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FIRST
SECTION
CASE OF MAKAROVA v. RUSSIA
(Application
no. 23554/03)
JUDGMENT
STRASBOURG
1 October 2009
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 Makarova 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 André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 10 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23554/03) 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, Ms Yekaterina Georgiyevna
Makarova (“the applicant”), on 27 June 2003.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, the then Representative of the Russian Federation at
the European Court of Human Rights.
- On
28 November 2006 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 1965 and lives in the town of Pechora, Komi
Republic.
A. The applicant's civil case
- On 27 March 1997 the applicant was dismissed from her
post of accountant in a private company TOO SIAP (“the
company”). She sued the company claiming reinstatement in her
post, non-pecuniary damages, salary arrears and unpaid allowances
(child allowance, annual leave allowance and maternity allowance).
According to the applicant, she lodged her statement of claim
(apparently concerning pecuniary claims) with the Oktyabrskiy
District Court of Ryazan on 22 September 1995. The Government
claimed that the proceedings started on an unspecified date in 1997.
In October 1997 she moved to another town. According to her, she
informed the court of her new address.
- On 24 November 1997 the District Court decided to
process her pecuniary claims separately. By a judgment of 25 November
1997, the District Court ordered the applicant's reinstatement in her
post and awarded her 500,000 Russian roubles (RUB)
in respect of non-pecuniary damage. The applicant was not present at
the hearing. The judgment was not appealed against and became final
on 5 December 1997. A copy of the judgment was sent to the applicant
on 22 December 1997, apparently to her previous address. Another copy
was sent on 28 May 1998 to her new address. The applicant received it
in June 1998. It appears that neither copy was accompanied by a writ
of execution.
- In November 1998 and then in June 2001 the applicant
enquired about the state of proceedings regarding the pecuniary
claims. It appears that these requests remained unanswered.
- Apparently in April 2002 the applicant learnt that the
case file regarding her pecuniary claims had been lost by the court
registry. On 30 November 2002 she asked the district court to
restore the file, which was done on 14 February 2003. On 28
October 2003 the judge decided to process separately the applicant's
claims for maternity allowance, annual leave allowance and salary
arrears. By a judgment of the same date, the court granted her claims
for child allowance arrears.
- On
19 January 2004 the District Court granted in part the applicant's
claims for salary arrears, maternity allowance and annual leave
allowance. No appeal was lodged and the judgment became final.
- Upon
the applicant's request, on 28 September 2004 the Presidium of
the Ryazan Regional Court quashed the judgment on supervisory review
and ordered a re-examination of the claims.
- In the resumed proceedings, on 14 June 2005 the
District Court granted the applicant's claims. On 22 July 2005 the
judge rectified technical errors in this judgment. The applicant was
awarded RUB 557,483 in unpaid salary; RUB 48,960 in annual leave
allowance; and RUB 76,163 in maternity allowance. It appears that the
judgment of 14 June 2005 and the decision of 22 July 2005 were
not appealed against and became final.
- It
appears that on an unspecified date the applicant instituted a
separate set of civil proceedings against the company. The applicant
submitted that by a judgment of 18 December 2006 the District Court
granted her claims against the company. The applicant did not
substantiate the existence of these proceedings by any documentary
evidence.
B. Enforcement proceedings
- It
appears that in October 1998 the applicant learnt that the company
director refused to reinstate her and to pay her compensation in
accordance with the judgment of 25 November 1997 (see paragraph 6
above). Thus, in November 1998 she wrote to the President of the
District Court asking for enforcement of the judgment in her favour.
She renewed her request in May 2001. Apparently, she received no
replies to the above letters from the District Court.
- However,
by a letter of 12 October 2001 the regional bailiffs' office informed
the applicant that there was no record of any enforcement proceedings
against the defendant company. In December 2001 the applicant
complained about the situation to the Supreme Court of Russia, which
re-directed the matter to the Ryazan Regional Court. In February 2002
the Regional Court informed the applicant that no writ of execution
had been issued with the judgment of 25 November 1997 because
the applicant had not requested such a writ or sought to enforce the
judgment.
