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FIRST
SECTION
CASE OF LARIONOV v. RUSSIA
(Application
no. 42431/02)
JUDGMENT
STRASBOURG
14 November 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 Larionov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42431/02) 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 Mikhail Nikolayevich
Larionov (“the applicant”), on 22 August 2001.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev and subsequently by their Ms V.
Milinchuk, both former Representatives of the Russian Federation at
the European Court of Human Rights,
- On
28 April 2005 the Court decided to give notice of the application 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 1960 and lives in Luga, the Leningrad Region.
- He
sued the military unit no. 29760 of the Leningrad Military Circuit
for damages resulting from a traffic accident.
- On
21 June 1999 the Luzhskiy Town Court of the Leningrad Region granted
his action and awarded him 40,911.50 Russian Roubles (“RUB”)
to be paid by the military unit. The judgment was not appealed
against and on 2 July 1999 entered into force.
- On
2 August 1999 the Luzhskiy Town Court issued a writ of execution and
on 9 August 1999 the bailiffs instituted
enforcement proceedings in respect of the judgment of 21 June 1999.
- On 13 August 1999 the bailiffs sent the writ of
execution to a local department of the Central Bank of Russia no.
29708, so that the amount awarded could be recovered from the
military unit's account. The unit did not comply with the judgment,
since no budget funds had been allocated from the federal budget for
these purposes.
- As
from 1 January 2002 the system of administration of the finances of
the Leningrad Military Circuit has changed. The military units of the
circuit, including military unit no. 29760, started receiving funds
through the Federal Treasury system. The respondent unit's account at
the local department of the Central Bank of Russia was accordingly
closed. On an unspecified date the unexecuted writ was returned to
the bailiffs' office.
-
On 16 January 2003 the bailiffs returned the
writ and accompanying documents to the applicant. With reference to
Decree No. 143 dated 22 February 2001 (see the relevant domestic
law section below) they invited the applicant to submit the documents
to a local department of the Ministry of Finance.
- According
to the Government, the applicant forwarded the writ of execution to
the regional department of the Federal Treasury at some point in
2004. They did not submit any documents in this respect.
- According
to the applicant, on 16 January 2003 he
sent the writ to a local department of the Federal Treasury. At some
point the local department of the Federal Treasury returned the
unexecuted writ to the applicant, referred to the impossibility to
enforce the judgment due to the respondent unit's lack of funds and
invited him to submit it to the Federal Treasury in Moscow. On
20 May 2003 the applicant forwarded the writ of execution and the
accompanying documents to the Federal Treasury. The applicant did not
furnish any documents evidencing those transfers of the writ. He
further submitted that after his complaint to the Administration of
the President of Russia dated 30 January 2004 he obtained enforcement
of the judgment.
- On
21 April 2004 the military unit complied with the judgment in full.
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 the
receipt of the writ of enforcement by the bailiff.
- Under special rules governing at
the relevant time enforcement of judgments against the recipients of
allocations from the federal budget, adopted by the Federal
Government on 22 February 2001 (Decree No. 143, as in force at the
relevant time), a creditor was to apply to a relevant branch of the
Federal Treasury holding debtor's accounts (sections 1 to 4).
- Within
the next five days the branch had to examine the application and to
notify the debtor of the writ, compelling the latter to abide by the
respective court decisions (sections 7 to 12). In case of the
debtor's failure to comply within two months, the branch could
temporarily freeze the debtor's accounts (section 13).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 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 thereto that the judgment
of 21 June 2001 had not been enforced in good time. The relevant
parts of the invoked 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...”
A. Admissibility
- The Government argued that the
applicant had not exhausted domestic remedies, as required by Article
35 § 1 of the Convention. Firstly, he could have asked
a domestic court to index-link the judgment debt to the inflation
rate. Secondly, he could have lodged a
claim for compensation of non-pecuniary damage.
- The applicant maintained his
complaint. He argued, in particular, that he could not lodge a claim
for upgrading of the judgment debt, since by 22 August 2001, the date
of his application to the Court, the judgment in his favour had not
been enforced yet. He could not foresee the further delay of
enforcement and accordingly could not submit a detailed calculation
of pecuniary losses incurred as a result of non-enforcement to a
domestic court.
- The
Court reiterates that it is incumbent on the Government claiming
non-exhaustion to satisfy the Court that the remedy was an effective
one, available in theory and in practice at the relevant time, that
is to say, that it was accessible and capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see Selmouni v. France [GC], no.
25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.),
no. 57220/00, § 15, ECHR 2002-VIII). As regards the possibility
of lodging a claim for inflation losses, the Court notes that the
Government omitted to comment on the effectiveness of the remedy
suggested. In any event, the Court observes
that the main reason of non-enforcement of the judgment of 21 June
1999 cited by the Government was the lack of funds allocated
from the federal budget. In these circumstances, a claim for
inflation losses arising out of protracted enforcement of the
judgment would only have produced repetitive results, namely a writ
of execution which would not be enforceable because of insufficient
funding (see Pogulyayev v. Russia,
no. 34150/04, § 13, 3 April
2008). Thus, it appears that such an action
would not bring the applicant closer to the liquidation of his debt.
