European Court of Human Rights

 

THIRD SECTION

CASE OF YUNUSOVA v. RUSSIA

(Application no. 5489/10)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 January 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Yunusova v. Russia,

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

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 December 2019,

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

PROCEDURE

1.  The case originated in an application (no. 5489/10) 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, Ms Guzyal Gabbasovna Yunusova (“the applicant”), on 12 January 2010.

2.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 22 February 2017 the Government were given notice of the complaints concerning non-enforcement of judgements in the applicant’s favour and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

4.  The applicant was born in 1953 and lives in Izhevsk.

I. Domestic judgments in the applicant’s favour

5.  On 15 September 2006 and 7 May 2007 by two separate judgments the Industrialnyy District Court of Izhevsk (“the Distict Court”) ordered the municipal institution MU “Gorodskoye zhilishchnoye upravleniye” (МУ “Городское жилищное управление - Управляющая компания в жилищно-коммунальном хозяйстве г. Ижевска”, “the company”) to perform certain works within the adjacent territory and in respect of the house where the applicant lived. Each judgment contained a list of the specific works. The District Court did not address the question of responsibility of another defendant in these civil cases, i.e. the administration of town of Izhevsk. The judgments came into force on 9 October 2006 and 21 June 2007 respectively.

6.  On 22 October 2007 the District Court issued another judgment in the applicant’s favour ordering the company to conduct certain major repairs in the house where the applicant lived. By its additional judgment of 27 December 2007 the District Court extended the list of those repairs.

7.  The operative part of both judgments concerning the major repairs read that if the company lacked the necessary funding, the works had to be performed at the expense of the town of Izhevsk. The decisions came into force on 19 March 2008.

II. Enforcement of the judgments in the applicant’s favour

8.  On various dates enforcement proceedings were initiated in respect of the judgments.

9.  On 7 November 2013 the District Court established non-enforcement of judgments of 15 September 2006 and of 7 May 2007, and granted the applicant’s claim to impose vicarious liability for all of the obligations under those judgments on the town administration.

10.  On 24 December 2014 the Supreme Court of the Udmurtiya Republic changed the mode of enforcement of the judgment of 22 October 2007 in the part concerning installation of a heat meter. Having acknowledged a lack of enforcement of the initial judgment, the court allowed the applicant to install the meter herself and later recover the cost of such installation from the town.

11.  On 9 February 2017 the town administration sent a letter to the bailiffs’ service department responsible for the enforcement of the judgment concerning major repairs asking it to terminate the proceedings as the judgment had been fully executed. A number of documents confirming the performance of works were enclosed with the letter.

12.  On 28 April 2017 having examined the above-mentioned documents, the bailiff in charge terminated the enforcement proceedings in respect of the judgment of 22 October 2007.

13.  On 19 July 2017 the senior bailiff overturned the decision to terminate the enforcement proceedings. She found, in particular, that the documents available in the case file did not confirm full enforcement of the judgment.

14.  On an unspecified date the applicant complained to the senior bailiff about ineffective work by the bailiff responsible for enforcement of the judgments of 7 November 2013 and of 22 October 2007.

15.  On 24 July 2017 the senior bailiff rejected the applicant’s complaint. It follows from the text of the relevant ruling that all the judgments remained unenforced and the enforcement proceedings were still pending. However, the bailiffs’ work was satisfactory.

III. Available information on the company and its liquidation

16.  The company was instituted by the administration of the town of Izhevsk (“the town administration”) with the aim to manage maintenance and use of housing in Izhevsk.

17.  On 19 August 2011 the town administration decided to reorganise the company into an autonomous municipal institution.

18.  On 10 August 2012 the town administration initiated liquidation of the company.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

19.  The applicant complained of the non-enforcement of domestic decisions given in her favour and of the lack of any effective remedy in domestic law. She relied on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1 to the Convention, which 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 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

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.”

20.  In their observations of 23 June 2017 the Government submitted that the judgments of 15 September 2006 and of 7 May 2007 had been enforced in part. They also submitted that the liquidation proceedings in respect of the company were pending, and that the vicarious responsibility of the municipality had been established only in respect of the other two decisions in the applicant’s favour, i.e. of 22 October 2007 and of 27 December 2007. The Government argued that the latter decisions had been fully enforced, referring to the letter of the administration of town of Izhevsk of 9 February 2017 with attachments. Thus, they considered the complaint manifestly ill‑founded.

21.  The applicant maintained her complaint. Referring to the judgment of 7 November 2013, she argued that the municipality was liable to perform the works also under the judgments of 15 September 2006 and of 7 May 2007 (see paragraph 9 above). She contested full enforcement of the judgment of 22 October 2007 citing the conclusions of the senior bailiff in the ruling of 24 July 2017 (see paragraphs 14-15 above). Concerning the alleged non-enforcement in the part related to the heat meter (see paragraph 10 above), the applicant submitted that it was found by the experts in 2015 that its installation was technically impossible. So she claimed that she could not use her right in accordance with the decision of 24 December 2014, and that the judgment remained partly unenforced.

