CASE OF SHLEPKIN v. RUSSIA

1. The case originated in an application (no. 3046/03) 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 Aleksandr Grigoryevich Shlepkin (“the applicant”), on 15 December 2002.
2. The applicant was represented by Ms V.A. Gerasimova, a lawyer practising in Inza in the Ulyanovsk Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. On 22 February 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
4. The applicant was born in 1962 and lives in the village of Troitskoe in the Ulyanovsk Region.
5. On 23 March 2001 the Chernovskiy District Court of Chita partly allowed the applicant's claim against the State enterprise “Stroitelniy Kompleks” ( государственное предприятие “Строительный Комплекс” ) for recovery of the unpaid amount of compensation for a work-related injury. The court awarded him 7,500 roubles (“RUR”) in respect of the period from 1996 to 1999. The judgment was not appealed against and became enforceable on 3 April 200 1.
6. As the applicant had not been able to attend the hearing, on 6 April 2001 the District Court sent a writ of execution to the Chita bailiffs for enforcement. It appears that some time in May 2002 the applicant was informed for the first time that the judgment had been adopted and that the writ had been sent to the bailiffs.
7. In the meantime, on 21 June 2001 the Commercial Court of the Chita Region ordered liquidation of the State enterprise “Stroitelniy Kompleks” because it had gone bankrupt.
8. On 31 May 2002 the applicant lodged a complaint concerning the non-enforcement of the judgment with the Supreme Court of the Russian Federation, which forwarded it to the Chita local authorities.
9. Having examined the issue, in July 2002 the local authorities discovered that in 2001 the writ of execution had been lost and had never reached the Chita bailiffs'service.
10. On 23 July 2002 the District Court sent a duplicate writ of execution to the bailiffs.
11. On 9 September 2002 the bailiffs commenced the enforcement proceedings.
12. On 20 May 2003 the Chernovskiy District Court discontinued the enforcement proceedings as the debtor company had ceased to exist. The applicant did not appeal against that judgment.
13. It appears that the judgment of 23 March 2001 remains unenforced to date.
14. In the meantime, on 30 September 2002 the Inzenskiy District Court of the Ulyanovsk Region awarded the applicant the unpaid amounts of compensation for the period from 2000 to 2002, payable by the local social insurance foundation. It appears that this judgment was duly enforced by the national authorities.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL No. 1
15. The applicant complained about the continued non-enforcement of the judgment of 23 March 2001 in his favour. This complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The relevant parts of these 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.”
16. The Government raised two objections as to the non-exhaustion of the domestic remedies. They submitted firstly that the applicant had not sued the postal service for the loss of the writ and secondly that he had failed to appeal against the judicial decision of 20 May 2003, by which the enforcement proceedings were discontinued.
17. The applicant disagreed on the both points.
18. The Court notes that the debtor in the instant case is a State enterprise, and the judgment against it could only have been enforced if the State took the appropriate legislative measures, that is, if they introduced appropriate provisions in the Civil Code and the Budget Act. It was the lack of legislative measures rather than misconduct of the bailiffs or the postal service which made the enforcement of the judgment in question impossible. The applicant cannot therefore be reproached for not having taken proceedings against the bailiffs or the postal service (see, mutatis mutandis, Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002).
19. The Court concludes that the remedies suggested by the Government would have been ineffective.
20. For the above reasons, the Court finds that the application cannot be rejected for non-exhaustion of domestic remedies. It considers, in the light of the parties'submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
21. The Government denied their responsibility for the continued failure to enforce the judgment referring to the fact that the State enterprise “Stroitelniy Kompleks” had been liquidated. They submitted that national authorities had shown due diligence in enforcement of the judgment and could not be held responsible for any delay.
22. The applicant insisted that the State responsibility did not cease following the bankruptcy of the State enterprise.
23. The Court observes that on 23 March 2001 the applicant obtained an enforceable judgment by which the State enterprise “Stroitelniy Kompleks” was to pay him a substantial amount. The judgment has not been enforced to date.
24. The Court notes that the Government have not demonstrated that the State enterprise enjoyed sufficient institutional and operational independence from the State to absolve the latter from responsibility under the Convention for its acts and omissions (see Mykhaylenky and Others v. Ukraine, nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and 42814/02, §§ 41-46, ECHR 2004 ‑ XII; and Lisyanskiy v. Ukraine, no. 17899/02, §§ 17-20, 4 April 2006 ). The Court further observes that it is not open to a State authority to cite the lack of funds or other resources as an excuse for not honouring a court award (see, mutatis mutandis, Burdov v. Russia, no. 59498/00, § 35, ECHR 2002 ‑ III).
25. The Court therefore concludes that the State cannot justify its failure to enforce the judgment against the State enterprise by reference to the liquidation of the company.
26. 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, for example, Burdov v. Russia, cited above, § § 33-42; Gerasimova v. Russia, no. 24669/02, §§ 14-22, 13 October 2005; Gizzatova v. Russia, no. 5124/03, §§ 18-29, 13 January 2005 ).
27. Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of justifying the failure to enforce the judgment. It finds that by failing to comply with the enforceable judgment 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 had legitimately expected to receive.
28. There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1.
II. 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.”
30. The applicant claimed RUR 74,769 in respect of pecuniary damage, representing the original award adjusted in line with increases of the minimum monthly wage since 2001. He also claimed 6,000 euros (“EUR”) in respect of non-pecuniary damage.
31. The Government contested the applicant's claims in respect of pecuniary damage, stating that he had allegedly received the amount due in separate proceedings and regarded the applicant's claims for non-pecuniary damage as excessive and unreasonable.
32. The Court notes that the applicant has not received the original award of RUR 7,500. As, under national legislation, it does not appear possible to enforce the judgment concerned due to the liquidation of the State enterprise the Court awards the applicant this amount in respect of pecuniary damage (see Yavorivskaya v. Russia, no. 34687/02, §§ 31-33, 21 July 2005 ).
33. As regards the applicant's claim for adjustment of the award, the Court notes that the judgment of 23 March 2001 covered the period from 1996 to 1999, whereas the applicant's claim for adjustment of the award is based on increases of the minimum monthly wage between 2001 and 2006. The Court therefore rejects the applicant's claim for adjustment.
34. Turning to the applicant's claim in respect of non-pecuniary damage, the Court considers that the applicant suffered distress because of the State authorities'failure to secure payment of the award in his favour. Making its assessment on an equitable basis, the Court awards the applicant EUR 1 ,500, plus any tax that may be chargeable.
35. The applicant claimed EUR 2,000 in respect of legal fees and EUR 200 for postal expenses.
36. The Government submitted that the applicant had not entered into a contract with his lawyer and was not entitled to reimbursement of any costs and expenses. They claimed that the applicant had submitted no document which would substantiate his postal expenses.
37. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The applicant did not produce to the Court a contract with his lawyer Ms Gerasimova setting out her fees or an account of the time she had spent on the applicant's case. Furthermore, her signature only appears on the submissions which were not included in the case file for the consideration of the Court. The applicant produced postal receipts for RUR 128. Having regard to all relevant factors, the Court awards the applicant RUR 128 in respect of costs and expenses.
38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Declares, by a majority, the application admissible;