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VASILCHENKO v. RUSSIA - 34784/02 [2010] ECHR 1329 (23 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1329.html
Cite as:
[2010] ECHR 1329
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FIRST
SECTION
CASE OF VASILCHENKO v. RUSSIA
(Application
no. 34784/02)
JUDGMENT
STRASBOURG
23
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vasilchenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34784/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Petr Ivanovich
Vasilchenko (“the applicant”), on 6 September 2002.
The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, Representative of the Russian Federation
at the European Court of Human Rights, and then by their
Representative Ms V. Milinchuk.
On
14 November 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1959 and lives in Rostov-on-Don.
A. Court proceedings concerning reinstatement
The
applicant is a Russian Army colonel.
In
September 1998 he was removed from his post.
On
2 October 1998 the applicant brought proceedings against his
commanding officer claiming reinstatement, payment of salary and
service-related benefits, and compensation of non-pecuniary damage
sustained as a result of his removal.
On
26 October 1998 the Military Court of Rostov Garrison (“the
Garrison Court”) dismissed his claims; the judgment was upheld
on appeal.
In
January 1999 a military disciplinary commission issued an appraisal
report in respect of the applicant. The commission found that the
applicant’s performance was unsatisfactory. On this basis in
March 1999 he was transferred from active military service to the
reserve.
On
20 April 1999 the applicant challenged the transfer in court, but to
no avail. On 10 November 1999 the Garrison Court dismissed his claim;
the judgment was upheld on appeal.
On
27 April 2001 president of the Military Chamber of the Supreme Court
of Russia granted the applicant’s application for supervisory
review and brought an extraordinary appeal against the above court
decisions.
On
22 May 2001 the Military Chamber of the Supreme Court quashed the
impugned decisions and remitted the cases for fresh examination.
On
an unspecified date the Garrison Court joined the above cases.
B. Judgments ordering reinstatement and payment of
damages
On
21 January 2002 the Garrison Court granted the applicant’s
claims in part. It quashed the respective decisions of the
applicant’s superior officers and the appraisal report,
reinstated him in his former post and awarded him non-pecuniary
damages in the amount of 1,000 Russian roubles (RUB), to be recovered
from the Ministry of Defence, and RUB 500 to be recovered from the
Chief of the Headquarters of the North-Caucasus Military Command. The
claims for pecuniary damages were rejected.
On
8 May 2002 the appeal court set aside the judgment in the part
concerning rejection of the claims for pecuniary damages and required
a new hearing. The remainder of the judgment was upheld.
On
27 September 2002 the Garrison Court issued a writ of execution in
respect of the part of the judgment that had entered into force and
forwarded it to the bailiff service of the Oktyabrskiy District of
Rostov on Don.
On
30 January 2003 the applicant was reinstated in his post. The damages
in the amount of RUB 1,500 awarded by the judgment of 21 January
2002 remained unpaid.
On
19 June 2003 the Garrison Court granted the applicant’s claims
in part, awarding him RUB 650,510. However, on 11 February 2004 the
appeal court overturned this judgment on procedural grounds and
ordered the case for re-examination.
On
8 April 2004 the Garrison Court granted most of the applicant’s
claims. The court awarded him RUB 776,247 covering his salary, legal
expenses and various service-related benefits due for the period of
his necessary absence from work, in particular, compensation for
clothing, food ration, sanatoria treatment and a lump-sum premium for
1997.
The
court also found that the applicant’s reinstatement ordered by
the judgment of 21 January 2002 had been carried out with a
significant delay, and that the applicant had not received RUB 1,500
awarded by the court in compensation of non-pecuniary damage. The
applicant was awarded RUB 5,000 as compensation for the delayed
enforcement.
This
judgment was upheld on appeal by the Military Court of North Caucasus
Command on 4 August 2004.
C. Execution of the judgments
On
9 April 2004 the applicant received RUB 1,000 due to him under the
decision of 21 January 2002. The award of RUB 500 remained unpaid.
On
30 August and 1 November 2004 the applicant received the amounts
awarded to him by the court judgment of 8 April 2004.
