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FIRST
SECTION
CASE OF LYATSKAYA v. RUSSIA
(Application
no. 33548/04)
JUDGMENT
STRASBOURG
18
September 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 Lyatskaya 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 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33548/04) 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, Ms Lidiya Mikhaylovna
Lyatskaya (“the applicant”), on 13 July 2004.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, the former Representative of the Russian
Federation at the European Court of Human Rights.
- On
29 May 2007 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3). The Government objected to the application of Article 29 §
3, but the Court dismissed this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1936 and lives in Petropavlosvk-Kamchatskiy, a
town in the Kamchatka Region.
- The
applicant lives in a municipally maintained flat. She sued the local
council’s planning department and a municipal maintenance
company for overdue repairs. On 29 April 2002 the
Petropavlovsk-Kamchatskiy Town Court awarded the applicant 60,729
Russian roubles (RUB) by way of damages and costs, and in addition
ordered the defendants to
“eliminate the cause of the leak in [the
applicant’s flat] in the third quarter of 2002 by way of
reconstructive repairs of the end wall and roof according to the
estimate for selective repairs of the house.”
This
judgment became binding on 6 June 2002, but was not enforced
immediately.
- On
19 August 2002 bailiffs closed enforcement proceedings against the
planning department, because in the meantime it had been disbanded.
On 19 February 2003 the bailiffs closed enforcement proceedings
against the maintenance company because of its insolvency. The writ
of enforcement was passed to the Central Bank.
- From
December 2002 to September 2006 the applicant received three payments
totalling RUB 19,155.49. In the second quarter of 2005 the
applicant’s roof was repaired.
- In
separate proceedings in 2004 the applicant brought unsuccessful civil
claims against the Petropavlovsk-Kamchatsk Town Council. These
proceedings ended with the judgment of the Kamchatka Regional Court
of 17 June 2004.
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 about the non-enforcement of the judgment of 29
April 2002. 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 this complaint was inadmissible.
First,
the applicant had failed to exhaust domestic remedies because she had
not complained about the non-enforcement to competent authorities,
had not sued the bailiffs, had not applied for the cost-of-living
adjustment of the award, and had not requested a replacement of the
liquidated defendants.
Second,
the State had not been responsible for the debt because the planning
department was as a local self-government body, and because the
maintenance company was a private enterprise. Besides, the judgment
could not have been enforced due to the defendants’
liquidation. The delay had been partly caused by the applicant,
because from August 2002 to February 2003 she had retained
enforcement papers.
- The
applicant insisted that her complaint was admissible.
First,
the suggested domestic remedies would have been futile.
Second,
the State had been responsible for the debt because local
self-government had been regulated by federal laws. The bailiffs had
idled. The repairs of 2005 had failed to eliminate the leak.
- With
regard to the Government’s first argument, 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 the suggested
remedies 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). In
particular, in such circumstances an applicant is not required to
request a replacement of the liquidated debtor (see Furman v.
Russia, no. 5945/04, § 18, 5 April 2007).
It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies.
- With
regard to the Government’s second argument, the Court
reiterates that the State is responsible for agencies of local
self-government in the sense that they are governed by public law and
exercise public functions vested in them by the Constitution (see
Gerasimova v. Russia (dec.), no. 24669/02, 16 September
2004). The Court also reiterates that unitary enterprises, such as
the municipal maintenance company, do not enjoy sufficient
institutional and operational independence from the State (see
Grigoryev and Kakaurova v. Russia, no. 13820/04, §§
35–36, 12 April 2007; Kletsova v.
Russia, no. 24842/04, §
29, 12 April 2007).
It
follows that this complaint cannot be rejected as incompatible
ratione personae with the
provisions of the Convention.
- 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 Court notes that the judgment has not yet been
fully enforced. The period of non-enforcement has accordingly been
over six years.
- This
period is prima facie incompatible with the Convention. The
Government justify the delay mainly with regard to the respective
liquidation and disbandment of the defendants, but the Court has
earlier rejected this excuse in similar circumstances (see
Shlepkin v. Russia, no. 3046/03, § 25, 1 February
2007). The Government also refer to the applicant’s
six-month-long retention of enforcement papers, but even if the Court
accepted this justification, the overall period of non-enforcement
would in any event be unreasonable.
- The
foregoing considerations are sufficient to enable the Court to
conclude 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 about the outcome of the proceedings that
ended with the judgment of 17 June 2004.
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 1,100,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered this claim unjustified and excessive.
- The
Court accepts that the non-enforcement of the judgment might have
distressed the applicant. Making its assessment of an equitable
basis, the Court awards EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed RUB 10,000 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government argued that only one third of this claim related to the
vindication of the applicant’s Convention rights.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 300 covering costs
under all heads.
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 binding 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 according to Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 300 (three hundred euros),
plus any tax that may be chargeable to the applicant, in respect of
costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
