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FIRST
SECTION
CASE OF MOZHAYEVA v. RUSSIA
(Application
no. 26759/03)
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 Mozhayeva 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. 26759/03) 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, Mrs Galina Yuryevna
Mozhayeva (“the applicant”), on 28 May 2003.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, the former Representative of the Russian Federation
at the European Court of Human Rights.
- On
16 March 2007 the President of the First Section decided to give
notice of the application 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 1953 and lives in Donetsk of the Rostov Region.
- The applicant sued the Donetsk
Social Welfare Office («Управление
социальной
защиты
населения
г.
Донецка»)
for arrears in child benefits and for compensation of non-pecuniary
damage.
- On 27 December 2000 the Donetsk
Town Court of the Rostov Region, composed of a professional judge Mr
P. and two lay judges, partly allowed her claims. The judgment became
enforceable on 7 January 2001.
- On 25 July 2002 the Presidium of
the Rostov Regional Court quashed the judgment and remitted the case.
- On 2 October 2002 the Donetsk
Town Court, composed of the judge Mr P. and two lay judges,
ordered that the Donetsk Social Welfare Office pay the applicant
1,506.27 Russian roubles (RUB, approximately EUR 49) in respect of
child benefits adjusted for inflation and legal costs and expenses.
The award was payable from the Rostov regional budget. The court
rejected the applicant's claim for non-pecuniary damage.
- On 4 December 2002 the Rostov
Regional Court upheld the judgment on appeal and it became
enforceable.
- On 3 February 2003 the applicant
received copies of the judgments of 2 October and 4 December 2002.
- On 3 March 2003 she submitted
the writ of execution to the respondent authority.
- On 15 March 2003 the amount of
RUB 292.20 was transferred to the applicant's bank account pursuant
to the judgment in her favour.
13. On
29 October 2003 the applicant received RUB 467.52 on her bank
account.
- On 25 November 2003 RUB 651.55
were paid to the applicant pursuant to the judgment of 2 October
2002.
- On 27 December 2004 the
respondent authority paid her the outstanding balance of RUB
95 (approximately EUR 3) - the sum awarded in respect of legal costs
and expenses - thus completing full execution of the judgment.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment in two months. Under
section 242.2.6 of the Budget Code of 31 July 1998, the Ministry
of Finance must honour a judgment in three months.
- Article
208 of the Code of Civil Procedure empowers a court to upgrade the
amount of a judgment debt, if a creditor so asks.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained about delayed enforcement of the judgment of 2
October 2002. The Court will examine this complaint under Article 6
of the Convention and Article 1 of Protocol No. 1. As far as
relevant, these Articles read as follows:
Article 6
“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.”
A. Admissibility
19. The
Government argued that the applicant's complaint
was inadmissible, since she had not exhausted the domestic remedies
available to her. She had not raised the non-enforcement issue before
the domestic courts and had not requested an
enforcement of the award by the bailiffs' service,
although she had had such a right under the domestic law. They also
noted that the judgment in her favour had been enforced long before
her application had been communicated to the Government by the Court.
20. The
applicant maintained her claims.
21. 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
applicant's alleged failure to complain about delayed enforcement to
a domestic court, the Court observes that the Government did not
specify what kind of a court action she could have brought, nor did
they advance any reasons as to the effectiveness of such remedy and
its availability in theory and in practice. The Court finds that the
Government have failed to substantiate their contention that the
remedy at issue was an effective one. As regards the argument that
the applicant did not ask for the bailiffs' assistance, it is
undisputed that the Donetsk Social Welfare Office
was competent to make payments pursuant the judgment. The
Court had already found, in a similar context, that after a competent
State agency was served with a judgment, the recourse by the
applicant to another State agency should not in principle have been
necessary to secure its enforcement (see, mutatis
mutandis, Koltsov v.
Russia, no. 41304/02, § 16, 24
February 2005). Nor can a person be required to
resort to enforcement proceedings, in order to ensure the enforcement
of a final and binding judgment delivered against the State. There is
nothing in the present case to depart from this conclusion. The Court
considers that in the present case the recourse to the bailiff
service could not be said to have constituted an effective remedy
against non-enforcement. The argument of the Government must
accordingly be dismissed.
- Insofar as the Government may be
understood as arguing that the applicant had not complied with the
six-month rule laid down in Article 35 § 1 of the
Convention, the Court reiterates that, as
applied to non-enforcement, this rule would mean that six
months run from the date of enforcement of the judgment (see Gorokhov
and Rusyayev v. Russia, no. 38305/02, § 27,
17 March 2005). The applicant had lodged her complaint with the
Court on 28 May 2003, and the judgment in her favour had not yet been
fully enforced by that date. Accordingly, the application was
introduced in time.
- The Court further notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The Government argued that a certain delay in
enforcement of the judgment was attributable to the applicant, since
she had only submitted the writ of execution to the competent
authority on 3 March 2003. They submitted that the length of
non-enforcement should be calculated from that latter date. The
Government further argued that the most important part of the award
(RUB 1411) had been paid to the applicant in 2003. Only the remaining
sum of RUB 95 (less than 3 euro) of costs and
expenses had been transferred to her account in December 2004.