The
applicant brought proceedings claiming index-linking of the amounts
paid to him with a delay.
On
28 January 2005 the Garrison Court granted his claims in part,
awarding him RUB 2,750 as inflation losses resulted from the delay in
the enforcement of the judgments of 21 January 2002 and 8 April 2004.
However, without giving any specific reasons the court rejected the
applicant’s claim in the part concerning the failure to pay him
RUB 500.
On
25 May 2005 the Military Court of North Caucasus Command upheld the
judgment on appeal.
On
19 July 2005 the applicant received the amount awarded to him by the
judgment of 28 January 2005. It appears that the applicant has not
received the award of RUB 500 to date.
II. RELEVANT DOMESTIC LAW
Federal
Law № 68-ФЗ of 30 April
2010 (in force as of 4 May 2010) provides that in case of a violation
of the right to trial within a reasonable time or of the right to
enforcement of a final judgment, the Russian citizens are entitled to
seek compensation of the non-pecuniary damage. Federal Law №
69-ФЗ adopted on the
same day introduced the pertinent changes in the Russian legislation.
Section
6.2 of the Federal Law № 68-ФЗ
provides that everyone who has a pending application before the
European Court of Human Rights concerning a complaint of the nature
described in the law has six months to bring the complaint to the
domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF EXCESSIVELY LONG PROCEEDINGS
The
applicant complained that the courts had taken too long to examine
his case and thus breached the “reasonable time”
requirement as provided in Article 6 § 1 of the Convention. The
relevant part of the provision reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
The
Government argued that Article 6 did not apply to the present case
referring to the Court’s previous findings in Pellegrin v.
France ([GC], no. 28541/95, §§ 65-67, ECHR 1999-VIII).
In particular, they noted that the applicant had been a public
servant and his case had concerned a dispute between the
administrative authorities and an employee who had occupied a post
involving participation in the exercise of powers conferred by public
law.
The
applicant contested that argument.
The
Court notes firstly that until 30 January 2003, when the applicant de
facto returned to his job, he was not an active military officer
and his dispute concerned reinstatement in the job and various
damages.
The Court further observes that indeed until a certain
point in its practice employment disputes between the State and its
military personnel were not, as a rule, regarded as “civil”
within the meaning of Article 6 § 1 of the Convention, and thus
fell outside of the Court’s competence ratione materiae (see
Pellegrin v. France, cited above; see also Kanayev
v. Russia, no. 43726/02, § 16, 27 July 2006).
However, in its later judgment Vilho Eskelinen
and Others v. Finland ([GC], no. 63235/00, § 62, ECHR
2007 IV) the Grand Chamber developed the existing case-law
applying new criteria of applicability of Article 6 to such disputes.
In particular, it decided that Article 6 under its “civil”
head should be applicable to all disputes involving civil servants,
unless the national law expressly excludes access to a court for the
post of category of staff in question, and this exclusion is
justified on objective grounds in the State’s interest.
Turning
to the present case, the Court notes that the applicant’s
claims were accepted, examined, and partially granted by the domestic
courts following ordinary rules of civil procedure. It is true that
his case was examined by military courts, i.e. the courts composed of
military personnel and attached not to a particular administrative
territorial unit but to a garrison. However, nothing suggests that
the military courts are not “tribunals” within the
meaning of Article 6. Therefore, the applicant was not excluded by
the domestic law from the “access to a court” within the
meaning of Article 6 (see Pridatchenko and Others v. Russia,
nos. 2191/03, 3104/03, 16094/03 and 24486/03, § 47, 21 June
2007).
Having
regard to the above, the Court considers Article 6 to be applicable
to the present case. It further notes that the complaint is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The
Government objected to the applicant’s complaint. In
particular, they stated that his case had been rather legally complex
and involved examination of numerous documents and witnesses.
Furthermore, the applicant had contributed greatly to the length by
lodging ill-founded motions and challenges. In addition, they
suggested that the length of the court’s examination of the
applicant’s case be calculated from 2 October 1998, when the
applicant had lodged his first claim to the courts, to 1 November
2004, when the applicant had received the last payment under the
court’s judgments.
