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FIRST
SECTION
CASE OF LAVROV v. RUSSIA
(Application
no. 33422/03)
JUDGMENT
STRASBOURG
17
January 2012
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 Lavrov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33422/03)
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 Vladimir Alekseyevich Lavrov (“the
applicant”), on 3 October 2003.
2. The
Russian Government (“the Government”) were represented
first by Ms V. Milinchuk and then by Mr G. Matyushkin,
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
3 May 2007 the President of the
First Section decided to give notice of the application to the
Government.
4. In
accordance with the pilot judgment Burdov v. Russia (no. 2)
(no. 33509/04, 15 January 2009), this application was adjourned
pending its resolution at the domestic level.
- The
Government later informed the Court that enforcement of the domestic
judgment in the applicant’s favour was impossible as the
applicant was obstructing the enforcement and requested the Court to
strike out the application out of its list of cases. The Court
therefore decided to resume examination of the present case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in
Shchekino, Tula Region.
- The
applicant retired from military service in 1993 and became entitled
to obtain a permanent housing funded by the State. Following the
State’s failure to comply with this obligation voluntarily, on
19 October 1998 the Shchekinskiy District Court of the Tula Region
(“the District Court”) granted the applicant’s
action against the Tula Regional Administration and awarded him
143,100 Russian roubles (RUB) for purchasing a flat.
- On
2 March 1999 the Tula Regional Court supplemented the judgment of
19 October 1998, noting that the judgment award should be paid
from the federal funds.
- Enforcement
proceedings were instituted and the applicant submitted a writ of
execution to the Tula Regional Department of the Federal Treasury.
- On
7 March 2002 the applicant received a letter from the Tula Regional
Department of the Ministry of Justice informing him that the judgment
of 19 October 1998, as amended on 2 March 1999, could not be enforced
because the Tula Regional Administration did not have the necessary
funds to do it. He received a number of similar letters in 2003 and
2004.
- Following
communication of the applicant’s case and its subsequent
remittal to the Government for resolution in accordance with the
Burdov (no. 2) pilot judgment cited above, the
Ministry of Finance of Russia applied to the trial court seeking
modification of the method and order of enforcement of the judgment.
Its request was granted on 6 September 2010 by the District
Court which ordered that the Ministry of Finance credit RUB 143,100
to the account of the Tula Regional Administration, which should in
turn pay this amount to the applicant.
- By
a decision of 18 November 2010 the Tula Regional Court upheld that
judgment on appeal.
- The
applicant lodged a new claim to the court seeking increase of the
original award to cover the inflation losses and compensation of
non pecuniary damage inflicted as a result of lengthy
non-enforcement of the judgment.
- On
27 October 2010 the Tsentralniy District Court of Tula relied on
Article 1069 of the Code of Civil Procedure of Russia and awarded the
applicant RUB 1,601,208 instead of the original amount to cover
pecuniary damage. It also rejected the rest of his claim.
- However,
by a decision of 23 December 2010 the Tula Regional Court reversed
the first-instance judgment. The appeal court found that Article 1069
was inapplicable to the applicant’s case and noted that the
situation rather warranted application of Article 208 of the Code of
Civil Procedure, which provides for index-linking of the original
awards. At the same time, the Regional Court relied on the
Compensation Act (Law No. 68-ФЗ
of 30 April 2010) and awarded the applicant RUB 50,000 (approximately
1,200 euros (EUR)) for non pecuniary damage resulted from
lengthy non-enforcement. It is not clear whether the applicant has
been paid this amount.
- By
a letter of 28 February 2011 the Tula Regional Administration
requested that the applicant communicate his bank account details to
enable payment of the original award constituting RUB 143,100. To
date the applicant has refused to comply with this request arguing
that the original award had depreciated and was no longer sufficient
to purchase a flat.
- The
judgment of 19 October 1998, as amended on 2 March 1999, remains
unenforced.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure
- Pursuant to Article 1069 of the Code of Civil
Procedure, a State agency or a State official shall be liable to a
citizen for damage caused by their unlawful actions or failure to
act.
- Article
208 of the Code of Civil Procedure provides for “indexation”
of judicial awards: the court which made the award may upgrade it
upon a party’s request in line with the increase in the
official retail price index until the date of effective payment.
Default interest and other compensation for pecuniary damage may in
addition be recovered from the debtor for non compliance with a
monetary obligation and use of another person’s funds (Article
395 of the Civil Code).
B. Compensation Act
- Federal
Law № 68-ФЗ “On
Compensation for Violation of the Right to a Trial within a
Reasonable Time or the Right to Enforcement of a Judgment within a
Reasonable Time” of 30 April 2010 (in force as of 4 May
2010) provides that in case of a violation of the right to trial
within a reasonable time or of the right to enforcement of a final
judgment, the Russian citizens are entitled to seek compensation of
the non-pecuniary damage.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the judgment of 19
October 1998 in his favour remained unenforced. He relied on Articles
1, 6 and 8 of the Convention and Article 1 of Protocol No. 1. The
Court will examine this complaint under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which in the
relevant part 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 submitted that they considered the judgment enforced in
view of the applicant’s own behaviour obstructing payment of
the award. Adding that the applicant had already received
compensation for non-pecuniary damage sustained as the result of
lengthy non-enforcement, they requested that the Court strike the
application out of its list of cases.
