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FIRST
SECTION
CASE OF ALEKSANDROVA v. RUSSIA
(Application
no. 28965/02)
JUDGMENT
STRASBOURG
6
December 2007
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 Aleksandrova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28965/02) 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, Ms Lyudmila Terentyevna
Aleksandrova (“the applicant”), on 18 June 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- On
4 January 2006 the Court decided to give notice of 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Kemerovo. She
was employed by
a State
enterprise FGUP
PO «Progress»
(Федеральное
государственное
унитарное
предприятие
ПО “Прогресс”).
In 1970 she sustained a work-related injury resulting in the
loss of her right hand, and became disabled. She became entitled to a
disability allowance payable by the employer. As no payments ensued,
the applicant brought proceedings for arrears.
- On
13 February, 5 August 1998 and 9 February 1999 the Kirovskiy
District Court of Kemerovo awarded the applicant 26,510; 7,193 and
13,696 Russian roubles (RUB), respectively. It appears that partial
payments in execution of those judgments were made between 1998 and
2002. The respective enforcement proceedings were terminated on
31 January, 24 May 2001 and 21 February 2002.
- By
judgment of 15 November 2000, the District Court awarded the
applicant RUB 20,279. The Kemerovo Regional Court upheld the
judgment on 19 December 2000.
- On
11 September 2001 the District Court awarded the applicant
RUB 20,000. The Regional Court upheld the judgment on 30 October
2001.
- In
June 2004 the applicant was informed that the judgment debts would be
paid to her after the claims of the priority creditors had been met.
- It
appears that partial payments in execution of the judgments of
15 November 2000 and 11 September 2001 were made in 2002 and
2005. The respective enforcement proceedings were terminated on 26
August 2005.
II. RELEVANT DOMESTIC LAW
- The
Civil Code defines State and municipal unitary enterprises as a
special form of legal entities that do not exercise the right of
ownership in respect of the property allocated to them by the
property owner (Article 113 § 1). The State or municipal
authority retains ownership of the property but the enterprise may
exercise in respect of that property the right of economic control or
operative management (Article 113 § 2).
- The manager of a unitary enterprise is appointed by,
and reports to, the owner (Article 113 § 4). The owner has the
right to re-organise or liquidate the enterprise. The owner's consent
is required for any transaction that may lead to encumbrance or
alienation of the property.
- The
owner of an enterprise having the right of economic control is not
liable for the enterprise's debts unless the owner has caused
insolvency of the enterprise or violated the procedure for its
liquidation (Article 114 § 7). Such enterprise may be
declared insolvent in accordance with the insolvency procedure
applicable to private companies.
- The
owner of an enterprise having the right of operative management is
liable for the enterprise's debts in case of insufficiency of their
funds (Article 115). Such enterprise may not be declared
insolvent (Article 65).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL No. 1
- Referring
to Articles 13, 14 and 17 of the Convention, the applicant complained
that the judgments of 13 February, 5 August 1998, 9 February 1999, 15
November 2000 and 11 September 2001 had not been enforced in good
time. The Court considers that this complaint is 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...”
A. Admissibility
- The
Government argued that in Russian law the State is not liable for
unpaid debts of a federal enterprise unless the owner caused the
enterprise's insolvency. There were no legal grounds for engaging
such liability in the present case.
- The
applicant contended that as the owner of the enterprise the State
should have ensured the proper enforcement of the judgments in her
favour.
- The
Court notes that under Russian law the owner of a unitary enterprise
retains ownership of the property of that enterprise, approves all
transactions with that property, controls the management of the
enterprise and decides whether the enterprise should continue its
activity or be liquidated (see paragraphs 10-13 above). The
Government have not demonstrated that the enterprise enjoyed
sufficient institutional and operational independence from the State
to absolve the latter from responsibility under the Convention for
its acts and omissions (see Shlepkin v. Russia,
no. 3046/03, § 24, 1 February 2007, and Grigoryev
and Kakaurova v. Russia, no. 13820/04, § 35, 12
April 2007; see also Cooperativa Agricola Slobozia-Hanesei v.
Moldova, no. 39745/02, § 19, 3 April 2007).
- Thus,
the Court considers that the State was liable for enforcement of the
judgments in the applicant's favour.
- 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 submitted that the judgments in the applicant's favour had
been enforced in full. Delays in their enforcement were due to the
enterprise's inability to honour many of its debts. Public
authorities took reasonable measures to enforce the judgments, in
particular by seizing the debtor's property and disposing of it to
satisfy the creditors' claims.
- The
applicant maintained her complaint.
- The
Court observes, and it is not contested by the parties, that the
judgments in the applicant's favour were enforced in full in 2001,
2002 and 2005. Hence, the delays in their enforcement varied from two
years and eight months to four years and eight months.
- 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 court award. Likewise,
the applicant should not have been prevented from benefiting from the
judgments given in her favour, which was of major importance to her,
on the ground of the enterprise's alleged financial difficulties (see
Romashov v. Ukraine, no. 67534/01, § 43, 27 July
2004; Dubenko v. Ukraine, no. 74221/01, § 45,
11 January 2005).
- 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 Gizzatova v.
Russia, no. 5124/03,
13 January 2005, §§ 18-29;
Gerasimova v. Russia, no. 24669/02, §§
14-22, 13 October 2005; Yavorivskaya v. Russia,
no. 34687/02, §§ 24-29, 21 July 2005; Raylyan v.
Russia, no. 22000/03, §§ 27-37, 15 February
2007; Shlepkin, cited above, §§
24-28, and Grigoryev and Kakaurova,
cited above, §§ 37-40).
- 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. It
finds that by failing, for years, to comply with the enforceable
judgments in the applicant's favour the domestic authorities impaired
the essence of her “right to a court” and prevented her
from receiving the money she 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 compensation in respect of non-pecuniary damage,
leaving the determination of the amount to be awarded to the Court's
discretion.
- The
Government submitted that a finding of a violation would constitute a
sufficient just satisfaction and that, in any event, the award should
not exceed 1,500 euros (EUR).
- Taking
into account the length of the enforcement proceedings, the nature of
the domestic awards and their number, and making its assessment on an
equitable basis, the Court awards the applicant EUR 3,500 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not seek reimbursement of her costs and expenses
incurred before the domestic authorities and the Court. Accordingly,
the Court does not make any award under this head.
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, EUR 3,500
(three thousand five hundred euros) in respect of non-pecuniary
damage, to be converted into Russian roubles at the rate applicable
on the date of settlement, 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.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
