BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF KUKALO v. RUSSIA (no. 2)
(Application
no. 11319/04)
JUDGMENT
STRASBOURG
24
July 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 Kukalo v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11319/04) 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 Mikhaylovich
Kukalo (“the applicant”), on 25 March 2003.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, the Representative of the Russian Federation
at the European Court of Human Rights.
- On
12 June 2007 the Court decided to communicate the complaint
concerning non-enforcement of binding judgments 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 1941 and lives in Kurgan, a city in the Kurgan
Region.
- As
a victim of Chernobyl, the applicant was entitled to social benefits.
The benefits were underpaid, and the applicant sued the local
welfare authority.
- The
Kurgan Town Court held for the applicant eight times.
- On
25 March 2003 the court awarded arrears and fixed a new amount
of periodic benefits. This judgment became binding on 8 May
2003 and was enforced in July 2003.
- On
3 April 2003 the court awarded arrears and fixed a new amount
of periodic benefits. This judgment became binding on 17 April
2003 and was enforced on 21 July 2005.
- On
19 February 2004 the court awarded arrears and fixed a new
amount of periodic benefits. This judgment became binding on 6
March 2004 and was enforced on 21 July 2005.
- On
11 March 2004 the court awarded arrears and fixed a new amount
of periodic benefits. This judgment became binding on 27 March
2004 and was enforced in July 2005.
- On
27 April 2004 the court awarded arrears and fixed a new amount
of periodic benefits. This judgment became binding on 8 May
2004 and was enforced in July 2005.
- On
20 December 2004 the court awarded inationary loss caused by
the non-enforcement of the previous four judgments, awarded arrears,
and fixed a new amount of periodic benefits. This
judgment became binding on 11 January 2005 and was enforced
on 27 October 2006.
- On
22 May 2006 the court awarded arrears and fixed a new amount of
periodic benefits. This judgment became binding on 6 June 2006
and has been enforced in part.
- On
28 June 2006 the court awarded arrears and fixed a new amount
of periodic benefits. This judgment became binding on 14 July
2006 and has been enforced in part.
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. 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 about the non-enforcement of the judgments. The
Court examined 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 these complaints were inadmissible.
With
regard to the judgment of 25 March 2003, the complaint had been
manifestly ill-founded and introduced out of time. The judgment had
been enforced promptly. The application should have been considered
as introduced on 27 July 2004 (the date of the application form), and
by that date the judgment had long been enforced.
With
regard to the other judgments, the applicant had failed to exhaust
domestic remedies, as he had not complained to bailiffs or
prosecutors.
With
regard to the judgments of 3 April 2003, 19 February 2004,
11 March 2004, and 27 April 2004, the applicant had lost
his status as a victim, because by the judgment of 20 December 2004
the authorities had recognised their fault for the non-enforcement
and awarded compensation.
Furthermore,
in his application the applicant had not complained about the
non-enforcement of the judgments of 20 December 2005, 22 May 2006,
and 28 June 2006, hence the Court had had no competence to
examine that part of the complaint.
- The
applicant argued that his complaints were admissible. His application
should have been considered as submitted on 25 September 2003 (the
date of his first letter to the Court). The judgments of 22 May 2006
and 28 June 2006 had not been enforced fully. The applicant had
complained about the non-enforcement to competent authorities.
- As
to the date of introduction, the Court reiterates that this date is
determined by the date of the first letter indicating an intention to
lodge an application and giving some indication of its nature (see
Chalkley v. United Kingdom (dec.), no. 63831/00, 26 September
2002). The applicant wrote such a letter to the Court on 25 September
2003, some two months after the enforcement of the judgment of 25
March 2003. It follows that the application has been submitted in
time.
