CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 2 juin 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s490D418E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s403582AA { width:8.67pt; display:inline-block } .s2F93DD0E { width:141.18pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     THIRD SECTION DECISION Application no. 8336/07 Andrey Anatolyevich ANTIPOV against Russia   The European Court of Human Rights (Third Section), sitting on 2 June 2020 as a Committee composed of:   Alena Poláčková, President,   Dmitry Dedov,   Gilberto Felici, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to the above application lodged on 26 January 2007, 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 FACTS The applicant, Mr Andrey Anatolyevich Antipov, is a Russian national, who was born in 1979 and lives in Almanchikovo, a village in the Batyrevsky District of the Chuvash Republic, Russia. He was represented before the Court by Mr A.   Davydov, a lawyer practising in Batyrevo. 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. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. Award of operational allowance to a serviceman Between 1999 and 2000 the applicant, a sergeant, was deployed to Dagestan, a region in North Caucasus, on a counterinsurgency mission. The deployment entitled the applicant to an operational allowance ( выплата за фактическое участие в боевых действиях ). On the applicant’s discharge that allowance was not paid and he sued his former unit. On 9 February 2001 the Military Court of the Pyatigorsk Garrison ordered the unit to pay the allowance but did not specify a sum. On 20   February 2001 the judgment became final. Enforcement of the judgment On 20   February 2001 the president of the court warned the commander of the unit to comply with the judgment within one month or face criminal prosecution. On 17 April and 17 May 2001 the head of the recruitment office ( военный комиссар ) of the applicant’s home district complained on the applicant’s behalf to the President of the Garrison Court that the money had not been paid and asked him to prosecute the commander of the unit. Neither the court nor the unit responded and on 1   July 2001 the applicant asked the president of the Garrison Court to issue a writ of execution ( исполнительный лист ) on the judgment. On 25   October 2001 the applicant repeated his request. No reply followed, and the applicant turned for help to a centre providing legal advice to young people. Between 2001 and 2002 the centre complained to the military prosecutor of the Budyonnovsk Garrison, the military prosecutor of the North-Caucasus Command, the president of the Garrison Court, the president of the Military Court of the North-Caucasus Command, and the commander of the Internal Troops in the North Caucasus. The prosecutors forwarded the complaints to the president of the Garrison Court, but no reaction followed. The other authorities did not reply. In January 2003 the applicant instructed lawyers and the lawyers wrote complaints to the Chief Military Prosecutor, the ombudsman, and the President. On 10   February 2003 the applicant’s lawyer asked the Garrison Court to issue a writ of execution and on 18   March 2003 the court issued the writ. In May 2003 the military prosecutor of the Budyonnovsk Garrison advised the applicant that the unit lacked the funds to meet the judgment debt and advised him to apply to a regional treasury instead. In June 2003 the applicant sent the writ to the Treasury of Budyonnovsk which was responsible for the unit’s finances. On 19   June 2003 the Treasury returned the writ to the applicant because the document did not specify the sum to be paid. In February 2004 the applicant complained to the Minister of Finance about the return of the writ. On 18 November 2004 the Treasury of the Stavropol Region paid to the applicant 123,120 Russian roubles (RUB) [1] . Refusal to adjust the judgment debt for inflation On 25   February 2005 the applicant asked the Garrison Court to raise the payout in line with inflation at the expense of the unit pursuant to Article   208 of the Code of Civil Procedure ( индексация присуждённой денежной суммы ). On 27   June 2005 the court granted this claim only for the period between March and October 2004 (RUB   9,147.81 [2] ) because the applicant had applied to the Minister of Finance only in February 2004. The applicant appealed. On 26   July 2006 the Military Court of the North-Caucasus Command quashed the judgment and rejected the applicant’s claim in full because the unit was not responsible for the delay. The court said: “The delayed enforcement of the judgment has caused the applicant damage in the form of the diminished purchasing power of the