A.    Admissibility

22.  The Court observes that the complaint relates to the question of the State responsibility for the obligations under the judgments against a municipal institution. In this respect the Court notes that the debtor company is undergoing liquidation and the vicarious liability of the town administration has been established by the domestic courts in respect of the judgments in the applicant’s favour. This follows from the operative part of the judgments of 22 October 2007 and of 27 December 2007, and from the separate judicial decision of 7 November 2013 in respect of the obligations under the judgments of 15 September 2006 and of 7 May 2007 (paragraphs 5-7 and 9 above). The foregoing considerations are sufficient to enable the Court to conclude that in the present case the obligations stemming from the judgments in the applicant’s favour are attributable to the municipality.

23.  As regards its competence ratione personae to examine the actions of a municipality, the Court reiterates its previous findings that municipal bodies are “a public authority” within the Convention meaning (Saliyev v. Russia, no. 35016/03, §§ 69-70, 21 October 2010, and Dzugayeva v. Russia, no. 44971/04, § 17, 12 February 2013). The Court does not see any reason to reach a different conclusion in the present case.

24.  The Court notes this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

25.  In determining whether or not the judgments were enforced the Court will rely on the conclusions of the domestic authorities, since its role in this matter is essentially subsidiary. The Court notes in this connection that on 24 July 2017 the Bailiffs Service acknowledged a lack of enforcement of the judgments in the applicant’s favour (see paragraphs 14‑15 above). As to the Government’s submission that the judgment of 22 October 2007 was fully enforced, the Court notes that the Government’s observations pre-dated the ruling of 24 July 2017, and in their additional observations the Government did not submit any new documents confirming enforcement of this or other relevant judgments. In the view of the foregoing, the Court concludes that the judgments in the applicant’s favour have not been fully enforced to date.

26.  The Court has found violations of Article 6 § 1 of the Convention in respect of issues similar to those in the present case (see Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 167-74, 1 July 2014). Accordingly, it finds a violation of Article 6 § 1 of the Convention on account of non-enforcement of the judgments in the applicant’s favour.

27.  Given its above findings and having regard to the nature of the domestic awards made by national courts in the present case, the Court considers that there is no need for a separate examination of the admissibility and merits of the complaints under Article 1 of Protocol No. 1 (see, mutatis mutandis, Lyubov Stetsenko v. Russia, no. 26216/07, § 92, 17 April 2014, and Konstantinova and Others v. Russia (dec.), no. 60708/13, § 29, 5 February 2019)

28.  As regards the effective remedies, the Court notes the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the Gerasimov and Others pilot judgment (cited above) by Federal Law No. 450-FZ amending the Compensation Act of 2010 (for further details concerning the amendments see Shtolts and Others v. Russia (dec.), no. 77056/14, §§ 30-78, 30 January 2018).

29.  In the light of the adoption of the new domestic remedy and in line with its previous decisions, the Court considers that it is not necessary to examine separately the admissibility and merits of the applicant’s complaint under Article 13 in the present case (see, mutatis mutandis, Konstantinova and Others, cited above, §§ 30-33; Stroganova and Others v. Russia (dec.), no. 51391/07, 6 November 2018; and Tkhyegepso and Others v. Russia, nos. 44387/04 and 11 others, §§ 21-24, 25 October 2011).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  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

31.  The applicant claimed 122 euros (EUR), the amount allegedly overpaid for heating in 2011-2012, in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.

32.  The Government argued that these amounts were unreasonable and unsubstantiated.

33.  The Court considers that, in so far as the judgments in the applicant’s favour remain in force, the respondent State has an outstanding obligation to secure, by appropriate means, enforcement of those judgments (see Pridatchenko and Others v. Russia, nos. 2191/03 and 3 others, § 68, 21 June 2007, and Salikova v. Russia, no. 25270/06, § 83, 15 July 2010).

34.  As regards the claims in respect of pecuniary damage the Court finds them unsubstantiated. On the other hand, the Court considers that the applicant must have suffered non-pecuniary damage on account of the violation found. Regard being had to the nature of the obligations, to the fact that the courts ordered to perform a whole range of works that were executed in part, and, in particular, to the fact of technical impossibility to install the heater, the Court considers it reasonable to award EUR 2,000 to the applicant in respect of non-pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the claims under this head.

B.     Costs and expenses

35.  The applicant also claimed EUR 529 for the costs and expenses. The amount comprised postal expenses (EUR 22) and payments for the Internet in 2009-2017 (EUR 507).

36.  The Government argued that the alleged expenses were not linked with the subject-matter of the case.

37.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 22 for costs and expenses for the proceedings before the Court, plus any tax that may be chargeable, and rejects the remainder of the claims under this head.

C.    Default interest

38.  The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,

1.      Declares the non-enforcement complaint under Article 6 of the Convention admissible;

2.      Holds that there has been a violation of Article 6 of the Convention;

3.      Holds that there is no need to examine the admissibility and merits of the complaints under Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention;

4.      Holds that respondent State has an outstanding obligation to secure, by appropriate means, within three months, the enforcement of the pending domestic judgments in the applicant’s favour;

5.      Holds

(a)   that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State applicable at the date of settlement, plus any tax that may be chargeable:

(i)         EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;

(ii)       EUR 22 (twenty two euros) in respect of costs and expenses;

(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;

6.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                  Alena Poláčková
       Registrar                                                                              President