- Nevertheless,
the Court also notes that the enforcement of that judgment lasted one
month. This period is prima facie compatible with the
requirements of the Convention. It follows that this part of the
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
- As
to domestic remedies, the Court reiterates that when the existence of
domestic remedies under Article 35 § 1 is at issue, it is the
Government who bear the burden of proof. The Government must show
that the remedy was effective, accessible, capable of providing
redress, and that it offered reasonable prospects of success (see,
mutatis mutandis, Selmouni v. France [GC],
no. 25803/94, § 76, ECHR 1999 V). In the present case, the
Government have not shown how complaints to bailiffs or prosecutors
would have met these requirements (compare with, for example, John
Sammut and Visa Investments Limited v. Malta (dec.), no.
27023/03, §§ 39–46, 16 October 2007). It
follows that this part of the complaint cannot be rejected for
non-exhaustion of domestic remedies.
- As
to the applicant’s status as a victim, the Court reiterates
that to deprive an applicant of this status, the State must
acknowledge a breach of his rights and afford adequate redress (see
Amuur v. France, judgment of
25 June 1995, Reports of
Judgments and Decisions 1996-III, §
36). In the present case, the Court notes that the judgment of 20
December 2005 compensated the applicant’s inationary
loss, but did not award damages, pecuniary or non-pecuniary, in
respect of the non-enforcement. It did not therefore provide adequate
redress.
- As
to the applicant’s alleged failure to complain about the
non-enforcement of the judgments of 20 December 2005, 22 May
2006, and 28 June 2006, the Court notes that the relevant
complaint was contained in the applicant’s letter of 1 October
2006 and formed an integral part of the application.
- The
Court notes that the part of the application concerning the judgments
of 3 April 2003, 19 February 2004, 11 March 2004, 27 April 2004,
20 December 2004, 22 May 2006, and 28 June 2006 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 (Raylyan v. Russia,
no. 22000/03, § 31, 15 February 2007).
- The
enforcement of the judgment of 3 April 2003 lasted two years and
three months. The enforcement of the judgment of 19 February 2004
lasted one year and four months. The enforcement of the judgment of
11 March 2004 lasted one year and three months. The enforcement of
the judgment of 27 April 2004 lasted one year and one
month. The enforcement of the judgment of 20 December 2004
lasted one year and nine months. The enforcement of the judgment of
22 May 2006 has lasted for over one year and ten months, and is
pending. The enforcement of the judgment of 28 June 2006 has lasted
for over one year and nine months, and is pending.
- In
the circumstances of the present case, and given the nature of the
award (benefits to a victim of a nuclear disaster), the Court
finds that the above periods were incompatible with the
requirements of the Convention.
- There
has, accordingly, 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, without referring to any particular set of
proceedings, that the authorities failed to apply a given multiplier
to the cost-of-living adjustment of his benefits.
- The
Court reiterates, however, that the Convention does not guarantee as
such social benefits of any given kind or amount (see Burdov
v. Russia (dec.), no. 59498/00, ECHR 2001 VI).
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
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 10,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government made no comments on this claim.
- As
to pecuniary damage, the Court reiterates that the violation found is
best redressed by putting the applicant in the position he would have
been if the Convention had been respected. The Government shall
therefore secure, by appropriate means, the enforcement of the
domestic courts’ outstanding awards (see, with further
references, Poznakhirina v. Russia, no. 25964/02, § 33,
24 February 2005).
- As
to non-pecuniary damage, the Court accepts that the applicant must
have suffered distress caused by the prolonged non-enforcement of the
judgments. Making its assessment on an equitable basis, the Court
awards EUR 1,900 under this head.
B. Costs and expenses
- The
applicant has made no specific claim for costs and expenses.
Accordingly, the Court makes no award under this head.
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 the
non-enfocement of the judgments of 3 April 2003, 19 February 2004, 11
March 2004, 27 April 2004, 20 December 2004, 22 May 2006, and 28
June 2006 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, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, shall secure, by appropriate means, the
enforcement of the outstanding awards made by the domestic court,
and in addition pay the applicant EUR 1,900 (one thousand nine
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 24 July 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President