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FIRST
SECTION
CASE OF RAYLYAN v. RUSSIA
(Application
no. 22000/03)
JUDGMENT
STRASBOURG
15 February
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 Raylyan v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22000/03) 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, Valentin Valentinovich
Raylyan (“the applicant”), on 21 May 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained about the interference with his right to
peaceful enjoyment of his possessions and his right to respect for
his private and family life.
- On
2 December 2005 the Court decided to give notice of the first
complaint 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 1964 and lives in Maykop, the Republic of
Adygeya.
- The applicant is a businessman. In 1996 he purchased a
saw-mill with the intention of operating it as a going concern.
- In March 1998 the local authority ordered him to shut
the saw-mill down because it was situated in the vicinity of sewage
disposal installations and threatened the town's sanitation.
- The applicant brought proceedings against the Maykop
municipal maintenance company (муниципальное
жилищно-коммунальное
хозяйство
города
Майкопа)
and the Maykop municipal water supply company (муниципальное
унитарное
предприятие
«Водоканал»,
hereinafter “the water supply company”), in which
he sought an order requiring them to lift the ban on the operation of
the saw-mill and damages.
- On 17 December 1999 the Maykop Town Court of the
Republic of Adygeya ordered the water supply company not to prevent
the applicant from carrying on his activity. The judgment was not
appealed against and became final.
- However, it was not enforced. Instead, the water
supply company blocked the road leading to the saw-mill and switched
off the electricity supply.
- The applicant was not issued with a warrant of
execution until 28 April 2002 pending a decision in another case
in which a third party was trying to challenge his title to the
saw-mill.
- On 14 May 2002 the enforcement proceedings were set in
motion.
- Three months later the bailiff suspended the
enforcement proceedings and applied for clarification of the judgment
of 17 December 1999.
- On 29 October 2002 the Maykop Town Court held that the
judgment of 17 December 1999 had to be enforced exactly as it was
worded.
- On
8 January 2003 the bailiff brought the enforcement proceedings to an
end. However, the access road remained blocked and the electricity
supply was not restored.
- The
applicant appealed against the decision to discontinue the
enforcement proceedings.
- On
21 February 2003 the Maykop Town Court quashed that decision.
- On
25 March 2003 the Supreme Court of the Republic of Adygeya upheld the
above judgment on appeal.
- On
13 January 2006 the enforcement proceedings were resumed.
- On
18 January 2006 the director of the water supply company issued
access passes to the applicant and his nominees.
- On
19 January 2006 free access to the saw-mill was restored, and the
obstacles preventing the applicant from using it were removed. He was
invited to collect the passes, but failed to do so. When the bailiffs
went to the applicant's home to serve him with papers concerning the
enforcement, they were unable to find him, but were met instead by
his father, who refused to look at the papers and explained that the
applicant had moved to another city.
- On
26 January 2006 the enforcement proceedings were discontinued. The
applicant did not appeal against that decision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained of a violation of his right to the peaceful
enjoyment of his possessions on account of the authorities' prolonged
failure to comply with the judgment in his favour. The Court, in line
with its well-established case-law in similar cases (see Burdov
v. Russia, no. 59498/00, ECHR 2002-III) considers that
this complaint falls to be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1. 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 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. 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
- In their observations the respondent Government
informed the Court that on 18 to 19 January 2006 the judgment of 17
December 1999 was enforced, and that on 26 January 2006 the bailiffs'
service had discontinued the enforcement proceedings. The Government
admitted that the judgment had not been enforced in a timely manner,
as the enforcement had taken place six years and one month after it
had become final and enforceable. However, they submitted that the
applicant had contributed to the length of the enforcement
proceedings. In particular, he had not submitted the warrant of
execution to the bailiffs' service until 28 April 2002, that is two
years and four months after the judgment of 17 December
1999 came into effect. The Government further admitted that the delay
from 14 May 2002, when the enforcement proceedings were
commenced, until 8 January 2003, when they were discontinued,
was attributable to the domestic authorities. However, the subsequent
delay, which started on 25 March 2003, when the domestic court
of last instance reversed the decision of 8 January 2003 to
discontinue the enforcement proceedings, and continued until the
enforcement of the judgment in January 2006, was again attributable
to the applicant since he had failed to re-apply for the warrant of
execution necessary to proceed with the enforcement. As a result,
after 25 March 2003 the enforcement of the judgment of 17 December
1999 was only made possible by the bailiffs' voluntary referral to
the court for a warrant of execution enabling them to enforce the
judgment. Therefore, the Government concluded that there had been
interference with the applicant's rights under Article 6 of the
Convention and Article 1 of Protocol No. 1 thereto with regard to the
period from 14 May 2002 to 8 January 2003. However, the period
of 7 months and 25 days was not so long as to amount to a
violation of the aforementioned provisions (see Presnyakov v.
