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FIRST
SECTION
DECISION
Application no. 45175/04
Nina Vasilyevna SHEFER
against Russia
The
European Court of Human Rights (First Section), sitting on 13 March
2012 as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Erik
Møse, judges,
and André
Wampach, Deputy Section Registrar,
Having
regard to the above application lodged on 1 December 2004,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Nina Vasilyevna Shefer, is a Russian national who was
born in 1969 and lives in Barnaul, Altay Region. The Russian
Government (“the Government”) are represented by Mr G.
Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- By the judgment of 16 March
2004 the justice of peace of the 4th Court Circuit of
the Zheleznodorozhniy District of Barnaul awarded the applicant
damages in the total amount of 1,193.60 Russian roubles (RUB) against
Mr K. The writ of execution for the abovementioned amount was issued
on 31 May 2004.
- On 10 June 2004 the Zheleznodorozhniy District
Bailiffs’ Service returned the unenforced writ of execution to
the applicant because the document did not contain the information on
the date and place of birth of the debtor and his place of work.
- The applicant complained about the bailiff’s
actions to court. On 27 July 2004 the Zheleznodorozhniy District
Court of Barnaul allowed the complaint in part. The court ruled the
bailiff’s actions unlawful, annulled the decision to return the
writ of execution and ordered the bailiff to institute enforcement
proceedings. On 15 September 2004 the Altay Regional Court, acting on
appeal, found that the writ of execution had indeed been defective
and that the bailiff could have returned it for correction to the
court, but not to the applicant. The appeal court removed the order
to institute enforcement proceedings upholding the rest of the
judgment. The applicant did not re-submit the writ of execution to
the bailiffs’ service as it was prescribed by the domestic law.
- On 9 March 2011 the justice of peace of the 4th
Court Circuit of the Zheleznodorozhniy District of Barnaul, acting on
the applicant’s claim, ordered indexation of the recovered
amount to RUB 2,417.60 (61 euros (EUR)).
- It
appears that the judgment has not been enforced to date.
COMPLAINT
- The
applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about non-enforcement of a judgment
against a private party.
THE LAW
- The
applicant contended that the national authorities failed to provide
her adequate legal assistance in enforcement of the judgment of
against a private party and therefore acted contrary to Article 6 §
1 of the Convention, which in so far as relevant provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
applicant further alleged that the failure to enforce the judgment in
her favour constituted a violation of Article 1 of Protocol No. 1,
which reads in the relevant part:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions...”
- On
12 January 2011 the Court communicated the complaint relating to the
failure of the State to provide adequate legal assistance in
enforcement of the judgment against a private party to the respondent
Government.
- In
their submissions the Government argued that the applicant in the
present case did not suffer any significant disadvantage as defined
in Article 35 of the Convention, as amended by Protocol No. 14,
and that, consequently, the complaint was inadmissible.
- The
applicant disagreed with the Government’s contention and stated
that she indeed suffered a significant disadvantage.
- The
Court will first determine whether the
applicant has complied with Article 35 of the Convention, as amended
by Protocol No. 14 which entered into force on 1 June 2010.
- The
Protocol added a new admissibility requirement to Article 35 which,
in so far as relevant, provides as follows:
“3. The Court shall declare
inadmissible any individual application submitted under Article 34 if
it considers that:
(...)
(b) the applicant has not suffered a
significant disadvantage, unless respect for human rights as defined
in the Convention and the Protocols thereto requires an examination
of the application on the merits and provided that no case may be
rejected on this ground which has not been duly considered by a
domestic tribunal.”
- Under this provision the Court should examine whether
the applicant suffered a significant disadvantage, whether respect
for human rights would in any event require an examination of the
case, and whether the case was duly
considered by a domestic tribunal (see among others Korolev v.
Russia (dec), no. 25551/05, 1 July 2010; Rinck v. France
(dec.), no. 18774/09, 19 October 2010; Kiousi
v. Greece (dec.), no. 52036/09,
20 September 2011; Savu v. Romania
(dec.), no. 29218/05, 11 October 2011).
- The
Court notes at the outset that no formal hierarchy exists between the
three elements of Article 35 § 3 (b) mentioned above. However,
the question of whether the applicant has suffered a “significant
disadvantage” is at the core of this admissibility criterion
(see among others Ladygin v. Russia (dec.), no. 35365/05,
30 August 2011), while the remaining two elements are intended to be
safeguard clauses (see Explanatory Report to Protocol No. 14,
CETS No. 194, § 81-82).
- The
general principle de minimis non curat praetor underlies the
logic of Article 35 § 3 (b), which strives to warrant
consideration by an international court of only those cases where
violation of a right has reached a minimum level of severity.
Violations which are purely technical and insignificant outside a
formalistic framework do not merit European supervision (see Korolev
v. Russia, cited above, and Adrian Mihai Ionescu v. Romania
(dec.), no. 36659/04, 1 June 2010). The assessment of this minimum
level is, in the nature of things, relative and depends on all the
circumstances of the case (see Ladygin v. Russia, cited
above).
