CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 2 décembre 2011

.s3ABFC313 { font-size:10pt } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sDB9EB187 { font-weight:bold } .s7ED160F0 { text-decoration:none } .sFB4D0E3C { font-size:8pt; vertical-align:super; color:#000000 } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s9C25A926 { margin-top:0pt; margin-left:54pt; margin-bottom:0pt; text-indent:-36pt; font-size:12pt } .s95E15B89 { width:32pt; font:7pt 'Times New Roman'; display:inline-block } .sB49F962E { margin-top:0pt; margin-left:18pt; margin-bottom:0pt; font-size:12pt } .s876D4AB2 { text-decoration:underline; color:#0069d6 } .sF8AEFD1F { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; font-size:12pt } .s76CF415B { page-break-before:always; clear:both } .sCC843BA8 { width:25.33pt; display:inline-block } .s5B629078 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; font-size:12pt } .sC9E589A1 { width:25.33pt; text-indent:0pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sCD4D2F1A { width:24.67pt; display:inline-block } .sB2A0F2B6 { font-weight:bold; font-style:italic } .sA0611542 { color:#000000 } .s14C34524 { font-size:8pt; vertical-align:super } .s3FAF973C { width:22pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .s846B54EF { font-size:5.33pt; vertical-align:super; color:#0069d6 } .sFBC99493 { font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s116BEA21 { font-size:8pt } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sCA654B4E { font-size:6pt; vertical-align:super; color:#0069d6 } Interim Resolution CM/ResDH(2011)293 [1]     Execution of the judgment of the European Court of Human Rights Burdov No. 2 against the Russian Federation regarding failure or serious delay in abiding by final domestic judicial decisions delivered against the state and its entities as well as the absence of an effective remedy   (Application No. 33509/04, judgment of 15/01/2009, final on 04/05/2009)     The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”) having regard to the pilot judgment of the European Court of Human Rights (“the Court”) of 15 January 2009 in the case of Burdov No.   2 against the Russian Federation;   Recalling that in this pilot judgment the Court found violations of the Convention on account of a practice resulting from the State’s recurrent failure to comply with domestic judicial decisions awarding payments to the applicants and lack of an effective remedy in this respect;   Recalling further that, having regard to the Committee of Ministers’ Resolution on judgments revealing an underlying systemic problem (Res(2004)3) and Recommendation on the improvement of domestic remedies (Rec(2004)6), both of 12 May 2004, the Court ordered the respondent state:   -                       to set up, within six months, a domestic remedy or a combination of such remedies which secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judicial decisions in line with the Convention principles as established in the Court’s case-law, and   -                       to grant, within one year, adequate and sufficient redress to all persons in the applicant’s position in the cases lodged with the Court before the delivery of the pilot judgment;   Recalling in addition the Committee of Ministers’ Interim Resolution CM/ResDH(2009)43 concerning the execution of the Court’s judgments in more than 200 similar cases, in which the Committee stressed the urgent need to set up effective domestic remedies in order to enhance the remedial capacity of the national judicial system in addressing repetitive violations of this kind;   Recalling that the Committee of Ministers gave priority to the examination of this case in accordance with Rule 4§1 of its Rules for the supervision of the execution of the European Court’s judgments and of the terms of friendly settlements, with particular focus on the urgent requirements to introduce an effective domestic remedy and to ensure domestic settlement of similar cases;   Having satisfied itself that the respondent state paid the applicant the just satisfaction awarded in the judgment and that no individual measures was required in his case since all domestic judgments in his favour have been enforced;   Welcoming the adoption by the Russian Federation in response to the pilot judgment of two federal laws introducing a new domestic remedy in respect of excessive length of judicial proceedings and delayed enforcement of domestic judgments delivered against the State (“the Compensation Act”);   Noting with satisfaction that the Russian authorities promptly reacted to the Committee’s Interim Resolution CM/ResDH(2009)158 and that the reform entered into force on 4 May 2010, namely on the date the Court was to resume the proceedings