Thus, the judgment, with a minor exception of RUB 95 paid in 2004,
had been enforced during the period from 3 March 2003 to 25 November
2003, that is within less than nine months. With reference to cases
of Grishchenko (see Grishchenko v. Russia (dec.),
no. 75907/01, 8 July 2004) Presnyakov (see Presnyakov
v. Russia (dec.), no. 41145/02, 10 November 2005)
and Inozemtsev (see Inozemtsev v Russia
(dec.), no. 874/03, 31 August 2006) the Government argued that such
delay in enforcement was reasonable.
- The
applicant disagreed. She submitted that she had
only received a copy of the judgment in her favour in February 2003
and submitted the writ of execution to the respondent authority on 3
March 2003, that is within less than one month from the date of
receipt of the judgment. In any event, since 3 March 2003 the
judgment had remained unexecuted until 27 December 2004, that is for
one year and nine months from the date of her sending the writs of
execution to the respondent authority. Accordingly, she could not be
blamed for the delay of the enforcement.
2. The Court's assessment
- As
regards the delay of execution of the award, the Court observes that
the judgment of 2 October 2002 in the applicant's favour became
enforceable on 4 December 2002. The Court reiterates that
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). Therefore, the delay of execution should be calculated from 4
December 2002. The Court further notes the Government's submission
that the major part of the award was paid to the applicant in 2003.
However, the Court observes, and it is not disputed by the parties,
that the last payment pursuant the judgment, notwithstanding its
amount, was made on 27 December 2004. Accordingly, the Court
considers that the award was executed in full on the latter date. The
delay of enforcement therefore totalled 2 years and 24 days.
- As
regards the Government's argument that the delay of enforcement was
to a certain extent justified by the applicant's failure to submit
the writ of execution to the respondent authority until March 2003,
the Court reiterates 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 Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004). Where a judgment is
against the State, the defendant State authority must be duly
notified thereof and is thus well placed to take all necessary
initiatives to comply with it or to transmit it to another competent
State authority responsible for compliance. In the Court's view, the
requirement of the creditor's cooperation with the authorities 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.
- Turning
to the present case, the Court considers that the State authorities
were aware of the applicant's claims, and, as soon as the judgment in
the applicant's favour became enforceable on 4 December 2002, they
were in a position to ensure compliance with their obligations under
the judgment. Yet the judgment was executed in full in December 2004,
that is two years and 24 days after it became final and enforceable,
and one year and nine months after the applicant had submitted the
writ of execution to the respondent authority. The Government
provided no justification for such important delay in execution of
the judgment. The Court accordingly rejects the
argument by the Government that the delay of execution of the
judgment of 2 October 2002 was justified in the particular
circumstances of the present case.
- 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 Poznakhirina v. Russia no. 25964/02, 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 two years and twenty four days to comply with the
enforceable judgment in the applicant's favour the domestic
authorities prevented her from receiving the money she 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 to the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 of the
Convention that by the final judgment of 4 December 2002 the domestic
court incorrectly resolved her case and rejected her claim for
non-pecuniary damage. She further complained that the courts had
ordered that the award of the arrears should have been paid from the
regional budget. Finally, she alleged that the first instance court
had been biased because judge P. had examined her case twice.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, it
finds that these complaints 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 must be
rejected as being manifestly ill-founded, pursuant to 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 EUR 45,000 in respect of
non-pecuniary damage. Besides, she submitted in broad terms that the
respondent authority should have index-linked the award in line with
inflation for the period of non-enforcement. The Government submitted
that, as regards the claim for index-linking of the judgment debt,
the applicant was able to lodge a separate court action to obtain
upgrading of the award, but had not availed herself of this remedy.
As regards the claims for non-pecuniary damage, the Government
considered them unreasonable and excessive. They noted that the award
did not constitute an essential asset for the applicant.
- As regards the claim for index-linking of the
judgment debt, the Court points out that under Rule 60 of the Rules
of Court any claim for just satisfaction must be itemised and
submitted in writing together with the relevant supporting documents
or vouchers, “failing which the Chamber may reject the claim in
whole or in part”. The Court notes that the applicant did not
specify an exact amount of pecuniary damage allegedly incurred as a
result of depreciation of the judgment debt due to inflation. She did
not submit a calculation of the loss allegedly incurred or indicated
any particular method to be applied for calculation of such loss. She
also did not provide any supporting documents in respect of the
claim. Accordingly, her claim under this head must be rejected.
- At the same time, the Court accepts that the applicant
may have been distressed by the delayed enforcement of the final
binding judgment in her favour. Making its assessment on an equitable
basis, the Court awards EUR 100 in respect of non-pecuniary
damage and dismisses the remainder of her claim under this head.
B. Costs and expenses
- The
applicant did not make any claim in respect of the costs and expenses
incurred before the domestic courts and before the Court within the
time-limits set by the Court. Accordingly, the Court considers that
there is no call to award her any sum on that account.
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
- Declares the complaint concerning delayed
enforcement of the judgment of 2 October 2002 admissible and the
remainder of the application inadmissible unanimously;
- Holds unanimously that there has been a
violation of Article 6 of the Convention and Article 1 of Protocol
No.1 to the Convention;
3. Holds by six votes to one
(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, shall pay the applicant EUR 100 (one 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;
4. Dismisses unanimously 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