- Upon the applicant's request, on 4 April 2002 the
District Court issued a duplicate of the writ of execution. The court
established that in 1997 no writ of execution had been issued due to
a mistake by the court registry, which had not complied with the
RSFSR Code of Civil Procedure (see paragraph 24 below).
- Enforcement
proceedings were then opened on 19 June 2002. Having established that
the defendant company had changed its address, in October 2002 the
bailiff identified its new location and owners. Having received no
information about the progress in the enforcement proceedings, on
18 February 2003 the applicant again complained to the President
of the District Court. Upon her complaint, on 31 March 2003 the
District Court established that the bailiff had failed (i) to seek
judicial authorisation to change the defendant company in the
enforcement proceedings to its successor, OOO SIAP, and (ii) to
inform the applicant of the progress of the proceedings.
- On
22 December 2003 the bailiff service informed the applicant that they
had not been able to identify any property or assets belonging to the
debtor; although it was registered with the tax authority, the
company had not been present at the address given to the bailiff
service. On 5 March 2004 the District Court changed the
defendant company to OOO SIAP.
- On
an unspecified date, the Russian authorities opened criminal
proceedings against the company's director Mr L for failure to
enforce the judgments in the applicant's favour. In May 2004 he was
questioned by the bailiff and stated that his company had ceased its
business activity in 2001 and that he could not liquidate it because
he was no longer in possession of the company seal and the articles
of incorporation. On 9 June 2004 criminal proceedings against Mr
L were discontinued. According to the Government, on an unspecified
date Mr L was fined in relation to the non-enforcement of the
judgment of 25 November 1997.
- It
appears that on an unspecified date the bailiffs' office joined the
enforcement files in respect of the judgment of 25 November 1997 and
a new judgment dated 28 October 2003 in the applicant's favour
(see paragraph 8 above).
- In
February and April 2004 the bailiff invited the applicant to advance
costs for organising a search for the assets of the debtor that could
be used to fulfil the obligation stemming from the above judgments.
The applicant refused. In May 2004 the bailiff wrote to the applicant
stating that no search was needed as the debtor carried out no
business activity and had no bank accounts or property.
- It
appears that on an unspecified date, the bailiffs' office joined the
enforcement files in respect of the above two judgments and a new
judgment of 14 June 2005 in the applicant's favour (see paragraph 11
above).
- In
June 2005 the applicant was informed that the debtor had no funds or
assets which could be seized for enforcement purposes.
- On 16 March 2007 the debtor was removed from the
register of legal entities due to its liquidation. On 14 May 2007 the
District Court granted the bailiff's request and discontinued the
enforcement proceedings in respect of the judgment of 25 November
1997.
II. RELEVANT DOMESTIC LAW
A. RSFSR Code of Civil Procedure
- Article 210 § 4 of the RSFSR Code of Civil
Procedure provided that judgments reinstating an employee who had
been unlawfully dismissed or transferred were subject to immediate
execution. The court was required to issue a writ of execution after
the judgment had become operative, except for cases of immediate
enforcement when the writ was to be issued immediately following
delivery of the judgment (Article 340 § 1 of the Code). The writ
could be handed over to the judgment creditor or, if he or she so
wished, be dispatched by the court for enforcement (Article 340 §
2). The court was required to issue, on its own initiative, a writ of
execution in respect of judicial monetary awards in cases of unlawful
dismissal; the judgment creditor had to be informed (Article 340 §
3).
- If
the writ had been lost, the court could issue a duplicate upon a
party's request (Article 343 of the Code). A court decision, in which
a citizen was a party, could be submitted for enforcement within
three years from the date when it became final (Article 345 of the
Code).
B. Enforcement Proceedings Act (Federal Law no. 119-FZ
of 21 July 1997)
- Pursuant to section 9 of the Act, a bailiff had, at
the relevant time, the obligation to accept a writ of execution from
the court or a judgment creditor and to open enforcement proceedings.
