FIRST SECTION

CASE OF SHLEPKIN v. RUSSIA

(Application no. 3046/03)

JUDGMENT

STRASBOURG

1 February 2007

FINAL

09/07/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Shlepkin v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens, judges and Mr S. Nielsen , Section Registrar ,

Having deliberated in private on 11 January 2007 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 3046/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Grigoryevich Shlepkin (“the applicant”), on 15 December 2002.

2 . The applicant was represented by Ms V.A. Gerasimova, a lawyer practising in Inza in the Ulyanovsk Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

3 . On 22 February 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1962 and lives in the village of Troitskoe in the Ulyanovsk Region.

5 . On 23 March 2001 the Chernovskiy District Court of Chita partly allowed the applicant ' s claim against the State enterprise “Stroitelniy Kompleks” ( государственное предприятие “Строительный Комплекс” ) for recovery of the unpaid amount of compensation for a work-related injury. The court awarded him 7,500 roubles (“RUR”) in respect of the period from 1996 to 1999 . The judgment was not appealed against and became enforceable on 3 April 200 1 .

6 . As the applicant had not been able to attend the hearing, on 6 April 2001 the District Court sent a writ of execution to the Chita bailiffs for enforcement. It appears that some time in May 2002 the applicant was informed for the first time that the judgment had been adopted and that the writ had been sent to the bailiffs.

7 . In the meantime, on 21 June 2001 the Commercial Court of the Chita Region ordered liquidation of the State enterprise “Stroitelniy Kompleks” because it had gone bankrupt.

8 . On 31 May 2002 the applicant lodged a complaint concerning the non-enforcement of the judgment with the Supreme Court of the Russian Federation, which forwarded it to the Chita local authorities.

9 . Having examined the issue, in July 2002 the local authorities discovered that in 2001 the writ of execution had been lost and had never reach ed the Chita bailiffs ' service.

10 . On 23 July 2002 the District Court sent a duplicate writ of execution to the bailiffs.

11 . On 9 September 2002 the bailiffs commenced the enforcement proceedings.

12 . On 20 May 2003 the Chernovskiy District Court discontinued the enforcement proceedings as the debtor company had ceased to exist. The applicant did not appeal against that judgment.

13 . It appears that the judgment of 23 March 2001 remains unenforced to date.

14 . In the meantime, o n 30 September 2002 the Inzenskiy District Court of the Ulyanovsk Region awarded the applicant the unpaid amounts of compensation for the period from 2000 to 2002, payable by the local social insurance foundation. It appears that this judgment was duly enforced by the national authorities.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL No . 1

15 . The applicant complained about the continued non-enforcement of the judgment of 23 March 2001 in his favour. This complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The relevant parts of these provisions 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.

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.”

A. Admissibility

16 . The Government raised two objections as to the non-exhaustion of the domestic remedies. They submitted firstly that the applicant had not sue d the post al service for the loss of the writ and secondly that he had failed to appeal against the judicial decision of 20 May 2003 , by which the enforcement proceedings were discontinued.

17 . The applicant disagreed on the both points.

18 . The Court notes that the debtor in the instant case is a State enterprise, and the judgment against it could only have been enforced if the State took the appropriate legislative measures , that is , if they introduced appropriate provision s in the Civil Code and the Budget Act . I t was the lack of legislative measures rather th a n misconduct of the bailiffs or the postal service which made the enforcement of the judgment in question impossible . The applicant cannot therefore be reproached for not having taken proceedings against the bailiff s or the postal service (see , mutatis mutandis , Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002).

19 . The Court concludes that the remedies suggested by the Government would have been ineffective.

20 . For the above reasons, the Court finds that the application cannot be rejected for non-exhaustion of domestic remedies. It considers, in the light of the parties ' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Merits

21 . The Government denied their responsibility for the continued failure to enforce the judgment referring to the fact that the State enterprise “Stroitelniy Kompleks” had been liquidated . They submitted that national authorities had shown due diligence in enforcement of the judgment and could not be held responsible for any delay.

22 . The applicant insisted that the State responsibility did not cease following the bankruptcy of the State enterprise .

23 . T he Court observes that on 23 March 2001 the applicant obtained an enforceable judgment by which the State enterprise “Stroitelniy Kompleks” was to pay him a substantial amount. The judgment has not been enforced to date.

24 . The Court notes that the Government have not demonstrated that the State enterprise enjoyed sufficient institutional and operational independence from the State to absolve the latter from responsibility under the Convention for its acts and omissions (see Mykhaylenky and Others v. Ukraine , nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and 42814/02, §§ 41-46, ECHR 2004 ‑ XII; and Lisyanskiy v. Ukraine , no. 17899/02, §§ 17-20, 4 April 2006 ). The Court further observes that it is not open to a State authority to cite the lack of funds or other resources as an excuse f or not honouring a court award (see , mutatis mutandis , Burdov v. Russia , no. 59498/00, § 35, ECHR 2002 ‑ III).

25 . The Court therefore concludes that the State cannot justify its failure to enforce the judgment against the State enterprise by reference to the liquidation of the company .

26 . The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, for example, Burdov v. Russia , cited above , § § 33-42; Gerasimova v. Russia , no. 24669/02, §§ 14-22, 13 October 2005; Gizzatova v. Russia , no. 5124/03, §§ 18-29 , 13 January 2005 ).

27 . Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of justifying the failure to enforce the judgment. It finds that by failing to comply with the enforceable judgment in the applicant ' s favour the domestic authorities impaired the essence of his “right to a court” and prevented him from receiving the money he had legitimately expected to receive.

28 . There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

29 . 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.”

