government’s submissions (see, mutatis mutandis, Sirotin, cited above; and Tikhov and Others v. Russia, no. 14296/03, § 25, 27 March 2008) and concludes that the judgment was fully executed on 16 December 2002. However, the applicant only lodged his application with the Court on 22 March 2004, that is more than six months from the enforcement date. It follows that the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant complained that he had not been issued with an officer’s identity document. The Court notes that the final judgment in the respective domestic proceedings was taken on 5 February 2003, that is more than six months before the date of the applicant’s complaint to the Court. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Nielsen Christos Rozakis