POSTNOVA v. RUSSIA - 50113/07 (Judgment : Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings Article 6-1 - Access to court) (Ar...) [2017] ECHR 809 (03 October 2017)

In the case of Postnova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Luis López Guerra, President,
          Dmitry Dedov,
          Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 12 September 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 50113/07) 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 Ms Valentina Aleksandrovna Postnova.

2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged that the authorities had failed to honour the final domestic judgment in favour of her deceased husband.

4. In line with the pilot judgment Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009), on 6 May 2013 the application was communicated to the Government.

5. On 25 September 2013 the Government refused to settle the case arguing, inter alia, that the applicant had not exhausted the domestic remedies in respect of the non-enforcement complaint.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1955 and lives in Tolyatti. The applicant is the widow of Mr Vitaliy Sergeyevich Postnov.

7. On 5 December 2000 the Leninskiy District Court of Ulyanovsk (“the District Court”) ordered the Administration of the Ulyanovsk Region to pay Mr Postnov 228,000 Russian roubles (RUB) in reimbursement of costs for purchase of housing. The amount was to be paid from the federal budget funds allocated for housing of the military servicemen. The District Court further awarded Mr Postnov RUB 810, the cost of the expert examination.

8. On 15 December 2000 the decision of the District Court came into force.

9. In January 2001 Mr Postnov obtained two writs of execution and forwarded them to the bailiffs’ service in Ulyanovsk.

10. On 26 April 2002 Mr Postnov passed away.

11. On 16 June 2003 the applicant joined the enforcement proceedings in her late husband’s stead, pursuant to a domestic court’s decision.

12. In 2003 the applicant and the bailiff in charge of the enforcement proceedings applied for changing the method of execution of the judgment of 5 December 2000. They argued that as the Administration of the Ulyanovsk Region had no authority to administer the federal budget funds, the judgment could not be enforced as prescribed in its operative part.

13. On 25 November 2003 the District Court refused the application for changing the method of execution.

14. On 22 December 2004 the writ of execution in respect of RUB 228,000 was returned to the applicant from the bailiffs’ service without enforcement.

15. On 30 January 2005 the judgment of the District Court in the part concerning RUB 810 was enforced.

16. On 13 November 2003, 13 July 2004, and 20 May 2005 the District Court index-linked the amount due to the applicant under the judgment of 5 December 2000, and awarded her RUB 169,846.46, RUB 17,401.28, and RUB 36,517.69 respectively. These amounts were to be paid from the federal budget funds allocated for housing of the military servicemen. The decisions came into force.

17. In June 2005 the applicant obtained the writs of execution in respect of the three above decisions, and a new writ of execution in respect of the judgment of 5 December 2000 due to the change of the creditor in the enforcement proceedings (see paragraphs 10 and 11 above).

18. On 31 May 2006 the applicant submitted all the writs of execution to the bailiffs’ service.

19. On 2 June 2006 the bailiffs initiated the execution proceedings. On 6 June 2006 the proceedings were terminated. The writs of execution were returned to the applicant as the compulsory enforcement of the judicial decisions in question was impossible.

20. In 2005-2006 the applicant submitted the enforcement documents to the Ministry of Finance of Russia and the Federal Treasury Department for the Ulyanovsk Region. Each time the writs of execution were returned to the applicant without enforcement.

II. RELEVANT DOMESTIC LAW

21. For a summary of the relevant provisions of Federal Law no. 68-FZ “On Compensation for violations of the right to a trial within a reasonable time or the right to enforcement of a judgment within a reasonable time” (“the Compensation Act”), see the case of Nagovitsyn and Nalgiyev v. Russia ((dec.), nos. 27451/09 and 60650/09, §§ 15-20, 23 September 2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

22. The applicant complained that the decision of 5 December 2000 had not been enforced. This complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, 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.”

23. The Government submitted that already at the time of the domestic judgment in question, the Government Decree, on which the court relied when awarding the applicant RUB 228,000, had not been financed from the federal budget, and became inoperative in 2004. The Government also submitted that it was impossible to amend the judgment so it could be enforced, as the time-limit for lodging a supervisory review complaint had expired. The Government also submitted that due to the expiry of the time limit for storing the files at the Federal Treasury, it had been impossible to provide further information about enforcement or return of the enforcement documents to the applicant. Moreover, the Government stated that the applicant had not brought the claim for delayed enforcement under the Compensation Act (see Relevant Domestic Law above), and, therefore, had failed to exhaust the effective domestic remedies available to her.

24. The applicant submitted in reply that she had submitted the enforcement documents to various authorities. However, each time the writs of execution were returned to her without enforcement. She argued that it followed from the Government’s submissions, that they had acknowledged continuing non-enforcement of the decision of 5 December 2000. The applicant contested the Government’s argument that she had not used the Compensation Act, arguing that she had lodged the non-enforcement complaint to the Court before the date of entry into force of the Compensation Act.

