Information Note on the Court’s case-law 239

April 2020

Solonskiy and Petrova v. Russia (dec.) - 3752/08 and 22723/09

Decision 17.3.2020 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to lodge vicarious liability claim against authorities owning property used by institutions which had not paid judgment debts to applicants: inadmissible

Facts – On various d ates the applicants obtained binding judicial decisions ordering municipal institutions to make certain payments in their favour. The judgments became final but remained unenforced.

Law – Article 35 § 1: The Government had claimed that the applicants had f ailed to follow the procedure for bringing a claim for vicarious liability against the relevant authority. While in previous cases the Court had rejected a similar objection by the Government, in the case at hand the latter had provided a number of relevan t examples from national case-law.

As to the effectiveness of the remedy, domestic law provides for a rather straightforward procedure for applying the provisions concerning vicarious liability in cases similar to the present ones. The condition for holdin g an authority that owns the property assigned to an institution vicariously liable for the debts of that institution is a lack of funds on the part of the institution. Thus, any creditor who had unsuccessfully claimed the debt from the principal debtor in stitution could lodge a vicarious liability claim against the owner of the property used by that institution. In the examples of domestic practice provided by the Government, the claimants had not been required to prove that an institution’s failure to ful fil an obligation or the non-enforcement of a judgment against an institution had been caused by the acts of the respective authority. In the given examples, the domestic courts had applied, inter alia , Articles 120 and 399 of the Civil Code and granted cl aims against the institutions. In the event of a lack of funds, they had held the owners of the property assigned to the institutions vicariously liable for debts incurred by the institutions stemming from various relationships. In cases concerning non-enf orcement of a judicial decision against an institution, the national courts had granted claims against the relevant municipal or federal authorities, having established the fact of non-enforcement and that the authority was the owner of the property used b y the institution.

The applicants had been informed that they were entitled to hold the authorities vicariously liable. They had not contested the availability of that remedy.

Consequently, the Court found no reason to consider that a claim for vicarious liability would not have reasonable prospects of success in the applicants’ cases. In one application the reason for non-enforcement had clearly been lack of funds on the part o f the debtor institution. In another application it had been established during enforcement proceedings that the debtor institution had ceased its activities, since its accounts had been closed and there was no known successor. In those circumstances, obta ining judicial decisions finding the authorities directly liable for the relevant debts could have facilitated payment of the amounts awarded in the applicants’ favour. Moreover, lodging a claim for vicarious liability would not have imposed an excessive b urden on the applicants. In view of the foregoing, and in the absence of any arguments on behalf of the applicants, the latter had been required to pursue a vicarious liability claim prior to lodging their applications before the Court.

Conclusion : inadmis sible (non-exhaustion of domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes