European Court of Human Rights

 

 

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF TITOV v. RUSSIA

 

(Application no. 35254/04)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

17 October 2017

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Titov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 26 September 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 35254/04) 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 Ukrainian national, Mr Viktor Anatolyevich Titov (“the applicant”), on 10 September 2004.

2.  The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 1 July 2010 the application was communicated to the Government. In accordance with the pilot judgment Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009), the application was adjourned pending its resolution at the domestic level. On the same date the Ukrainian Government were informed of the application and its adjournment under the pilot procedure. The Russian Government refused to settle the case, referring, in particular, to the applicant’s failure to exhaust the domestic remedies.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1946 and lives in Lisichansk-18, the Lugansk region of Ukraine.

5.  In 1972 the applicant suffered 100 per cent disability as a result of a traffic accident. In 1994 the Lisichansk Town Court of the Lugansk Region of Ukraine found the State Health Care Institution of the Sanitary and Epidemiology Monitoring of the Ministry of Railways of the Russian Federation (“the institution”) responsible for the accident and ordered it to pay to the applicant compensation and to reimburse his medical expenses. Since that time, the applicant has been involved in several sets of proceedings concerning various types of allowances and compensation due to him.

A.  Judgment by the Ukrainian court and its execution in Russia

6.  On 17 July 1995 by the Lisichansk Town Court ordered the increase of the monthly payments due to the applicant in respect of compensation, allowances and medical expenses. It appears that the debtor institution complied with the judgment in part and in May 2000 discontinued payments due under the judgment.

7.  On 31 March 2006 the Perm Regional Court of Russia allowed the applicant’s request for compulsory execution of the above judgment in Russia as from May 2000. It was enforced on 30 March 2007.

B.  Proceedings in Russian courts

8.  The applicant sued the defendant institution for medical expenses, various types of allowances and compensation, as well as index-linking and arrears in the respective payments, and acquired several judgments by Russian courts in his favour listed in Appendixes I and II.

9.  In course of the proceedings the defendant institution was replaced by the Federal Health Care Institution “Hygiene and Epidemiology Center of the Perm Region and the Komi-Perm Autonomous Region” and subsequently by Federal Health Care Institution “Hygiene and Epidemiology Center of the Perm Region”, its legal successors.

10.  He complained about non-enforcement to the Ministry of Finance, the prosecutor’s office and various other authorities, but to no avail.

11.  The judgments were enforced fully or in part on dates listed in Appendixes I and II. Some of them have not been enforced, as shown in the tables below.

II.  RELEVANT DOMESTIC LAW

12.  Federal Law № 68-FZ 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-FZ adopted on the same day introduced the pertinent changes in the Russian legislation.

13.  Section 6.2 of the Federal Law № 68-FZ 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 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT OF DOMESTIC JUDGMENTS LISTED IN APPENDIX I

14.  The applicant complained about non-enforcement of the judgments listed in Appendix I. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 thereto, which read, in the relevant parts, as follows:

Article 6 § 1

“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 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.”

15.  The Government submitted that the complaint in respect of the judgments of 17 July 1995 and 28 January 1998 was incompatible ratione temporis. They further claimed that the applicant had not lodged a claim for compensation under the Compensation Act, and therefore failed to exhaust the domestic remedies available to him after the adoption of the pilot judgement Burdov (no. 2) (cited above).

16.  The applicant maintained his complaint.

A.  Admissibility

17.  As regards the ratione temporis objection, the Court reiterates that it is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 5 May 1998, the date of ratification of the Convention by the Russian Federation. It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date. The Court notes that the above judgments remained unenforced on the date of introduction of the complaint concerning non-enforcement to the Court (see Appendix I below). The period after 5 May 1998 therefore falls within the scope of the Court’s jurisdiction ratione temporis (see Grigoryev and Kakaurova v. Russia, no. 13820/04, § 26, 12 April 2007, and Finkov v. Russia, no. 27440/03, § 69, 8 October 2009).

18.  As regards the applicant’s alleged failure to make use of the domestic remedy introduced in response to the Burdov (no. 2) pilot judgment, the Court reiterates its position that it would be unfair to request the applicants whose cases have 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 (see, mutatis mutandis, Burdov (no. 2), cited above, § 144). In line with this principle, the Court decides to proceed with the examination of the present case (see, for similar reasoning, Kazmin v. Russia, no. 42538/02, §§ 69-71, 13 January 2011) and, accordingly, dismisses the non-exhaustion objection.

