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FIFTH
SECTION
CASE OF LOSITSKIY v. RUSSIA
(Application
no. 24395/02)
JUDGMENT
STRASBOURG
14
December 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Lositskiy v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr A.
Kovler,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24395/02) 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, Mr Anatoliy Afanasyevich
Lositskiy, on 4 April 2002.
- The
applicant was represented before the Court by Mr M. Rachkovskiy,
a lawyer with the International Protection Centre in Moscow. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- On
10 November 2005 the Court decided to communicate the complaint
concerning length of enforcement proceedings and lack of an effective
remedy for continued non-enforcement of the judgment in the
applicant's favour to the Government. Under the provisions of
Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Obninsk.
A. Judgment in the applicant's favour
- The
applicant brought a civil action, seeking an increase of the monthly
rate of the disability compensation he was entitled to receive.
- On
6 March 2000 the Obninsk District Court of the Kaluga Region
awarded the applicant 244,745.52 Russian roubles (RUR) in arrears for
the period from 1 December 1998 to 1 April 2000 and
increased the monthly payments to RUR 18,211.72 effective from
1 April 2000. On 1 June 2000 the Kaluga Regional Court
upheld the judgment.
B. Execution of the judgment in the applicant's favour
- On
4 August 2000 the bailiffs' office opened the enforcement
proceedings.
- On
25 September 2000 the bailiffs' office forwarded the writs of
execution to the Obninsk Division of the Federal Treasury and closed
the enforcement proceedings.
- On
7 December 2001 the Obninsk Town Court clarified that the
judgment in the applicant's favour was to be executed by the Obninsk
Division of the Federal Treasury.
- In
June 2002 the applicant received the entire amount of the arrears due
under the judgment of 6 March 2000, that is RUR 244,745.52.
- On
1 November 2002 the applicant received RUR 159,697.62 in
arrears resulting from the State's failure to pay, in 2000, the
disability compensation in the amount determined by the judgment of
6 March 2000.
- On
2 April 2003 the applicant received RUR 211,820.64 in
arrears resulting from the State's failure to pay, in 2001, the
disability compensation in the amount determined by the judgment of
6 March 2000.
- On
9 April 2003 the applicant received RUR 211,820.64 in
arrears resulting from the State's failure to pay, in 2002, the
disability compensation in the amount determined by the judgment of
6 March 2000.
- In
October 2003 the applicant started to receive the monthly disability
payments in the amount determined by the judgment of 6 March
2000.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The applicant complained that the judgment of 6 March
2000 as upheld on 1 June 2000 was not enforced in good time. The
Court considers that this complaint falls to be examined under
Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 (see Burdov v. Russia, no. 59498/00,
§ 26, ECHR 2002-III). The relevant parts of these
provisions 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 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...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government did not contest the applicant's claims. They referred to
insufficient funding of the social-security authorities as the reason
for the failure to comply with the judgment of 6 March 2000.
They admitted that the delayed enforcement of the judgment in the
applicant's favour constituted a violation of his rights under
Article 6 of the Convention and Article 1 of Protocol
No. 1.
- The
applicant maintained his claims.
- The
Court observes that on 6 March 2000 the applicant obtained a
judgment in his favour which became enforceable on 1 June 2000.
The applicant was awarded RUR 244,745.52 in respect of the
previous period and RUR 18,211.72 in respect of future monthly
payments. The arrears were paid in June 2002. The payment of the full
compensation, as determined in the judgment, only started in October
2003. Accordingly, the judgment was enforced in full approximately
three years and five months after it became enforceable.
- 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 the ones in the present
case (see, for example, Burdov v. Russia, no. 59498/00,
ECHR 2002-III).
- Having
examined the materials 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, the Court finds that by failing for years to
comply with the enforceable judgment in the applicant's favour the
domestic authorities impaired the essence of his right to a court and
prevented him from receiving the money he had legitimately expected
to receive.
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained about the lack of an effective remedy
for the lengthy non-enforcement of the judgment in his favour. The
Court considers that this complaint falls to be examined under
Article 13 of the Convention, which reads as follows:
“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.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government did not address the issue in their observations.
- The
applicant submitted that the Russian legislation did not provide
bailiffs with the appropriate means to recover a judgment debt from
the State.
- The
Court reiterates that Article 13 of the Convention guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 that the
proceedings do not exceed a “reasonable time” (see Kudła
v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI) and that
the execution of a judgment is an integral part of the “trial”
for the purposes of Article 6 § 1 of the
Convention (see, for example, Hornsby v. Greece, judgment of
19 March 1997, Reports of Judgments and Decisions 1997 II,
§ 40).
- The
Court has previously ruled in the cases where the bailiffs did not
have power to compel the State to repay the judgment debt that the
applicants did not have an effective remedy that could have expedited
the enforcement of the judgment against a State authority (see, for
example, Voytenko v. Ukraine, no. 18966/02, 29 June 2004, §§
30-31 and 46-48).
- Turning
to the facts of the present case, the Court observes that the
Government did not indicate any remedy that could have provided the
applicant with an adequate redress for continued non-enforcement of
the judgment in his favour. Nor does the Court discern any basis in
the evidence submitted by the parties to conclude otherwise.
- Accordingly,
the Court considers that there has been a violation of Article 13
of the Convention on account of the lack of a remedy under domestic
law whereby the applicant could have obtained
redress for a violation of his right to have the judgment enforced
within a “reasonable time”, as required by Article 6 § 1
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
having regard to all the material in its possession, the Court finds
that the remainder of the applicant's complaints concerning the
alleged authorities' failure to adjust the amount of the award in his
favour did not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- As
regards pecuniary damage, the applicant claimed that his losses
resulting from inflation amounted to RUR 295,766.60. He further
alleged that he had sustained pecuniary damage caused by the
authorities' failure to calculate and adjust properly his monthly
compensation. He claimed RUR 1,476,617.40 in this respect. As
regards non-pecuniary damage, the applicant claimed 10,000 euros
(EUR).
- The
Government considered that no pecuniary damage should be awarded to
the applicant. They further admitted that the applicant had sustained
non-pecuniary damage resulting from continued non-enforcement of the
judgment in his favour. In their view, EUR 4,000 would
constitute a reasonable amount under this head.
- The
Court notes that the applicant has failed to substantiate his claim
for pecuniary damage. It therefore rejects this claim. On the other
hand, the Court considers that the applicant must have suffered
certain distress and frustration resulting form the State
authorities' failure to enforce a judgment in his favour and to
provide a remedy whereby he could have obtained redress for the
delayed enforcement. However, the particular amount claimed appears
excessive. The Court takes into account the relevant elements, such
as the nature of the award at stake in the present case and the
length of the enforcement proceedings. Making its assessment on an
equitable basis, it awards the applicant EUR 4,100 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaints concerning the
non-enforcement of the judgment and the lack of effective remedy for
continued non-enforcement of the judgment, admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention and Article 1
of Protocol No. 1;
- Holds that there has been a violation of
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,100
(four thousand and one hundred euros), to be converted into Russian
roubles, in respect of non-pecuniary damage, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
