CASE OF KOVAL v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Erik Møse;Julia Laffranque;Khanlar Hajiyev
9. The applicant was born in 1949 and lived in Aksay. 10. He sued Russian military authorities in domestic courts, seeking recovery of pension arrears. 11. On 12 August 2004 the Rostov-on-Don Military Circuit Court granted the applicant’s claim and ordered the Military Commission of the Rostov Region (“the military commission”) to pay the applicant 204,870.78 Russian roubles. The judgment became final on 23 August 2004. 12. On 23 August 2004 the respondent military commission received a writ of execution in relation to the judgment debt from the court and at some point issued a payment order pursuant to the judgment in the applicant’s favour. However, that order was subsequently revoked and the writ of execution was seized due to a check held by a military prosecutor’s office and no funds were transferred to the applicant’s account (see also paragraph 13 below). 13. At some point the respondent authority sought restoration of the term for challenging of the judgment by way of the supervisory review procedure. On 1 December 2006 the Rostov-on-Don Military Circuit Court rejected that claim. 14. In response to the applicant’s several requests, the authority in charge of the payment submitted that the writ of execution was not in its possession and therefore it was unable to pay the judgment debt. At some point the applicant requested a court to issue a duplicate of the writ of execution and to restore the time-limit for its submission for execution. In its decision of 14 April 2009 the Rostov-on-Don Military Circuit Court confirmed that the writ of execution had been seized during the inquiry. However, the court found no reasons to consider the writ of execution as being lost as it was apparently in the possession of the military prosecutor’s office. The court accordingly decided that no duplicate could be issued as the time-limit for its submission for execution had expired. The court also refused to reinstate the missed term as the applicant could have requested the prosecutor’s office to return him the document in question and after that submit it for execution. On 10 June 2009 the North Caucasus Circuit Military Court upheld the decision on appeal. 15. The judgment of 12 August 2004 remained unenforced up to the date of the applicant’s death in 2010. In December 2011 his widow obtained a certificate issued by a public notary by which she was officially recognised as the applicant’s successor in respect of his right to claim the judgment debt. Then she sought in courts substitution of her late husband in the enforcement proceedings. On 10 August 2012 the Rostov-on-Don Military Circuit Court rejected her claim, stating that the deceased applicant could not be substituted because no execution proceedings had ever been initiated, no writ of execution had been submitted for execution, and the threeyear term for its submission and initiation of the execution proceedings had expired. The applicant’s widow sought in court reinstatement of the term for appealing against the decision of 10 August 2012. It follows from the parties’ later submissions that the request was granted and she was able to challenge the decision on appeal. The parties have not provided any information on the outcome of those proceedings. 16. The judgment remains unenforced to date.