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FIRST
SECTION
CASE OF RUSSKIKH v. RUSSIA
(Application
no. 44595/05)
JUDGMENT
STRASBOURG
10 April
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 Russkikh 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 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44595/05) 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 Fedor Vasilyevich
Russkikh (“the applicant”), on 11 November 2005.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
14 January 2009 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
4. In
accordance with the pilot judgment Burdov v. Russia (no. 2)
(no. 33509/04, ECHR 2009), the 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 had failed to submit the documents to the correct
enforcement authority and requested the Court to consider the
application on the merits. The Court therefore decided to resume
examination of the present case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Izhevsk, Republic of
Udmurtiya.
- On
17 June 2002 the applicant brought proceedings in court challenging
the authorities’ refusal to issue him with a new passport.
- On
20 September 2002 the Presidium of the Supreme Court of the
Republic of Udmurtiya, considering the case at the supervisory
instance, found for the applicant.
- The
applicant subsequently sued the authorities for damages resulting
from their unlawful refusal to issue him with a passport.
- On
11 August 2004 the Oktyabrskiy District Court of Izhevsk granted the
applicant’s claims in part and awarded him 4,000 Russian
roubles (RUB) as non-pecuniary damage, to be paid by the Russian
Ministry of Finance.
- On
30 September 2004 the Supreme Court of the Republic of Udmurtiya
upheld the judgment on appeal.
- According
to the Government, shortly after the judgment of 11 August 2004
became binding and enforceable, the trial court forwarded the writ of
execution to the relevant department of the bailiff service. However,
on 21 January 2005 the writ was returned to the applicant by the
bailiff service with an explanation that the document should be
submitted to the Ministry of Finance.
- The
applicant did not re-submit the document to any authorities, and the
judgment remains unenforced to date.
II. RELEVANT DOMESTIC MATERIAL
A. Law on Enforcement Proceedings
- Article
9 of the Federal Law on Enforcement Proceedings of 21 July 1997
(no. 119-ФЗ) as in force at the material time
provided that a bailiff was to set a time-limit up to five days for
the defendant’s voluntary compliance with a writ of execution.
The bailiff was also to warn the defendant that coercive action would
follow should the defendant fail to comply with the time-limit. Under
Article 13 of the Law, the enforcement proceedings had to be
completed within two months of the receipt of the writ of execution
by the bailiff.
B. Special execution procedure for the judgments
delivered against the State and its entities
- In
2001-2005 the judgments delivered against the public authorities were
executed in accordance with a special procedure established, inter
alia, by the 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. By a ruling of 14 July 2005 (no. 8-П),
the Constitutional Court of Russia considered certain provisions
governing the special execution procedure to be incompatible with the
Constitution. Following that ruling, the Law of 27 December 2005
(no. 197-ФЗ) introduced a new chapter
in the Budget Code modifying this special procedure. The Law notably
empowered the Federal Treasury to execute judgments against legal
entities funded by the federal budget and the Ministry of Finance to
execute judgments against the State. Under Article 242.2.6 of
the Budget Code, the judgments must be executed within three months
after receipt of the necessary documents.
ITMarkFactsComplaintsEndTHE
LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the authorities had
failed to enforce the judgment of 11 August 2004 in his favour. He
relied on Article 6 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.”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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 argued that by failiing to submit the
enforcement documents to the Ministry of Finance, as he had been
advised by the bailiff, the applicant had failed to comply with the
minimal requirements necessary to obtain the award. They referred to
the case of Akashev v. Russia
(no. 30616/05, 12 June 2008) to emphasize that the requirement
to submit the enforcement documents to the enforcing authority was
not unreasonable or difficult to comply with and fell within the
category of “certain procedural steps” to be followed by
the creditor; in this respect the applicant’s case allegedly
differed from the many previous Russian cases where the applicants
had had to send their documents to various bodies several times. The
Government concluded that they did not have any possibility to
enforce the judgment in the absence of the enforcement documents
lodged with the proper executing authority.
19. The
applicant maintained his complaint.
20. 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). To decide if the delay
was reasonable, it will look at how complex the enforcement
proceedings were, how the applicants and the authorities behaved, and
what was the nature of the award (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
- The Court further 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). Where a judgment is
against the State, the defendant State authority must be duly notified
thereof 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 (see Akashev, cited above, §
21). The complexity of the domestic enforcement procedure or of the
State budgetary system cannot relieve the State of its obligation
under the Convention to guarantee to everyone the right to have a
binding and enforceable judicial decision enforced within a
reasonable time (see Burdov (no. 2), cited above, §
70). Where the creditor’s cooperation is required, it must not
go beyond what is strictly necessary and in any case does not relieve
the authorities of their obligation under the Convention to take
timely and ex officio action, on the basis of the
information available to them, with a view to honouring the judgment
against the State (see Akashev, cited above, § 22).
- The
Court observes that in the instant case the judgment of 11 August
2004 has been pending enforcement for over seven years. It notes that
the enforcement proceedings were not particularly complex given the
nature of the award and that no significant delays can be attributed
to the applicant. Indeed, once the judgment became final, the trial
court forwarded the pertinent writ of enforcement to the authority it
considered relevant at the time, namely the bailiff service. The fact
that the enforcement proceedings at the material time were so complex
that even the domestic court could not determine correctly which
State body was the due recipient of the writ of enforcement does not
relieve the State of its obligation to act in accordance with the
principles cited above. In particular, once the authorities were in
possession of the writ of enforcement, it was open to them to adopt a
more practical approach and to forward the document to the
responsible body. Consequently, despite the applicant’s failure
to submit the documents to the Ministry of Finance after their return
by the bailiff service, the full responsibility for enforcement of
the court judgment rests with the State.
- In
view of the above, the Court considers that the authorities failed to
comply with their obligation under the Convention and that there has
accordingly been a violation of Article 6 § 1 of the Convention
and of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained about the length of the two sets of
proceedings to which he had been a party.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that the above complaint does 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 is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
III. 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 3,000 euros (EUR) on top of the judgment debt due
to him, which amounted approximately to EUR 100, in respect of
pecuniary damage, and EUR 3,000 in respect of non-pecuniary damage.
He did not submit any supporting documents as regards his claim for
pecuniary damage, nor did he provide any details of the calculation
method he used.
- The
Government retorted that in the case of finding a violation by the
Court, that finding would provide sufficient just satisfaction for
the applicant in respect of non-pecuniary damage. They further argued
that his claim for pecuniary damage was unsubstantiated.
- As
to the claim for pecuniary damage, the Court notes
the Government’s submission that they could not enforce the
judgment in the applicant’s favour (see paragraph 5 above). It
therefore awards the applicant EUR 100 for pecuniary damage.
- As
to the rest of the claim, it reiterates that under Rule 60 of the
Rules of Court any claim for just satisfaction must be itemised and
submitted in writing together with the relevant supporting documents
or vouchers, failing which the Court may reject the claim in whole or
in part. The Court notes that in the present case the applicant
failed to provide any details of his calculations. The Court
therefore rejects the remainder of the claim.
- At
the same time, the Court accepts that the applicant suffered distress
and frustration following the State’s failure for over seven
years to honour its debt. Deciding on an equitable basis and with
regard to all relevant factors, including the amount of the original
debt (see Burdov (no. 2), cited above, §§
154-157), the Court awards the applicant EUR 1,250 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 1,567 Russian roubles (RUB) (approximately EUR
40) for the costs and expenses incurred before the Court.
- The
Government admitted that the claim was substantiated but argued that
it should not be awarded.
- Regard
being had to the documents in its possession and the above criteria,
the Court accepts the claim and awards the applicant EUR 40 under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 a court judgment in the applicant’s
favour 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 non enforcement;
- 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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
100 (one hundred euros), plus any tax that may be chargeable, in
respect of pecuniary damage;
(ii) EUR
1,250 (one thousand two hundred and fifty euros), plus any tax that
may be chargeable, in respect of non pecuniary damage;
(iii) EUR
40 (forty euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
