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FIRST
SECTION
CASE OF SMETANKO v. RUSSIA
(Application
no. 6239/04)
JUDGMENT
STRASBOURG
29 April
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 Smetanko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach,
Deputy Section
Registrar,
Having
deliberated in private on 30 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6239/04) 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 Ivan Yakovlevich
Smetanko (“the applicant”), on 28 January 2004.
- The
Russian Government (“the Government”) were initially
represented by Ms V. Milinchuk, former Representative of the
Russian Federation at the European Court of Human Rights and
subsequently by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the civil proceedings to which
he had been a respondent party had been unreasonably long and that
there had been a delay in the enforcement of a judgment in his
favour.
- On
7 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 1939 and lives in Solyanoye
in the Krasnodar Region.
A. Division of property
- On
25 March 1993 Ms N., the applicant's former partner, brought an
action against him seeking recognition of her rights in respect of
the house registered in the applicant's name. The applicant brought a
counter-action seeking division of her property.
- On
16 February 1995 the Dinskiy District Court of the Krasnodar Region
granted N.'s claims in part and dismissed the applicant's claims. On
16 April 1996 the Krasnodar Regional Court quashed the judgment of
16 February 1995 on appeal and sent the matter for fresh
consideration.
- On
10 June 1996 the Prikubanskiy District Court of the Krasnodar Region
approved a friendly settlement agreement entered into by the
applicant and N. and discontinued the proceedings. The applicant
appealed. On 18 July 1996 the Regional Court quashed the decision of
10 June 1996 and remitted the matter for fresh consideration.
- On
15 August 1997 the Prikubanskiy District Court granted N.'s claims in
part and dismissed the applicant's claims. On 18 September 1997
the Regional Court quashed the judgment of 15 August 1997 on
appeal and again remitted the matter for fresh consideration.
- On
27 March 1998 the Dinskiy District Court dismissed all the claims and
counterclaims in full. On 21 May 1998 the Regional Court quashed the
judgment of 27 March 1998 and remitted the matter for fresh
consideration.
- On
21 June 2001, the Dinskiy District Court granted N.'s claims in part.
On 6 September 2001 the Regional Court quashed the judgment of
21 June 2001 and remitted the matter for fresh consideration.
- On
4 March 2002 the Dinskiy District Court ordered the applicant to pay
N. 103,960 Russian roubles (RUB) in reimbursement for her expenses
incurred during the construction of his house. The applicant's
counterclaims were dismissed. On 2 April 2002 the Regional Court
upheld the judgment of 4 March 2002 on appeal.
B. Execution of the judgment of 4 March 2002
- On
10 April 2002 the bailiff instituted enforcement proceedings in
respect of the judgment of 4 March 2002.
- On
5 July 2002 the bailiff seized the applicant's house and car. On an
unspecified date, at the applicant's request, the courts lifted the
seizure order in respect of the car.
- On
24 October 2002 the applicant paid the judgment debt owed to N. and
the bailiff closed the enforcement proceedings.
- It
appears that on an unspecified date the seizure order was lifted in
respect of the house and the applicant sold it.
C. Supervisory review of the judgment of 4 March
2002 and fresh consideration of N.'s claims
- On
23 January 2003 the Presidium of the Krasnodar Regional Court quashed
the judgments of 4 March 2002 and 2 April 2002 by way of a
supervisory review and remitted the matter for fresh consideration.
- On
17 April 2003 the Dinskiy District Court dismissed N.'s claims.
- On
23 December 2003 the Regional Court gave a final judgment ordering N.
to repay the applicant the monies awarded to her by the judgment of
4 March 2002. It appears that that decision was enforced shortly
thereafter.
D. Proceedings against the bailiff and execution of the
judgment of 17 June 2005
- On
14 September 2004 the Regional Court gave a final judgment dismissing
the applicant's complaint about the allegedly unlawful seizure of his
house by the bailiff as time-barred.
- On
17 June 2005 the Pervomaiskiy District Court of Krasnodar
dismissed the applicant's action against the bailiff for compensation
in respect of non-pecuniary damage. The court, however, ordered that
the applicant be repaid the enforcement fee of RUB 7,278.
- On
an unspecified date, the applicant submitted a writ of execution to
the Treasury. On 15 July 2005 the Treasury returned the writ of
execution to the applicant advising him to resubmit it to the
Ministry of Justice.
- On
3 August 2005 the applicant asked the Pervomaiskiy District
Court to clarify the part of the judgment of 17 June 2005
concerning its enforcement. On 24 August 2005 the Pervomaiskiy
District Court held that the award was to be paid by the Ministry of
Finance.
- On
4 October 2005 the applicant resubmitted the writ to the
Treasury. On 10 October 2005 the Treasury returned the writ to
the applicant advising him to lodge it with the bailiff.
