GORCHAKOVA AND OTHERS v. RUSSIA - 21772/06 (Judgment : Article 6 - Right to a fair trial : Third Section Committee) [2018] ECHR 476 (12 June 2018)

In the case of Gorchakova and Others v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 22 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 21772/06) 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 six Russian nationals ("the applicants"), on 16 March 2006.

2. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 30 August 2010 the application was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The list of applicants is set out in the appended tables.

6. The applicants were employees of a municipal education institution.

7. On 13 June 2001 they brought proceedings before the Kolomna Town Court of the Moscow Region ("the Town Court") against their employer and the town administration seeking recovery of unpaid wages and taxes to various social funds.

8. On 13 July 2004 the Kolomna Town Court issued a first-instance judgment on the merits of the case. On 22 September 2004 the Moscow Regional Court quashed the judgment on appeal and remitted the case for a fresh examination.

9. On 7 July 2005 the Town Court granted the applicants' claims awarding each of them a certain amount against their employer (see Appendix I). The judgment was upheld on appeal by the Moscow Regional Court on 28 September 2005.

10. Between 26 June 2001 and 7 July 2005 the court hearings were adjourned twenty-five times due to the respondents' or one of the respondents' failure to appear, eighteen times on the claimants' request and eleven times pursuant the requests by the defendants; four times the first-�instance court adjourned the case as the respondent authorities had been requested to submit additional documents. Moreover, on 11 June 2002 the proceedings were suspended pursuant to a decision by the domestic court on account of the claimants' alleged failure to appear; on 4 February 2003 that decision was quashed by the appeal court, due to the first-instance court's failure to notify the applicants of the hearing date. Thus, the period attributable to the authorities amounts to over one year.

11. On an unspecified date in 2005 the employer institution was liquidated. On 18 October 2005 the relevant record was made into the State Register of Legal Entities.

12. According to the Government's submissions of 19 July 2011, on 30 June 2006 the judgment of 7 July 2005 was partially enforced in respect of certain applicants, as specified in Appendix I.

II. RELEVANT DOMESTIC LAW

13. On 30 April 2010 the Russian Parliament adopted a Federal Law no. 68-�FZ "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" ("the Compensation Act"). On the same date the Parliament adopted a Federal Law no. 69-FZ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010.

14. Relevant provisions of the Compensation Act are summarised in Nagovitsyn and Nalgiyev v. Russia (nos. 27451/09 and 60650/09, §§ 15-20, 23 September 2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE CIVIL PROCEEDINGS

15. The applicants complained that the length of the proceedings had been incompatible with the "reasonable time" requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

16. The Court observes that the period to be taken into consideration began on 13 June 2001 and ended on 28 September 2005. It thus lasted approximately four years and three months for two levels of jurisdiction.

A. Admissibility

17. The Court notes that 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

18. The Government disagreed with the complaint, arguing that a significant period of the delay was attributable to the applicants who, inter alia, had amended their claims on twelve occasions, and on many occasions had failed to appear before the domestic courts.

19. The applicants maintained the complaint. They submitted that during the civil proceedings, they had continued to perform their professional duties. Thus, they had been bound to regularly amend their claims which concerned their salaries. The applicants further argued that they and their representative in the proceedings had not been duly and timely informed of all the scheduled hearings.

20. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

21. The Court observes that the case was not particularly complex. Further, the proceedings against the employer concerned the recovery of wage arrears, which required particular diligence on the part of the domestic authorities (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230-�D; Akhmatova v. Russia [Committee], no. 22596/04, § 48, 21 October 2010; and Nozhkov v. Russia [Committee], no. 9619/05, § 43, 19 February 2013).

22. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

23. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

24. There has accordingly been a breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF NON-ENFORCEMENT

25. The applicants complained that the judgment of 7 July 2005 had not been fully enforced. The Court considers that the complaint falls to be examined under Article 6 § 1 of the Convention, cited above, and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:

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

26. The Government argued that the applicants had failed to exhaust the domestic remedies in respect of this complaint. In particular, they had failed to use the Compensation Act.

27. The Court has previously examined similar cases and has taken the view that, as a matter of principle, it would require that all cases introduced after the pilot judgment Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009) and falling under the Compensation Act be submitted in the first place to the national courts (Nagovitsyn and Nalgiyev, cited above, §§ 27-�45). In the decision Nagovitsyn and Nalgiyev the Court noted that it could exceptionally decide, for the sake of fairness and effectiveness, to conclude its proceedings by a judgment in certain cases of this kind which had remained on its list for a long time or had already reached an advanced stage of proceedings (ibid., § 41).

28. The Court observes that the non-enforcement complaint was lodged on 16 March 2006, i.e. long before the date of the pilot judgment and of the Compensation Act. Therefore, in line with the principle cited above, the Court decides to proceed with the examination of the present complaint and, accordingly, dismisses the Government's non-�exhaustion objection.

