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FIRST
SECTION
CASE OF CHERKASHIN v. RUSSIA
(Application
no. 7412/02)
JUDGMENT
STRASBOURG
7
February 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 Cherkashin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoli Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni, judges,
and Søren
Nielsen, Section Registrar,
Having deliberated in private on 17
January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7412/02) 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, Mr Yuriy Ilyich Cherkashin
(“the applicant”), on 15 December 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained, in particular, of the State's failure to
enforce the final judgment in his favour.
- On
30 March 2006 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the
non-enforcement 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 1928 and lives in the town of Rossosh, in the
Voronezh Region.
A. Proceedings before domestic courts
- Between
1979 and 1992 the applicant and his wife, then residents of Grozny,
Chechnya, opened several savings accounts with the Grozny branch of
the Chechen Savings Bank, which was an integral part of the USSR
Savings Bank.
- In
May 2000 the applicant issued civil proceedings against the Savings
Bank of Russia and the Ministry of Finance in the Gagarinskiy
District Court, Moscow, claiming damages for the fall in the value of
his savings and those of his deceased wife, default interest and
compensation of the deposits and non-pecuniary damage.
- By
a judgment of 16 January 2001 the Gagarinskiy District Court granted
the applicant's claims in part. The court confirmed the fact that
between 1979 and 1992 the applicant and his wife had made deposits
with the Grozny branch of the USSR Savings Bank and held that under
governmental decree of 19 April 2000 no. 352 the applicant was
eligible for compensation in the amount of 1,000 Russian roubles
(RUB), approximately 30 euros (EUR) for reimbursement of expenses for
the burial of his wife. Accordingly, the court ordered the defendant
to pay the applicant the said amount “from the funds allocated
for that purpose in the State budget for the year concerned”.
The court further noted that the remainder of the applicant's claims
had no basis in national law and rejected them accordingly.
- On
4 July 2001 the judgment of 16 January 2001 was upheld on appeal by
the Moscow City Court and became final and enforceable.
B. Enforcement proceedings
- On
19 February 2001 the applicant was issued with a writ of execution in
respect of the judgment of 16 January 2001.
- According
to the applicant, in November 2001 he submitted the said judgment and
the writ of execution to the Lukoyanov branch of the Savings Bank of
Russia for enforcement, but was refused. Thereafter he applied to the
bailiffs' service of the Nizhniy Novgorod Region.
- On
7 January 2002 the applicant moved and settled in the Voronezh
Region, having notified the bailiffs of his new address.
- On
15 January 2002 he received a letter from the Lukoyanov branch of the
Savings Bank of Russia dated 9 January 2002, which invited him to
receive in person the amount due pursuant to the judgment of 16
January 2001.
- According
to the applicant, he was unable to go to the Lukoyanov branch of the
Savings Bank of Russia, as he lived 1,200 km away.
- On
13 February 2002 the bailiffs' service of the Nizhniy Novgorod Region
returned the execution documents to the applicant. They also enclosed
a letter from the Lukoyanov branch of the Savings Bank of Russia
dated 11 February 2002 which stated that in connection with the
warfare in the Chechen Republic and the loss of documents relating to
deposits made there, the Savings Bank of Russia had taken a decision
to terminate any transactions relating to deposits made with the
Chechen Savings Bank until further notice. It continued that a list
of former depositors of the Chechen Savings Bank was being drawn up,
and that compensation would be paid to those registered on that list
after the Government of Russia had taken a decision to that effect,
and the Savings Bank of Russia had reached agreement with the
Ministry of Finance. The letter concluded that the compensation would
be paid to the applicant after the aforementioned documents had been
adopted. With reference to this letter the bailiffs discontinued the
enforcement proceedings and invited the applicant to request a branch
of the Savings Bank of Russia near his home to put him on the list of
former depositors of the Chechen Savings Bank.
- In
the applicant's submission, he had applied to a local branch of the
Savings Bank of Russia in the town of Rossosh, in the Voronezh
Region, where he then lived. The bank had refused to comply with the
writ of execution, stating that the Ministry of Finance had not
allocated any funds for that purpose.
- The
applicant then submitted his execution documents to the bailiffs of
the Voronezh Region, who refused to institute enforcement
proceedings, stating that the central office of the defendant bank
was located in Moscow, outside the territory of the Voronezh Region.
- In
a letter of 3 April 2003 the Rossosh branch of the Savings Bank of
Russia notified the applicant that from 15 April 2003 the bank would
commence repaying the savings deposited with the Chechen Savings Bank
prior to 20 June 1991 and compensation, as provided by governmental
decree of 19 February 2003 no. 117. It next stated that due to the
redenomination of 1998 the remainder of the deposits would be
recalculated and reduced by a factor of 1,000.
