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FIRST
SECTION
CASE OF BAYGAYEV v. RUSSIA
(Application
no. 36398/04)
JUDGMENT
STRASBOURG
5 July 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 Baygayev 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,
Mr K.
Hajiyev,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 14 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36398/04) 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 Sharani Shamayevich
Baygayev (“the applicant”), on 20 September 2004.
- The applicant was represented by Mr V. Postnikov, a
lawyer practising in Tyumen. The Russian Government (“the
Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
9 May 2006 the Court decided to communicate the complaint concerning
the non-enforcement of a final judgment 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 1939 and lives in Tyumen, the Tyumen Region. He
is of Chechen origin.
- In
1993 he bought a two-room flat measuring 44.4 square metres in
Groznyy, the capital of the Chechen Republic of the Russian
Federation. As a result of a military operation in Chechnya the
applicant's housing was destroyed.
- On
4 July 2003 the Russian Government adopted a Decree laying down the
procedure for payment of compensation to citizens who had lost their
housing or property situated on the territory of the Chechen
Republic.
- The
Decree established a fixed compensation in the amount of 300,000
Russian roubles (RUR) for any destroyed housing.
- On
4 November 2003 the Tsentralnyy District Court of Tyumen granted the
applicant's claim against the Ministry of Finance of the Russian
Federation and awarded him RUR 300,000 for the loss of housing. The
judgment was not appealed against and entered into force on 20
November 2003.
- On
27 November 2003 the Tsentralnyy District Court of Tyumen issued a
writ of execution.
- On
an unspecified date the applicant and his representative requested
the authorities to initiate criminal proceedings against the
officials of the Ministry of Finance for the failure to enforce the
judgment of 4 November 2003.
- In
2005, following the request by the Department of Investigation and
Administrative Practice of the Federal Bailiffs' service, the
applicant and his representative went to Moscow and submitted written
explanations as regards their complaints against the officials of the
Ministry of Finance.
- On
7 December 2005 the judgment of 4 November 2003 was enforced in full.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Articles 6 and 13 of the Convention and
Article 1 of Protocol No. 1 about the delayed enforcement of the
judgment of 4 November 2003. The Court will examine this complaint
under Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1. These Articles, in so far as relevant, 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.
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
- The
Government acknowledged that the judgment of 4 November 2003 was not
enforced in good time. They further conceded that the applicant's
rights set out in Article 6 of the Convention and Article 1 of
Protocol No. 1 to the Convention were violated as a result of the
delayed enforcement of the final judgment.
- The
applicant maintained his claims.
- The
Court observes that on 4 November 2003 the applicant obtained a
judgment by which the Ministry of Finance was to pay him a
substantial amount of money. The judgment acquired legal force on 20
November 2003. It was enforced in full on 7 December 2005. Thus, it
has remained unenforced for two years and eighteen days. No
justification was advanced by the Government who acknowledged a
violation of the Convention.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 in cases raising similar
issues to the ones in the present case (see, among other authorities,
Burdov v. Russia, no. 59498/00, ECHR 2002 III; Makarov
v. Russia, no. 21074/03, 25 January 2007; and Ponomarenko
v. Russia, no. 14656/03, 15 February 2007).
- Having
examined the material submitted to it, the Court sees no reason for
reaching a different conclusion in the present case. Having regard to
its case-law on the subject, the Court finds that by failing for a
long period 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 reasonably expected to receive.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant complained under Article 14 about discrimination against
him. He alleged that the judgment in his favour had not been enforced
in good time because he was of Chechen origin.
- The
Court considers that the facts as submitted do not disclose any
appearance of discrimination against the applicant. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant to 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 submitted that the amount awarded to him had depreciated as
a result of the lengthy non-enforcement of the judgment and became
insufficient to purchase a flat similar to the one he had lost. He
claimed 2,000,000 Russian roubles (RUR) in respect of pecuniary
damage. The amount represented the average market value of a two-room
flat in Tyumen after deduction of RUR 300,000 already paid by the
Government. In support of his claims the applicant submitted the
information provided by the Tyumen Real Estate Agency as regards the
increase of the price of a square metre in Tyumen. In January 2004
the average price of a square metre was RUR 13,300. In December 2005
it increased up to RUR 24,100.
- As
regards the non-pecuniary damage, the applicant claimed 600 euros
(EUR) for the compensation for distress and anguish caused by the
lengthy non-enforcement of the final judgment, EUR 400 to compensate
sufferings caused by impossibility to purchase housing, and EUR 600
for the damage sustained as a result of his visit to Moscow at the
request of the Federal Bailiffs' service.
- The
Government argued that the applicant's claims for pecuniary damage
were excessive and unreasonable. They submitted that it was open to
the applicant to apply to domestic courts to obtain indexation of the
judgment award. The Government further argued that the applicant's
claim for compensation of non-pecuniary damage caused by his visit to
Moscow had no connection to the present case. They accepted the rest
of the applicant's claims for non-pecuniary damage.
- The
Court reiterates, firstly, that an applicant cannot be required to
exhaust domestic remedies to obtain compensation for pecuniary loss
since this would prolong the procedure before the Court in a manner
incompatible with the effective protection of human rights (see
Papamichalopoulos and Others v. Greece (Article 50), judgment
of 31 October 1995, Series A no. 330-B, § 40, and Gridin
v. Russia, no. 4171/04, § 20, 1 June 2006). Nor is there a
requirement that an applicant furnish any proof of the non-pecuniary
damage he or she sustained.
- The
Court accepts that the judgment debt depreciated as a result of the
delayed enforcement. It further observes that the applicant's
calculations are based on what the applicant presents as the
evolution of the price per square metre on the local housing market.
However, the Court is ill-equipped to engage in, or verify, the
valuation of residential property across Russia; nor indeed would it
be appropriate for the Court to do so, given that the applicant was
free to choose his place of residence. The Court notes in addition
that the judgment awarded a fixed amount which was not based on any
price per square metre. Consequently, the Court cannot accept the
applicant's claim in respect of pecuniary damage based on a price per
square metre. Having regard to the refinancing rates determined by
the Central Bank of Russia over the period of the non-enforcement,
the Court awards the applicant EUR 2,400 in respect of pecuniary
damage, plus any tax that may be chargeable on that amount, and
dismisses the remainder of his claims for pecuniary damage.
- The
Court further considers that the applicant must have suffered certain
distress and frustration resulting from the State's authorities'
failure to enforce a judgment in his favour in good time. The Court
takes into account the applicant's claim for non-pecuniary damage,
the nature of the award at stake in the present case, the length of
the enforcement proceedings and other relevant aspects. Making its
assessment on an equitable basis, it awards the applicant EUR 1,600
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 620 for the costs and expenses incurred
before the domestic courts and the Court and RUR 8,000 which
represented the cost of his travel to Moscow at the request of the
Federal Bailiffs' service and the cost of his phone conversations
with the above mentioned service. He did not submit any materials in
support of his claims.
- The
Government argued that the applicant claims were unsubstantiated.
- 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 the applicant failed to submit any
materials to substantiate his claims. Therefore the Court rejects his
claims for costs and expenses.
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 concerning the
non-enforcement of the final judgment in the applicant's favour
admissible and the remainder of the application inadmissible;
- 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:
(i) EUR
2,400 (two thousand four hundred euros) in respect of pecuniary
damage, to be converted into Russian roubles at the rate applicable
at the date of settlement;
(ii) EUR
1,600 (one thousand six hundred euros) in respect of non-pecuniary
damage, to be converted into Russian roubles at the rate applicable
at the date of settlement;
(iii) 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 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
