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Resolution CM/ ResDH (2020)37

Execution of the judgments of the European Court of Human Rights

13 cases against Russian Federation

(Adopted by the Committee of Ministers on 5 March 2020 at the 1369 th meeting of the Ministers ’ Deputies)

Application

Case

Judgment of

Final on

41307/02

SHPAKOVSKIY

07/07/2005

07/10/2005

27995/05

BOGUNOV

23/10/2008

23/01/2009

24435/04

BORMOTOV

31/07/2008

31/10/2008

9593/06

GORBUNOV

04/12/2008

04/03/2009

38872/02

GALKIN IVAN

20/11/2008

20/02/2009

25971/03

KOTSAR

29/01/2009

29/04/2009

16152/03

LAPIN

20/09/2011

20/12/2011

34672/03

LEVISHCHEV

29/01/2009

06/07/2009

16048/06

LOTOREVICH

22/01/2009

22/04/2009

14656/03

PONOMARENKO

15/02/2007

15/05/2007

27368/06+

SAFRONOV AND OTHERS

18/10/2018

13979/03

SLADKOV

18/12/2008

18/03/2009

40078/03

TOLSTOV

26/06/2008

26/09/2008

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having noted that the just satisfaction, where awarded, has been paid by the government of the respondent State (see Appendix 2);

Noting with satisfaction the general measures adopted by the Russian authorities in respect of delayed enforcement of domestic judicial decisions imposing on the State obligations to provide housing to former military servicemen (see Appendix 1);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix 1 to Resolution CM/ ResDH ( 2020)...

Information about the measures to comply with the judgments

I. Case summaries

This group of cases concerns the violation of the applicants ’ right to access to court and the right to enjoyment of possessions due to the authorities ’ failure, over several years, to enforce the domestic judgments ordering them to provide the applicants with flats to which they were entitled as former military servicemen (violations of Article 6, paragraph 1, and of Article 1 of Protocol No. 1).

In a number of cases, the Court also found a lack of an effective remedy in respect of the non-enforcement of the judicial decisions (violations of Article 13).

II. Individual measures

In all cases in which the European Court awarded just satisfaction, the relevant sums were paid to the applicants or their representatives under conditions accepted by them (see below, the list of payment of just satisfaction and of enforcement of domestic judicial decisions).

All domestic judicial decisions in favour of the applicants have been enforced (see Appendix 2)

Against this background, no other individual measures appear to be necessary.

III. General measures

A. Measures taken in response to the violations of Article 6, paragraph 1, and of Article 1 of Protocol No. 1

1. Administrative measures and their results

In January 2015, the Ministry of Defense adopted an instruction, inter ali a, setting out clear procedures and mechanisms for enforcement of judicial decisions against the Ministry by its various structural components and for control of implementation of these procedures. In January 2016, the Ministry of Defense adopted a programme for provision of housing to former military personnel. In the framework of this programme, the Ministry performed an inventory check of the existing housing facilities. It also established working groups to improve co-operation on enforcement issues with the Federal Bailiff Service and has organised regular meetings with bailiffs and other public bodies to discuss such issues. Contracts for the construction of over 10,000 flats have been signed.

As a result of these measures, the number of unenforced judicial decisions for provision of housing to military personnel dropped by over 75% between January 2013 and July 2016. [1]

2. Assessment of the measures

At its 1288 th meeting (June 2017) (DH) the Committee examined the execution of the pilot judgment Gerasimov and Others concerning delayed enforcement of domestic judicial decisions imposing on the State obligations in kind. In its decision, the Committee, inter alia , welcomed the important progress achieved in addressing and removing the origin of the violations established by the European Court as regards the enforcement of judicial decisions awarding housing to military servicemen. In the light of this, it decided to close examination of this aspect (see paragraph 4 of the decision).

B. Measures taken in response to the violations of Article 13

1. Compensatory remedy

The 2010 Compensation Act (“On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time”), which was adopted by the Russian Federation in response to the Burdov (No.2 ) pilot judgment, entitles a party concerned to bring an action for compensation for the violation of his or her right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets. However, the provisions of this Act, as originally adopted, did not cover cases of delayed enforcement of obligations in kind, as a result of which the European Court adopted the Gerasimov and Others pilot judgment. In response to that judgment, on 19 December 2016 the Russian Federation adopted a federal law amending the 2010 Compensation Act, thus extending the right to obtain compensation for the lack of speedy enforcement of domestic judicial decisions concerning the State ’ s pecuniary obligations in kind, at issue in the present group of cases. The law entered into force on 1 January 2017.

