AS TO THE ADMISSIBILITY OF
Application no. 41146/02
by Mikhail Anatolyevich KOLOTKOV
The European Court of Human Rights (First Section), sitting on 9 March 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 10 November 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Mikhail Anatolyevich Kolotkov, is a Russian national who was born in 1972 and lives in Moscow. The respondent Government were represented by Mr P.A. Laptev, 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 applicant was a civil servant in the Federal Ministry of Foreign Affairs. From 1998 to May 2001 he was assigned to the Russian embassy in the Republic of Uganda as an attaché. By an order of 17 July 2001 he was dismissed from the Ministry of Foreign Affairs on the ground of expiration of the term of his labour contract.
1. Proceedings concerning reinstatement
(a) Judgment of 19 October 2001 as upheld on 18 December 2001
On 30 July 2001 the applicant brought proceedings for reinstatement. On 19 October 2001 the Presnenskiy District Court of Moscow found that the applicant had been employed for an indefinite period and that his dismissal had, therefore, been unlawful. It ordered the respondent Ministry to reinstate him in his post of an attaché at the Russian embassy in Uganda and update his labour records accordingly. It stated that the judgment was subject to immediate enforcement. The Ministry appealed against the judgment. On 18 December 2001 the Moscow City Court rejected the Ministry’s appeal and upheld the judgment which came into force on the same day.
On 9 November 2001 the Ministry ordered the applicant’s reinstatement in his post in accordance with the judgment of 19 October 2001. However, as the three-year term of his assignment in Uganda had been expired and no extension was possible the applicant was offered, in January 2002, posts of an attaché available in the central office of the Ministry in Moscow. He refused to accept the offers and requested the continuation of his work in the capacity of an attaché at the embassy in Uganda.
On 25 April 2002 he applied to the bailiff requesting the enforcement of the judgment. On 6 May 2002 the bailiff brought enforcement proceedings.
By an order of 16 May 2002 the applicant was appointed an attaché at the historical and documentary department of the central office of the Ministry as of 15 January 2002. He refused to assume his office.
By letters of 16, 22 and 28 May 2002 the Ministry informed the bailiff of their efforts to enforce the judgment and to settle the situation with the applicant’s employment. They explained, inter alia, with reference to the applicable legislation and the rules of rotation of diplomatic staff that there was no legal basis for the applicant’s continued service in the embassy in Uganda.
By an order of 15 August 2002 the Ministry dismissed the applicant on the ground of his refusal to work.
On 3 October 2002 the bailiff imposed a fine on the head of the personnel department of the Ministry for his failure to enforce the judgment. The Ministry challenged the bailiff’s decision in the District Court which on 28 November 2002 stayed the enforcement proceedings pending its decision. The applicant’s request to join the proceedings and his appeal against the decision to stay the enforcement were rejected. On 3 June 2003 the District Court found the bailiff’s decision imposing the fine lawful.
On 15 August 2003 the Ministry quashed their order of 15 August 2002 on the applicant’s dismissal and ordered his reinstatement with his place of work in the central office of the Ministry. The applicant was paid remuneration for the preceding period and compensation for the late payment. On 29 August 2003 the Ministry fixed the applicant’s remuneration which included an allowance for his diplomatic rank of an attaché and an allowance for work with information involving State secret.
By a decision of 11 September 2003 the bailiff discontinued the enforcement proceedings in view of the enforcement of the judgment.
On 15 September 2003 the applicant appealed against the bailiff’s decision to discontinue the proceedings. On 31 October 2003 the District Court rejected the applicant’s appeal and upheld the bailiff’s decision. It found that the term of the applicant’s assignment to the embassy in Uganda had expired on 10 May 2001 and that thereafter the Ministry had provided him with work in its central office in accordance with the labour law requirements. It held that the judgment of 19 October 2001 as upheld on 18 December 2001 had been fully enforced. On 2 March 2004 the Moscow City Court upheld the judgment of 31 October 2003.
(b) Judgment of 22 September 2003 as upheld on 26 January 2004
On 2 December 2002 the applicant brought an action challenging the Ministry’s order of 15 August 2002 by which he had been dismissed on the ground of his refusal to work.