A. Admissibility

25. As regards the Government’s objection that the applicant had not used the Compensation Act, the Court reiterates its position that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court to bring again their claims before domestic tribunals (see, mutatis mutandis, Burdov (no. 2), cited above, § 144). In line with this principle, the Court decides to proceed with the examination of the present case (see, mutatis mutandis, Utyuzhnikova v. Russia, no. 25957/03, §§ 48-52, 7 October 2010, compare with Nagovitsyn and Nalgiyev, cited above, § 41) and dismisses the Government’s objection.

26. The Court notes that this complaint 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

27. 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).

28. The Court observes that on 5 December 2000 the applicant’s husband obtained a judgment in his favour. The judgment came into force on 15 December 2000. After the death of Mr Postnov in 2002, the applicant joined the enforcement proceedings in the capacity of his heir. Despite the applicant’s numerous efforts to enforce the judgment of 5 December 2000, it remained inoperative for more than thirteen years.

29. Turning to the Government’s submissions, the Court reiterates that it is not open to a State authority to cite the lack of funds of the complexity of the domestic enforcement procedure as an excuse for not honouring a judgment debt (see Burdov, cited above, § 35, Kondrashov and Others v. Russia, nos. 2068/03 and 5 others, § 35, 8 January 2009).

30. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see Reynbakh v. Russia, no. 23405/03, §§ 23 et seq., 29 September 2005; Gizzatova v. Russia, no. 5124/03, §§ 19 et seq., 13 January 2005; Petrushko v. Russia, no. 36494/02, §§ 23 et seq., 24 February 2005; Wasserman v. Russia, no. 15021/02, §§ 35 et seq., 18 November 2004; and Burdov, cited above, §§ 34 et seq.).

31. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for years to comply with the enforceable judgment in the applicant’s favour the domestic authorities prevented her from receiving the money she could reasonably have expected to receive. There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

32. Lastly, the applicant complained that there had been no remedy at her disposal in respect of the non-enforcement of the domestic judgment.

33. Having regard to all the material in its possession, and in so far as it has jurisdiction to examine the allegation, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols in that part of the application. It follows that the application in this part must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. 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

35. In respect of pecuniary damage, the applicant claimed 451,765 Russian roubles (RUB), representing the sum of the domestic award under the judgment of 5 December 2000 plus the amounts of index-linking, as awarded by the District Court in the index-linking proceedings. The applicant further claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

36. The Government argued that only the sum of the initial award, RUB 228,000, could be compensated to the applicant in respect of pecuniary damage since the applicant did not explain the method used for calculation of the total amount claimed. They further submitted that the claim in respect of non-pecuniary damage was excessive.

37. The Court notes that in the present case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in that the award in the applicant’s favour had not been paid to her. First of all, the Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position in which he would have been had the requirements of Article 6 not been disregarded (see Poznakhirina v. Russia, no. 25964/02, § 33, 24 February 2005, with further references). The Court finds that in the present case this principle applies as well. Bearing in mind the Government’s submissions about the impossibility to enforce the initial judgment (see paragraph 23 above), the Court considers that the equivalent in euros of the amount which has not been paid in accordance with the judgment of 5 December 2000, must be paid to the applicant in full.

38. Second, the Court recalls 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, such as an extended delay in enforcement (see, mutadis mutandis, Gizzatova, cited above, § 28, and Metaxas v. Greece, no. 8415/02, § 36, 27 May 2004), Turning to the Government’s argument about the applicant’s failure to specify the calculation method in so far as the index-linking was concerned, the Court notes that the amount claimed in this part represents a sum of the amounts as calculated and awarded by the domestic court in the index-linking proceedings (see paragraph 16 above). In the absence of any alternative proposal or information on any specific deficiencies of the calculation method used in those proceedings, the Court rejects the Government’s argument and accepts the applicant’s claims based on those domestic courts’ findings in this part. In sum, the Court grants the applicant’s claim in respect of pecuniary damage in full and awards her the equivalent in euros of the amount claimed, that is EUR 10,300, plus any tax that may be chargeable, under this head.

39. The Court also accepts that the applicant suffered distress because of the authorities’ failure to enforce the judgment at issue. Making its assessment on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

40. The applicant did not make any claims in respect of the costs and expenses incurred before the domestic courts and before the Court.

41. Accordingly, the Court makes no award under this head.

C. Default interest

42. 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,

1. Declares the non-enforcement complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,300 (ten thousand three hundred euros), plus any tax that may be chargeable, 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Luis López Guerra
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> POSTNOVA v. RUSSIA - 50113/07 (Judgment : Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings Article 6-1 - Access to court) (Ar...) [2017] ECHR 809 (03 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/809.html Cite as: [2017] ECHR 809, ECLI:CE:ECHR:2017:1003JUD005011307, CE:ECHR:2017:1003JUD005011307