The
applicant maintained his complaint. He further argued that the length
of the court’s examination of his case should be calculated
from 2 October 1998 to the present time as the award of RUB 500
in compensation of non-pecuniary damage remained unenforced.
The
Court recalls that the applicant’s claims that were decided in
a judgment of 26 October 1998 and those that were decided in a
judgment of 10 November 1999 were unrelated to each other. The two
sets of claims were joined by the Garrison Court after supervisory
review of the previous court decisions (see para. 13 above). In view
of this situation the Court considers it necessary to calculate the
total length separately for each set of claims. Accordingly, the
Court observes that the first set of proceedings lasted from 2
October 1998 to 4 August 2004, with exception of the period from 7
December 1998 to 22 May 2001 when the case was subject to supervisory
examination and not pending. Thus, the total length of examination of
this case approximately amounts to three years and four months. The
second set of proceedings lasted from 20 April 1999 to 4 August
2004, with exception of the period from 20 January 2000 to 22 May
2001. The total length for this case amounts approximately to three
years and eleven months. In both cases the claims were examined four
times at two levels of jurisdiction.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
Turning
to the present case, the Court notes that the issues decided by the
courts did not seem particularly complex and that this being a labour
dispute, it required a particular diligence and expedition on the
part of the authorities. It further observes that the parties have
provided minimal information as to their behaviour in the
proceedings. Thus, the information provided does not allow the Court
to detect any substantial periods of the courts’ inactivity.
Regard
being had to the overall diligence displayed by the authorities and
the levels of jurisdiction involved, the Court considers that the
“reasonable time” requirement was not breached in the
present case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL No. 1 OF THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT
The
applicant also complained that the continuing failure to enforce the
judgment of 21 January 2002 in the part concerning payment of RUB 500
and the delayed enforcement of the remainder of the judgment of the
same date and the judgment of 8 April 2004 breached his rights
guaranteed by Article 6 § 1 and Article 1 of Protocol No. 1 of
the Convention. The relevant provisions read as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
“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 preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
Admissibility
The
Government raised the argument concerning inapplicability of Article
6 to the present case taken as a whole that has been dealt with above
(see para. 36 above). The Court therefore rejects this argument.
In
respect of the applicant’s complaint of the delayed enforcement
of the part of the judgment of 21 January 2002, the Court recalls
that the applicant was reinstated in his job on 30 January 2003 and
received RUB 1,000 in compensation of non-pecuniary damage on 9
April 2004. The Court further recalls that the applicant received
lump-sum compensation for the delayed enforcement of the judgment in
the amount of RUB 5,000 on 8 April 2004 and in the amount of RUB
2,750 on 28 January 2005.
With
regard to the above, the Court finds that the part of the judgment
concerning reinstatement in the job was enforced within a reasonable
time. Thus, this part of the applicant’s complaint should be
rejected as being manifestly ill-founded in accordance with Article
35 §§ 3 and 4 of the Convention (see Presnyakov v.
Russia (dec.), no. 41145/02, 10 November 2005). It further
considers that the authorities acknowledged and appropriately
redressed the delayed payment of RUB 1,000. The Court is therefore of
the opinion that the applicant has lost his victim status as to this
part of his complaint, which should be rejected in accordance with
Article 34 of the Convention.
Regarding
the applicant’s complaint of delayed enforcement of the
judgment of 8 April 2004, the Court recalls that the applicant
received the due amounts in two instalments on 30 August and 1
November 2004. The Court considers that the delay in the enforcement
of the award did not breach the standards laid down in its case-law
(ibidem). The complaint therefore should be rejected as being
manifestly ill-founded in accordance with Article 35 §§ 3
and 4 of the Convention.
