SMAGILOV v. RUSSIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicant, Mr Vladimir Nikolayevich Smagilov, is a Russian national, who was born in 1959 and lives in Perm. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1999 the applicant bought a desktop computer from a private company F. He subsequently brought proceedings claiming that he had been misled about the technical characteristics of the hardware, that he had not been provided with a user manual, that the seller had failed to comply with consumer protection legislation and that the warranty was partly void. 5. On 26 October 1999 the Sverdlovskiy District Court of Perm (“the District Court”) issued a summary judgment in the applicant’s favour annulled the sale and ordered payment of damages. However, on 19 October 2000 the judgment was set aside on appeal by the Perm Regional Court (“the Regional Court”) and the case was sent back for reconsideration. 6. In order to secure enforcement of the future judgment the applicant requested the District Court to apply interim measures, namely the attachment of the hardware in the defendant’s possession and an order for the defendant to deposit the amount of the damages claimed or, alternatively, the attachment of property in the same amount. 7. On 11 March 2001 the District Court granted the applicant’s request in part and ordered the attachment of the hardware in the defendant’s possession. The other requested measures were refused in view of the defendant’s solvency and active participation in the proceedings. The applicant did not appeal. 8. On 5 February 2002 the District Court gave a new judgment allowing the applicant’s claims in part concerning the warranty on the hardware and dismissing all the other claims. On 11 June 2002 the Regional Court set aside the judgment in part and required that the remaining claims be reconsidered. 9. In a summary judgment of 19 December 2002 the District Court awarded the applicant 357,319 Russian roubles (RUB) (10,900 euros (EUR)) in damages and ordered the defendant to replace the original desktop computer. 10. On 30 April 2003 the Bailiffs’ Service at the request of the applicant initiated enforcement proceedings against the debtor company F. 11. In view of the apparent lack of progress in the enforcement proceedings, in 2004 the applicant lodged a new action seeking annulment of the sale and recovery of damages. On 15 June 2004 the District Court in a summary judgment granted his claims, annulled the sale and awarded the applicant an additional RUB 265,879 (EUR 8,100) in damages. 12. On 20 May and 8 October 2004 the competent authorities refused to open criminal proceedings against the debtor company for its failure to comply with the judgment. The decision of 8 October 2004 was upheld at last instance by the Regional Court on 8 February 2005. 13. Discontent with the lack of progress in the enforcement of the judgment of 19 December 2002, the applicant requested that the bailiff’s actions and inaction be recognised as unlawful. On 10 November 2004 the District Court found that the enforcement proceedings were indeed tainted by unjustified delays and inaction and the bailiff’s inaction was ruled unlawful. 14. In 2005 the applicant also brought proceedings against the regional Judicial Department seeking damages for the allegedly unlawful refusal of the District Court judge to apply the requested interim measures to secure enforcement of the judgment (see paragraphs 6-7 above). 15. On 5 September 2005 the District Court dismissed the complaint without consideration on the ground that it lacked legal basis. The dismissal was upheld on appeal by the Regional Court on 4 October 2005. 16. In 2007 the applicant attempted to initiate civil proceedings against the Treasury of the Russian Federation and the regional Bailiffs’ Service for the failure to enforce the judgment in his favour. On 3 May 2007 the proceedings were adjourned by the District Court owing to the applicant’s failure to formulate his claims against all of the defendants and to provide their postal addresses. The applicant was given time to correct these defects. On 12 July 2007 the Regional Court upheld the adjournment on appeal. It appears that the applicant has never corrected the defects indicated by the domestic courts and that the proceedings have remained adjourned. 17. The basic principles regarding compensation for damage caused by public authorities and their officials are enshrined in the Constitution of the Russian Federation of 1993. In Article 53 the Constitution provides that everyone is entitled to compensation for damage caused by unlawful actions (or inaction) of State bodies and their officials. Article 52 secures the abovementioned right with a constitutional obligation of the State to ensure access to a court and compensation for damage in cases where public authorities and their officials infringe rights protected by law. 18. The Code of Civil Procedure of the Russian Federation of 2002, which entered into force on 1 February 2003, establishes the framework for challenging the decisions or actions (or inaction) of any State or local self-government authority or official. 19. Chapter 25 of the Code of Civil Procedure, entitled “Proceedings to challenge decisions and actions (or inaction) of State bodies, local selfgovernment authorities, officials or State or municipal civil servants” provides in the relevant part as follows: “1. A citizen or legal person may challenge before a court any decision, action (or inaction) of a State or local self-government authority, official, or a State or municipal civil servant if they consider that their rights and freedoms have been violated. A citizen or legal person may lodge an application directly with a court or with a superior, in order of subordination, State or local self-government authority or official, or State or municipal civil servant. ... 4. The court may suspend enforcement of the challenged decision until entry into force of the judicial decision.” “The decisions, actions (or inaction) of State or local self-government authorities, officials, or State or municipal civil servants, which may be challenged in civil proceedings are collective and independent decisions, actions (or inaction) resulting in: - a violation of a citizen’s rights and freedoms, - a restriction on the exercise by a citizen of his rights and freedoms, - an obligation or legal responsibility of a citizen that is devoid of lawful basis.” “1. Where the court establishes that an application is well-founded, it shall adopt a decision ordering the relevant State or local self-government authority or official, or State or municipal civil servants to provide full redress for the violation of the rights and freedoms or the restriction on the exercise by a citizen of his rights and freedoms. ... 4. The court shall dismiss an application if it establishes that the challenged decision or action was adopted or performed within the scope of powers of a State or local self-government authority or official, or State or municipal civil servant, and that the rights and freedoms of a citizen were not violated.” 