- The
applicant contended that the original award made
for purchase or construction of a flat had depreciated over the years
and could not be considered acceptable. He insisted that the judgment
remained unenforced.
A. Admissibility
- The
Court reiterates that according to Article 37 of the Convention it
can decide to strike an application out of its list of cases if the
applicant does not intend to pursue his or her application, if the
matter has been resolved or for any other reason established by the
Court which would make further examination of the case unjustified.
- The
Court notes that neither of the above conditions applies to the
instant case and that it does not discern any other reason that would
render further examination of the case unnecessary. Therefore, it
rejects the Government’s request to strike the application out
of its list of cases.
- At
the same time, the Court observes that the domestic court
acknowledged the unreasonable delay in the execution of the judgment
in the applicant’s favour and awarded him compensation for
non-pecuniary damage (see paragraph 15 above). In view of these
developments, the Court has to examine whether the applicant can
still be regarded as a victim of the alleged breach of his rights
under the Convention. Even though the Government did not expressly
challenge his victim status, the Court will decide on the issue
proprio motu.
- The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, for example, Amuur
v. France, 25 June 1996, § 36; Reports of Judgments and
Decisions; 1996 III, and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI).
- In
the present case the Court is satisfied that the Tula Regional Court
expressly acknowledged that the delay in the enforcement of the
judgment in the applicant’s favour had been excessive. The
Court will examine whether the authorities have also afforded the
applicant redress for the breach of his right.
- It
notes in this respect that the Tula Regional Court awarded the
applicant an amount of RUB 50,000 (approximately EUR 1,200) as
non-pecuniary damage for the enforcement delay of more than twelve
years. In so deciding the domestic court referred to the established
principle that the amount of compensation should be reasonable and
equitable, taking into account, inter alia, the Court’s
case-law. While fully supporting the above principle, the Court
cannot agree that the amount awarded in the present case complies
with the Convention standards.
- Where a State has
taken a significant step by introducing a compensatory remedy, the
Court must leave a wider margin of appreciation to the State to allow
it to organise the remedy in a manner consistent with its own legal
system and traditions and consonant with the standard of living in
the country concerned. The Court has therefore been
prepared to accept that the compensation amounts awarded by domestic
courts for violations of the Convention rights may be somewhat
lower than those granted by the Court in similar cases (see,
mutatis mutandis,
Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 189, ECHR 2006 V).
In the present case, however, the amount of compensation awarded by
the domestic court falls far below what the Court awards in
comparable situations in respect of non-pecuniary damage. With
reference to the Convention criteria as they were set out in the
pilot judgment (see Burdov
(no. 2), cited
above, § 154-157), the Court considers that the amount of
EUR 1,200 awarded to the applicant by the Tula Regional Court is
unreasonably low, taking into consideration notably the nature of the
court award at issue and the extremely long delay in enforcement
which had exceeded twelve years by that time. The Court furthermore
notes that the applicant’s claim for compensation of pecuniary
damage, while granted in the first instance, was dismissed on appeal
by the Tula Regional Court.
- The
Court finally notes that the authorities have still not managed to
pay the judicial award of 19 October 1998 to the applicant, referring
to his refusal to respond to the letter of 28 February 2011, by which
they asked for his bank details. However, even assuming that the
authorities are no longer responsible for non-enforcement of the
judgment after that date, the Court must still regard the applicant
as a victim of the previous enforcement delay of more than 12 years,
for which he has not been granted adequate and sufficient redress at
the domestic level.
- The
Court further notes that the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention, nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
parties’ submissions are summarised in paragraphs 22 and 23
above.
- 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).
- The
Court observes firstly that contrary to the Government’s
argument that the judgment had been enforced, the amount awarded to
the applicant by the judgment of 19 October 1998 has not been paid to
him to date. Enforcement of that judgment has thus remained pending
for over twelve years.
- The
Court considers that the enforcement proceedings were not
particularly complex given the nature of the obligation. It
reiterates that the lack of funds mentioned by the authorities (see
paragraph 10 above) could not justify the State’s failure to
pay the judgment debt (see Burdov (no. 2), cited above, §
70). The Government has not provided any valid justification for
non-enforcement of the judgment since 1998, except for several months
after 28 February 2011 when the applicant refused to provide the
authorities with his bank details.
- As
to the applicant’s behaviour, the Court observes that since
28 February 2011 he has indeed refused to comply with the
request by the Tula Regional Administration to communicate his bank
account details to enable payment of the award on the ground that the
amount had depreciated. The Court reiterates that the authorities’
request for the applicants’ bank details must be regarded as a
reasonable and necessary procedural step with a view to payment of
the judgment debt (see Burdov (no. 2), cited above,
§ 69). The applicant’s disagreement with the amount
to be paid cannot excuse him for failure to cooperate in the context
of enforcement of the judgment in his favour. The Court thus accepts
that starting from 28 February 2011 the applicant has obstructed
enforcement of the judgment and the authorities cannot be held
responsible for the ensuing delay. It considers, nonetheless, that
the delay in the enforcement caused by the applicant’s conduct
as from 28 February 2011 is negligible in comparison to the rest of
the delay attributable to the authorities.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the authorities failed to comply with their obligation
until February 2011, that is for more than twelve years.
