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FIRST
SECTION
CASE OF ABBASOV v. RUSSIA
(Application
no. 11470/03)
JUDGMENT
STRASBOURG
18 February 2010
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 Abbasov 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,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11470/03) 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, Mr Kerim Kamran-ogly
Abbasov (“the applicant”), on 19 February 2003.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights, and Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
21 January 2008 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 1956 and lives in Nizhnevartovsk, a city in the
Khanty-Mansi Autonomous District.
- In
1987 the applicant was convicted of fraud and complicity in bribery.
In 1988 a supervisory instance court quashed the conviction and
ordered a new investigation. The investigation was pending until
1999. In February 1999 the criminal proceedings against the
applicant were discontinued.
- The
applicant sued the Ministry of Finance for compensation.
On 14 September 2001 the Nizhnevartovsk District Court
awarded the applicant 37 016 Russian roubles (RUB) in pecuniary
damage and 800 000 RUB in non-pecuniary damage.
- On
28 November 2001 the Khanty-Mansi Regional Court upheld on appeal the
judgment in respect of the pecuniary damage, but reduced the amount
of the compensation of non-pecuniary damage to 80 000 RUB.
- The
applicant applied for a supervisory review of the appeal decision of
28 November 2001. On 7 December 2001 the Khanty-Mansi Regional
Court quashed the appeal decision of 28 November 2001 and restored in
full the validity of the judgment of 14 September 2001.
- On
10 December 2002 the applicant received the money awarded to him in
pecuniary damage by the judgment of 14 September 2001.
- On
26 September 2003 the Supreme Court quashed, by means of supervisory
review, the judgments of 14 September 2001 and 7 December 2001, and
restored the validity of the appeal decision of 28 November 2001.
- On
13 May 2004 the applicant received the money awarded to him in
non-pecuniary damage by the appeal decision of 28 November 2001.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law governing the supervisory review procedure at
the material time is summed up in the Court’s judgment in the
case of Sobelin and Others v. Russia (nos. 30672/03 et
seq., §§ 33-42, 3 May 2007).
- In
2001-2004 judgments delivered against the public authorities were
executed in accordance with a special procedure established, inter
alia, by Government’s Decree No. 143 of 22 February
2001 and, subsequently, by Decree No. 666 of 22 September 2002,
entrusting execution to the Ministry of Finance (see further details
in Pridatchenko and Others v. <<Russia>>,
nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39,
21 June 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW OF 26
SEPTEMBER 2003
- The
applicant complained in substance that the judgments of 14 September
2001 and 7 December 2001 had been quashed by the Supreme Court. The
Court will examine 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.”
- The
Government argued that this complaint had been introduced out of
time.
- The
applicant maintained his complaint, but did not comment on the issue
of six months.
- The Court notes that the quashing complained of took
place on 26 September 2003, whereas the complaint about it was
indeed raised for the first time before the Court on 23 January 2006
only. The Court reiterates that quashing of a judgment by means of
supervisory review is an instantaneous act, which does not create a
continuing situation (see Sardin
v. Russia (dec.), no. 69582/01, 12
February 2004). The Court observes that on 13 May 2004 the applicant
received the money awarded to him in non-pecuniary damage by the
appeal decision of 28 November 2001 (see paragraph 11 above), the
validity of which had been restored by the supervisory review
of 26 September 2003. This fact permits the Court to
conclude that the applicant must have learnt about the supervisory
review in question on 13 May 2004 at the latest. It follows
that the complaint about the quashing of 26 September 2003 has been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF NON-ENFORCEMENT OF THE
JUDGMENT OF 14 SEPTEMBER 2001 AS CONFIRMED ON 7 DECEMBER 2001
- The
applicant complained about non-enforcement of the judgment of 14
September 2001 as confirmed by the judgment of 7 December 2001. The
Court will examine this complaint under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, the
relevant parts of which are quoted above.
A. Admissibility
- The
Government alleged that the applicant had not exhausted the domestic
remedies available to him under domestic law. First, the applicant
could have complained under Chapter 25 of the Code of Civil Procedure
about the authorities’ failure to comply with the given
judgment. Second, the applicant could have lodged a claim for
non-pecuniary damage under Chapter 59 § 4 of the Civil Code.
Third, the applicant could have requested an upgrade of the judgment
debt under Article 208 of the Code of Civil Procedure.
- The
applicant maintained his complaint.
- The
Court has already assessed the effectiveness of the remedies quoted
by the Government and concluded that they did not satisfy the
Convention requirements at the material time (see Kulkov and
Others v. Russia, nos. 25114/03 et seq.,
§§ 42-47, 8 January 2009). The Court sees no reason
to depart from those findings in the case at hand.
- 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
Government did not discern any irregularity in the enforcement
proceedings in question, while the applicant maintained his
complaint.
- The
Court notes that the judgment of 14 September 2001, binding since 7
December 2001, remained unenforced in part of the pecuniary damage
award until 10 December 2002, whereas in part of the non-pecuniary
damage award its non-enforcement lasted until the supervisory review
of 26 September 2003. Hence, the periods of enforcement amount
respectively to twelve and twenty-one months.
While the first period can arguably be considered as reasonable, the
second one is incompatible with the requirements of the Convention
(see Burdov v. Russia (no. 2),
no. 33509/04, §§ 66-67, ECHR 2009 ...).
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 5 and 6 of the Convention, and
Article 3 of Protocol No. 7, that his conviction was unjust and
that the compensation for it was too small.
- Insofar
as these complaints relate to the applicant’s conviction and
imprisonment, the Court notes that these events took place in 1987,
i.e. long before the entry of the Convention into force in respect of
Russia on 5 May 1998. It follows that these complaints are
incompatible ratione temporis with the provisions of the
Convention within the meaning of Article 35 § 3 and must be
rejected in accordance with Article 35 § 4 (see Zhuravlev
v. Russia, no. 5249/06, §
17, 15 January 2009).
28. Insofar
as these complaints relate to the amount of compensation, the Court
notes that the conviction was quashed in 1988, i.e. before the entry
of Protocol No. 7 into force in respect of Russia on 1 August 1998.
It follows that these complaints are also incompatible ratione
temporis with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance with
Article 35 § 4 (see the above cited Zhuravlev, §
18).
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 1,000,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that this claim was 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 1,800 EUR under this head.
B. Costs and expenses
- The
applicant has made no claim for the costs and expenses. Hence, 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
non-enforcement of the judgment of 14 September 2001 as confirmed on
7 December 2001 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 in accordance with
Article 44 § 2 of the Convention, EUR 1,800 (one
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 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