Turning
to the complaint concerning the continuing failure to enforce the
award of RUB 500, the Court observes that the applicant received
lump-sum compensation in the amount of RUB 5,000 for the delayed
enforcement of the award of 21 January 2002. Considering the total
amount of compensation received at the domestic level and the minor
nature of the award roughly equal to 12 euros, the Court arrives at
the conclusion that the applicant did not suffer significant
disadvantage as a result of the authorities’ failure to enforce
the award. The Court further observes that the systemic problem of
non-enforcement in Russia has been addressed on numerous occasions
both in its own judgments and in the decisions of the Committee of
Ministers and concludes that respect for human rights, as defined in
the Convention and the Protocols thereto, does not require
examination of the present complaint on its merits. Finally, it
observes that the applicant’s case was duly considered by a
domestic tribunal in the meaning of Article 35 § 3 (b) as
evidenced in the judgments of 8 April 2004 and 28 January 2005. In
view of the foregoing, this complaint should be rejected as
inadmissible in accordance with Article 35 § 3 (b), as amended
by Protocol 14 (see Korolev v. Russia (dec), no. 25551/05, 1
July 2010).
Accordingly,
the Court rejects all the complaints under this head as inadmissible.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION ON
ACCOUNT OF UNREASONABLE LENGTH OF PROCEEDINGS AND NON-ENFORCEMENT
The
applicant further complained that he had not had an effective remedy
against the allegedly unreasonable length of the proceedings in his
case and non-enforcement of the judgments in his favour. He relied on
Article 13 of the Convention, which 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.”
A. Admissibility
The
Government submitted that the complaint was manifestly ill-founded
and requested to reject it in accordance with Article 35 §§
3 and 4 of the Convention.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court notes firstly that the complaint under Article 13 in respect of
non-enforcement cannot be considered as arguable in absence of an
arguable claim under the substantive provision (see para. 49 above).
On the contrary, it considers the complaint under Article 13 in
respect of the length of the proceedings arguable, even though it did
not discern a violation of the applicant’s right to a trial
within reasonable time above.
The
Court takes cognisance of the existence of a new remedy introduced by
the federal laws № 68-ФЗ
and № 69-ФЗ in the
wake of the pilot judgment adopted in the case of Burdov v. Russia
(no. 2) (no. 33509/04, ECHR
2009 ...). These statutes, which entered into force on 4 May
2010, set up a new remedy which enables those concerned to seek
compensation for the damage sustained as a result of unreasonable
length of the proceedings (see para. 28 above).
The
Court observes that in the present case the parties’
observations in respect of Article 13 arrived before 4 May 2010 and
did not contain any references to the new legislative development.
However, it accepts that as of 4 May 2010 the applicant has had a
right to use the new remedy (see paragraph 29 above).
The
Court recalls that in the pilot judgment cited above it stated that
it would be unfair to request the applicants, whose cases had already
been pending for many years in the domestic system and who have come
to seek relief at the Court, to bring again their claims before
domestic tribunals (Burdov (no. 2), cited above, §
144). In line with this principle, the Court decided to examine the
present application on its merits and found no violation of the
substantive provision of the Convention.
However,
the fact of examination of the present case on its merits should in
no way be interpreted as prejudging the Court’s assessment on
the quality of the new remedy. It will examine this question in other
cases more suitable for this analysis. It does not consider the
present case as such, particularly in view of the fact that the
parties’ observations were made with account of the situation
that had existed before the introduction of the new remedy.
Having
regard to these special circumstances, the Court does not consider it
necessary to continue a separate examination of the complaint under
Article 13 in the present case.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Referring
to Articles 1, 6, 13, 14 and 17 of the Convention the applicant
further complained about the outcome of the proceedings in his case
and certain irregularities that had allegedly occurred during the
examination of the case.
Having
regard to all the materials in its possession, and in so far as these
complaints fall within its competence, the Court finds that there is
no appearance of a violation of the rights and freedoms set out in
these provisions in that respect. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 1, 3 and 4 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning unreasonable
length of proceedings and the lack of an effective remedy admissible
and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention on account of the unreasonable
length of the proceedings;
Holds that there is no need for separate
examination of the complaint under Article 13 of the Convention.
Done in English, and notified in writing on 23 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