Russia (dec.), no. 41145/02, 10 November 2005; and Kolotkov
v. Russia, no. 41146/02, 9 March 2006).
- The
applicant averred that he could not be blamed for not lodging the
warrant of execution with the bailiffs' service until 28 April 2002,
because no order had been issued to him before that date as all
parties were awaiting the outcome of separate litigation in which a
third party had tried to challenge his title to the saw-mill. He
further submitted that after the bailiff's decision of 8 January 2003
to discontinue the enforcement proceedings he was not required to
apply for a fresh enforcement order. Finally, he expressed his
dissatisfaction with the delays in the enforcement of the judgment,
saying that by the time the judgment was eventually complied with his
property had been ransacked and its condition had deteriorated.
Article 6 § 1 of the Convention
- The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal; in this way it embodies the
“right to a court”, of which the right of access, that is
the right to institute proceedings before courts in civil matters,
constitutes one aspect. However, that right would be illusory if a
Contracting State's domestic legal system allowed a final, binding
judicial decision to remain inoperative to the detriment of one
party. It would be inconceivable that Article 6 § 1 should
describe in detail the procedural guarantees afforded to litigants –
proceedings that are fair, public and expeditious – without
protecting the implementation of judicial decisions; to construe
Article 6 as being concerned exclusively with access to a court and
the conduct of proceedings would be likely to lead to situations
incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the
Convention. Execution of a judgment given by any court must therefore
be regarded as an integral part of the “trial” for the
purposes of Article 6 (see Burdov v. Russia,
no. 59498/00, § 34, ECHR 2002-III; and Hornsby v.
Greece, judgment of 19 March 1997, Reports 1997-II,
p. 510, § 40).
- Turning
to the instant case, the Court notes that the Government did not
contest State responsibility for the municipal company's obligation
under the judgment in the applicant's favour (see, by contrast,
Gerasimova v. Russia (dec.), no. 24669/02, 16 September 2004).
Nor do the parties contest that the judgment in the applicant's
favour has now been executed. The Court observes, however, that the
execution of the judgment of 17 December 1999 took more than six
years. It was not until 19 January 2006 that the
enforcement took place.
- In this connection, the Court reiterates that a delay
in the execution of a judgment may be justified in particular
circumstances, but the delay must not be such as to impair the
essence of the right protected under Article 6 § 1 (see
Burdov v. Russia, cited above, § 35; Androsov v.
Russia, no. 63973/00, § 52, 6 October 2005; and
Gizzatova v. Russia, no. 5124/03, § 20,
13 January 2005).
- Accordingly,
the Court's task will be to establish whether the delay in executing
the judgment in the applicant's favour was justified in the
particular circumstances of the present case.
- The
Court observes that the reasonableness of the delay in the
enforcement proceedings will depend on different factors, such as the
complexity of the enforcement proceedings, the applicant's own
behaviour and that of the competent authorities, the amount and the
nature of court award (see, by analogy, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII; see also
Grishchenko v. Russia, (dec.), no. 75907/01, 8 July
2004; and Gorokhov and Rusyayev v. Russia, no. 38305/02,
17 March 2005, § 31).
- Turning
to the present case, the Court notes that in the judgment of 17
December 1999 the Maykop Town Court ordered the water supply company
not to prevent the operation of the saw-mill belonging to the
applicant. Appropriate enforcement measures would have entailed
unblocking the access road to the saw-mill and restoring the
electricity supply to the production site. Hence, the judgment would
not have been particularly difficult to execute.