in similar cases;   Noting that the Court’s assessment of the new domestic remedy led it to decide that all new cases introduced after the pilot judgment and falling under the Compensation Act should be submitted in the first place to the national courts [2] ;   Welcoming that this remedy is already being actively implemented as demonstrated by the numerous examples of judicial practice provided by the Russian authorities and as acknowledged by the Court;   Taking note with interest of a wide set of measures adopted by the Russian authorities, in particular by the federal Supreme Court, by the Supreme Commercial Court, and by the Ministry of Finance and Federal Treasury, in order to guarantee the effectiveness of the new compensation remedy at domestic level (see Appendix);   Noting in this context with great satisfaction that appropriate budgetary arrangements have been made in order to guarantee effective and timely execution of judicial decisions delivered in accordance with the Compensation Act;   Welcoming moreover the comprehensive measures taken with a view to settling similar individual applications lodged prior to the pilot judgment, which resulted in the resolution of the issues raised by the great majority of such applications and that the Court subsequently struck out of its list more than 800 applicants;   Recalling that the respondent State remains under the obligation to adopt other general measures, bearing in mind the Court’s findings as set out in the pilot judgment [3] ;     DECIDES to close the examination of the issue relating to the introduction of an effective domestic remedy in case of non-enforcement or lengthy enforcement of domestic judicial decisions providing for the State’s payment obligations;   DECIDES to pursue the examination of the other general measures within the context of the Timofeyev group of cases [4] and consequently to join the present case to this group. Appendix to Resolution CM/ResDH(2011)293   Information about the measures to comply with the judgment in the case of Burdov No. 2 against the Russian Federation   1)   The new domestic remedy   a)   Legislative reform   On 4 May 2010 the Federal Law no. 68-FZ “On Compensation for a Violation of the Right to a Trial within a Reasonable Time or the Right to the Enforcement of a Judgment within a Reasonable Time” entered into force [5] . This law was accompanied by a Federal Law amending certain legislative acts of the Russian Federation [6] .   The Compensation Act provides the possibility to claim compensation for lengthy non-enforcement of a judgment establishing a debt to be recovered from the State budgets. Such compensation is awarded if the alleged violation was not dependent on the fault of a person applying for it. A compensation award is not dependent on the competent authorities’ fault.   The amount of compensation should be determined by the courts according to the applicant’s claims, the circumstances of the case, the length of the period during which the violation took place, the importance of its consequences for the applicant; the principles of reasonableness and fairness, and the practice of the European Court of Human Rights.   A claim for compensation on account of lengthy enforcement of a judgment may be lodged while enforcement proceedings are still pending or not later than six months after the termination of enforcement proceedings. A court decision granting compensation should be enforced immediately. It may however be subject to appeal according to the procedural legislation in force. The Compensation Act provides that appropriate budgetary arrangements should be made in the federal budget, in the budgets of federal entities and in local budgets.     b)   Measures aimed at ensuring the implementation of the new remedy   Measures aimed at ensuring effective and coherent application of the Compensation Act by domestic courts   In order to ensure uniform implementation of the Compensation Act, the federal Supreme Court and the Supreme Commercial Court issued on 23 December 2010 a Joint Ruling on certain issues that might arise during the consideration of cases regarding applications for compensation for violations of the right to trial within a reasonable time or the right to enforcement of a judicial decision within a reasonable time [7] .   On 25 June 2010 the Presidium of the Supreme Commercial Court sent to the lower courts Information Letter No. 140 on certain issues in relation to the enactment of the Federal Law on amendments to certain legislative acts of the Russian Federation adopted together with the Compensation Act [8] .   