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FIRST
SECTION
CASE OF SHAFRANOV v. RUSSIA
(Application
no. 24766/04)
JUDGMENT
STRASBOURG
25
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 Shafranov 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,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24766/04) 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 Taras Nikolayevich
Shafranov (“the applicant”), on 24 June 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
12 June 2007 the Court decided to communicate the complaint
concerning non-enforcement of a binding judgment to the Government.
It 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 1973 and lives in Krasnoyarsk, a city in the
Krasnoyarsk Region.
- In
2001 the applicant sued his employer, a State unitary enterprise FGUP
“Yeniseirechsvyaz”, for salary arrears. On 26 February
2002 the Justice of the Peace of District 91 of the Tsentralniy
District of Krasnoyarsk awarded the applicant 100,000 Russian roubles
(RUB). This judgment became binding on 9 March 2002, but was not
enforced.
- In
July 2002 insolvency proceedings were initiated against the
enterprise. In 2003–2004 the applicant received RUB 22,438. On
25 October 2004 the enterprise was liquidated.
- In
two separate proceedings in 2003–04 the applicant attempted to
sue the State for the debt of the enterprise, but courts refused to
proceed because the applicant had failed to name the exact defendant
and to specify his claims.
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 judgment. The
Court will examine this complaint under Article 6 of the Convention
and Article 1 of Protocol No. 1, which insofar as relevant 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
insolvency of the enterprise had made a full enforcement impossible.
The State had not been responsible for the enterprise’s debts,
because it had been a separate economic entity. The insolvency of the
enterprise had been caused by the enterprise itself, and not by the
State.
- The
applicant maintained his complaint.
- The
Court considers that the State has not shown that FGUP
“Yeniseirechsvyaz” enjoyed such institutional and
operational independence from the State that it would absolve the
latter from responsibility under the Convention for its acts and
omissions (see, for example, Grigoryev
and Kakaurova v. Russia, no. 13820/04, §§ 35–36,
12 April 2007). It follows that this complaint cannot be rejected as
incompatible ratione personae with the provisions of the
Convention within the meaning of Article 35 § 3.
- 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 judgment has not yet been fully enforced. The
period of non-enforcement has accordingly been over six years and
three months.
- This
period is prima facie incompatible with the requirements of
the Convention. The Government justify the delay mainly with the
liquidation of the defendant, but the Court has earlier rejected this
excuse in similar circumstances (see Shlepkin v. Russia,
no. 3046/03, § 25, 1 February 2007).
- 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 complains about the domestic courts’ refusal to
deal with his actions directed against 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 7,716 euros (EUR) in respect of pecuniary damage.
This claim included the outstanding judgment debt, an allegedly
underpaid salary, and the earnings the applicant had allegedly lost
by spending time on litigation.
- The
Government argued that this claim could not be entertained, given
that the enterprise had been liquidated.
- The
Court reiterates that violations of Article 6 are best redressed by
putting an applicant in the position he would have been if Article 6
had been respected. The Government shall therefore secure, by
appropriate means, the enforcement of the domestic courts’
award (see, with further
references, Poznakhirina v. Russia, no. 25964/02,
§ 33, 24 February 2005).
- The
applicant also claimed EUR 833,973 in respect of non-pecuniary
damage.
- The
Government argued that this claim had been excessive and
unreasonable.
- The
Court accepts that the applicant must have been distressed by the
non-enforcement of the judgment. Making its assessment on an
equitable basis, the Court awards EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed RUB 3,870 for the costs and expenses incurred
before the Court.
- The
Government argued that this claim had been unsubstantiated, given
that the applicant’s Convention rights had not been breached.
- 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 100 for the
proceedings before the Court.
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, 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 award made by the domestic court,
and in addition pay 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 100 (one 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 25 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