19.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

20.  The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III).

21.  The Court observes that, despite the applicant’s efforts to obtain execution of the judicial awards in his favour listed in Appendix I, they remained inoperative for the periods of time ranging from one to more than seven years. Moreover, in the absence of the Government’s comments, the Court accepts the applicant’s submissions that domestic judicial decisions referred to in lines 16 and 17 of the Appendix I have remained unenforced to date. Such delays are prima facie incompatible with the Convention requirements (see, among others, Kozodoyev and Others v. Russia, nos. 2701/04 and 4 others, § 11, 15 January 2009).

22.  The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, among many others, Burdov (no. 2), cited above, §§ 62 et seq.; Gizzatova v. Russia, no. 5124/03, §§ 19 et seq., 13 January 2005; and Wasserman v. Russia, no. 15021/02, §§ 35 et seq., 18 November 2004).

23.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for years to comply with numerous enforceable judgments in the applicant’s favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving the money he could reasonably have expected to receive. There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of non-enforcement of the judgments listed in Appendix I to the present judgment.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24.  The applicant complained in his observations dated 21 March 2011 about non-enforcement of two more domestic judgments issued on 26 June 2009 in his favour (nos. 2-258/09 and 2-241/09), as well as the refusal to index-link unnamed court awards made after 2010. He further complained, without providing dates or copies of the final domestic decisions, about the prosecutor’s participation in the first-instance civil proceedings of 27 December 2010 and the subsequent appeal proceedings. As in several previous cases, the Court does not find it appropriate to examine any new matters raised by the applicant after communication of the application to the Government, as long as they do not constitute an elaboration upon the applicant’s original complaints to the Court (see Yefimova v. Russia, no. 39786/09, § 177, 19 February 2013, with further references). Given that no complaints in connection with those proceedings were raised before the communication of the application, and having regard to the decision to examine its merits at the same time as its admissibility, the Court considers that the scope of the present case is limited to the facts as they stood at the time of the communication. However, the applicant has the opportunity to lodge new applications in respect of any other complaints relating to the subsequent events (see Rafig Aliyev v. Azerbaijan, no. 45875/06, § 70, 6 December 2011).

25.  The applicant complained about delayed enforcement of the judgments listed in Appendix II. Having regard to its well-established case-law (see, among others, Belkin and Others v. Russia (dec.), nos. 14330/07 and 15 others, 5 February 2009), the Court considers that in none of those cases the delay of enforcement exceeded one year, which is compatible with the requirements of the Convention.

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

27.  Lastly, the applicant complained, notably, under Article 6 of the Convention about unfairness of the domestic proceedings which ended with the first-instance judgment of 27 November 2006; length of the civil proceedings which started on 15 January 2002 and ended on 28 January 2005; and about the refusal to index-link judicial awards dated 26 November 2006, 27 March and 11 June 2008 and enforced within one year each. He further referred to Articles 13 and 14 in connection with his non-enforcement complaint.

28.  Having regard to all the material in its possession, and in so far as this complaint falls within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

30.  The applicant claimed 115,000 euros (EUR) in respect of non-pecuniary damage. The Government contested claim as excessive and unsubstantiated.

31.  Taking into account all circumstances of the case, and having particular regard to the nature of the domestic awards (disability payments), as well as a number of the domestic judgments in the applicant’s favour, the Court awards the applicant EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the claims under this head.

B.  Costs and expenses

32.  The applicant also claimed 267,47 Ukrainian hryvnias for postal expenses.

33.  The Government pointed out that the claim could be granted in so far as it was supported by relevant documents.

34.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to grant the claim in hull and to award the sum of EUR 23, that is the equivalent in euros of the amount claimed, plus any tax that may be chargeable.