A. Damage

30 . The applicant claimed RUR 74,769 in respect of pecuniary damage , representing the original award adjusted in line with increases of the minimum monthly wage since 2001 . He also claimed 6,000 euros (“EUR”) in respect of non-pecuniary damage.

31 . The Government contested the applicant ' s claims in respect of pecuniary damage, stating that he had allegedly received the amount due in separate proceedings and regarded the applicant ' s claims for non-pecuniary damage as excessive and unreasonable.

32 . T he Court notes that the applicant has not received the original award of RUR 7,500. As, under national legislation, it does not appear possible to enforce the judgment concerned due to the liquidation of the State enterprise the Court awards the applicant this amount in respect of pecuniary damage (see Yavor ivskaya v. Russia , no. 34687/02, §§ 31-33 , 21 July 2005 ).

33 . As regards the applicant ' s claim for adjustment of the award, the Court notes that the judgment of 23 March 2001 covered the period from 1996 to 1999, whereas the applicant ' s claim for adjustment of the award is based on increases of the minimum monthly wage between 2001 and 2006. The Court therefore rejects the applicant ' s claim for adjustment .

34 . Turning to the applicant ' s claim in respect of non-pecuniary damage, t he Court considers that the applicant suffered distress because of the State authorities ' failure to secure payment of the award in his favour. Making its assessment on an equitable basis, the Court awards the applicant EUR 1 ,500 , plus an y tax that may be chargeable.

B. Costs and expenses

35 . The applicant claimed EUR 2,000 in respect of legal fees and EUR 200 for postal expenses.

36 . The Government submitted that the applicant had not enter ed into a contract with his lawyer and was not entitled to reimbursement of any costs and expenses. They claimed that the applicant had submitted no document which would substantiate his postal expenses.

37 . According to the Court ' s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. T he applicant did not produce to the Court a contract with his lawyer Ms Gerasimova setting out her fees or a n account of the time she had spent on the applicant ' s case. Furthermore, her signature only appears on the submissions which were not included in the case file for the consideration of the Court. T he applicant produce d postal receipts for RUR 128 . Having regard to all relevant factors , the Court awards the applicant RUR 128 in respect of costs and expenses.

C. Default interest

38 . The Court considers it appropriate that the default interest 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

1. Declares , by a majority , the application admissible;

2. Holds , by six votes to one , that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1;

3. Holds , by six votes to one ,

(a) that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall pay the applicant the following amounts:

(i) RUR 7,500 (seven thousand f ive hundred Russian roubles) in respect of pecuniary damage;

( i i ) EUR 1, 5 00 ( one thousand five hundred euros) in respect of non-pecuniary damage , to be converted into Russian roubles at the rate applicable at the date of settlement ;

( i ii) RUR 128 ( one hundred and twenty- eight Russian roubles ) in respect of costs and expenses;

( i v ) any tax that may be chargeable on the above amounts;

(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;

4. Dismisses unanimously the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 1 February 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Kovler is annexed to this judgment.

C.L.R.

S.N.

DISSENTING OPINION OF JUDGE KOVLER

To my regret, I cannot share the majority ' s view, even though I am certain, that in the present case the non-enforcement of a judgment in the applicant ' s favour has entailed violations of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.

In my opinion, the Court should not have declared the application admissible and should not have examined it on the merits for the following reasons.

The applicant has made full use of the domestic civil procedure and has challenged in the Supreme Court the non-enforcement of the judgment against the State enterprise Stroitelniy Kompleks (later it turned out, that the judgment was not enforced because the mail service had lost the writ of enforcement). As a result, the case was returned to the first-instance court (§ 8), a new writ of enforcement was issued (§ 10 ), the execution proceedings were resumed (§ 11 ), and even the allowance arrears fo r 2000–02 were partly paid (§ 14 ).

But the applicant has failed to challenge the discontinuation of the enforcement proceedings due to the enterprise ' s bankruptcy, and the Court points this out directly (§ 1 2 ). Still, under domestic law he could do it. The Federal Law on enforcement proceedings of 31 December 1999 states that ' a decision on the discontinuation or adjournment of enforcement proceedings may be challenged as established in the Codes of Civil and Commercial Procedures ' (article 24, part 4 of the Law).

As the enforcement proceedings had been discontinued due to the enterprise ' s bankruptcy, a challenge of this decision could have had certain legal implications. Under the Russian Civil Code, when a company is wound up, ' first are paid debts to the individuals arising from damage to life or health, by way of capitalisation of relevant instalments ' (Article 64, Part 1 of Civil Code). To this end, the wound-up company (or its appointed manager) must capitalise the funds needed for compensating the damage in future and transfer it to State social security. The Law on Insolvency (bankruptcy) states: ' On the individual ' s consent, his claim to the debtor in the amount of capitalised instalments passes to the State. In this case, the claim is also paid first ' (article 135, part 3 of the Law). Hence, when the enforcement proceedings were discontinued on 20 May 2003, the applicant ' s rights were protected by domestic means. The applicant has not used these means, apparently believing that they may be replaced by his application to the European Court. In my opinion, there is a manifest disrespect of the admissibility criteria of Article 35 § 1 of the Convention.

The Court should have examined the merits of the application, only if it were manifestly admissible.

But even assuming that the application is admissible, it is hard to agree with the Court ' s findings set out in §§ 18 –1 9 of the judgment. Instead of investigating the existing legal remedies against the non-payment of social allowances (above I have tried to show some), the Court has hastily concluded that these remedies were inefficient. It is a pity that the text of the judgment has no section ' Relevant domestic law and practice ' . If it did have it, the colleagues ' findings might have been different.