Kolkhiyev and Others v. Russia

FIRST SECTION

This version was rectified on 16 August 2011 under Rule 81 of the Rules of Court

Application no. 19463/04 and other applications Vitaliy Sergeyevich KOLKHIYEV and Others against Russia (see annex for other applications)

The European Court of Human Rights (First Section), sitting on 24 May 2011 as a Chamber composed of:

Nina Vajić, President, Anatoly Kovler, Peer Lorenzen, Elisabeth Steiner, Khanlar Hajiyev, George Nicolaou, Julia Laffranque, judges, and Søren Nielsen, Section Registrar,

Having regard to the above applications,

Having regard to the decision to apply the pilot-judgment procedure taken in the case of Burdov (no. 2) v. Russia (no. 33509/04, ECHR 2009 ‑ ...),

Having regard to the declarations submitted by the respondent Government requesting the Court to strike the applications out of the list of cases and the applicants' reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicants are Russian nationals whose names and dates of birth are tabulated below.

Mr M. Makarov, Mr T. Botsiyev and Mr I. Gagiyev died after lodging their applications under Article 34 of the Convention. Their successors, Ms Z. Makarova, Ms G. Chipirova and Mr S. Gagiyev respectively indicated their interest in pursuing the proceedings.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

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

The applicants sued the State authorities in domestic courts for payment of various monetary sums due under the Russian law. The courts held for the applicants and ordered the authorities to pay various amounts in the form of lump sums and/or of periodic payments to be upgraded in line with the inflation in the country. These judgments became binding but the authorities delayed their enforcement.

COMPLAINTS

The applicants complained about the delayed enforcement of the judgments in their favour and, in certain cases, of assorted faults that allegedly accompanied the judicial or enforcement proceedings.

THE LAW

I. LOCUS STANDI

The Court takes note of certain applicants' death and of the interest of their successors in pursuing the proceedings.

The Court reiterates that where an applicant dies during the examination of a case his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania , no. 34578/97, § 41, ECHR 2000-IX). Furthermore, in some cases concerning non-enforcement of court judgments, the Court recognised the right of the relatives of the deceased applicant to pursue the application (see Shiryayeva v. Russia , no. 21417/04, §§ 8-9, 13 July 2006).

The Court notes that the rights at stake in the present case are very similar to those at the heart of the cases referred to above. Nothing suggests that the rights the applicants sought to protect through the Convention mechanism were eminently personal and non-transferable (see Malhous v. the Czech Republic [GC], no. 33071/96, § 1, 12 July 2001). The Government did not contend that any of the successors mentioned above had no standing to pursue the cases. Therefore, the Court considers that the applicants' successors have a legitimate interest in pursuing the applications.

II. COMPLAINTS OF NON-ENFORCEMENT

Following the Burdov (no. 2) pilot judgment cited above the Government informed the Court of the payment of the domestic court awards in the applicants' favour and submitted unilateral declarations aimed at resolving the issues raised by the applications. By these declarations the Russian authorities acknowledged in various but very similar terms that judgments in the applicants' favour were not enforced in a timely manner ( e.g. “the excessive duration of the enforcement”, “the delay in the enforcement” or “the lengthy enforcement”). They also declared that they were ready to pay the applicants ex gratia the sums tabulated below. The remainder of the declarations read as follows:

“The authorities therefore invite the Court to strike [the applications] out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The [sums tabulated below], which [are] to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. [They] will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay [these sums] within the said three-month period, the Government undertake to pay simple interest on [them] from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

This payment will constitute the final resolution of the case.”

Some applicants agreed to the terms of the Government's declarations. Others failed to reply. A majority disagreed on various grounds, considering most often that the compensation amounts offered by the Government were insufficient.

The Court reiterates that under Article 37 of the Convention it may at any stage of the proceedings strike an application out of its list of cases where the circumstances lead to the conclusions specified under (a), (b), or (c) of that Article.

Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

Article 37 § 1 in fine states:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”

The Court recalls that in its pilot judgment ( Burdov v. Russia (no. 2) , cited above) it ordered the Russian Federation to

“grant [adequate and sufficient] redress, within one year from the date on which the judgment [became] final, to all victims of non-payment or unreasonably delayed payment by State authorities of a judgment debt in their favour who [had] lodged their applications with the Court before the delivery of the present judgment and whose applications [had been] communicated to the Government under Rule 54 § 2 (b) of the Rules of the Court.”

In the same judgment the Court also held that:

“pending the adoption of the above measures, the Court [would] adjourn, for one year from the date on which the judgment [became] final, the proceedings in all cases concerning solely the non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by the State authorities, without prejudice to the Court's power at any moment to declare inadmissible any such case or to strike it out of its list following a friendly settlement between the parties or the resolution of the matter by other means in accordance with Articles 37 or 39 of the Convention.”

Having examined the terms of the Government's declarations, the Court understands them as intending to give the applicants redress in line with the pilot judgment (see Burdov (no. 2) , cited above, §§ 127 and 145 and point 7 of the operative part).