The bailiff was required to issue within three days a decision to
open the proceedings and set a time-limit inviting the judgment
debtor to voluntarily comply with the judgment. A copy of that
decision had to be sent to the relevant court, the judgment creditor
and the debtor. If requested by the creditor, the bailiff had to
issue a charging order in respect of the debtor's property.
- The
enforcement had to be completed within two months of receipt of the
writ by the bailiff (section 13). Writs concerning alimony or salary,
reinstatement in a post or other urgent claims had to be enforced
without delay.
- Concerning
enforcement of “obligation-to-do” writs, the bailiff set
a time-limit for the debtor's voluntary compliance (section 73(1)). A
writ for reinstatement in a post had to be enforced immediately and
was deemed to have been enforced when the employee resumed work
(section 73(2)). Failure to comply with the aforementioned
requirements without a valid excuse rendered the debtor liable to a
fine or other measure (section 73(3)).
- If
the writ for reinstatement in the post was not enforced, the bailiff
had to apply to a court with a claim for the judgment creditor's
unpaid salary for the period of non-enforcement (section 74).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE LENGTH OF COURT PROCEEDINGS
- The applicant complained that the court proceedings
had exceeded a “reasonable time” in breach of Article 6 §
1 of the Convention, which, in the relevant part, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government indicated that the applicant had lodged her claims in 1997
and that part of them had been determined in the judgment of
25 November 1997 and then in the judgment of 28 October 2003.
- The
applicant maintained her complaint. She contended that the
proceedings had remained pending from 22 September 1995 to
18 December 2006.
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Period to be taken into account
- The
Court first observes that neither party provided documentary proof of
the date on which, according to them, the civil proceedings had been
initiated. The Court does not find it necessary to determine this
matter since it only has competence ratione temporis in
respect of the proceedings pending since 5 May 1998, the date on
which the Convention entered into force in respect of Russia.
- The
Court further observes that the proceedings, which ended with the
judgments of 25 November 1997, 28 October 2003 and 14 June 2005,
as amended, should be considered as a whole. It is noted that the
applicant's initial statement concerned both pecuniary and
non-pecuniary claims (see paragraph 5 above). Irrespective of whether
or not the subsequent disjoinder of the claims on two occasions was
opportune, the applicant was entitled to have all her initial claims
determined by a court within a “reasonable time”. This
conclusion is not affected by the fact that the applicant amended her
claims in the course of the proceedings since her situation evolved
over time, in particular on account of the company's alleged failure
to enforce the judgment of 25 November 1997. Having said that, the
Court observes that the parties did not submit a copy of the judgment
dated 18 December 2006 which concerned the applicant's new
claims, and that it should therefore not be taken into account.
- In
view of the above considerations, the Court finds that the period to
be taken into consideration ended on 22 July 2005. As no court
proceedings were pending between 19 January and 28 September
2004, this period should not be taken into account.
- Thus,
the court proceedings lasted for approximately six years and six
months within the Court's competence ratione temporis at one
level of jurisdiction.
2. Reasonableness of the period
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the conduct of the relevant
authorities (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000 VII).
- The
Court notes that the case was not particularly complex, although it
concerned a number of intertwined claims.
- The
Government did not allege that the applicant significantly
contributed to the length of the proceedings. The Court sees no
reason to hold otherwise.
- As regards the conduct of the judicial authorities,
the Court observes that from November 1997 to April 2002 there was no
judicial decision determining the merits of the applicant's
outstanding claims or discontinuing the proceedings regarding them
(see Dubinskaya v. Russia, no. 4856/03, § 30, 13
July 2006, and Kabkov v. Russia, no. 12377/03, § 39, 17
July 2008). As acknowledged by the national court, the loss of the
case file was imputable to the authorities. It is uncontested that
the applicant learnt about this fact only in April 2002. Before that
date she had enquired about the state of the proceedings, but
apparently received no replies (see paragraph 7 above).
- After
the case file had been restored in February 2003, the national court
granted part of the applicant's claims and decided to sever the
remainder for a separate decision. The Court reiterates that it is
incumbent on respondent States to organise their legal systems in
such a way that their courts can meet the requirements of Article 6
of the Convention, including the obligation to hear cases within a
reasonable time (see Sürmeli v. Germany [GC], no.