2. Acceleratory remedies

a) The power to order punitive damages was introduced into the Russian Federation ’ s Civil Code on 1 June 2015 (Article 308.3). The courts can award such damages against a debtor who has failed to comply in due time with his or her obligations in kind. These damages can also be awarded against public or municipal bodies and will thus serve as an additional remedy in cases of delayed enforcement of the kind of obligations which are at issue in these cases. The issues related to the application of Article 308.3 have been resolved by Resolution of the Plenum of the Supreme Court no.7 of 24 March 2016 “On Courts ’ Application of Particular Provisions of the Civil Code of the Russian Federation Regarding Liability for Violation of Obligations”.

b) On 8 March 2015 the Code of Administrative Procedure of the Russian Federation (“the CAP”) was adopted providing for examination of, inter alia , complaints arising out of lengthy non-enforcement of judicial decisions. In particular, the following elements have been provided for: a more active role of the courts: redistribution of the burden of proof with the obligation on state authorities to provide documents and materials related to the alleged violation; penal sanctions for failure to provide materials to the court without valid reasons; participation in the proceedings of the body whose officials have committed the alleged violations and/or the body vested with the powers for elimination thereof; possibility for the court to apply preventive protection measures including interim measures; benefit schemes for payment of court duties; accelerated examination of administrative cases; possibility to deliver special decisions aiming at elimination of violations of the law established, etc.

The legal positions aimed at increasing the effectiveness of execution of court judgments imposing pecuniary and/or non-pecuniary obligations on state authorities, local self-government authorities and their officials are formulated in the Plenum Ruling of the Supreme Court no. 50 of 17 November 2015 “On Courts ’ Application of the Law during Consideration of Some Issues Emerging in the Course of Enforcement Proceedings” and are also reflected in the “Review of Judicial Practice of the Supreme Court of the Russian Federation” no. 1 (2018).

3. Assessment of the remedies

At its 1288 th meeting (June 2017) (DH) the Committee examined the execution of the pilot judgment Gerasimov and Others concerning delayed enforcement of domestic judicial decisions imposing on the State obligations in kind. In its decision, the Committee welcomed the setting up of the aforementioned compensatory remedy and the acceleratory remedy provided for by the Civil Code, deeming them prima facie effective, and closed its examination of the part concerning the adoption of remedies (see paragraph 3 of the decision).

C. Publication and dissemination

The judgments were translated, published and disseminated to all the authorities concerned, often with explanatory notes and recommendations.

IV. Conclusion

The government considers that the measures adopted have fully remedied the consequences of the violations of the Convention found by the European Court in these cases and that these measures will prevent similar violations. The Russian Federation has, therefore, complied with its obligations under Article 46, paragraph 1, of the Convention.

Appendix 2

List of payment of just satisfaction and of enforcement of domestic judicial decisions

App.

Case

Judgment final on

Sums awarded by the Court (in EUR, unless specified otherwise)

Payment deadline

Date of payment of the sums awarded by the Court

Payment of default interest

Enforcement of the domestic judicial decision at the origin of the violation

Pecuniary damage

Non-pecuniary damage

Costs and expenses

41307/02

Shpakovskiy

07/10/2005

-

1500-

07/01/2006

26/12/2005

n/a

Enforced

27995/05

Bogunov

23/01/2009

-

1600-

23/04/2009

22/04/2009

n/a

Enforced

24435/04

Bormotov

31/10/2008

-

2100-

31/01/2009

02/02/2009

Not significant (EUR 0.69 not paid)

Enforced

9593/06

Gorbunov

04/03/2009

-

2,200

-

04/07/2009

29/05/2009

n/a

Enforced

38872/02

Ivan Galkin

20/02/2009

-

n/a

Enforced

25971/03

Kotsar

29/04/2009

-

3,000

10

29/07/2009

26/08/2009

Paid

N/a (the Court could not ascertain whether the applicant was entitled to a flat of specific characteristics)

16152/03

Lapin

20/12/2011

-

2,400

-

20/03/2012

04/04/2012

Paid

Enforced

34672/03

Levishchev

06/07/2009

-

2,000

-

06/10/2009

09/10/2009

Not significant (EUR 0.78 not paid)

Enforced

16048/06

Lotorevich

22/04/2009

-

2,000

-

22/07/2009

26/08/2009

Paid

Enforced

14656/03

Ponomarenko

15/05/2007

-

3,100

-

15/08/2007

07/09/2007

n/a ( the applicant provided his bank account details after the payment deadline)

Enforced

27368/06

Safronov and Others

18/10/2018

-

6,000

-

18/01/2019

21/05/2019

Paid

Enforced

13979/03

Sladkov

18/03/2009

-

3,500

-

18/06/2009

14/07/2009

Paid

Enforced

40078/03

Tolstov

26/09/2008

-

Enforced

[1] See Action Report submitted in respect of the Gerasimov and Others case on 10 April 2017, DH- DD( 2017)471.

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CASE OF SHPAKOVSKIY AGAINST RUSSIA AND 12 OTHER CASES

CASE OF SHPAKOVSKIY AGAINST RUSSIA AND 12 OTHER CASES