- On
5 and 7 May 2003 the Rossosh branch of the Savings Bank of Russia
paid the applicant the remainder of his deposits and those of his
late wife, made prior to 1991, with interest as well as compensation
in the amount of 2,000 RUB per deposit, totalling RUB 10,317.26. He
also withdrew savings with interest from one of the accounts opened
in 1992, which after the redenomination amounted to RUB 21.31. The
applicant also submitted the execution documents in respect of the
judgment of 16 January 2001, but the bank refused to comply, having
referred to the fact that the writ of execution prescribed “to
recover from the Savings Bank of Russia [in the applicant's favour]
compensation in the amount of RUB 1,000 from the funds allocated for
that purpose in the State budget for the year concerned”. In
the bank's view, “the year concerned” meant the year
2001, when the writ of execution was issued, whereas the applicant
sought the enforcement of his court award in 2003, when no funds for
that purpose had been allocated in the State budget.
- It
appears that the judgment of 16 January 2001 remains unenforced.
II. RELEVANT DOMESTIC LAW
- Section
9 of the Federal Law on Enforcement Proceedings of 21 July 1997
provides that a bailiff's order on the institution of enforcement
proceedings must fix a time-limit for the defendant's voluntary
compliance with a writ of execution. The time-limit may not exceed
five days. The bailiff must also warn the defendant that coercive
action will follow should the defendant fail to comply with the
time-limit.
- Under
Section 13 of the Law, the enforcement proceedings should be
completed within two months of receipt of the writ of enforcement by
the bailiff.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 that the judgment of 16 January 2001 given in his
favour had not been enforced. These Articles, in their relevant
parts, 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 firstly that the judgment in the
present case was given against the Savings Bank of Russia. Leaving
open the question whether the State shall be held liable for the
actions of the Savings Bank of Russia, which is now a joint stock
commercial bank with the majority of its shares owned by the Central
Bank of Russia, the Court has no doubt that the State was responsible
for payment of the judgment debt – and hence for the
non-enforcement – in the circumstances of the present case,
because the judgment of 16 January 2001 was expressed against the
State, and required payment “from the funds allocated for that
purpose in the State budget for the year concerned”. The
State's responsibility is therefore engaged.
- 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
applicant maintained his complaint.
- The
Government, with reference to the information from the Savings Bank
of Russia, admitted that the payment received by the applicant in May
2003 had not constituted enforcement of the judgment of 16 January
2001 and stated that the Savings Bank of Russia was ready to pay the
amount due pursuant to that judgment on the applicant's first demand.
They also argued that on 31 March 2004 a domestic court had ruled
that the amount specified in the judgment of 16 January 2001 should
be recovered according to the procedure established by the Law on
Enforcement Proceedings, and that the applicant had not applied to
the bank or bailiffs for the enforcement.
- The
Court leaves open the question whether the applicant was required to
apply of his own motion to bailiffs or to the bank for the
enforcement of the judgment in his favour, since in any event it is
clear from the facts of the case that the applicant repeatedly
requested the authorities and the bank to comply with the judgment in
question (see paragraphs 11, 16 and 17).
- It
further observes that the judgment of 16 January 2001, as upheld on 4
July 2001, in its part awarding the applicant compensation, remains
inoperative until the present moment, which is for over six years. No
justification has been advanced by the Government for this delay.
- 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, among other
authorities, Burdov v. Russia, no. 59498/00, ECHR 2002-III
and, more recently, Koltsov v. Russia, no. 41304/02, 24
February 2005).
- Having
examined the material submitted to it, the Court notes that the
Government did not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court finds that by
failing for years to comply with the enforceable judgment in the
applicant's favour the domestic authorities prevented him from
receiving the money he could reasonably have expected to receive.
- There
has accordingly 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
- The
applicant claimed compensation in respect of non-pecuniary damage,
leaving its amount to the Court's discretion.
- The
Government considered that should the Court find a violation in the
present case, the mere finding of a violation would suffice.
- The
Court firstly notes that the State's outstanding obligation to
enforce the judgment at issue is undisputed. The Court reiterates
that the most appropriate form of redress in respect of a violation
of Article 6 is to ensure that the applicant as far as possible
is put in the position in which he would have been had the
requirements of Article 6 not been disregarded (see Poznakhirina
v. Russia, no. 25964/02, § 33,
24 February 2005, with further references). The Court
finds that in the present case this principle applies as well, having
regard to the violation found. It therefore considers that the
Government should secure, by appropriate means, the enforcement of
the award made by the domestic courts (see, most recently, Pylnov
v. Russia, no. 7111/05, § 30, 12 July 2007).
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the State authorities' failure to execute
a final judicial decision in her favour, and that this cannot be
sufficiently compensated for by the finding of a violation. The Court
has taken into account the award it made in the case of Burdov
(cited above), the nature of the decision whose non execution
was at issue in the present case, the delay in the execution
proceedings and other relevant considerations. Making its assessment
on an equitable basis, it awards the applicant EUR 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 submit any claim in respect of costs and expenses.
Accordingly, the Court considers that there is no call to award him
any sum on that account.
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, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention:
(i) shall
secure the enforcement of the award made by the domestic courts in
the applicant's favour under the judgment of 16 January 2001,
that is to pay the applicant RUB 1,000 (one thousand Russian
roubles);
(ii) shall
pay the applicant EUR 500 (five hundred euros) in respect of
non-pecuniary damage to be converted into Russian roubles at the rate
applicable at the date of settlement;
(iii) shall
pay 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.
Done in English, and notified in writing on 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