As regards the possibility to lodge a claim for non-pecuniary
damage, the Government did not advance any arguments to demonstrate
that the remedy suggested would be an effective one, as well
as available in theory and in practice, and
their argument was confined to a mere assertion that the remedy was
effective. The Court accordingly rejects the Government's
argument about the non-exhaustion of domestic remedies.
- 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 observes that on 21 June 1999 the applicant
obtained a judgment by which the military unit was to pay him a
substantial amount of money. The judgment, which acquired legal force
ten days later, was enforced in full on 21 April 2004. Thus, it has
remained unenforced for over four years and nine months.
- The Government acknowledged that
the judgment of 21 June 1999 was not
enforced in good time and conceded that the applicant's property
rights were violated as a result of the delayed enforcement of the
final judgment. At the same time, they argued
that the applicant had failed to send the writ of execution to the
local department of the Federal Treasury in good time. They pointed
out that the bailiffs had returned the writ to him on 16 January
2003. However, the applicant had not sent it to the Federal Treasury
until an unspecified date in 2004. Accordingly, an
approximately one-year delay in the enforcement of the judgment had
been attributable to the applicant.
- The
applicant disagreed. He submitted that since 16 January 2003 he had
followed the authorities' instructions and had taken necessary
measures to obtain execution of the judgment, namely forwarded the
writ to the Federal Treasury and its local branch (see paragraph 12
above). He maintained his claims.
- The Court notes at the outset that neither the
Government nor the applicant provided the Court with any documents in
support of their respective statements. However, there is no need for
the Court to establish the accuracy of these allegations, since the
Government's argument should in any event be rejected for the
following reasons. The Court recalls its established case-law that 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 Koltsov
v. Russia, no. 41304/02, § 16, 24 February 2005;
Petrushko v. Russia, no. 36494/02, § 18,
24 February 2005; and, mutantis mutandis, Metaxas
v. Greece, no. 8415/02, § 19, 27 May 2004). As
soon as the judgment in the applicant's favour becomes enforceable,
it is incumbent on the State to comply with it (see Reynbakh v.
Russia, no. 23405/03, § 24, 29 September 2005). The
Court accepts that a successful litigant may be required to undertake
certain procedural steps in order to recover the judgment debt (see
Shvedov v. Russia,
no. 69306/01, § 29–37, 20 October 2005).
However, the requirement of the creditor's cooperation must not go
beyond what is strictly necessary and, in any event, does not relieve
the authorities of their obligation under the Convention to take
timely and ex officio action, on the basis of the
information available to them, with a view to honouring the judgment
against the State. This especially applies where, in view of the
complexities and possible overlapping of the execution and
enforcement procedures, an applicant may have reasonable doubts about
which authority is responsible for the execution or enforcement of
the judgment. In this respect the Court further recalls that it is
incumbent on the State to organise its legal system in such a way
that ensures co-ordination between various enforcement agencies and
secures honouring of the State's judgment debts in good time,
irrespective of changes in the domestic law (see Reynbakh, cited
above, §§ 23-24).
- Turning to the facts of the present case, the Court
notes that the State authorities were duly notified of the
applicant's claims as early as in 1999, and accordingly they were in
a position to ensure compliance with their obligations under the
judgment. The award had nonetheless remained unenforced for more than
four years. Furthermore, in the Court's view, the authorities failed
to ensure a requisite co-ordination between the State agencies
involved in the enforcement of the judgment. The Court notes, in
particular, that the system of administration of finance of the
responsible military unit changed as early as on 1 January 2002 (see
paragraph 9 above). However, it was not until 16 January 2003 that
the writ of execution was returned to the applicant. It appears
accordingly that for more than a year the writ had remained either
with a local department of the Central Bank or with the bailiffs'
office unexecuted. It does not appear that during the said period the
authorities took any initiative to comply with the judgment or
informed the applicant of the relevant change of the procedure.
28. In the Court's view, in the absence of such an initiative
and of clear instructions as to the enforcement procedure to be
followed, the applicant cannot be blamed for an alleged delay in
submitting the writ of execution to the competent agency (see,
mutatis mutandis, Fitisov v. Russia, no. 41842/04,
§ 28, 8 November 2007). The Court reiterates that
it would impose an excessive burden on the applicant if he were to
follow every change in the procedure and forward the writ of
execution from one competent State agency to another (compare with
Reynbakh, cited above, §§ 23-24). The Court
accordingly concludes that the applicant's behaviour in the present
case does not relieve the authorities from their responsibility under
the Convention to ensure timely execution of the judgment against the
State.
- 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
Gorokhov and Rusyayev v. Russia, no. 38305/02, § 30
et seq., 17 March 2005; Burdov v. Russia, no. 59498/00, §
34 et seq., ECHR 2002 III).
- 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 four
years and nine months 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. 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.”
- After
the communication of the application to the respondent Government,
the applicant was invited to submit his claims for just satisfaction
under Article 41 of the Convention. However, he did not present an
itemised claim for just satisfaction as required by Rule 60 of the
Rules of Court. 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.
Done in English, and notified in writing on 14 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
