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FIRST
SECTION
CASE OF IGNATOVICH v. RUSSIA
(Application
no. 19813/03)
JUDGMENT
STRASBOURG
23 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 Ignatovich v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni, judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 2 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19813/03) 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, Mr Robert Ivanovich
Ignatovich (“the applicant”), on 17 April 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
- On
19 June 2006 the President of the First Section decided to
communicate the complaints concerning non-enforcement, supervisory
review, and unfairness of the proceedings 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 1938 and lives in Tver, a town in the Tver
Region. In 1997–2003 he was engaged in two sets of civil
proceedings.
1. Proceedings against a maintenance enterprise
- The
applicant sued a municipal maintenance enterprise for its failure to
repair a leaking roof in his house. On 17 November 1997 the Central
District Court of Tver ordered the enterprise to repair the roof by
15 December 1997. This judgment became binding on 27 November 1997.
According to the Government, this judgment was enforced on 15
December 2000. According to the applicant, this judgment has not been
enforced to date.
- In
1998–2001 bailiffs several times terminated the enforcement
proceedings considering that the enterprise had repaired the roof,
but the applicant asserted that the roof still leaked, and courts
ordered the bailiffs to resume the enforcement.
- In
June 2000 the applicant sued several defendants (among them the
Ministry of Justice – the authority responsible for the
bailiffs) for their failure to enforce the judgment. After one
first-instance and one appeal hearing, on 23 December 2002 the
District Court found that the bailiffs should not have terminated the
enforcement proceedings, ordered them to resume the proceedings, and
awarded the applicant 5,000 Russian roubles by way of non-pecuniary
damages against the Ministry of Justice. This judgment became binding
on 18 February 2003 after an appeal hearing. The appeal court stated
that the damages were to be paid by the Treasury.
- On
18 February 2003 the applicant renounced the resumption of the
enforcement proceedings because he had been frustrated by their past
inefficiency. On this ground, on 6 May 2003 the bailiffs decided not
to resume the enforcement proceedings.
- On
the Treasury’s request, on 30 May 2003 the Presidium of the
Tver Regional Court quashed the judgment of 23 December 2002 in the
part concerning the damages. The Presidium found that the courts
below had misinterpreted material law on non-pecuniary damages and
that the bailiffs had not been responsible for the leaks.
The
applicant was absent from this hearing. According to him, he had not
been summoned. According to the Government, he had been informed
about the time and place of the hearing by a letter of 18 May 2003.
2. Proceedings against the Savings Bank
- In
separate proceedings the applicant sued the Savings Bank for its
failure to restore the purchasing power of his deposits. He asked the
court to hear the case in his absence.
- On
5 September 2003 the Gagarinskiy District Court of Moscow held
against the applicant. In his appeal of 22 September 2003, the
applicant asked for the case to be heard in his absence. In a
corrigendum of 23 September 2003 the applicant asked for the case to
be heard in his presence.
- On
3 November 2003 the District Court informed the applicant about the
time and place of the appeal hearing.
- On
24 November 2003 the Moscow City Court rejected the appeal. The
applicant was absent from this hearing.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months. 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 ON ACCOUNT OF
NON-ENFORCEMENT
- The
applicant complained under Article 6 of the Convention about the
length of the enforcement proceedings. 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 this complaint was inadmissible. The State had
not been responsible for the maintenance enterprise’s debts,
because this enterprise had been an independent economic agent. The
enforcement had lasted two years and 11 months because quality
repairs had been possible only in spring or summer, because expert
opinions had been needed, because the applicant had avoided
participating in the proceedings, and because he had refused the
resumption of the proceedings.
- The
applicant maintained his complaint. The maintenance enterprise had
been financed mainly by the State and had been regulated by State
rules. The judgment had still not been enforced due to the bailiffs’
negligence, and the domestic courts had acknowledged this. His
renunciation of the resumption of the enforcement proceedings had
been a desperate move caused by the authorities’ persistent
negligence.
- With
regard to the Government’s first argument, the Court reiterates
that the State is responsible for municipal enterprises’ debts
(see, for example, Gerasimova v. Russia (dec.), no. 24669/02,
16 September 2004; Kletsova v. Russia, no. 24842/04,
§ 29, 12 April 2007). It follows that this complaint cannot
be rejected as incompatible ratione personae
with the provisions of the Convention.
- With
regard to the other arguments, 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
Court reiterates that an unreasonably long delay in the enforcement
of a binding judgment may breach the Convention (see Burdov
v. Russia,
no. 59498/00, ECHR 2002 III). To decide if the delay was
reasonable, the Court will look at how complex the enforcement
proceedings were, how the applicant and the authorities behaved, and
what the nature of the award was (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
- First,
it is necessary to determine the period to be considered.
- As
to the start date, the Court notes that the judgment became binding
in November 1997. However, as the Convention came into force in
respect of Russia on 5 May 1998, the Court is prevented ratione
temporis from examining the events that had happened before this
date, although it may take them into account (see Yağcı
and Sargın v. Turkey, 8 June 1995, § 40, Series A
no. 319 A).
- As
to the end date, the Court notes that the parties disagree about
whether the judgment has been enforced. The Government assert that
the judgment was enforced on 15 December 2000, whilst the applicant
asserts that the judgment is still outstanding.
- Contrary
to the Government’s statement, the judgment could not have been
enforced on 15 December 2000, because as late as in December 2002 a
domestic court found that the judgment had been outstanding. Besides,
the Government have not explained what event took place on 15
December 2000. On the other hand, on 18 February 2003 the applicant
renounced the resumption of the enforcement proceedings. The Court
will therefore consider this date as the end date.
- It
follows that the period of enforcement has been four years and nine
months. This period is prima facie incompatible with the
requirement of the Convention. The Court accepts that the judgment
was not easy to enforce, because it required an involvement of third
parties (repairmen and experts) and was susceptible to seasonal
weather changes. Nevertheless, the fact remains that the domestic
courts acknowledged that the bailiffs had terminated the enforcement
proceedings improperly. The Court has no reason to depart from this
finding.
- 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 6 § 1 OF THE CONVENTION AND OF
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 about the supervisory-review quashing of the
judgment of 23 December 2002.
A. Admissibility
- The
Government argued that the quashing had not breached the applicant’s
rights.
- The
applicant maintained his complaint.
- 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
Court has earlier found violations of Article 6 § 1 and Article
1 of Protocol No. 1 where, like in the present case, supervisory
review was used to quash a binding judgment on the ground of an
alleged misinterpretation of material law (see,
for example, Kot v. Russia,
no. 20887/03, § 29, 18 January 2007). There is no reason
to depart from that finding in the present case.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 on this account too.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF
UNFAIRNESS OF SUPERVISORY-REVIEW HEARING
- The
applicant complained under Article 6 of the Convention that the
supervisory-review hearing (§ 9 above) had been unfair, because
he had not been summoned to it.
A. Admissibility
- The
Government argued that the applicant’s right had been
respected. He had been informed about the hearing in advance, but
since under domestic law parties’ appearance in
supervisory-review courts had been optional, the applicant had
decided to skip the hearing.
- The
applicant maintained his complaint.
- 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
- Nevertheless,
given the above finding of a violation by the very use of supervisory
review, the Court considers it unnecessary to examine this complaint
(see Ryabykh v. Russia,
no. 52854/99, § 59,
ECHR 2003 IX).
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF
UNFAIRNESS OF APPEAL HEARING
- The
applicant complained under Article 6 of the Convention that the
hearing of 24 November 2003 (§ 13 above) had been unfair,
because he had not been summoned to it.
- The
Government argued that this complaint was inadmissible. The applicant
had himself asked the courts to hear the appeal in his absence. The
court had properly informed the applicant about the time and place of
the hearing, and he had had every possibility to attend, had he so
wished.
- The
applicant maintained his complaint. In the corrigendum to his appeal
he did ask to summon him, but the courts had failed to do this.
- The
Court notes that the applicant had indeed made clear his wish to
attend the hearing. But it follows from a copy of the summons of 3
November 2003 submitted by the Government, that the court did inform
the applicant about the time and place of the hearing. The applicant
gainsays this fact, but cites no reasons.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 of the Convention about the
length and outcome of the proceedings for damages. He complained
under Article 6 of the Convention that in the proceedings against the
Savings Bank the court had not sent him the Bank’s comments on
his claim, had miscited laws, and had failed to bring the State to
trial. He complained under Article 1 of Protocol No. 1 that the
purchasing power of his deposits had not been restored. He complained
under Article 2 of Protocol No. 4 that he could not move to another
town given that no buyer had been interested in a flat with a leaking
roof.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
VI. 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
- With
regard to the non-enforcement, the applicant claimed 12,000
euros (EUR) in respect of pecuniary damage and EUR 12,000 in
respect of non-pecuniary damage. The claim for pecuniary damage
represented his estimate of the flat’s depreciation due to the
leaking roof.
- The
Government argued that these claims had been unreasonable,
ill-founded, and excessive.
- The
Court rejects the claim for pecuniary damage, because it is
unsupported by evidence. On the other hand, the Court accepts that
the applicant must have been distressed by the non-enforcement of the
judgment. Making its assessment on an equitable basis, the Court
awards EUR 3,000 under this head.
- With
regard to the proceedings against the Savings Bank, the applicant
claimed EUR 21,000 in respect of pecuniary damage and EUR 4,000 in
respect of non-pecuniary damage. The Government argued that these
claims had had no causal link with the violations found. The Court
rejects these claims because they have no causal link with the
violations found.
B. Costs and expenses
- The
applicant made no claim for costs and expenses. Accordingly, the
Court makes no 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 complaints concerning
non-enforcement and the supervisory-review admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 on
account of non-enforcement;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 on
account of the supervisory-review quashing;
- Holds that there is no need to examine the
complaint under Article 6 of the Convention about the unfairness of
the supervisory-review hearing;
- 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), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(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 23 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