sum awarded, but this damage has not been caused by unlawful and guilty behaviour of the debtor – the [military unit] – because the unit had essentially been removed [by law] from the sphere of enforcement and, therefore, shall bear no responsibility for the circumstances which have arisen as a result of acts and decisions of State authorities.” Relevant domestic law Article 208 of the Code of Civil Procedure provides: “At the request by the creditor or debtor, the court which examined the case may adjust the award for inflation ( произвести индексацию ) on the day of the enforcement of the judgment....” Decision of the Constitutional Court No.   153-O-O of 20   March 2008: “[Article 208 of the Code of Civil Procedure] does not make ... the adjustment of judgment debts for inflation conditional on the debtor’s fault in the lengthy non-enforcement of the judgment because such adjustment is not a sanction for the debtor’s civil liability ... but a mechanism for full compensation of the creditor’s losses ... amid inflation ....” COMPLAINT Relying on Article   1 of Protocol   No.   1 to the Convention, the applicant complained about the domestic courts’ refusal to compensate his inflationary losses caused by the delayed enforcement of the judgment. THE LAW Article   1 of Protocol   No.   1 reads: “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.” The Government argued that this complaint was manifestly ill-founded. The applicant had himself to blame for the delayed enforcement because he had failed to follow the proper procedure. In particular, he had applied for the writ of enforcement almost two years after the judgment had become final. The applicant blamed the delay on the authorities and maintained his complaint. To start with, the Court notes that the admissible complaint in the present case does not concern the delay in enforcing the judgment, but only the refusal of the domestic courts to award him an adjustment for inflation. In this respect, the Court reiterates that the “possessions” within the meaning of Article   1 of Protocol No. 1 can be either existing possessions or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised (see, with further references, Polacek and Polackova v.   the Czech Republic (dec.), no.   38645/97, § 62, 10 July 2002). Furthermore, it cannot in principle be said that an applicant has a sufficiently established claim amounting to an “asset” for the purposes of Article 1 of Protocol No. 1 where there is a dispute as to the correct interpretation and application of domestic law and where the question whether or not the applicant complied with the statutory requirements is to be determined in judicial proceedings. The interpretation of domestic law by the national authorities may not be arbitrary or manifestly unreasonable (see, with further references, Radomilja and Others v. Croatia [GC], nos.   37685/10 and 22768/12, § 149, 20 March 2018). Turning to the present case, the Court notes that by the terms of Article   208 of the Code of Civil Procedure adjustment of judicial awards for inflation was within the competence of the domestic courts. The applicant’s entitlement to that adjustment was disputed in the judicial proceedings. As it follows from the judgment and the documents submitted by the parties, the responsibility was disputed for at least a part of the delay for which the adjustment was being sought. In the view of the domestic courts, the defendant (military unit) had born no responsibility under the legislation for the imputed delay in enforcement of the judgment. As far as the Decision of the Constitutional Court No. 153-O-O of 20 March 2008 clarified that the award of adjustment to inflation was possible irrespective of the debtor’s fault in the delayed enforcement, that decision was taken after the judgment of the Military Court of the North-Caucasus Command of 26   July 2006. In such circumstances, the conclusions of the domestic courts adopted in 2006 as to the inflation adjustment do not appear arbitrary or manifestly unreasonable. Lastly, the Convention does not give raise to any positive obligation for the State to maintain the value of claims or any other assets (see O.N. v.   Bulgaria (dec.), no.   35221/97, 6   April 2000; and, as a recent example of application of the same principle, Nachkebiya v. Russia [Committee], no.   6351/13, 12 May 2020). For these reasons the Court considers that the applicant’s claim was not a “possession” within the meaning of Article   1 of Protocol   No.   1. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 25 June 2020.   Olga Chernishova   Alena Poláčková   Deputy Registrar   President [1]     EUR   3,300 on the date of the payment. [2]     EUR   300 on the date of the award.