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FIRST SECTION
CASE OF LAZAREV v. RUSSIA
(Application no. 9800/02)
JUDGMENT
STRASBOURG
5 October 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 Lazarev v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar
Having deliberated in private on 14 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 9800/02)
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
Nikolay Viktorovich Lazarev (“the applicant”), on 1 June
2001.
- The applicant was represented by Ms O. Sadchikova, a
lawyer practising in Stavropol. The Russian Government (“the
Government”) were represented by Mr P. Laptev, the
Representative of the Russian Federation at the European Court of
Human Rights.
- On 1 April 2005 the Court decided to communicate the
application 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 applicant was born in 1960 and lives in the village
of Aleksandrovskoye in the Stavropol Region of the Russian
Federation.
- On 2 October 1997 the Commercial Court of the
Sverdlovsk Region granted the applicant's civil action against the
penitentiary facility AB-239 of the Ministry of Justice and awarded
the applicant 75,623.60 Russian roubles (RUR) in arrears and RUR
82,838.91 in interest.
- The judgment was not appealed against and became final
on 2 November 1997.
- On 3 March 1998 enforcement proceedings were instituted
but the judgment was not enforced because the facility lacked
funds. The enforcement proceedings were closed and re-opened on
several occasions. The most recent decision by which the enforcement
proceedings were discontinued was taken on 30 March 2001.
- On 26 November 2002 the facility paid the applicant RUR
75,623.60. On 12 February 2004 it paid the remainder of the judgment
debt, that is RUR 82,838.91.
- On 30 December 2005 the Sverdlovsk Regional Treasury
paid the applicant RUR 99,555.58 as compensation for depreciation of
the amount of RUR 75,623.60 in the period from June 1997 to November
2002. According to the Government, that compensation was assessed at
the annual rate of 24%.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The applicant complained under Articles 13 and 14 of
the Convention and Article 1 of Protocol No. 1 that the judgment 2
October 1997 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 within a
reasonable time... 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 Government argued that the judgment had been fully
enforced in 2004.
A. Admissibility
- The Court notes that the application 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 claimed that the judgment of 2 October
1997 had not been enforced for a long time because the debtor, the
penitentiary facility, had not had funds.
- The applicant maintained his complaints.
- The Court observes that on 2 October 1997 the
applicant obtained a judgment in his favour by which he was to be
paid a certain sum of money by the facility AB-239, a State body. The
judgment was not appealed against and became final and enforceable on
2 November 1997. It was fully enforced on 12 February 2004 when the
last part of the judgment debt was paid to the applicant. Thus, the
judgment of 2 October 1997 remained unenforced for approximately six
years and three months, of which approximately five years and nine
months elapsed since the Convention entered into force in respect of
Russia on 5 May 1998.
- 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 Burdov
v. Russia, no. 59498/00, § 19 et seq., ECHR 2002 III;
Gizzatova v. Russia, no. 5124/03, § 19 et seq.,
13 January 2005; Gerasimova v. Russia,
no. 24669/02, § 17 et seq., 13 October 2005).
- 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. The Court notes that the judgment was not enforced
because the debtor did not have financial recourses. However, the
Court reiterates that it is not open to a State authority to cite the
lack of funds as an excuse for not honouring a judgment debt (see
Plotnikovy v. Russia, no. 43883/02, § 23, 24 February
2005). 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. 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
- The applicant claimed RUR 2,154,510.15 in respect of
pecuniary damage, representing inflation losses resulting from the
lengthy non-enforcement (RUR 912,213.74) and interest on the amount
of inflation losses accrued from September 1997 to September 2005
(RUR 1,242,296.41). The applicant further claimed EUR 5,000 in
respect of non-pecuniary damage.
- The Government argued that the sum was excessive and
amounted to “illegitimate enrichment”. They insisted that
in December 2005 the applicant had already been paid compensation for
depreciation of the judgment debt.
- The Court observes that the debt arising from the
judgment of 2 October 1997 was paid to the applicant in two
instalments: RUR 75,623.60 on 26 November 2002 and RUR 82,838.91
on 12 February 2004 (see paragraph 8 above). In December 2005 the
applicant also received a certain amount for depreciation of the
first instalment. That compensation was assessed at the annual rate
of 24% (see paragraph 9 above). The Court notes, however, that the
Government offered no explanation what that rate represented and that
that amount did not cover compensation for depreciation of the second
instalment.
- The Court reiterates that in the present case it has
found a violation of Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 in that the award in the applicant's favour had
not been paid to him in good time. It recalls that the adequacy of
the compensation would be diminished if it were to be paid without
reference to various circumstances liable to reduce its value, such
as an extended delay in enforcement (see Gizzatova
v. Russia, no. 5124/03, § 28, 13 January 2005;
Metaxas v. Greece, no. 8415/02, § 36, 27 May
2004). The applicant produced a certificate by the Stavropol Regional
State Department of Statistics showing, in particular, that the
inflation rate in the period from May 1998 to November 2002 was
376.26% and in the period from May 1998 to February 2004 443%. As the
Government did not furnish an explanation of their method of
calculation of compensation (see paragraph 22 above), the Court
accepts the applicant's claim in respect of the pecuniary damage
caused by inflation losses in the period from 5 May 1998, when the
Convention entered into force in respect of Russia, to 12 February
2004. Making its assessment on the basis of materials submitted by
the applicant and deducting the partial compensation already paid to
him (see paragraph 9 above), the Court awards him the sum of EUR
11,500 under this head, plus any tax that may be chargeable on that
amount.
- As regards the remainder of the claim in respect of
pecuniary damage, the Court notes that the applicant claimed interest
accrued on the inflation losses rather than on the principal debt.
The Court accordingly rejects this claim.
- The Court further considers that the applicant must
have suffered distress and frustration resulting from the State
authorities' failure to enforce a judgment in his favour. However,
the particular amount claimed appears excessive. The Court takes into
account the relevant aspects, such as the length of the enforcement
proceedings, and making its assessment on an equitable basis, awards
the applicant EUR 3,900 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant also claimed RUR 23,755.17 for the costs
and expenses incurred in the domestic and Strasbourg proceedings,
representing RUR 10,000 for the lawyer's fees, RUR 200 for the
preparation of documents for the Court and RUR 13,555.17 for travel
expenses.
- The Government did not comment.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
350 covering costs under all heads, plus any tax that may be
chargeable on that amount.
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 application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1;
- 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, the following amounts, to be converted into Russian
roubles at the rate applicable at the date of the settlement:
(i) EUR 11,500 (eleven thousand and five hundred euros) in respect of
pecuniary damage;
(ii) EUR 3,900 (three thousand and nine hundred euros) in respect of
non-pecuniary damage;
(iii) EUR 350 (three hundred fifty euros) in respect of costs and
expenses;
(iv) any tax that may be chargeable on the above amounts;
(b) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
