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FIRST
SECTION
CASE OF LYUDMILA DUBINSKAYA v. RUSSIA
(Application
no. 5271/05)
JUDGMENT
STRASBOURG
4 December
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 Lyudmila Dubinskaya
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 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5271/05) 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 Lyudmila Borisovna
Dubinskaya (“the applicant”), on 14 November 2003.
- The
applicant was represented by Ms K. Moskalenko, a lawyer practising in
Strasbourg. The Russian Government (“the Government”)
were represented by Ms V. Milinchuk, Representative of the Russian
Federation at the European Court of Human Rights.
- On
22 October 2007 the President of the First Section decided to
communicate the complaint concerning non-enforcement of a domestic
judgment 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 Government objected to the joint examination of the
admissibility and merits, but the Court rejected this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Volgodonsk, a town in the
Rostov Region. In 1999 she lost her home in a terrorist bomb attack.
- On
1 November 2002 the Leninskiy District Court of Krasnodar ordered a
local authority to provide the applicant with a flat within three
months of the judgment’s entry into force. This judgment
entered into force on 19 December 2002.
- On
19 February 2003 the District Court clarified the judgment and
indicated that the flat had to measure at least 72 m².
- In
2002–04 the local authority several times applied for a
supervisory review of the judgment, and pending this procedure the
enforcement was stayed.
- On
12 March 2004 the local authority offered the applicant a flat, but
she refused it. On 9 August 2004 the local authority offered another
flat (measuring 76.78 m²) and the applicant accepted it. On 28
September 2004 the applicant’s ownership was formalised.
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.
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 § 1 and 8 of the
Convention, and Article 1 of Protocol No. 1 about the delayed
enforcement 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 this complaint was inadmissible. The applicant
had complained to the Court more than six months after the judgment
had become binding and had been clarified. The applicant had not
exhausted domestic remedies, because she could have brought an action
for non-pecuniary damages. The judgment had been enforced in time.
Any delays had been caused by objective circumstances: the stays of
the enforcement pending supervisory review and the applicant’s
rejection of the first settlement offer. The flat the applicant had
received in the end had exceeded the award.
- The
applicant maintained her complaint. She had not missed six months
because this time-limit had not applied to such lasting situations as
non-enforcement. The period of enforcement had been unreasonable,
given that she had been a mother and a homeless victim of terrorism.
The stays of the enforcement had not justified the delay, because the
supervisory review had been aimed at an unlawful quashing of the
judgment.
- The
Court considers that the six-month rule does not apply to the present
case because on the date of introduction of the application the
judgment was outstanding (see Nazarchuk v. Ukraine, no.
9670/02, § 20, 19 April 2005). The Court also considers
that a claim for non-pecuniary damages at the domestic level has not
been shown to be sufficiently certain in practice so as to offer the
applicant reasonable prospects of success as required by the
Convention. Therefore, the Court rejects the Government’s
corresponding 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).
- In
the present case, the period of non-enforcement was one year and nine
months: from the date the judgment became binding (see Akashev
v. Russia, no. 30616/05,
§ 21–23, 12 June 2008) to
the date the applicant’s ownership of the flat was formalised.
- The
stays of the enforcement pending supervisory review does not justify
the delay (see Timofeyev v. Russia, no. 58263/00,
§ 42, 23 October 2003). The Court does
not know why the applicant rejected the
first flat offered to her. It may well be that this rejection was
unreasonable. But the fact remains that this offer came more than one
year after the judgment had become binding. This period is
incompatible with the Convention, given that the award concerned a
basic necessity for a person in need – a flat for a homeless
victim of terrorism.
- 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 8 OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that as a
victim of terrorism she received insufficient support from the State.
- 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.
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 claimed 80,000 euros (EUR) in respect of non-pecuniary
damage alone.
- The
Government contested this claim as unreasonable.
- The
Court accepts that the applicant must have been distressed by the
delayed enforcement of the judgment. Making its assessment on an
equitable basis, the Court awards EUR 1,600 under this head.
B. Costs and expenses
- The
applicant made no claim for the costs and expenses. 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
- Declares the complaint concerning
non-enforcement of the judgment 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;
- 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 1,600 (one
thousand six hundred 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 amount 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 4 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
