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FIRST
SECTION
CASE OF ABDULMANOVA v. RUSSIA
(Application
no. 41564/05)
JUDGMENT
STRASBOURG
16 October
2008
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 Abdulmanova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy Section
Registrar,
Having
deliberated in private on 25 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41564/05) 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 Gyulzhiyan Mantayevna
Abdulmanova (“the applicant”), on 16 July 2005.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation
at the European Court of Human Rights.
- On
9 May 2007 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945 and lives in Aykhal, a town in Yakutia.
- In
1990 the applicant subscribed to a State savings scheme for buying a
car. The State failed to provide the car, and the applicant sued the
Ministry of Finance.
- On
19 August 2003 the Mirninskiy District Court awarded the applicant
138,967 Russian roubles (RUB). This judgment became binding on 6
October 2003, but was not enforced immediately.
- On
23 October 2003 the District Court mailed enforcement papers to
bailiffs. On 27 November 2003 the bailiffs returned the papers
because of formal defects and advised the District Court that the
judgment had to be enforced by the Ministry directly. On 15 June 2004
the enforcement papers reached the Ministry.
- On
the Ministry’s request, on 4 March 2005 the Presidium of the
Supreme Court of Yakutia quashed the judgment on supervisory review,
having found that the District Court had ignored a key material law.
- On
4 February 2006 the Ministry paid to the applicant RUB 40,648.27
under the State program of redemption of in-kind debentures.
II. RELEVANT DOMESTIC LAW
- Under
section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of
Finance must enforce a judgment within three months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF 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 non-enforcement and supervisory
review of the judgment. The Court will examine this complaint under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
Insofar as relevant, these Articles 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
Government argued that the complaint was inadmissible.
As to
non-enforcement, the applicant had failed to exhaust domestic
remedies, because she had not sued the Ministry for negligence. She
had missed six months because she had applied to the Court two years
and one month after the judgment had become binding. The applicant
had been responsible for the delay preceding 15 June 2004, the day
when the enforcement papers had reached the Ministry. The papers had
had formal defects and, in any event, should not have been mailed to
the bailiffs. In the end the applicant did receive compensation.
As to
supervisory review, it had been carried out in strict compliance with
domestic law. The supervisory review had been initiated by a party to
the proceedings within 11 months of the judgment and had been meant
to correct a misinterpretation of material law, which had constituted
a judicial error. For example, the German procedure for revision of
judgments had been earlier found to be in compliance with the
Convention. Besides, the Committee of Ministers of the Council of
Europe had been satisfied that Russia’s supervisory-review
procedure had been improved (ResDH(2006)1, 8 February 2006;
CM/Inf/DH(2005)20, 23 March 2005).
- The
applicant insisted on her complaint. She had not delayed the
proceedings and had not been responsible for the formal defects in
the enforcement papers issued by the District Court. The authorities
had taken no steps to enforce the judgment. The compensation the
applicant had received in the end had been smaller than the award.
The supervisory review had deprived her of this award and had been
unfair.
- The
Court rejects the Government’s argument concerning domestic
remedies, because an appeal against the Ministry’s negligence
would yield a declaratory judgment that would reiterate what was in
any event evident from the original judgment: the State was to honour
its debt. This new judgment would not bring the applicant closer to
her desired goal, that is the actual payment of the judicial award
(see Jasiūnienė v. Lithuania (dec.), no. 41510/98,
24 October 2000; Plotnikovy v. Russia, no. 43883/02, §
16, 24 February 2005).
- The
Court also rejects the Government’s argument concerning six
months. Where there is no effective remedy, the six-month period runs
from the date of the omission complained of, or from the date when
the applicant learned about the omission (see Hilton v. United
Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57,
p. 108). Applied to the case at hand, this rule would mean that
six months run from the date of the supervisory review, because it
was on this date that it became evident that the judgment would not
be enforced. Less than six months had passed from 4 March 2005
(the date of supervisory review) to 16 July 2005 (the date of
introduction).
- 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
Court reiterates that Article 6 of the Convention includes the “right
to a court” (see Golder v. the United Kingdom, judgment
of 21 February 1975, Series A no. 18, § 36). To
honour this right, the State must obey a binding judgment (see Burdov
v. Russia, no. 59498/00, ECHR 2002 III) and avoid
quashing it, save in circumstances where the principle of legal
certainty would not be breached (see Protsenko v. Russia, no.
13151/04, §§ 25–34, 31 July 2008).
Besides, an enforceable judgment constitutes a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court considers that in the case at hand the State has breached the
applicant’s “right to a court” and prevented her
from peacefully enjoying her possessions in two ways.
- First,
the State avoided paying the judgment debt for one year and four
months, which is a considerable period of time. The Government put
the blame for a part of this period on the applicant, but in the
circumstances of the present case the applicant cannot be held
responsible for defects of enforcement papers issued by a court or
for the uncertainty as to which authority had to pay.
- Second,
the State quashed the judgment because it had been based on an
alleged misinterpretation of material law. However, this ground does
not justify supervisory review (see Kot v. Russia, no.
20887/03, § 29, 18 January 2007).
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 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
- In
respect of pecuniary damage, the applicant claimed RUB 6,781,000.
This amount represented her estimate of the capital she would have
had today if the car had been provided in time and if she had
invested the car’s price in real estate, of the car’s
current price, and of default interest.
- The
Government objected to this claim, since in February 2006 the
applicant had received compensation.
- The
Court reiterates that the best redress of a violation of Article 6 is
to put the applicant as far as possible in the position she would
have been if Article 6 had been respected (see Piersack v.
Belgium (Article 50), judgment of 26 October 1984, Series A no.
85, § 12). Applied to the case at hand, this principle would
mean that the State must pay to the applicant the equivalent in euros
(EUR) of RUB 138,967 that she should have received under the judgment
of 19 August 2003 less RUB 40,648.27 that she received in
November 2006. Making its estimate on the information at its
disposal, the Court awards EUR 2,700 under this head.
- In
respect of non-pecuniary damage, the applicant claimed EUR 10,000.
- The
Government argued that this claim was unreasonable, unsubstantiated,
and detached from the facts of the case.
- The
Court accepts that the applicant must have been distressed by the
non-enforcement and supervisory review of the judgment. Making its
assessment on an equitable basis the Court awards EUR 3,700 under
this head.
B. Costs and expenses
- The
applicant made no claim under this head. Accordingly, the Court makes
no award.
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
1. Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 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 according to Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 2,700 (two thousand seven
hundred euros), plus any tax that may be chargeable, in respect of
pecuniary damage;
(ii) EUR 3,700 (three thousand seven
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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 16 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