C.  Default interest

35.  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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning non-enforcement of domestic judgments listed in Appendix I admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of non-enforcement of domestic judgments in the applicant’s favour listed in Appendix I;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 23 (twenty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                         Helen Keller
Deputy Registrar                                                                       President




APPENDIX I

1.  Judgment by the Lisichansk Town Court, as enforceable in Russia

 

No.	Judgment date	Decision body	Final on	Nature of payments	Enforcement date
1.	17/07/1995	Lisichansk Town Court, the Lugansk Region, Ukraine (see, for the Perm Regional Court’s findings on its compulsory enforcement in Russia, paragraph 8 above)	27/07/1995, Enforceable in Russia as of May 2000	Monthly	30/03/2007

 

2.  Judgments by the Russian Courts in the applicant’s favour

 

No.	Judgment date	Decision body	Final on	Nature of payments	Enforcement date
1.	28/01/1998	Kizel Town Court	12/03/1999	Monthly, index-link	04/04/2006
2.	23/06/1999	Kizel Town Court	05/07/1999	One-time, monthly	30/03/2006
3.	15/09/1999	Kizel Town Court	25/09/1999	One-time, monthly	21/12/2005
4.	04/10/2001	Berezniki Town Court, the Perm Region	19/10/2001	Monthly (+index-link)	21/04/2006
5.	11/10/2001	Kizel Town Court	15/01/2002	Monthly	14/12/2005
6.	01/02/2002	Berezniki Town Court	16/04/2002	Monthly	14/12/2005
7.	05/06/2002	Aleksandrov Town Court (as rectified on 20/06/03)	30/06/2003	One-time	24/11/2005
8.	07/06/2002	Berezniki Town Court	01/08/2002	One-time, monthly	26/12/2005
9.	13/03/2003	Berezniki Town Court	25/03/2003	Monthly	14/12/2005
10.	02/12/2003	Berezniki Town Court (case no. 2-279)	16/12/2003	Monthly and one-time	01/12/2005
11.	25/03/2004	Kizel Town Court	Unclear (apparently, 10 days later)	One-time	01/12/2005
12.	13/04/04	Aleksandrov Town Court (four decisions, case no. 2-106)	23/04/2004	One-time	01/12/2005
13.	13/07/2004	Berezniki Town Court	21/10/2004	One-time	01/12/2005
14.	04/10/2004	Kizel Town Court	Apparently, 10 days later	One-time	01/12/2005
15.	29/10/2004	Berezniki Town Court	Apparently, ten days later	Monthly and one-time	01/12/2005
16.	12/11/2004	Berezniki Town Court No. 2-1098/04   (01/12/2006, decision related to the judgment)	30/11/2004	Monthly and one-time	24/11/2005 (one-time payment; some monthly payments); according to the applicant’s observations, the monthly payments were discontinued in February 3009-March 2011
17.	04/05/2005	Berezniki Town Court, three decisions (nos. 2-2196/2, 2-207/02, 2-45/02	Apparently, ten days later	One-time payments in index-linking proceedings	Not enforced, according to the applicant’s observations (March 2011)

APPENDIX II

No.	Judgment	Decision body	Final on (if date available)	Enforcement date
1.	09/11/2004	BereznikiTown Court	27/01/2005	01/12/2005
2.	30/11/2004	Aleksandrov Town Court (as rectified on 28/01/2005 by the same court on the applicant’s request - additional lump-sum awarded)	10/12/2004 (21/02/2005)	08/12/2005
3.	08/12/2004	Berezniki Town Court	21/12/2004	02/12/2005
4.	16/12/2004	Berezniki Town Court	28/12/2004	15/12/2005
5.	14/01/2005	Berezniki Town Court (two separate decisions, case-file number. 2-161 in respect of both cases, one of the decisions rectified on 04/02/05).	25/01/2005	29/11/2005
6.	10/02/2005	BereznikiTown Court (ten separate decisions)		14/12/2005
7.	11/02/2005	Kizel Town Court		29/11/2005
8.	20/04/2005	Berezniki Town Court (two separate decisions)		02/12/2005
9.	04/05/2005	Berezniki Town Court (no. 2-37/1)		21/12/2005
10.	25/05/2005	Berezniki Town Court		29/11/2005
11.	07/07/2005	Berezniki Town Court (three separate decisions)		02/12/2005
12.	14/07/2005	Berezniki Town Court (three separate decisions)		02/12/2005
13.	30/09/2005	Berezniki Town Court		02/12/2005
14.	27/10/2005	Aleksandrov Town Court (judgment and decision)		08/12/2005