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FIRST
SECTION
CASE OF SMELOV v. RUSSIA
(Application
no. 33660/04)
JUDGMENT
STRASBOURG
2 October
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 Smelov 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 11 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33660/04) 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 Aleksandr Nikitovich
Smelov.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Mrs V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
29 August 2006 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Obninsk, a town in the Kaluga
Region.
- As
a victim of Chernobyl, the applicant is entitled to social benefits.
Considering himself underpaid, he brought four sets of proceedings
against the local welfare authority.
- On
22 July 2003 the Obninsk Town Court awarded the applicant arrears in
respect of health damages and fixed a new amount of periodic payments
with their subsequent adjustment for the cost of living. This
judgment became binding on 25 September 2003 but was not fully
enforced. On the applicant's request, on 9 February 2006 the Town
Court set aside the judgment due to newly-discovered circumstances.
- On
1 August 2003 the Town Court fixed a new amount of periodic payments
in respect of additional benefits with their subsequent adjustment
for the cost of living. This judgment became binding on 25 September
2003 but was not fully enforced. On the applicant's request, on 14
February 2006 the Town Court set aside the judgment due to
newly-discovered circumstances.
- On
22 March 2004 the Town Court fixed a new amount of periodic payments
in respect of health damages. This judgment became binding on 2 April
2004 but was not fully enforced. On the applicant's request, on
10 March 2006 the Town Court set aside the judgment due to
newly-discovered circumstances.
- On
14 April 2004 the Town Court fixed a new amount of periodic payments
in respect of additional benefits with their subsequent adjustment
for the cost of living. This judgment became binding on 26 April 2004
but was not fully enforced. On the applicant's request, on 28 March
2006 the Town Court set aside the judgment due to newly-discovered
circumstances.
- After
a rehearing, on 16 May 2006 the Town Court regrouped the four above
judgments, awarded the applicant arrears and fixed new amounts of the
periodic payments with their subsequent adjustment for the cost of
living. This judgment became binding on 21 August 2006.
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 under Article 6 of the Convention and Article 1
of Protocol No. 1 about the delayed enforcement of the judgments.
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. There had
indeed been delays in the enforcement of the four judgments caused by
a lack of budgetary means. Nevertheless, the judgment of 16 May 2006
awarded the outstanding debts and thus redressed the applicant's
rights.
- The
applicant maintained his complaint. The judgment of 16 May 2006 had
not been enforced, like the four earlier judgments.
- The
Court reiterates that to deprive an applicant
of his status as a victim, 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 judgment of 16 May 2006 awarded the applicant
outstanding benefits. It did not, however, award him pecuniary or
non-pecuniary damages for the delayed enforcement of the four earlier
judgments. For this reason, the Court cannot accept this measure as
an “adequate redress”. It follows that the application
cannot be rejected as incompatible ratione
personae with the provisions of the
Convention.
- The
Court notes that the application 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 of the four judgments lasted from
the dates when they became binding to the dates when they were set
aside due to newly-discovered circumstances. It is true that in some
similar cases the Court did not consider the date of the quashing as
the end of the enforcement, given that the quashing breached the
principle of legal certainty (see Sukhobokov v. Russia,
no. 75470/01, §§ 25–27, 13 April 2006). The
present case is, however, different in that the quashing had been
requested by the applicant himself and cannot be imputed to the
State.
- The
periods of enforcement referred to above are incompatible with the
requirements of the Convention. The Government have explained the
delays by a lack of budgetary means, but the Court cannot accept this
justification (see Burdov, cited above, § 35).
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. 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 78,882 Russian roubles in respect of pecuniary
damage. This sum represented his inflationary loss. The Government
argued that this claim should have been rejected as it related also
to judgments that had not been the subject of the present case.
- Having
regard to the information at its disposal, the Court estimates the
applicant's pecuniary damage at 700 euros (EUR). It accordingly
awards this sum under this head.
- The
applicant also claimed EUR 10,000 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 judgments. Making its assessment on an
equitable basis, the Court awards EUR 1,900 under this head.
B. Costs and expenses
- The
applicant made no claim for the 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 application admissible;
- 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 700 (seven hundred euros),
plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 1,900 (one thousand nine
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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 2 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