75529/01, § 129, 8 June 2006). Thus, although the
Court accepts that in certain circumstances it may be acceptable to
sever various claims in order to process them separately such
decision does not absolve the national court from its obligation to
comply with the “reasonable time” requirement.
- Having
examined the materials in the case file, the Court concludes that the
authorities' conduct resulted in substantial delays, especially on
account of losing the case file and the decision to split the
different claims made by the applicant.
- Having
regard to the above circumstances and the Court's case-law on the
matter, the Court considers that the length of the proceedings did
not satisfy the “reasonable-time” requirement.
Accordingly, there has been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE ENFORCEMENT PROCEEDINGS IN RESPECT OF THE JUDGMENT OF
25 NOVEMBER 1997
- The
applicant complained under Article 6 of the Convention that the
authorities' failure to assist her in obtaining enforcement of the
judgment of 25 November 1997 prevented her from being reinstated in
her post in the private company and receiving the monetary award made
by the court.
A. Submissions by the parties
- The
Government submitted that the applicant's complaint was incompatible
ratione temporis since the judgment of 25 November 1997 had
been issued before 5 May 1998, the date on which the Convention
entered into force in respect of Russia. According to the applicable
legislation at the time, the applicant should have applied for a writ
of execution, which she did only in 2002. The bailiff service had
taken measures to enforce the judgment. Mr L was fined and a criminal
case was opened against him. No enforcement was possible because the
debtor had ceased its activity in or around 2001. In any event, the
debtor was a private company and the State could not be held
responsible for its failure to honour the company's obligations under
a court judgment.
- The
applicant maintained her complaint.
B. The Court's assessment
1. Admissibility (compatibility ratione
temporis)
- The
Court first observes that the judgment of 25 November 1997 had been
issued before 5 May 1998, the date on which the Convention
entered into force in respect of Russia. However, the above fact is
not determinative since the main thrust of the applicant's grievance
was that the authorities failed to assist her in obtaining its
enforcement between late 1997 and 2007.
- Second,
the Court observes, and it is uncontested between the parties, that
no writ of execution was submitted in late November or early December
1997. However, what is more important for the assessment of the
admissibility of the applicant's complaint is that having learnt in
October 1998 about the company's refusal to comply with the above
judgment, the applicant complained to the District Court about
non-enforcement of the judgment in her favour but apparently received
no reply (see paragraph 6 above). It is only after renewed requests
for information that she first learnt from the authorities in 2001
that there was no record of enforcement proceedings against the
defendant company.
- The
Court reiterates that the applicant's complaint concerns the
authorities' alleged failures resulting in the impossibility to
enforce the final judgment in her favour. In the Court's opinion,
this complaint calls for the global assessment of the efforts made by
the authorities during the relevant period of time, and thus is not
incompatible ratione temporis.
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that execution of a court judgment is regarded as an
integral part of the “trial” under Article 6 of the
Convention (see Hornsby v. Greece, 19 March 1997, §
40, Reports of Judgments and Decisions 1997 II). However,
the right of “access to court” does not impose an
obligation on a State to execute every judgment of civil character
without having regard to particular circumstances of a case (see
Sanglier v. France, no. 50342/99, § 39, 27
May 2003). The State has a positive obligation to organise a system
for enforcement of judgments that is effective both in law and in
practice and ensures their enforcement without undue delay (see
Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005).
When the authorities are obliged to act in order to enforce a
judgment and they fail to do so, their inactivity can engage the
State's responsibility on the ground of Article 6 § 1 of
the Convention (see Scollo v. Italy, judgment of 28
September 1995, § 44, Series A no. 315-C). It is for each
State to equip itself with legal instruments which are adequate and
sufficient to ensure the fulfilment of positive obligations imposed
upon the State (see Ruianu v. Romania, no. 34647/97,
§ 66, 17 June 2003). The Court's only task is to examine
whether measures applied by the national authorities in a given case
were adequate and sufficient. In the cases, which necessitate actions
of a debtor who is a private person, the State – as the
possessor of the public force – has to act diligently in order
to assist a creditor in execution of a judgment (see Fociac v.