On 22 September 2003 the Presnenskiy District Court of Moscow found for the applicant. The enforcement proceedings were brought on 3 October 2003 and discontinued on 14 October 2003 in view of the applicant’s actual reinstatement. The applicant’s appeal to the District Court against the termination of the enforcement proceedings is pending. The judgment of 22 September 2003 was upheld on appeal by the Moscow City Court on 26 January 2004.
(c) Judgment of 15 June 2004
On 3 November 2003 the applicant was dismissed from the Ministry on the ground of his absence from work. On 20 November 2003 he brought proceedings in the Presnenskiy District Court of Moscow to challenge his dismissal. On 15 June 2004 the District Court found for the Ministry. The applicant lodged an appeal against the judgment. The proceedings are pending.
2. Proceedings concerning damages
(a) Proceedings concerning remuneration and damages due for the period before 19 October 2001
(i) Judgment of 8 July 2002, as amended on 10 July 2002 and upheld on 22 August 2002
On 29 July 2001 the applicant brought proceedings claiming pecuniary and non-pecuniary damages caused by his dismissal in July 2001. On 19 November 2001 the Presnenskiy District Court of Moscow stayed the proceedings pending the outcome of the first set of proceedings concerning the applicant’s reinstatement.
On 8 July 2002 the District Court granted the applicant’s claims in part and ordered the Ministry of Foreign Affairs to pay the applicant 12,548 roubles (“RUR”) in damages, including the applicant’s salary for the period between the date of his dismissal in July 2001 and 19 October 2001. On 10 July 2002 the District Court corrected the judgment stating that the amount awarded to the applicant was RUR 12,595.11. On 22 August 2002 the Moscow City Court dismissed the applicant’s appeal and upheld the judgment.
(ii) Enforcement of the judgment of 8 July 2002, as amended on 10 July 2002 and upheld on 22 August 2002
On 10 October 2002 the applicant applied for the enforcement of the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002. On 24 October 2002 the bailiff brought enforcement proceedings. The Ministry considered that the applicant should have submitted the writ of execution to the Federal Treasury in accordance with the procedure provided by the applicable legislation.
On 17 June 2003 the bailiff ordered that the Ministry’s money on their bank account be seized in order to enforce the judgment. Following the Ministry’s appeal against the bailiff’s decision, on 7 July 2003 the District Court stayed the enforcement proceedings. By a decision of 18 March 2004 the District Court quashed the bailiff’s decision of 17 June 2003 as unlawful.
(iii) Quashing the judgment of 8 July 2002, as amended on 10 July 2002 and upheld on 22 August 2002, and withdrawal of the writ of execution
On 3 March 2003 the applicant lodged a request for reopening the case in view of newly-discovered circumstances. On 3 September 2003 the Presnenskiy District Court of Moscow granted the applicant’s request, quashed the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002, and ordered a fresh examination of the case. On the same day the District Court granted the applicant’s request for withdrawing the writ of execution issued in respect of the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002.
Hearings listed for 17 September and 12 October 2004 did not take place since the applicant, who had been duly notified of the hearings, had failed to appear. On the latter date the Presnenskiy District Court of Moscow ordered that the case not be examined on the ground of the applicant’s failure to appear in court. The applicant did not appeal and the decision became final on 22 October 2004.
(b) Proceedings concerning remuneration and damages due for the period after 19 October 2001
On 14 March 2002 the applicant brought proceedings claiming his remuneration and damages for the period after 19 October 2001. On 25 July 2002 the District Court granted his claims in part and ordered the Ministry to pay him RUR 13,478.56 covering the salary arrears for the period between 19 October 2001 and 25 July 2002. Following the applicant’s appeal the Moscow City Court quashed the judgment on 26 September 2002 and remitted the case to the first-instance court for a fresh examination.
In November 2002 the applicant submitted new claims for the payment of his salary until then. In January 2003 he requested to seize the Ministry’s bank accounts. The request was dismissed by a final decision of the Moscow City Court of 18 February 2003. In October 2003 the applicant submitted new claims concerning his salary arrears. The proceedings are pending.
3. Other proceedings
The applicant also brought other proceedings concerning his disputes with his employer.