20. Article 136 of the Code of Civil Procedure governs the handling of lawsuits submitted in disregard of the procedural requirements and provides as follows: “1. A judge who establishes that a lawsuit has been submitted to the court without following the requirements [as regards its form, necessary elements and supporting documents] shall adjourn the proceedings, inform the plaintiff about the adjournment, and set a reasonable time-limit for correction of the defects. 2. The lawsuit shall be considered lodged on the date of its initial submission if the plaintiff complies with the instructions of the judge. Otherwise the lawsuit shall be considered as not submitted and returned to the plaintiff with all of the attached documents. 3. An appeal shall lie against a ruling to adjourn proceedings on a lawsuit.” 21. Chapter 13 of the Code governs all matters related to interim measures within the civil proceedings. In the relevant parts it provides as follows: “Upon an application of a party to the proceedings a judge or a court may order an interim measures. An interim measure may be ordered at any stage of the proceedings, if a failure to order it may impede or prevent enforcement of a court’s decision.” “1. An appeal shall lie against any ruling ordering an interim measure ...” 22. Title II of the Civil Code of the Russian Federation of 1995, which entered into force on 1 March 1996, governs liability for damage. Article 1064, establishing basic principles of civil liability for damage, provides in the relevant parts as follows: “1. Damage caused to an individual or his property, as well as damage to the property of a legal entity, shall be subject to full compensation by the person who caused the damage. The law may prescribe that compensation for damage be due from a person other than the person who caused the damage ... 2. A person who causes damage shall not be liable for compensation in respect thereof if he proves that it was not caused by any fault on his part. However, the law may prescribe that compensation for damage be due even where there was no fault on the part of the person who caused it. 3. Damage caused by lawful actions shall be subject to compensation where prescribed by law ...” 23. Article 1069 of the Civil Code dealing with damage caused by a State or local self-government authority or official provides as follows: “Damage caused to an individual or a legal entity as a result of unlawful actions (or inaction) of State authorities, local self-government authorities or their officials, including damage resulting from an act of a State authority or local self-government authority that is incompatible with a law or another legal act, shall be subject to compensation. The damage shall be compensated for at the expense of the Treasury of the Russian Federation, the treasury of a subject of the Russian Federation, or the treasury of a municipal authority, respectively.” 24. In addition to the general provisions on compensation for unlawful actions (or inaction) of State authorities and their officials Title II of the Civil Code stipulates specific rules for damage caused by law-enforcement authorities and the courts: “1. Damage caused to an individual as a result of unlawful conviction, unlawful criminal prosecution, unlawful detention or release on his recognizance, unlawful administrative arrest, and damage caused to a legal entity as a result of unlawful administrative suspension of activities, shall be fully compensated for by the Treasury of the Russian Federation, and where prescribed by law by the treasury of a subject of the Russian Federation or the treasury of a municipality, in full regardless of any guilt on the part of any official of an inquiry or preliminary investigation authority, prosecutor’s office or court. 2. Damage caused to an individual or a legal entity by unlawful actions of inquiry and preliminary investigation authorities and prosecutor’s offices, where they do not entail the consequences mentioned in paragraph 1 of this Article, shall be subject to compensation under Article 1069 of the present Code. Damage caused in the administration of justice shall be subject to compensation if the guilt of a judge has been established by a final and binding judgment of conviction.” 25. The Constitutional Court in its judgments and decisions has provided a constitutional interpretation of Article 1069 of the Civil Code in conjunction with Articles 52 and 53 of the Russian Constitution (see Judgments No. 1-P of 4 June 2009, No. 9-P of 16 June 2009, and Decisions No. 22-O of 20 February 2002, No. 1005-O-O of 4 June 2009), including the following principles: 26. In its decision no. 338-O of 4 October 2005 the Constitutional Court emphasised with reference to the case-law of the Court that enforcement of a judgment was an integral part of the judicial protection of rights and that the review of bailiffs’ actions (or inaction) must be performed by their superiors and by the courts. 27. Following the constitutional review of the specific rules stated in paragraph 2 of Article 1070 of the Civil Code on damage caused by law-enforcement authorities and the courts, the Constitutional Court found them constitutional in so far as they provided for special conditions as to State liability for damage caused in the administration of justice (Ruling no. 1-P of 25 January 2001). However the Ruling clarified that the term “administration of justice” applied only to judicial decisions on the merits of the case, while procedural rulings fell outside its scope. State liability for damage caused, unlawful procedural acts or failure to act could arise even in the absence of a final criminal conviction of a judge, if the fault of the judge had been established in civil proceedings. 28. Both the Supreme Court and the Supreme Commercial Court of the Russian Federation (which until unification of the courts in 2014 was the highest court for commercial disputes) have issued case-law reviews and guidelines clarifying various procedural and substantive aspects of the right to receive compensation under Article 1069 of the Civil Code as established in the practice of the Russian courts. These decisions of the Supreme Commercial Court of the Russian Federation remain in force unless superseded by newly adopted decisions of the unified Supreme Court of the Russian Federation. 29. In decree no. 23 of 2006 of the Plenum of the Supreme Commercial Court it was stressed that a defendant to a lawsuit under Article 1069 should always be a public entity, but not a structural unit thereof or an official in a personal capacity. The compensation must accordingly be recovered only from the public entity. 30. In joint Decree no. 30 / 64 of 23 December 2010 of the Plenum of the Supreme Court and the Plenum of the Supreme Commercial Court, the courts highlighted that while the post-Burdov 2 legislative scheme only guaranteed compensation for non-enforcement of judgments against the State, nothing precluded lawsuits from being brought in other disputes concerning the non-enforcement of judgments under Articles 151 and 1069 of the Civil Code. 31. Information Letter no. 145 of the Presidium of the Supreme Commercial Court of 31 May 2011 in particular mentioned the following points: