THIRD SECTION

DECISION

Application no. 5207/06 Feliks Stanislavovich PAVLOVSKIY against Russia

The European Court of Human Rights (Third Section), sitting on 30 January 2018 as a Committee composed of:

Branko Lubarda , President, Pere Pastor Vilanova , Georgios A. Serghides , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 10 December 2005,

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

1. The applicant, Mr Feliks Stanislavovich Pavlovskiy , is a Russian national, who was born in 1951 and lives in Ivanovo.

2. 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 .

A. The circumstances of the case

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

1. Judgment of 12 November 1997

4 . On 12 November 1997 the Leninskiy District Court of Ivanovo (“the District Court”) ordered the town administration to make additional payment to the applicant ’ s salary in accordance with § 2 of section 54 of the Education Act for the period between 13 January 1996 and December 1996.

5. On 24 May 2002 the above judgment was quashed by way of supervisory review and the case was sent for a fresh examination.

6. On 20 June 2002 the District Court ruled that as the mechanism of implementation of the Education Act in the relevant part had not been adopted, it could not accept the applicant ’ s calculations of the debt, and had to reject the claim in full.

7 . On 15 July 2002 the decision of the District Court was upheld on appeal.

2. Judgment of 4 September 1998

8. On an unspecified date, the applicant lodged a similar civil claim with the District Court. He argued, in particular, that, in accordance with section 54 of the Education Act, a teacher ’ s salary should be calculated by the reference to the average salary in Russia (see the Relevant domestic law below). He further argued that since 1993 he had not been receiving the full salary he was entitled to by law, and claimed arrears.

9 . On 4 September 1998 the District Court ordered the town ’ s department of education and the town administration to make an additional payment to the applicant ’ s salary in accordance with § 2 of section 54 of the Education Act in respect of certain periods in 1995, 1997 and from January to May 1998. With reference to section 54 § 2 of the Education Act (see the Relevant domestic law part below) concerning the remuneration for teacher ’ s work the District Court confirmed the applicant ’ s entitlement to additional payments. It further rejected the applicant ’ s calculations of the arrears claimed under those provisions, stating that it was not possible to establish the amounts due to the applicant as there had been no mechanism adopted for calculating such payments. Accordingly, the court refused to specify the exact amount to be paid to the applicant. The District Court further awarded the applicant 1,562.13 Russian roubles (RUB) in compensation for purchasing of publishing materials, and ordered the defendant to pay RUB 500 to his representative.

10. The judgment came into force on 15 October 1998, and on 15 January 1999 it was quashed in the supervisory review proceedings in the part relating to the representative ’ s award.

11. In October 1998 the District Court issued the writs of execution in accordance with the above judgment.

12. On 23 and 29 October 1998 the District Court forwarded the writs of execution to the bailiff ’ s service.

13. On an unspecified date in April-May 1999, the judgment of 4 September 1998 was enforced in the part concerning the payment of the compensation for the publishing materials.

14 . On 1 April 1999 the writ of execution related to the additional payments to the applicant ’ s salary was returned to the District Court for impossibility of its enforcement.

15. In January 2000 the applicant complained before the domestic courts against the alleged inaction on behalf of the bailiffs. At some point, his complaints were rejected.

16. On an unspecified date, the applicant applied to the District Court for clarification of the judgment of 4 September 1998 in the part concerning the additional payments to his salary.

17 . On 14 May 2004 the District Court rejected the applicant ’ s claims with the following reasons:

“from the reasons given in the decision of the [court] of 4 September 1998 it follows that the court was unable to establish the amount of the wage arrears in respect of [the applicant] as the mechanism for calculating the wages had not been adopted. As the decision of 4 September 1998 contains no specific amount due to [the applicant], the court cannot clarify the decision without altering its content.”

18. On 22 August 2004 the Education Act was amended. In particular, section 54 § 2 of the Act was repealed as of 1 January 2005 (see the Relevant domestic law part below).

19. On 31 August and 1 September 2004 the Federal Law no. 122-FZ, which introduced the amendments, was published in two national newspapers. The amendments entered into effect on 1 January 2005.

B. Relevant domestic law

1. Teachers ’ salaries under the 1992 Education Act

20. Section 54 § 2 of the 1992 Education Act (Federal Law no. 3266-1 of 10 July 1992) , as in force until 1 January 2005, provided that the salaries and pay rates for teachers should exceed the average salary level in Russia

21. Since the adoption of the Education Act there had been no legal mechanism for the implementation of the above-mentioned provision. Each year its operation was suspended by the law on federal budget for a relevant year (the last suspension being introduced by section 144 of the Federal Law “On Federal Budget for 2004”, and point 1(7) of attachment 20 to that Law).

2. Another legal mechanism regulating teachers ’ salaries

22. Two other Federal Laws regulated the remuneration for teachers ’ work at the material time: “On harmonisation of the public sector employees ’ remuneration” of 4 February 1999 (№ 22-FZ), and “On the first-rank pay rate in the Unified Tariff Wage Rate Scale for remuneration of the public sector employees” of 25 October 2001 (№ 139-FZ).

3. Amendments introduced on 22 August 2004

23. On 22 August 2004 the law commonly known as “the Monetisation of Social Benefits Law” was passed (Federal Law no. 122-FZ). That Law introduced several amendments in a number of domestic laws. In particular, it abrogated section 54 § 2 of the 1992 Education Act, as well as Federal Law no. 139-FZ. The new Law further amended certain provisions of the Law no. 22-FZ, which also got a new title “On remuneration of employees of the federal state institutions”.

24. These amendments entered into force on 1 January 2005.

COMPLAINTS

25. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the failure by the national authorities to enforce final court decisions in his favour.

THE LAW

A. Non-enforcement of the judgments in the applicant ’ s favour

26. The applicant complained about non-enforcement of the above judgments. The Court will examine these complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, as far as relevant, 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 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...”

27. The Government submitted that the complaint about non ‑ enforcement of the judgment of 12 November 1997 was lodged more than three years after its quashing and more than one year after § 2 of section 54 of the Education Act became inoperative. They, therefore, argued that the complaint was lodged outside the six-month time-limit. As regards the judgment of 4 September 1998, the Government argued that it could not be enforced in the part relating to the additional payments as there had been no legal mechanism for calculating such payments, and due to the fact that the legal provision that was the basis for the award in question became inoperative on 1 January 2005.

28. The applicant maintained his complaints.

29 . The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia , no. 59498/00, ECHR 2002 ‑ III ) . In a number of cases the Court has rejected non-enforcement complaints in accordance with Article 35 § 1 of the Convention if they were introduced more than six months after the date when the judgment ceased to be binding and enforceable (see, in the context of the quashing of a judgment by way of supervisory-review proceedings, Kravchenko v. Russia , no. 34615/02, § 34, 2 April 2009, and Nikolay Zaytsev v. Russia , no. 3447/06, § 26, 18 February 2010). In Babich and Azhogin the Court rejected the applications as introduced out of time where the applicants had lodged their complaints more than six months after the time at which they had clearly learned, or ought to have learned, that the judgments in their favour had no longer been enforceable under the domestic law because of the change in the domestic pensions legislation (see Babich and Azhogin v. Russia ( dec. ), nos. 9457/09 and 9531/09, §§ 47 ‑ 54 and 57 ‑ 58, 15 October 2013).

30. As regards the non-enforcement of the judgment of 12 November 1997, and in so far as the matter is within the Court ’ s competence ratione temporis , the Court observes that the judgment was quashed by way of supervisory review. The Court reiterates that the quashing of a final and binding judgment is an instantaneous act (see, among many other authorities, Sardin v. Russia ( dec. ), no. 69582/01, 12 February 2004 ). The judgment in issue clearly ceased to be binding and enforceable on 24 May 2002. The applicant has not argued that he was unaware of the supervisory review proceedings and their result. Indeed, he participated in the subsequent proceedings, in which the domestic courts rejected his claims in full (see paragraphs 4-7 above). In the view of the foregoing, the complaint about the non-enforcement of the judgment of 12 November 1997 lodged on 10 December 2005 falls outside the six-month time-limit.

31. As regards the judgment of 4 September 1998, the Court notes that it has not been quashed or amended. The Court further notes that unlike Babich and Azhogin (cited above) the award under the present judgment was not forward looking, but concerned salary arrears for a specific period of time in the past. The Court notes from the outset that the domestic judgment did not establish the exact amount of the State ’ s pecuniary obligation vis-à-vis the applicant. The Court does not have information to allow it to make any calculations as to the amount due to him, and, in any event, they would only be speculative (see, in a similar context, Nagovitsyn v. Russia , no. 6859/02, § 38, 24 January 2008). Accordingly, doubts arise as to whether the applicant ’ s claim under that judgment was sufficiently established to be enforceable in the first place. Assuming that it was, the Court would be bound to accept that the judgment provided the applicant with a claim which, however, could not be enforced due to the legislative gap existing at the material time, that is the lack of a legal mechanism for calculation of the respective additional payments provided for in section 54 § 2 of the Education Act (see, for the authorities ’ clear and consistent position on the matter, paragraphs 9-17 above). However, the Court is in any event time-barred from examining that issue, for the following reason.

32. Under the Court ’ s case-law a continuing situation may not postpone the application of the six-month rule indefinitely and the applicant must, in any event, introduce his or her complaint “without undue delay”, once it becomes apparent that there is no realistic hope of a favourable outcome or progress for his complaints at the domestic level in the foreseeable future (see, among several others, Sokolov and Others v. Serbia ( dec. ), § 31, nos. 30859/10 and 6 others, 14 January 2014, with further references; and Voronkov v. Russia , no. 39678/03, § 38, 30 July 2015).

33. The Court observes that by virtue of Federal Law no. 122-FZ (see the Relevant domestic law above) section 54 § 2 of the Education Act was abrogated as of 1 January 2005. The Court considers that from the date of these legislative amendments it could no longer be reasonably expected that a legal mechanism required for implementation of the repealed provision would be adopted in future. Thus, the applicant could no longer have any reasonable hope for progress in enforcement of the judgment.

34. The Court observes that the amendments were publicly available as early as on 31 August 2004, and came into force on 1 January 2005. It has not been argued that the applicant was unaware of these changes or their relevance for his case .

35. In these circumstances, the Court concludes that since 1 January 2005 at the latest the applicant has no longer had a realistic hope to have the judgment of 4 September 1998 in his favour enforced. However, the applicant brought his non-enforcement complaint in respect of this judgment to the Court approximately a year later, thus, missing the six ‑ month time-limit set out in the Convention.

36. Accordingly, the applicant ’ s non-enforcement complaint in respect of both domestic judgments in his favour should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention .

B. Other alleged violations of the Convention

37. The applicant also complained under Article 13 of the Convention that there had been no effective remedy at his disposal in respect of the delayed enforcement of the judgment in his favour.

38. Having regard to all the material in its possession in so far as the complaint falls within the Court ’ s competence, it finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill ‑ founded, pursuant to 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 22 February 2018 .

FatoÅŸ Aracı Branko Lubarda              Deputy Registrar President