Thus, on 23 August 2002 the applicant lodged an application with the Constitutional Court of Russia challenging the constitutionality of the Government’s regulations which laid down terms and conditions of service for State employees abroad. On 16 September 2002 the secretariat of the court informed the applicant that the court did not have jurisdiction to examine the constitutionality of by-laws, that it dealt exclusively with the issues of the constitutionality of laws, and that therefore his application could not be examined.
On 19 September 2002 the applicant lodged an application before the Supreme Court of the Russian Federation challenging the lawfulness of the same regulations. On 22 January 2003 the Supreme Court terminated the proceedings because the Government had quashed the regulations in issue. The applicant’s appeal was dismissed on 3 April 2003.
1. The applicant complained about the prolonged non-enforcement of the judgment of 19 October 2001 as upheld on 18 December 2001 and the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002. He relied on Articles 6 § 1, 13, 14 and 17 of the Convention and Article 1 of Protocol No. 1.
2. He also complained under Article 11 § 1 of the Convention about the lack of protection by trade unions. He complained under Article 14 of the Convention that he had been discriminated against in the situation with his employment in the Ministry of Foreign Affairs after his assignment in Uganda on the grounds of his dismissal and successful litigation with his employer. He complained under Article 13 of the Convention about the failure of various authorities to deal with his applications properly. Invoking Article 1 of Protocol No. 1, he complained that the length of the proceedings for the determination of his disputes with his employer was unreasonable. He complained that the proceedings in which he was involved had been unfair. In particular, he alleged that the domestic courts had treated the defendant ministry more favourably, failed to apply properly the domestic law and given wrong decisions contrary to Articles 13, 14 and 17 of the Convention and Article 1 of Protocol No. 1, and that he had had no access to the Constitutional Court, his application having been turned down by its secretariat.
1. The applicant complained that the delayed enforcement of the judgment of 19 October 2001, as upheld on 18 December 2001, and the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002, violated his Convention rights. The Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 which, in so far as relevant, provide 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 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. The parties’ submissions
The Government submitted that Article 6 was not applicable to the impugned proceedings. They argued that the applicant was one of those officials held by the Court in the Pellegrin case (see Pellegrin v. France [GC], no. 28541/95, §§ 64-67, ECHR 1999-VIII) to be excluded from the scope of Article 6, because in carrying out his duties as an attaché of the Russian Embassy in Uganda the applicant had been vested powers in the sphere of foreign affairs of Russia. He had been performing duties of a press-attaché dealing with protocol, consular and administrative issues, preparing press-releases and information materials, translating legal and other documents and correspondence of the embassy, participating in the organisation of elections and other events. The Government submitted a copy of an agreement concluded with the applicant in December 1997 about his access to information comprising State secret and documents concerning the applicant’s performance of his duties in the Russian embassy in Uganda.
The Government further submitted that the judgment of 19 October 2001 as upheld on 18 December 2001 had been enforced and that the judgment of 8 July 2002 as upheld on 22 August 2002 had been quashed and the enforcement proceedings had been discontinued following the applicant’s request for reopening the case and the withdrawal of the writ of execution. The Government contended that the applicant had protracted the enforcement of the former judgment and that there had been no delays in enforcing the latter judgment.
The Government objected to processing the case under Rule 54A of the Rules of Court and concluded that the complaint under Article 6 should be declared incompatible ratione materiae and the complaint under Article 1 of Protocol No. 1 should be declared inadmissible in accordance with Article 37 § 1 of the Convention as the applicant had not pursued his case in the domestic courts after the decision of the Presnenskiy District Court of Moscow of 3 September 2003.
The applicant disagreed. He argued that he had had no sovereign powers within the meaning of Pellegrin. His work at the embassy had related to the administrative support and internal translations, an attaché being the lowest rank within the Russian diplomatic service. He had had no right to sign any documents. The applicant submitted that the embassy staff included administrative and diplomatic personnel appointed by the Ministry of Foreign Affairs and that the only person who might be deemed to have sovereign powers was the Ambassador who was appointed by the President. He claimed that the Government’s submissions were unsubstantiated. He referred to the Frydlender case (Frydlender v. France [GC], no. 30979/96, ECHR 2000-VII), arguing that Article 6 applied to his case concerning reinstatement which was economic by its nature. He contended that Pellegrin was irrelevant to post-trial enforcement proceedings.
The applicant submitted that the enforcement of the judgment of 19 October 2001 as upheld on 18 December 2001 was formal, him having been dismissed twice since then. In any event, the two-year period for the enforcement of the judgment was unreasonably and unjustifiably long. As regards the judgment of 8 July 2002 as upheld on 22 August 2002, Article 6, he argued, undoubtedly applied to the case and the delay in enforcement between 24 October 2002 and 3 September 2003 was unjustified.
B. The Court’s analysis
1. Alleged violation of Article 6 § 1
The Court notes that in the present case the impugned proceedings concerned the dismissal of an official working for a public authority and the ensuing damages. It recalls that excluded from the scope of Article 6 § 1 of the Convention are those disputes which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. It must be ascertained in each case whether the applicant’s post entailed – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In doing so the Court may have regard, for guidance, to, inter alia, the categories of activities and posts listed by the European Commission in its communication of 18 March 1988 (see Pellegrin cited above, § 66). The latter referred to the diplomatic corps as an example of activities involving “direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State” (ibid., § 40).
The Court observes that in the present case the applicant was a civil servant in the Ministry of Foreign Affairs serving as a member of the diplomatic corps who was assigned to an embassy, an organ representing the State in a host country, ensuring national interests and implementing foreign policy of the State. His post involved possible access to information comprising State secret. Unlike the applicant in the Frydlender case, cited above, the applicant in the present case in performing his duties participated directly in the embassy’s discharging its diplomatic and consular functions. On the basis of the material before it, the Court considers that the applicant’s post clearly wielded a portion of the sovereign power of the State, which therefore had a legitimate interest in requiring of him a special bond of trust and loyalty (see, mutatis mutandis, G. K. v. Austria (dec.), no. 39564/98, 14 March 2000). Therefore Article 6 § 1 of the Convention is not applicable to the proceedings at issue.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. Alleged violation of Article 1 of Protocol No. 1
As to the applicant’s complaint about the prolonged non-enforcement of the judgment of 19 October 2001 as upheld on 18 December 2001, the Court observes that this judgment found the applicant’s dismissal in 2001 unlawful and ordered his reinstatement. Hence, it concerned the applicant’s right to work which is not as such guaranteed by Article 1 of Protocol No. 1 which relates to property rights. Even assuming that the judgment created a legal basis for the applicant to be paid certain damages and remuneration, all the applicant’s claims for relevant damages and remuneration were subjects of examination in separate proceedings, as can be seen from the facts of the case. Therefore, the Court considers that the complaint under Article 1 of Protocol No. 1 concerning the delay in the enforcement of the judgment of 19 October 2001 as upheld on 18 December 2001 is manifestly ill-founded.
It observes further that the applicant complains separately about the prolonged non-enforcement of the judgment of 8 July 2002, as amended on 10 July 2002 and upheld on 22 August 2002, which awarded the applicant RUR 12,595.11 by way of pecuniary and non-pecuniary damages caused by his dismissal in 2001. The bailiff instituted enforcement proceedings fourteen days after the applicant had applied for enforcement, in the course of which the seizure of the debtor’s bank account was ordered. Following the applicant’s request for reopening the case, on 3 September 2003 the Presnenskiy District Court of Moscow quashed the judgment in question. It also granted the applicant’s request for withdrawing the writ of execution issued in respect of the judgment. Thus, the judgment was quashed following the applicant’s motion slightly more than a year after it had become final. Having regard to its case-law on the subject (see, e.g., Burdov v. Russia, no. 59498/00, §§ 33-42, ECHR 2002-III; Grishchenko v. Russia (dec.), no. 75907/01, 8 July 2004; Denisov v. Ukraine (dec.), no. 18512/02, 1 February 2005; Presnyakov v. Russia (dec.), no. 41145/02, 10 November 2005) the Court considers that the delay in the enforcement of the judgment in the circumstances of the present case cannot be said to have interfered with the applicant’s property rights in a manner incompatible with Article 1 of Protocol No. 1.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The Court has examined the rest of the complaints as submitted by the applicant. However, in the light of all the material in its possession, and insofar 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 and its Protocols.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
Santiago Quesada Christos Rozakis
Deputy Registrar President
KOLOTKOV v. RUSSIA DECISION
KOLOTKOV v. RUSSIA DECISION