- On
9 December 2005 the applicant submitted the writ of execution to
the Ministry of Finance. On 9 March 2006 the Ministry of Finance
returned the writ of execution advising the applicant that the
District Court had erred in its indication of who was liable for the
judgment debt. In the Ministry's view, the District Court should have
specified that it was the Treasury and not the Ministry.
- On
10 May 2006 the applicant resubmitted the writ of execution and
accompanying documents. On 9 November 2006 the Ministry of
Finance asked him for his bank details.
- On
28 December 2006 the judgment in the applicant's favour was enforced.
E. Action for compensation for the excessive length of
proceedings
- On
19 March 2008 the applicant brought an action against the
Ministry of Finance and the Treasury seeking compensation for damage
resulting from the excessive length of the proceedings concerning the
property dispute with his former partner. The applicant asked the
court to award him RUB 200,000 in respect of pecuniary damage
and RUB 2,000,000 in respect of non-pecuniary damage.
- On
12 May 2008 the Pervomaiskiy District Court of Krasnodar granted
the applicant's claims in full in respect of pecuniary damage and in
part in respect of non-pecuniary damage and awarded him RUB 100,000
under that head. The court indicated that it had made the assessment
of the non-pecuniary damage on an equitable basis and took into
account the applicant's “advanced age, health condition and
disability”. The applicant appealed, asking the court to
increase the amount of compensation awarded for both pecuniary and
non-pecuniary damage.
- On
28 August 2008 the Krasnodar Regional Court upheld the judgment
of 12 May 2008 on appeal. As regards the pecuniary damage, the
court noted that the District Court had granted the applicant's
claims in full and there was no reason to increase that amount. Had
the applicant considered it necessary to increase his claims in this
respect, he should have done so before the court at the first level
of jurisdiction.
- On
17 September 2008 the applicant received the monies.
II. RELEVANT DOMESTIC LAW
- For
a summary of domestic law provisions on civil-law remedies in respect
of the delayed enforcement of judgments against the State, see the
case of Burdov v. Russia (no. 2)
(Burdov v. Russia (no. 2),
no. 33509/04, §§ 26-29, ECHR 2009 ...).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE EXCESSIVE LENGTH OF THE CIVIL PROCEEDINGS
- The
applicant complained that the civil proceedings which ended with the
judgment of 23 December 2003 had been unreasonably long in
contravention of Article 6 of the Convention, which, in so far as
relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
Admissibility
1. The parties' submissions
- The
Government submitted that the Russian authorities had taken measures
to remedy the violation of the applicant's rights set out in
Article 6 § 1 at the domestic level and that the
applicant had lost his victim status. In particular, on 12 May 2008
the Pervomaiskiy District Court of Krasnodar had granted the
applicant's claims and awarded him compensation in respect of
pecuniary and non-pecuniary damage caused by the excessive length of
the civil proceedings in question. They considered that the amount
awarded to the applicant had constituted an adequate redress and was
comparable with and even exceeded the amounts the Court normally
awarded in similar Russian cases.
- The
applicant contended that the amounts awarded had been too low to
constitute an adequate redress for the damage incurred. He also
considered that the enforcement of the judgment of 12 May 2008
had been excessively delayed, not having been enforced until
17 September 2008.
2. The Court's assessment
- The
Court reiterates that an applicant is deprived of his or her victim
status if the national authorities have acknowledged, either
expressly or in substance, and then afforded appropriate and
sufficient redress for, a breach of the Convention (see, for example,
Scordino v. Italy (no. 1) [GC], no. 36813/97, §§
178-93, ECHR 2006-V).
(a) Whether the domestic authorities
acknowledged the violation of the applicant's right
- As
regards the first condition, the Court notes and the parties do not
dispute that on 12 May 2008 the District Court found that the
length of the civil proceedings in the applicant's case had been
excessive and awarded him compensation in respect of pecuniary and
non-pecuniary damage. The judgment of 12 May 2008 was upheld on
appeal by the Regional Court and became final on 28 August 2008.
Accordingly, the Court accepts the Government's argument that the
Russian authorities acknowledged a violation of the applicant's right
to have his case decided within “a reasonable time”.
(b) Whether the redress afforded was
appropriate and sufficient
- As
regards the second condition, namely, appropriate and sufficient
redress, the Court notes from the outset that the applicant did not
complain that the remedy to which he had resorted had not been
effective within the meaning of Article 13 of the Convention.
His grievances concerned only the amount of the compensation awarded
and the delays in its payment. The Court will examine them
accordingly.
(i) Amount awarded
- The
Court reiterates that the amount awarded on account of a violation of
the reasonable-time requirement is one of the characteristics of
sufficient redress which may remove a litigant's victim status (see
Scordino, cited above, § 202 in fine). It has
held in other length-of-proceedings cases that in assessing the
amount of compensation awarded by domestic courts, it considers, on
the basis of the material in its possession, what it would have done
in the same position for the period taken into account by the
domestic court (ibid., § 211).
- Turning
to the circumstances of the present case, the Court observes that the
applicant claimed RUB 200,000 in respect of pecuniary damage
when lodging his application for compensation before the court at the
first level of jurisdiction. The District Court granted his claim in
full. The applicant later changed his mind and asked the Regional
Court to increase the amount awarded on appeal. The Regional Court
refused to do so noting that the applicant's new claim was
unsubstantiated and belated. In this respect the Court reiterates
that the domestic courts are clearly in a better position to
determine the existence and quantum of pecuniary damage caused (see
Scordino, cited above, § 203). The Court discerns
nothing in the applicant's submissions for it to question the
domestic courts' findings concerning the compensation awarded for
pecuniary damage.
- The
Court further observes that the compensation awarded to the applicant
for non-pecuniary damage amounted to RUB 100,000, which
constitutes approximately EUR 2,754. When determining the amount
of the award, the domestic courts took into account the applicant's
“advanced age, health condition and disability”. Even
though the relevant judgments remain silent as to the method of
calculation, the Court notes that the amount awarded is comparable to
what it generally awards in similar Russian cases. It considers
accordingly that the amount of compensation for non-pecuniary damage
awarded to the applicant was not unreasonable.
(ii) Actual payment of the award to the
applicant
- The
Court observes that the judgment awarding the applicant compensation
on account of the excessive length of proceedings in his case came
into force on 28 August 2008. The authorities paid the judgment
debt in full to the applicant twenty days after that date, that is,
on 17 September 2008. Having regard to its established case-law,
that the period of enforcement in respect of a compensatory remedy
designed to redress the consequences of excessively lengthy
proceedings should not generally exceed six months from the date on
which the decision awarding compensation becomes enforceable (see
Scordino, cited above, § 198 in fine), the
Court considers that the domestic authorities duly complied with the
respective obligation.
(iii) Conclusion
- Having
regard to the above, the Court is satisfied that the compensation
awarded and paid to the applicant in respect of the excessive length
of the civil proceedings in his case constituted an appropriate and
sufficient redress. The applicant may not, therefore, still claim to
be a victim within the meaning of Article 34 of the Convention.
It follows that this complaint must be rejected pursuant to
Articles 34 and 35 §§ 3 and 4 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE DELAYED
ENFORCEMENT OF THE JUDGMENT OF 17 JUNE 2005
- The
applicant complained that the enforcement of the judgment of 17 June
2005 had been unduly delayed. The Court considers that the complaint
falls to be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which, in so
far 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 contended that the applicant had failed to exhaust
domestic remedies in respect of his complaint. In their view, the
applicant should have complained to a court about the alleged failure
by the Ministry of Finance to enforce the judgment in his favour in
good time as provided for in Chapter 25 of the Russian Code of
Civil Procedure. Alternatively, he could have brought an action for
compensation in respect of non-pecuniary damage resulting from the
non-enforcement of the said judgment pursuant to Chapter 59 of
the Russian Civil Code or asked a court to adjust the amount awarded
in accordance with Article 208 of the Russian Code of Civil
Procedure. In support of their argument they cited two examples of
domestic case-law. In particular, on 13 July 2007 the Leninskiy
District Court of Cheboksary found the inaction on the part of the
Regional Department of the Federal Treasury to be in contravention of
the law and compelled the latter to transfer the monies to the
plaintiff within one working day. On 23 October 2006 the
Novo-Savinovskiy District Court of Kazan granted the plaintiffs'
claim for compensation in respect of non-pecuniary damage resulting
from the lengthy non-enforcement of the judgment in their favour.
Lastly, they referred to certain decisions of the Court (notably
Nemakina v. Russia (dec.), no. 14217/04, 10 July 2007; Derkach
v. Russia (dec.), no. 3352/05, 3 May 2007; and Yakimenko v.
Russia (dec.), no. 23500/04, 15 May 2007), where the Court
found that the applicants' successful application for adjustment of
the sum of the judgment debt deprived them of their victim status.
- The
applicant considered his complaint admissible.
- The Court notes that the Government have already
raised the same argument in a number of Russian cases concerning
continued non-enforcement of the judgments in the applicants' favour.
The Court has examined and dismissed them finding the said remedies
ineffective (see, among others, Burdov v. Russia (no. 2), no.
