THIRD SECTION

DECISION

Application no. 55318/11 Aslan Vakhayevich ASUYEV and O thers against Russia

The European Court of Human Rights (Third Section), sitting on 27 November 2018 as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Jolien Schukking , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 15 August 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The list of applicants is set out in the Appendix.

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

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. All the applicants took part in an anti-terrorist operation in Chechnya.

5. On an unspecified date the applicants, within the group of other military servicemen, applied to the the Vladikavkaz Garrison Military Court against the military commander of Shatoy District of the Chechen Republic seeking to recover additional remuneration for participation in the anti ‑ terrorist operation.

6. On 24 April 2013 the district court granted the applicants ’ claims and awarded them lump sums for additional remuneration (see the details in the Appendix). The judgments were not appealed against and became final.

7. On 5 May 2003 the district court issued writs of execution. The applicants sent the writs of execution to the Ministry of Finance for enforcement. However, on 10 April 2006 and 14 June 2007 the Ministry of Finance returned the writs of execution with a mention that since the debtor was a budgetary institution of a constituent entity of the Russian Federation, the writ of execution should be submitted to the relevant Federal Treasury Department.

8. On an unspecified date the applicants lodged a claim with the Shatoy District Court against the Ministry of Finance on compensation for non ‑ enforcement of the final judgment in their favour.

9. On 19 November 2007 the Shatoy District Court returned the application without examining it on the merits. The court ruled that the application was lodged in violation of the requirements of territorial jurisdiction. No appeal was lodged against that decision.

10. On 27 August 2010 the applicants ’ representative applied to the Ministry of Finance for clarification on where to submit writs of execution for enforcement of the judgment.

11. On 10 September 2010 the Ministry of Finance responded to the applicants ’ letter that under the Budget Code it did not have authority with regard to the enforcement of the judgments in respect of budgetary institutions.

12. On various days in October and December the applicants applied to the North Caucasus Circuit Military Court for compensation resulting from the lengthy non-enforcement of the judgments of 24 April 2003 in their favour.

13. On 12 November 2010 the North Caucasus Circuit Military Court returned Mr Yusupov ’ s claim without examination on the merits for a spelling error in his patronymic. On 15 November and 13 December 2010 the North Caucasus Circuit Military Court returned the rest of the applicants ’ claims owing to the failure to submit the writs of execution for enforcement. These decisions were upheld by the Supreme Court of Russia.

14. On 25 March 2011 the applicants ’ representative sent the writs of execution to the bailiff s ’ service.

15. On 30 March 2011 the bailiffs refused to institute enforcement proceedings since the writs had been submitted out of the three-year time limit provided by the relevant legislation. The applicants unsuccessfully appealed against the bailiff s ’ decision.

B. Relevant domestic law

16. Article 239 §§ 2 and 3 of the Budget Code of the Russian Federation, as in force at the material time, provided that the bailiffs ’ service were not entitled to execute judicial decisions recovering funds from the budgetary system of the Russian Federation. Execution of such decisions was regulated by Chapter 24.1 of the Budget Code (Articles 242.1-242.5).

17. Article 242.1 § 1 of the Budget Code provided that enforcement of judicial decisions recovering funds from the budgetary system of the Russian Federation was held on the basis of the enforcement documents (writ of execution, court order).

18. Article 242.3 § 1 provided that the creditor or the court acting on his or her behalf should send the necessary enforcement documents to the relevant branch of the Federal Treasury that holds the debtor ’ s accounts.

COMPLAINTS

19. The applicants complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the domestic judgment in their favour and lack of access to court because their claims for compensation under the Compensation Act were left unexamined owing to various reasons. The applicants in addition contended that the new domestic remedy in force since 4 May 2010 was not capable of providing adequate redress in the specific circumstances of their case.

THE LAW

20. The Government argued that the applicants did not comply with the domestic law requirements. In particular, they did not submit the writs of execution to the relevant authorities within the three-year time limit. Thus the applicants could not have expected to claim compensation under the domestic law for non-enforcement of the judgments in their favour.

21. The applicant s disagreed and maintained their claims.

22. The Court notes at the outset that a person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece , no. 8415/02, § 19, 27 May 2004). The burden to ensure compliance with a judgment against the State lies primarily with the State authorities starting from the date on which the judgment becomes binding and enforceable (see Burdov v. Russia (no. 2) , no. 33509/04, § 69, ECHR 2009 ).

23. At the same time, the Court has accepted that a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt (see Shvedov v. Russia , no. 69306/01, § 32, 20 October 2005). The creditor ’ s uncooperative behaviour may be an obstacle to timely enforcement of a judgment, thus alleviating the authorities ’ responsibility for delays (see Belayev v. Russia ( dec. ), no. 36020/02, 22 March 2011). In several Russian cases, the Court has found that where the Budget Code, in force at the material time, provided for a successful litigant to be able to request the trial court to forward the writ of execution directly to the competent State authority, and where the applicant for any reason obtained himself the writ of execution from the trial court, it was logical to require that he submitted it to the competent authority with a view to enforcement of the judgment (see Li v. Russia , no. 38388/07, § 17, 24 April 2014; Gadzhikhanov and Saukov v. Russia , nos. 10511/08 and 5866/09, § 26, 31 January 2012; and the most recent Tryapitsyna v. Russa ( dec. ), § 23, no. 7786/09).

24. Turning to the present case, the Court notes that the applicants obtained the writs of execution and submitted it to the Ministry of Finance. However, on 10 April 2006 and 14 June 2007 the Ministry of Finance returned the writs of execution to the applicants instructing them in clear and unambiguous terms, to submit it to the Federal Treasury Department. It took the applicants more than three years and a half to contact again the Ministry of Finance and, subsequently, bring a case against the Ministry, whereas the Russian legislation on enforcement sets a three-year time-limit for the execution of a domestic final judgment. The applicants failed to provide any explanation in order to justify why they had remained passive for such a long period of time without taking any reasonable steps to obtain the execution of a judgment in their favour. Furthermore, for an unknown reason the applicants, after being instructed to submit the writs to the Federal Treasury, on 25 March 2011 submitted the writs to the bailiff s ’ service which was not the relevant body under the Budget Code.

25. In view of the foregoing, the Court finds that the applicant ’ s failure to comply with the authorities instructions and to take reasonable procedural steps was an obstacle to the enforcement of the judgments in their favour. Consequently, the authorities cannot be held responsible under the Convention for non-enforcement of the judgments of 24 April 2003.

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. Turning to the applicants ’ complaint under Article 6 of the Convention about the lack of access to a court because their claims for compensation were left unexamined, the Court notes that in the light of all the material in its possession, and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. The domestic courts rejected to examine the applicants ’ complaints due to the various procedural drawbacks. The applicants were not deprived of a chance to correct the mistakes and submit the applications anew, which they failed to do.

28. 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.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 December 2018 .

Fatoş Aracı Alena Poláčková Deputy Registrar President

Appendix

N o .

Applicant ’ s name

Year of birth

Place of residence

Nationality

Represented by

Final judgment

Awards

Aslan Vakhayevich ASUYEV

1973Yukerch-Keloy

Russian

I.Y. Timishev

The Vladikavkaz Garrison Military Court

24 April 2003

RUB 340,000

Yunadi Adamovich ATSALAMOV

1978Vyardy

Russian

I.Y. Timishev

The Vladikavkaz Garrison Military Court

24 April 2003

RUB 120,000

Valid Movladiyevich DZHAMALDINOV

1982Yukerch-Keloy

Russian

I.Y. Timishev

RUB 120,000

Muslim Mikaliyevich YUSUPOV

1980Shatoy

Russian

I.Y. Timishev

The Vladikavkaz Garrison Military Court

24 April 2003

RUB 120,000