- 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
- In
his observations submitted to the Court on 25 October 2007 the
applicant claimed in respect of pecuniary damage the amount of the
judgment debt and interest rate on it calculated according to the
refinancing rates of the Central Bank of Russia from 1998 to 2007 and
totalling 310,736 Russian roubles (RUB). He also claimed
132,000 euros (EUR) in respect of non-pecuniary damage. In his
later comments the applicant referred to his previous observations.
- The
Government countered that compensation for pecuniary damage could not
exceed the interest accrued between 2 March 1999 (the date of the
final decision in the applicant’s case) and December 2003 as
since the latter date the applicant had not undertaken any actions to
obtain enforcement of the award. They also found the applicant’s
claim for non-pecuniary damage excessive and unreasonable.
- The
Court reiterates that the most appropriate form of redress in respect
of the violations found would be to put the applicant as far as
possible in the position he would have been if the Convention
requirements had not been disregarded (see Piersack v. Belgium
(Article 50), 26 October 1984, § 12, Series A no. 85, and,
mutatis mutandis, Gençel v. Turkey, no. 53431/99,
§ 27, 23 October 2003). It also recalls its constant approach
that the adequacy of the compensation would be diminished if it were
to be paid without reference to various circumstances liable to
reduce its value (see, mutatis mutandis, Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005).
- As
regards the pecuniary damage, the Court refers to its finding of a
violation on account of the authorities’ failure to pay the
judicial award of RUB 143,100 for more than twelve years. Moreover,
the applicant’s attempt to obtain compensation for pecuniary
damage at the domestic level was unsuccessful, as the decision of the
Tsentralniy District Court of Tula awarding him RUB 1,601,208 instead
of the original award was later quashed on appeal by the Tula
Regional Court (see paragraphs 14-15 above). In these circumstances
the Court finds it appropriate to decide the question of just
satisfaction in respect of pecuniary damage.
- First
of all, the sum of RUB 143,100, which has not been paid in accordance
with the judgment of 19 October 1998, must be paid to the applicant
in full. Given the depreciation of the national currency stressed by
the applicant, the Court finds it appropriate to convert the amount
into euros at the rate applicable on 1 January 1999. The Court thus
awards the applicant EUR 5,520 as compensation for the unpaid
judgment debt.
- As
regards the applicant’s claim for interest calculated on the
basis of the refinancing rates of the Central Bank of Russia from
1998 to 2007, the Court notes that the Government partially accepted
the claim but asserted that calculation of the interest on the
original award should be limited to a certain period due to the
applicant’s alleged failure to act after it. The Court is not
convinced by the Government’s assertion. It 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) or
undertake any extraordinary measures that go beyond the necessary
minimum. The Court does not consider the applicant’s claim for
interest amounting to RUB 310,736 for the period from 1998 to 2007 as
unreasonable and decides to grant it in full. Converting the sum
claimed into euros at the rate applicable on 31 December 2007,
it awards him an amount of EUR 8,610 under this head, thus bringing
the Court’s total award in respect of pecuniary damage to EUR
14,130. Finally, the Court notes that no interest was claimed by the
applicant for the subsequent delay in enforcement and makes no award
in that respect.
- Turning
to the claim for non-pecuniary damage, the Court accepts that the
applicant suffered distress and frustration following the
authorities’ persistent failure to enforce the judgment in his
favour for more than twelve years. It also attaches great importance
to the nature of the court award as it was meant to finance a new
housing to which the applicant was entitled on account of his service
in the military. The authorities’ prolonged failure to pay such
an important award necessarily increased his distress and
frustration. At the same time, the Court considers that the amount
awarded under this head should be reduced so as to take account of
the compensation already awarded to the applicant at the domestic
level (see paragraph 15 above). Deciding on an equitable basis and
having regard to all relevant factors (see Burdov (no. 2),
cited above, §§ 154-157), it awards the applicant EUR 6,000
as non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed RUB 513 (approximately
EUR 13) for the postal expenses.
- The
Government provided no comments on this claim.
- 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.
- The
Court notes that the applicant submitted two receipts totalling
approximately EUR 8 for two mailings made to the domestic courts.
Regard being had to the fact that the incurred
expenses have no clear connection to the proceedings at Strasbourg,
the Court rejects this claim.
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 on
account of lengthy non-enforcement of the judgment in the applicant’s
favour;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into Russian roubles at the
rate applicable at the date of settlement:
(i) EUR 14,130 (fourteen thousand one hundred and thirty
euros), in respect of pecuniary damage;
(ii) EUR
6,000 (six thousand 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 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