33509/04, §§ 103 and 106-116, 15 January 2009, and
Moroko v. Russia, no. 20937/07, §§ 25-30,
12 June 2008). The Court discerns nothing in the Government's
submissions which would persuade it to depart from its earlier
finding. It follows that the applicant was not required to exhaust
the domestic remedies, as indicated by the Government, and the
Government's objection must be dismissed.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government submitted that the judgment of 17 June 2005 had been
enforced in good time. They considered that the period under
consideration had not started to run until 9 December 2005 when
the applicant had submitted the writ of execution to the Ministry of
Finance. It had ended on 25 December 2005 when the monies were
transferred. Furthermore, the applicant had failed to submit his bank
details to the Ministry of Finance, which had had to ask him to do so
on 9 November 2006. The applicant's response had reached the
Ministry on 19 December 2006 and the latter had paid the monies
to the applicant six days later.
- The
applicant maintained his complaint.
- The
Court observes that the judgment of 17 June 2005 was not
appealed against and became enforceable ten days later, that is, on
27 June 2005. The applicant received the monies on 28 December
2006. Accordingly, it took the domestic authorities one and a half
years to enforce the judgment in the applicant's favour. The Court's
task is, therefore, to ascertain whether such a period of enforcement
was reasonable in the circumstances of the present case (see, among
other authorities, Grishchenko v. Russia (dec.), no. 75907/01,
8 July 2004).
- In
this respect the Court reiterates that a person who has obtained a
judgment against the State may not be expected to bring separate
enforcement proceedings (see
Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004). The respondent
State authority must be duly notified of the judgment against the
State and is thus well placed to take all necessary initiatives to
comply with it or to transmit it to another competent State authority
responsible for compliance. This especially applies where, in view of
the complexities and possible overlapping of the execution and
enforcement procedures, an applicant may have reasonable doubts about
which authority is responsible for the execution or enforcement of
the judgment (see Akashev v. Russia, no. 30616/05, § 21,
12 June 2008).
- Turning
to the circumstances of the present case, the Court considers that
all the delays in the enforcement of the judgment in the applicant's
favour are attributable to the authorities. Admittedly, from 27 June
until 9 December 2005 the applicant failed to submit the writ of
execution to the Ministry of Finance. Nevertheless, even assuming
that the applicant could have been more diligent when contacting
various state bodies, the Court cannot but notice that the state
bodies themselves were not in agreement as to the way in which the
judgment was to be enforced and advised the applicant in a
contradictory manner on the issue. Furthermore, the judgment and the
writ of execution contained certain defects which had to be
corrected. Lastly, the Court notes that, when reapplying to the
Ministry of Finance on 10 May 2006, the applicant indeed failed
to provide his bank details. However, it took the Ministry of Finance
another six months to advise him of that omission on his part. The
relevant letter to the applicant was not sent until 9 November
2006. It appears that the applicant promptly responded submitting the
information requested and the judgment debt was paid on 28 December
2006.
- Having
regard to the above, the Court considers that the domestic
authorities have failed to take the initiative in enforcing the
judgment of 17 June 2005 in the applicant's favour in good time.
There has been, therefore, a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that the judge who had decided his case in
1996-1997 was biased, that the domestic courts had erred in granting
N.'s action, that the bailiffs had wrongfully seized his house and
that his action against them had been to no avail. He referred to
Articles 6 and 13 of the Convention and Article 1 of
Protocol No. 1.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence ratione temporis,
the Court finds that the events complained of 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 must be rejected as manifestly ill-founded pursuant to
Articles 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 1,500,000 in respect of pecuniary damage.
He alleged that he had lost that amount when selling his house at a
low price to comply with the judgment of 4 March 2002 which had been
subsequently quashed. He further claimed EUR 30,000 in respect
of non-pecuniary damage.
- The
Government considered the applicant's claims excessive and
unsubstantiated. They further submitted that the applicant's claim in
respect of pecuniary damage concerned his complaint about the length
of the proceedings in his case. This had been subject to
consideration by domestic courts which had recognised the violation
of his rights and awarded him just satisfaction on that account.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court accepts that the applicant suffered
frustration on account of the lengthy non-enforcement of the judgment
in his favour. However, the particular amount claimed appears
excessive. The Court takes into account the relevant elements, such
as the nature of the award at stake in the present case and the
length of the enforcement proceedings. Making its assessment on an
equitable basis, it awards the applicant EUR 200 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for costs and expenses incurred
before the domestic courts and the Court. He submitted receipts for
RUB 44.1 in respect of his postal expenses in relation to the
enforcement proceedings and RUB 713.8 in respect of his postal
expenses in relation to the proceedings before the Court.
- The
Government considered that only the applicant's expenses incurred
before the Court should be reimbursed.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 20 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 the delayed
enforcement of the judgment of 17 June 2005 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 on account of the delayed enforcement of the judgment of
17 June 2005 in the applicant's favour;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
on the date of settlement:
(i)
EUR 200 (two hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR 20
(twenty euros) in respect of costs and expenses, plus any tax that
may be chargeable to the applicant;
(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 29 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
