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FIRST
SECTION
CASE OF ROMAN PONOMAREV v. RUSSIA
(Application
no. 31105/05)
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 Roman Ponomarev 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 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. 31105/05) 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, Mr Roman Vladimirovich
Ponomarev (“the applicant”), on 7 August 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
17 September 2007 the President of the First Section decided to
communicate the complaint concerning non-enforcement of a binding
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 1968 and lives in Volgograd, a town in the
Volgograd Region.
- The
applicant sued the State for non-pecuniary damage inflicted by a
groundless criminal prosecution. On 15 September 2004 the Tsentralnyi
District Court of Volgograd awarded the applicant 5,000 Russian
roubles against the Ministry of Finance. This judgment became binding
on 14 February 2005.
- In
2005–06 the applicant made unsuccessful attempts to obtain
enforcement papers from the court. First, the papers mailed by the
court failed to reach him. Once they did reach him, they proved to
have a formal defect, a missing maturity date. Proper enforcement
papers reached the Ministry of Finance on 3 July 2007, and on 18
October 2007 the judgment was enforced.
- In
separate proceedings the applicant sought a reinstatement in his post
in the police. On 21 April 2004 his action was partially granted.
Later, the applicant unsuccessfully sought a reopening of these
proceedings.
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 Article 6 of the Convention and Article 1
of Protocol No. 1 about the delayed enforcement of the judgment.
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 failed to exhaust such domestic remedies as a request for the
award's adjustment for the cost of living and a claim for
non-pecuniary damages. The enforcement had been delayed because the
applicant had indicated a wrong postal address, and hence the
enforcement papers had been unable to reach him. Besides, the papers
had had a formal defect and had had to be rectified. The judgment had
been enforced promptly after the enforcement papers had reached the
Ministry of Finance.
- The
applicant maintained his complaint.
- With
regard to domestic remedies, the Court considers that an adjustment
for the cost of living would be inadequate because
it would not compensate non-pecuniary damage. A claim for
non-pecuniary damages 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. It follows that this complaint
cannot be rejected for non-exhaustion of domestic remedies.
- 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 case at hand the enforcement lasted two years and eight months.
This period is incompatible with the requirements of the Convention.
The Government blame the applicant for not submitting the enforcement
papers in time, but the Court reiterates that
where a judgment is against the State, the State must take the
initiative to enforce it (see Akashev v.
Russia, no. 30616/05, § 21–23,
12 June 2008). The Government also justify the delay with a formal
defect of the enforcement papers; however the applicant cannot be
blamed for errors in the papers issued by a court.
- The
above considerations permit the conclusion that there has been a
violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 of the Convention about the
outcome of his action for reinstatement and the courts' refusal to
reopen it.
- 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 asked the Court to award him just satisfaction without
specifying his claim.
- The
Government stated that the finding of a violation would suffice.
- 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 400 euros (EUR) 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 and Article 1 of Protocol No. 1 of the Convention;
- 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 400 (four
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.
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
