CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 8 février 2018

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RUSSIA   (Application no. 42666/04 and 5 others - see appended list )                         JUDGMENT         STRASBOURG   8 February 2018       This judgment is final but it may be subject to editorial revision. In the case of Rybalkin and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Luis López Guerra, President,   Dmitry Dedov,   Jolien Schukking, judges, and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 18 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Russia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.     The applications were communicated to the Russian Government (“the Government”). THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. Some applicants also raised other issues under the Convention. THE LAW I.     JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.     ALLEGED VIOLATION OF ARTICLE   6 § 1 AND   ARTICLE   13 OF THE CONVENTION AND OF ARTICLE   1 OF PROTOCOL No.   1 6.     The applicants complained principally of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article   6 § 1 and Article   13 of the Convention and on Article   1 of Protocol No.   1, which read 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 13 “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.” 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.” 7.     The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article   6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v.   Greece , no.   18357/91, §   40, Reports of Judgments and Decisions 1997 ‑ II). 8.     In the leading case of Gerasimov and Others v. Russia, no. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case. 9.     Having regard to the nature of the judicial awards in the applicants’ favour (see the appended table for details of court orders), the Court considers that the applicants had, by virtue of these judgments, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article   1 of Protocol   No.   1. 10.     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 on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour. 11.     These complaints are therefore admissible and disclose a breach of Article   6 § 1 of the Convention and Article 1 of Protocol No.   1 to the Convention. 12.     The applicants also complained under Article   13 of the Convention about the lack of an effective domestic remedy in respect of the non ‑ enforcement. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no. 35555/05 and 6 others, 2 May 2017). Even though the remedy was – or still is – available to the applicants, the Court reiterates 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 Gerasimov and Others , cited above, §   230). 13.     However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Kamneva and Others , cited above, and, mutatis mutandis , Tkhyegepso and Others v.   Russia, no.   44387/04 and 11   others, §§   21-24, 25   October 2011). This ruling is without prejudice to the Court’s future assessment of the new remedy. III.     REMAINING COMPLAINTS 14.     In applications nos.   42666/04, 21247/05, 43703/07 and 46638/10, the applicants also raised other complaints under various Convention provisions. 15.     The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles   34 and   35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35   §   4 of the Convention. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.     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.” 17.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sums indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicants. 18.     The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable. 19.     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.     Decides to join the applications;   2.     Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions admissible, and the remainder of the applications nos.   42666/04, 21247/05, 43703/07 and 46638/10 inadmissible;   3.     Holds that these complaints disclose a breach of Article   6 § 1 of the Convention, Article 1 of Protocol No.   1 concerning the non-enforcement or delayed enforcement of domestic decisions;   4.     Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article   13 of the Convention;   5.     Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table;   6.     Holds (a)     that 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; (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;   7.     Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 8 February 2018, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Liv Tigerstedt   Luis López Guerra Acting Deputy Registrar   President APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1 (non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law) No. Application no. Date of introduction Applicant name Date of birth   Relevant domestic decision Date Start date of non-enforcement period End date of non-enforcement period Length of enforcement proceedings Domestic order Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]     42666/04 13/11/2004 Vyacheslav Viktorovich Rybalkin 16/06/1973 Vladikavkaz Military Garrison Court, 05/09/2001   18/09/2001   pending More than 16 years and 17 days   “[...] the assistant commander of the military unit to pay daily allowance [to the applicant] at triple rate, as well as substantive pays at double rate for a period of fulfilment of mission and re-calculate duration of [the applicant’s] service according to the preferential procedure 1 month as 3 months[...]”   6,000     21247/05 12/05/2005 Nina Ivanovna Shevtsova 07/07/1938 Zhelenznodorozhniy District Court of Rostov-on-Don, 02/11/2004, as amended on 30/11/2004 by the judgment of the same court, and on 03/11/2005 by the Presidium of the Rostov Regional Court 12/11/2004   30/03/2011 6 years and 4 months and 29 days “the Administration of the Zheleznodorozhniy District to carry out maintenance works in flats ...” The judgment of 30/11/2004 set out the costs of the maintenance works and the time-limit for the works; the judgment of 03/11/2005 imposed the obligation to bear the costs of the repair works on the municipal housing maintenance authority   4,000     43703/07 20/08/2007 Alla Arkadyevna Bereznyak 18/11/1942 Koptevskiy District Court of Moscow, 15/06/2006, as amended on 22/02/2007 22/02/2007   28/04/2009 2 years and 2 months and 7 days   to reinstate the applicant at her post of associate professor of history at the MSUEE 2,020     52123/08 10/08/2008 Nikolay Ivanovich Kovalchuk 16/06/1951 Mikhailovskiy District Court of the Volgograd Region, 28/07/2005, as amended on 06/02/2006   06/02/2006   17/12/2009 3 years and 10 months and 12 days “...[traffic authorities]... to register [the applicant’s] car and to provide the State’s certificate” 3,500     46638/10 15/07/2010 Tatyana Viktorovna Dolzhenkova 18/06/1961 Commercial Court of Belgorod Region 21/05/2007       Commercial Court of Belgorod Region, 09/06/2008   Commercial Court of Belgorod Region 28/05/2008   21/06/2007           10/07/2008       08/09/2008   05/11/2008 1 year and 4 months and 16 days     20/05/2009 10 months and 11 days   20/05/2009 8 months and 13 days   to declare void an order from 08/06/2005 N1827 regarding a withdrawal of a land plot [rented by the applicant] for municipal needs;     to examine the applicant’s request to provide her with a land plot for rent;     to harmonize the planning documents related to the land plot 1,000     45246/12 25/06/2012 Georgiy Romanovich Sukhashvili 29/01/1982 Military Court of Vladikavkaz Garrison, 09/12/2004   21/06/2005   pending More than 12 years and 3 months and 14 days   Commander of North-Caucasus Military Institute to pay certain sums due to the applicant 3,000     [1] Plus any tax that may be chargeable to the applicants.