The Court is satisfied that the excessive length of the execution of judgments in the applicants' favour is acknowledged by the Government either explicitly or in substance. The Court also notes that the compensations offered are comparable with Court awards in similar cases, taking account, inter alia , of the specific delays in each particular case (see Burdov (no. 2) , cited above, §§ 99 and 154).

The Court therefore considers that it is no longer justified to continue the examination of the applications. It is also satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue the examination of the applications.

Accordingly, in so far as the complaints about delayed enforcement of the judgments in the applicants' favour are concerned, the applications should be struck out of the list.

As regards the question of implementation of the Government's undertakings, the Committee of Ministers of the Council of Europe remains competent to supervise this matter in accordance with Article 46 of the Convention (see the Committee of Ministers' decisions of 14-15 September 2009 (CM/Del/Dec(2009)1065) and Interim Resolution CM/ResDH(2009)1 58 concerning the implementation of the Burdov (no. 2) judgment). In any event the Court's present ruling is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the present applications to the list of cases (see E.G. v. Poland (dec.), no. 50425/99, § 29, ECHR 2008 ‑ ... (extracts)).

III. OTHER COMPLAINTS

Some applicants made accessory complaints referring to assorted Articles of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the applications in this part are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government's declarations under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to join the applications;

Decides to strike the applications in respect of non-enforcement of the judgments in the applicants' favour out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the applications inadmissible.

Søren Nielsen Nina Vajić Registrar President

No

Application No

Lodged on

Applicant name and date of birth

Compensation offered (euros)

1.

19463/04

24/04/2004

Vitaliy Sergeyevich KOLKHIYEV

04/04/1959

Tamerlan Viktorovich BOTSIYEV

(succeeded by Galina Astemirovna CHIPIROVA)

15/07/1951

Magomedkerim Abdulzhalilovich VALIMAGOMEDOV

01/01/1955

Stanislav Yevgenyevich VLASOV

18/06/1966

Ruslan Savelyevich GIOYEV

17/03/1965

Khairbek Bechirbekovich DZABOLOV

30/04/1955

Robert Asanovich KACHLAYEV

23/01/1972

Oleg Aleksandrovich KOKAYEV

25/12/1954

Andrey Grigoryevich KOKOYEV

09/01/1975

Tatyana Nikolayevna KUZNETSOVA

07/08/1946

Igor Viktorovich MESHCHERYAKOV

13/05/1955

Soslan Archilovich MUZAYEV

18/06/1954

Robert Sergeyevich MURADYANTS

18/07/1966

Konstantin Petrovich SANAKOYEV

26/04/1971

Alan Borisovich SLANOV

19/03/1970

Vladimir Kantemirovich KHADARTSEV

15/08/1960

Ruslan Krimgeriyevich KHUTOV

01/05/1957

Iosif Ivanovich GAGIYEV

(succeeded by Soslan Iosifovich GAGIYEV)

17/02/1960

Kazbek Mikhaylovich DZIDAKHANOV

10/02/1953

Svetlana Grigoryevna DUDAROVA

12/08/1957

Elbrus Aslanbekovich YEDZIYEV

30/09/1960

Oleg Viktorovich KIRGUYEV

19/11/1964

Kazbek Temirbolatovich KULOV

30/11/1966

German Vladimirovich GIGOLAYEV

13/10/1966

Viktor Sergeyevich ZHILKIN

25/06/1973

Givi Grigoryevich PLIYEV

27/09/1945

Marina Mairbekovna TOLPAROVA

08/03/1967

Murad Mukhtarovich VANEYEV

25/01/1969

1,567

1,662

1,620

1,484

1,532

1,622

1,712

1,731

1,810

1,242

1,632

1,755

1,653

1,636

1,641

1,429

1,672

1,420

1,413

1,715

1,567

1,648

1,505

1,650

1,394

1,560

1,513

1,425

2.

38634/05

13/09/2005

Raisa Semenovna STRELTSOVA

12/10/1935

2,750

3.

42720/05

28/09/2005

Viktor Mikhaylovich YEFREMOV

26/10/1961

950

4.

3465/06

19/11/2005

Yuliya Grigoryevna NOVIKOVA

05/03/1938

2,750

5.

19658/07

13/03/2007

Nikolay Ivanovich POPOV

18/05/1958

800

6.

22093/07

24/04/2007

Viktor Magometovich TSORIYEV

10/10/1961

917

7.

28431/07

13/06/2007

Aleksandr Anatolyevich VOLCHOK

29/12/1969

1,458

8

51347/07

15/09/2007

Galina Mefodyevna SOROVETS

07/11/1942

2,500

9.

52278/07

06/11/2007

Mikhail Nikolayevich MAKAROV

(succeeded by Zinaida Ivanovna MAKAROVA), 21/11/1949

900

10.

1427/08

30/11/2007

Ivan Pavlovich MELESHKIN

05/01/1951

900

11.

34803/08

22/04/2008

Valeriy Viktorovich DEYEV

25/05/1969

3,200 [1]

12.

35032/08

05/05/2008

Alikhan Bamatgireyevich DUDAROV

25/10/1944

2,700

13.

3072/09

18/12/2008

Vladimir Alekseyevich SAFONOV

25/12/1946

2,680

1. Rectified on 16 August 2011 : the text was “3,299”