On 18 May 2011 the Presidium of the Federal Supreme Court issued a review of the practice of examination by courts of general jurisdiction in cases regarding applications for compensation made in accordance with the Compensation Act [9] . This review was based on the analysis of the most frequent grounds on which the Supreme Court quashed, amended or confirmed the lower courts’ decisions awarding compensation for the period between the entry into force of the Compensation Act and April 2011.   In March 2011 an overview of the European Court’s judgments delivered in 2009 and 2010 in respect of the Russian Federation finding a violation of the right to judicial and enforcement proceedings within a reasonable time was published in the Bulletin of the Federal Supreme Court (Bulletin No. 3).   Administrative measures   On 7 July 2010 the Ministry of Finance of the Russian Federation issued Letter no 08 ‑ 06 ‑ 06/582 explaining the procedure for the implementation of particular provisions of the Compensation Act.   On 21 September 2010 the Federal Treasury issued Letter no 42-7.4-05/9-607 to the heads of its territorial departments providing guidelines on the implementation of the Compensation Act, notably with regard to the representation of the interests of the Russian Federation in commercial courts in this kind of disputes.   Budgetary arrangements   In order to ensure speedy and effective execution of judicial decisions issued under the Compensation Act, appropriate funds were allocated to the federal budget, budgets of the subdivisions of the Russian Federation and local budgets.   Awareness raising measures   The pilot judgment was disseminated to all authorities concerned. Information about pilot judgment was published in the Bulletin of the Supreme Court of the Russian Federation in 2009 No. 11.   On 1 November 2010 a parliamentary session on the implementation of the provisions of the Compensation Act took place in the State Duma of the Federal Assembly of the Russian Federation.   Issues related to the Compensation Act were introduced in the curricula of in-service training for judges concerning the case-law of the European Court.   In July 2010 and September 2011, interagencies’ meetings were held on the basis of the Federal Treasury with the participation of the representatives of the Ministry of Finance, Supreme Commercial Court, Federal Bailiff’s Service, Supreme Court of the Russian Federation, the State Scientific Research Institute of Systematic Analysis of the Accounting Chamber of the Russian Federation and Government Agent’s office. In May 2011 the issues related to the Compensation Act were discussed at a conference on the problems of legislation and practice organised in Saint Petersburg.   Statistics   Between 4 May 2010 and 30 June 2011, the Russian courts (courts of general and commercial jurisdiction) examined 287 complaints concerning excessive length of enforcement procedures. In particular, courts of general jurisdiction examined 186 of such complaints. Compensation was awarded in 100 cases. Commercial courts examined 101 complaints. Compensation was granted in 45 cases. The examples of the domestic courts’ practice show that the Russian courts, while granting compensation, take into accounts the practice of the European Court [10] .   According to the Ministry of Finance of the Russian Federation, from 4 May to 13 October 2011 the Ministry received 97 court orders for the total amount of RUB 3,940,555 (i.e. about EUR o 86   000). Only 19   court orders were returned to the claimants due to mistakes in bank details or to the quashing of judicial decisions by higher courts. All other court orders were enforced within the established time-limits.   2)   Ad hoc settlement of similar applications frozen by the Court   As regards ad hoc settlement of similar cases which examination was suspended by the European Court, the Russian authorities examined all applications within the time-limits set by Court. They adopted measures with a view to restoring the applicants’ rights in respect of 861 applications [11] .   For instance, several applicants made use of the new remedy [12] . Consequently, the European Court struck one of these applications out of the list on the ground that the applicants were awarded compensation by domestic courts of an amount comparable to that granted by the European Court in similar cases. The Court also noted that the judicial decisions awarding compensation were executed within the time-limits set.   In total, following the measures taken, the European Court already decided to strike out cases in respect of 785 applicants. 656 of these applicants have already received compensation in full. The remaining applicants will be paid within the time-limits set.   In addition, the Russian authorities requested that the Court strike 297 applications out of the list due to the absence of grounds for the restoration of the applicants’ rights and to continue its examination in respect of 33 applications.   3)   The Court’s assessment of the measures adopted in the framework of the “pilot judgment procedure”   On 23 September 2010, the European Court delivered the decisions in the cases Nagovitsyn and Nalgiyev against the Russian Federation [13] and Fakhretdinov and others against the Russian Federation [14] . In these decisions, the European Court ruled that all new cases introduced after the pilot judgment and falling under the Compensation Act be submitted in the first place to the national courts. Consequently, the Court declared these applications inadmissible.   In doing so, the European Court found it “significant that Russia had passed the legal reform introducing the new domestic remedy in response to the Burdov No. 2 pilot judgment under the supervision of the Committee of Ministers”. The Court also noted that the new remedy became operational on 4 May 2010, namely on the date the Court was to resume proceedings in similar cases. The Court finally recalled that “one of the aims of the pilot judgment procedure was precisely to allow the speediest possible redress to be granted at the domestic level to the large numbers of people suffering from the structural problem of non-enforcement” [15] . [1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th meeting of the Ministers’ Deputies. [2] Nagovitsyn and Nalguyev v. Russia (dec.), nos. 27451/09 and 60650/09, 23 September 2010. [3] In particular, §§ 136-137 of the pilot judgment. [4] This group of cases concerns non-enforcement or delayed enforcement of domestic judicial decisions and lack of an effective remedy in this respect. [5] Original text: http://www.rg.ru/printable/2010/05/04/razumnisrok-dok.html ; for the English translation see the website of the Department of Execution of Judgments of the European Court (Additional Information/Russian Fedration/Case Burdov – appendix 1): http://www.coe.int/t/dghl/monitoring/execution/Source/Documents/Info_cases/Russie/Burdov10082011%20Annexe1.pdf [6] Original text: http://www.rg.ru/2010/05/04/volokita-dok.html ; for the English translation see the website of the Department of Execution of Judgments of the European Court (Additional Information/Russian Fedration/Case Burdov – appendix 2): http://www.coe.int/t/dghl/monitoring/execution/Source/Documents/Info_cases/Russie/Burdov10082011%20Annexe2.pdf [7] Original text: http://www.supcourt.ru/Show_pdf.php?Id=6968 or http://www.arbitr.ru/as/pract/post_plenum/32236.html ; for the English translation see the website of the Department of Execution of Judgments of the European Court (Additional Information/Russian Fedration/Case Burdov – appendix 3): http://www.coe.int/t/dghl/monitoring/execution/Source/Documents/Info_cases/Russie/Burdov10082011%20Annexe3.pdf [8] Original text: http://www.arbitr.ru/as/pract/vas_info_letter/29867.html ; for the English translation see the website of the Department of Execution of Judgments of the European Court (Additional Information/Russian Fedration/Case Burdov – appendix 4): http://www.coe.int/t/dghl/monitoring/execution/Source/Documents/Info_cases/Russie/Burdov10082011%20Annexe4.pdf [9] Original text: http://www.vsrf.ru/vscourt_detale.php?id=7418 ; for the English translation see the website of the Department of Execution of Judgments of the European Court (Additional Information/Russian Fedration/Case Burdov – appendix 5): http://www.coe.int/t/dghl/monitoring/execution/Source/Documents/Info_cases/Russie/Burdov10082011%20Annexe5.pdf [10] For some examples of the judgments taken by the domestic courts and translated into English, translation see the website of the Department of Execution of Judgments of the European Court (Additional Information/Russian Fedration/Case Burdov – appendix 6): http://www.coe.int/t/dghl/monitoring/execution/Source/Documents/Info_cases/Russie/Burdov10082011%20Annexe6.pdf [11] These measures include the execution of the domestic judicial decisions delivered in the applicants’ favour, conclusion of friendly settlements, and submission to the Court of unilateral declarations indicating that the Russian authorities were ready to pay to the victims compensation in respect of the damages sustained. In a number of cases, the applicants successfully used the new remedy and obtained compensation at the domestic level in accordance with the Compensation Act. [12] Balagurov v. Russia (dec.), no. 9610/05, 2 December 2010; Zavyalov v. Russia, no. 45236/04 (the case is pending). [13] Nagovitsyn and Nalguyev, cited above . [14] Fakhretdinov, Kuzovlev and Sergeyev   v. the Russia (dec.), nos. 26716/09, 67576/09 and 7698/10, 23   September 2010. [15] Nagovitsyn and Nalguyev, cited above.