- As regards the conduct of the parties, the Court
observes that the State authorities were aware of the applicant's
claim, and that as soon as the judgment in the applicant's favour
came into effect it was incumbent on them to comply with it. It is
true that the enforcement proceedings were initiated by the applicant
after a delay (see paragraph 11 above). However, the applicant cannot
be considered responsible, since the court would not have issued him
with a warrant of execution until 28 April 2002 in any
event. As soon as the applicant had obtained the warrant, he lodged
it with the bailiffs' service. As to the Government's allegation
regarding the applicant's failure to re-apply for a warrant of
execution after the decision of 8 January 2003 to
discontinue the enforcement proceedings was quashed on appeal, the
national legislation did not, in fact, require the applicant to take
any action since the resumption of the enforcement proceedings was
within the bailiff service's responsibility. In any event, as has
emerged from the materials before the Court, the only reason for the
non-compliance was the authorities' reluctance to act in accordance
with the order of the court (see paragraph 10 above). Therefore,
whether the bailiffs were involved in the enforcement proceedings or
not did not change the situation. Moreover, a person who has obtained
an enforceable judgment against the State as a result of successful
litigation cannot be required to resort to enforcement proceedings in
order to have it executed (see Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004; Gorokhov and
Rusyayev v. Russia, cited above, § 33; Koltsov v.
Russia, no. 41304/02, § 16, 24 February 2005; and
Petrushko v. Russia, no. 36494/02, § 18, 24 February
2005). The Court therefore concludes that the whole period between 27
December 1999, when the judgment of 17 December 1999 became
final and enforceable, and 19 January 2006, when the water supply
company finally removed the obstacles which had prevented the
applicant from operating his saw-mill, should be considered as a
delay in execution for which the State authorities are responsible.
- As
to what was at stake for the applicant in the present case, the Court
notes that non-compliance for over six years with the injunction
issued by the Maykop Town Court resulted in considerable disruption
of the applicant's business.
- Regard
being had to the above considerations, the Court concludes that the
length of the enforcement proceedings in the applicant's case was
clearly excessive. The Court accordingly finds that the judgment of
17 December 1999 was not complied with within a “reasonable
time”.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
Article 1 of Protocol No. 1 to the Convention
- The Court reiterates that a “claim” can
constitute a “possession” within the meaning of Article 1
of Protocol No. 1 if it is sufficiently established to be enforceable
(see Burdov v. Russia, cited above, § 40; and Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of
9 December 1994, Series A no. 301-B, p. 84, § 59). The
judgment of 17 December 1999 provided the applicant with an
enforceable claim. The judgment had become final, as no ordinary
appeal was lodged against it, and enforcement proceedings were
instituted. It follows that the applicant's inability to have the
judgment enforced for a substantial period of time constituted
interference with his right to the peaceful enjoyment of his
possessions, as set forth in the first sentence of the first
paragraph of Article 1 of Protocol No. 1.
-
Since it has not found any justification for such an interference
(see paragraph 33 above), the Court concludes that there has
accordingly been a violation of Article 1 of Protocol No. 1 to the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
38. The applicant further complained of a violation of
his rights under Article 8 of the Convention. Article 8 reads as
follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court notes that the applicant did not specify his allegation under
the abovementioned provision or substantiate it. It follows,
therefore, that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 § 3 and 4 of the
Convention.
III. 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 20,000,000 Russian roubles (approximately 600,000
euros (EUR)) in respect of pecuniary and non-pecuniary damage.
- The
Government considered these claims excessive and unsubstantiated and
suggested that a token amount of EUR 100 would constitute equitable
satisfaction for the non-pecuniary damage suffered by the applicant.
- The applicant has not submitted documentary evidence
of the losses sustained. The Court therefore rejects this claim. On
the other hand, it accepts that the applicant suffered distress and
frustration because of the excessive delay in the enforcement
proceedings. Making its assessment on an equitable basis, it awards
him EUR 3,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim reimbursement of his 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 complaint under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No.1 to 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 3,000
(three thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable on this amount;
(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 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