29. The Court notes that 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

30. It is not disputed between the parties that the judgment of 7 July 2005 remained unenforced. In their submissions of 19 July 2011, the Government claimed that only parts of the debts under the judgment had been paid to four applicants (see Appendix I). The government further acknowledged that the monetary obligation under the judgment had to be fulfilled at the expense of the local budget.

31. The Court notes that the delay in executing the judgment constituted at least five years and nine months. 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 those in the present case (see, among other authorities, Burdov v. Russia, no. 59498/00, ECHR 2002-III; Androsov v. Russia, no. 63973/00, 6 October 2005; and Gorokhov and Rusyayev v. Russia, no. 38305/02, 17 March 2005).

32. Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for years to execute the final judicial decision in the applicants' favour the domestic authorities deprived the provisions of Article 6 § 1 of all useful effect and prevented them from receiving the money they could reasonably have expected to receive.

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

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. 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

35. In respect of pecuniary damage the applicants claimed the amounts representing the debts in accordance with the judgment of 7 July 2005 in respect of each applicant, plus contributions to various funds, compensation for delayed payment of salaries, as well as index-linking of the main debts. They submitted detailed calculations and documents, including, in particular, the authorities' certificates concerning the consumer price indexes for the relevant periods.

36. In respect of non-pecuniary damage each applicant claimed 10,604 euros (EUR).

37. The Government contested the claims in the parts relating to the contributions to various funds and compensation for delayed payment of salaries. They argued that under the national law the applicants were not entitled to such payments, and that the applicants had failed to claim those amounts before domestic courts. The Government did not contest the applicants' claims in the parts relating to the amounts of the main debts under the judgment and index-linking those amounts.

38. As to pecuniary damage, the Court notes that the judgment in the applicants' favour has remained unenforced in full or in part, as specified in the Appendix I below. The Court reiterates that the violation found is best redressed by putting the applicant in the position he would have been if the Convention had been respected. The Government shall therefore secure, by appropriate means, the enforcement of the domestic court's outstanding awards.

39. Further, as regards the claims in respect of contributions to various funds and the compensation for delayed payment of salaries, the Court agrees with the Government and dismisses them in full. On the other hand, as regards the interest claims, the Court reiterates that the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value. The Court further notes that the Government have not contested the applicants' claims in this part and have not commented either on the calculation method used or the final calculation made by the applicants. In the absence of the Government's submissions on the matter, the Court accepts the applicants' calculation in respect of the interest and awards each applicant the amounts specified in Appendix II, plus any tax that may be chargeable, and rejects the remainder of the claims in respect of the pecuniary damage.

40. The Court further awards each applicant EUR 6,600, 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

41. Each applicant also claimed EUR 74 for the travel expenses incurred during the proceedings before the domestic courts.

42. The Government considered the applicants' claims unsubstantiated.

43. Regard being had to the documents in its possession and to its case-�law, the Court rejects the applicants' claims for costs and expenses.

C. Default interest

44. 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 application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of length of proceedings;

3. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of non-enforcement;

4. Holds

(a) that the respondent State shall secure, by appropriate means, the enforcement of the domestic court's outstanding awards which had not been paid to the applicants pursuant to the judgment of 7 July 2005;

(b) that the respondent State is to pay the applicants, within three months, the amounts indicated in Appendix II, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c) 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;

5. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 12 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıAlena Poláčková
Deputy RegistrarPresident

APPENDIX I

No.	Applicant's name Date of birth Place of residence	Amount awarded by the judgment of 7 July 2005 (in RUB)	Amount paid to some applicants in 2006 pursuant to the judgment of 7 July 2005 (in RUB)
1.	Yelena Konstantinovna GORCHAKOVA 09/07/1958 Kolomna	90,096.47	13,041.78
2.	Andrey Valeryevich CHUKAVIN 07/04/1963 Kolomna	42,891.67	6,035.94
3.	Pavel Valeryevich CHUKAVIN 07/04/1963 Kolomna	40,412.19	5,762.65
4.	Oleg Vladimirovich SEMASHKO 06/07/1958 Kolomna	35,934.04	5,459.35
5.	Natalya Nikolayevna SHAVNYA 05/05/1948 Nepetsino	43,799	n/a
6.	Olga Konstantinovna SIDOROVA 07/11/1950 Kolomna	43,154.47	n/a

APPENDIX II

No.	Applicant's name Date of birth Place of residence	Amount awarded by the Court in respect of pecuniary damage per applicant (in EUR)	Amount awarded by the Court in respect of non-pecuniary damage per applicant (in EUR)
1.	Yelena Konstantinovna GORCHAKOVA 09/07/1958 Kolomna	1,635	6,600
2.	Andrey Valeryevich CHUKAVIN 07/04/1963 Kolomna	778	6,600
3.	Pavel Valeryevich CHUKAVIN 07/04/1963 Kolomna	733	6,600
4.	Oleg Vladimirovich SEMASHKO 06/07/1958 Kolomna	652	6,600
5.	Natalya Nikolayevna SHAVNYA 05/05/1948 Nepetsino	795	6,600
6.	Olga Konstantinovna SIDOROVA 07/11/1950 Kolomna	783	6,600

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