Romania, no. 2577/02, § 70, 3 February 2005, and
Kesyan v. Russia, no. 36496/02, §§ 64 and 65,
19 October 2006).
- Having
examined the relevant provisions of the Russian legislation (see
paragraphs 24 and 26 above), the Court is satisfied that it was the
Russian authorities' responsibility to start ex officio
enforcement proceedings in respect of the judgment of 25 November
1997. This reading of the legislation is comforted by the District
Court's decision of 4 April 2002 establishing that in 1997 no writ of
execution had been issued due to a mistake by the court registry (see
paragraph 15 above).
- However,
in the Court's view, the above considerations are not determinative
since even after the applicant had informed the authorities that the
debtor refused in 1998 to honour his obligation under the judgment,
the authorities took no measures to assist the applicant in obtaining
enforcement of the judgment in her favour.
- As regards the period after the institution of
enforcement proceedings in 2002, the Court observes that the debtor
had ceased its activity in 2001 and it was therefore not practicable
to reinstate the applicant in the post of accountant. As of 2002 the
debtor had no property or assets which could be seized in order to
enforce the judicial award in respect of non-pecuniary damage. Thus,
the authorities' attempts to secure the enforcement of the judgment
in the applicant's favour would fail at that stage of the
proceedings.
- In light of the above considerations, the Court
concludes that the Russian authorities failed to comply with their
obligation to provide the applicant with assistance in the
enforcement of the judgment of 25 November 1997 (see Ciocan
and Others v. Romania, no. 6580/03, §§ 30-38, 9
December 2008; see, by contrast, Shestakov v. Russia (dec.),
no. 48757/99, 18 June 2002; Špaček v. the Czech
Republic (dec.), no. 4371/03, 15 January 2008;
Perevozchikova v. Russia (dec.), no. 7105/02, 3 June
2008; Lyudmila Smirnova v. Russia, no. 8910/04, § 15,
3 July 2008; and Pokutnaya v. Russia (dec.), no. 26856/04,
3 July 2008).
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained about non-enforcement of the judgments of 28
October 2003 and 14 June 2005, as amended.
- With
due regard to the findings in paragraph 55 above, the Court considers
that it was impracticable to enforce the above judgments. Thus the
Court is satisfied that the national authorities complied with their
obligation to assist the applicant in their enforcement.
- 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.
IV. 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 RUB 1,244,623, of which RUB 997,000 represented the
sums awarded by national courts (admittedly, in 2003 and 2005). She
also claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government indicated that the applicant's pecuniary claim was
unrelated to her complaint about non-enforcement of the judgment of
25 November 1997 and was in any event unsubstantiated.
- The
Court observes that the applicant's pecuniary claim as presented by
her does not appear to relate to the Court's findings made in respect
of the judgment of 25 November 1997 or the length of the civil
proceedings. In any event, the question of whether the applicant
would have been able to obtain the full enforcement of the above
judgment, had the national authorities properly assisted her in this
task, is a matter of speculation in the circumstances of the case
(cf. Ciocan and Others, cited above, § 48). The Court
therefore rejects the pecuniary claim.
- On
the other hand, making its assessment on an equitable basis and
having regard to the nature of the violations found, the Court awards
the applicant EUR 5,800 in respect of non-pecuniary damage, plus any
tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed RUB 4,995 for unspecified costs and expenses
incurred at the national level.
- The
Government submitted that the claim was unsubstantiated.
- 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
rejects the claim for costs and expenses in the domestic proceedings.
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 complaints concerning the length of
civil proceedings and the alleged State's failure to assist the
applicant in securing enforcement of the judgment of 25 November
1997 admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the civil
proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the State's failure to
assist the applicant in securing enforcement of the judgment of 25
November 1997;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,800 (five
thousand eight 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 1 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