A. Did the applicant suffer a significant disadvantage?
- In the cases considered by the Court after Protocol
No. 14 had entered into force the severity of a violation was
assessed taking account of both the applicant’s subjective
perceptions and what is objectively at stake in a particular case
(see among others Holub v. the Czech Republic (dec.),
no. 24880/05, 14 December 2010, and Burov v. Moldova
(dec.), no. 38875/03, §§ 26-29, 14 June 2011).
- In
respect of the objective significance of a case the Court is
conscious that the impact of a pecuniary loss must not be measured in
abstract terms; even modest pecuniary damage may be significant in
the light of the person’s specific condition and the economic
situation of the country or region in which he or she lives (see
Korolev v. Russia, cited above).
- In
respect of the subjective significance of a case, the Court is ready
to accept that individual perceptions encompass not only the monetary
aspect of a violation, but also the general interest of the applicant
in pursuing the case (see among others Havelka v. Czech Republic
(dec.), no. 7332/10, 20 September 2011).
22. Considering
the present case, the Court at the outset notes that the judicial
award in question is of relatively insignificant amount of
RUB 1,193.60 (EUR 34). Even indexation
of the award to RUB 2,417.60 (EUR 61)
in 2011 does not warrant an alternative conclusion. In the
Court’s view, there are no grounds to conclude that the
enforcement of the judgment in question was objectively significant
for the applicant.
- The
applicant’s insistence on pursuing the case before this Court
may have been prompted by her subjective perception of the weight of
the allegedly endured loss. It is beyond any doubt that in certain
specific circumstances an issue otherwise insignificant may be a
fundamental question of principle for an individual (see Giuran v.
Romania, no. 24360/04, §
22, 21 June 2011). Whether an issue
indeed constitutes a question of principle or is otherwise important
for an individual needs to be ascertained by the Court within the
context of a specific case.
24. In
evaluation of the subjective significance of the proceedings for the
applicant the Court cannot fail but notice that she did not
re-submit the writ of execution to the bailiffs’ service after
the judgment of the Altay Regional Court on 15 September 2004.
Repeated submission of the writ of execution was the only avenue for
the enforcement of the judicial award to proceed and the applicant
should have been reasonably aware of it.
- The
Court finds it decisive that the applicant did not re-submit her writ
of execution until the present moment, effectively being inactive for
a period of more than seven years. The interest of an individual may
not be confined to subjective perceptions and sentiments alone and
has to be manifested by at least an effort to employ reasonable means
conducive to the desired outcome. Hence,
notwithstanding the applicant’s claims before the Court her
conduct demonstrates apparent absence of significant interest in the
outcome of the proceedings.
- Furthermore,
in the present case the applicant’s relevant submissions are
limited to the general references to her “modest salary”
and subsistence minimum in the Russian Federation. Considering the
fact that no specific arguments relevant to her personal
circumstances were presented, the Court concludes that the applicant
did not reasonably substantiate that her financial situation was such
that the outcome of the case would have been subjectively significant
for her. Equally the present case taken as a whole does not disclose
the existence of the question of principle for the applicant. Neither
did she claim the existence of such question.
- Therefore,
the Court concludes that in the circumstances of the case the
applicant did not suffer any objective significant disadvantage as a
result of the alleged violation of the Convention due to
insignificance of the amount in question. Nor, in the light of her
prolonged inactivity, was she able to demonstrate that the
enforcement proceedings were subjectively significant to her.
B. Does respect for human rights require examination of
the case?
- The
second element contained in Article 35 § 3 (b) compels the Court
to examine the case in any event if respect for human rights so
requires. This would apply where a case raises questions of a general
character affecting the observance of the Convention.
The
Court observes that an obligation of a State to provide adequate
legal assistance in enforcement of the judgments against private
parties has been already addressed in judgments against Russia (see
e.g. Kunashko v. Russia, no. 36337/03, 17 December 2009, and
Kesyan v. Russia, no. 36496/02, 19 October 2006).
The examination of this application on the merits would not bring any
new element to the Court’s existing case-law. Hence, the Court
concludes that respect for human rights does not require examination
of this case.
C. Was the case duly
considered by a domestic tribunal?
- The
last element to be examined by the Court is whether the applicant’s
case was duly considered by a domestic tribunal. Qualified by the
drafters of Protocol No. 14 as a safeguard clause (see Explanatory
Report, § 82, cited above), its purpose is to ensure that every
case receives a judicial examination whether at the national level or
at the European level, in other words, to avoid a denial of justice.
The clause is also consonant with the principle of subsidiarity, as
reflected notably in Article 13 of the Convention, which requires
that an effective remedy against violations be available at the
national level (see Korolev v. Russia, cited above).
- The
facts of the present case taken as a whole do not disclose denial of
justice. The applicant’s complaint about return of the writ of
execution by the bailiff was considered by the domestic courts on two
levels of jurisdiction and the domestic courts partly ruled in favour
of her claims. Therefore, the applicant’s case was duly
considered by a domestic tribunal within the meaning of Article 35 §
3 (b).
D. Conclusion
- In
the light of the foregoing, the Court finds that the present
application should be declared inadmissible in accordance with
Article 35 § 3 (b) of the Convention, as amended
by Protocol No. 14. This conclusion obviates the need to consider if
other admissibility criteria have been complied with.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Nina Vajić
Deputy Section
Registrar President
