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FIRST SECTION
CASE OF BORSHCHEVSKIY v. RUSSIA
(Application no. 14853/03)
JUDGMENT
STRASBOURG
21 September 2006
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 Borshchevskiy v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 31 August 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 14853/03)
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
Aleksandr Pavlovich Borshchevskiy, on 21 March 2003.
- The Russian Government (“the Government”)
were represented by their Agent, Mr P. Laptev, Representative of
the Russian Federation at the European Court of Human Rights.
- On 30 October 2003 the Court communicated the
application to the respondent Government. Under the provisions of
Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility. On
13 December 2004 the Court put additional questions to the parties.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1941 and now lives in the
Moscow Region.
A. Background information
- In 1987 the applicant’s employer, the State-owned
construction and industrial holding “Mosenergostroy”,
seconded him for participation in the clean-up works at the site of
the Chernobyl nuclear plant disaster. As a consequence of exposure to
radioactive emissions, on 15 September 1989 the applicant was
assigned to the second disability category.
- Until March 1996 the applicant’s former employer
had paid him monthly compensation for health damage. In November 1994
the holding was privatised and re-organised into a public company OAO
“SPK Mosenergostroy”.
- Between 2 March 1996 and 1 February 2002 the
compensation was paid by the Stupino Department of the Pension Fund
(now renamed as Department no. 25 of the Pension Fund, hereinafter
“the Stupino Pensions Department”).
- Since 1 February 2002 the compensation has been paid by
the Social Security Committee of the Stupino District Council in the
Moscow Region.
B. Judicial proceedings
- In 1997 the applicant brought a civil action against
his former employer, “Mosenergostroy”, claiming that the
amount of the compensation paid had been incorrectly calculated in
the period from 1989 to 2 March 1996.
- On 15 April 1997 the Korenovskiy District Court of the
Krasnodar Region granted his claim in part.
- On 7 July 1997 the Krasnodar Regional Court quashed
the judgment of 15 April 1997 and remitted the matter for a new
examination on the ground that the obligation to pay compensation for
health damage had been transferred to the social security
authorities.
- On 8 September 1997 the Korenovskiy District Court
joined the Stupino Pensions Department as a co-defendant to the
proceedings.
- On 18 December 1997 the Korenovskiy District Court of
the Krasnodar Region granted the applicant’s claims against his
former employer and established that the applicant had been entitled
to monthly payments of RUR 15,035. No award against the Stupino
Pensions Department was made because the applicant apparently
objected to its being joined as a co-defendant. By interim decision
(opredelenie) of 9 December 2000, an arithmetical error
in the judgment was corrected.
- In 2002 the applicant asked the Korenovskiy District
Court to supplement the operative part of the judgment of 18 December
1997 with a reference to the fact that from 2 March 1996 the Stupino
Pensions Department should have been the legal successor to his
former employer in respect of payment of compensation for the health
damage. The Stupino Pensions Department objected to the applicant’s
request, claiming that it had been lodged outside the time-limit and
that its granting would determine a matter that fell outside the
scope of the judgment of 18 December 1997, namely the issue of its
succession to the obligations of the applicant’s former
employer.
- By judgment (reshenie) of 5 April 2002, the
Korenovskiy District Court amended the judgment of 18 December 1997.
It established that from 2 March 1996 the Stupino Pensions
Department should have paid compensation to the applicant in lieu of
his applicant’s former employer, in the same amount (RUR
15,035), with subsequent adjustment for increases in the minimum
monthly wage. The judgment of 5 April 2002 was not appealed
against.
C. Enforcement proceedings
- It appears that the Stupino Pensions Department
continued to underpay the applicant. He asked the Korenovskiy
District Court to clarify the procedure for enforcement of the
judgment of 5 April 2002 and to issue him with a writ of execution.
- On 14 October 2002 the Korenovskiy District Court,
noting that the defendant had been duly notified of the hearing but
failed to appear, found that the Stupino Pensions Department had not
complied with the judgment of 5 April 2002 and continued to pay the
applicant significantly smaller amounts. By decision (opredelenie)
of that date, the court ordered that the Stupino Pensions Department
pay the applicant, at the expense of the Treasury, the amounts
outstanding for the period from 2 March 1996 to 1 July 2002
to the total of RUR 5,412,251.81 and issued him with a writ of
execution. The decision of 14 October 2002 was not appealed against.
- The applicant submitted the writ to the Ministry of
Finance.
- On 5 February 2003 the Ministry of Finance forwarded
the writ to the Ministry of Labour and Social Development, which, in
turn, forwarded it to the Moscow Regional Social Security Committee.
- On 13 February 2003 the Moscow Regional Social
Security Committee advised the applicant that his writ of execution
had been accepted for enforcement. However, enforcement was only
possible “within the funding limits and budgetary constraints”
and “in the chronological order as [writs of execution] had
been issued by courts”.
- On 9 June 2003 a court bailiff of the Moscow Regional
bailiffs’ service opened enforcement proceedings against the
Stupino Pensions Department and invited it to execute the judicial
decision within five days.
- On 13 August 2003 the Korenovskiy District Court heard
the application of the Stupino Pensions Department for an amendment
of the procedure for enforcement of the judgment of 5 April 2002 and
determined as follows:
“Having regard to the difficult social situation
in the Russian Federation in the current year... the court considers
it necessary to recover 5,412,251.81 Russian roubles in [the
applicant’s] favour from the Russian Treasury in twenty monthly
instalments... It has been established that the deferred instalments
shall be guaranteed against inflation in accordance with the Russian
laws...”
- On 1 September 2003 the Korenovskiy District Court
clarified its decision of 13 August 2003, indicating that the
instalments should be equal and that the decision had immediate
effect.
- According to the Government, on 28 October 2003 the
Krasnodar Regional Court quashed the decision of 13 August 2003 and
remitted the matter for a new examination. On 10 December 2003 the
Korenovskiy District Court refused the application by the Stupino
Pensions Department for a change of the debtor and stay of
enforcement. Copies of these decisions have not been made available
to the Court and their precise contents are not known.
- On 2 February 2004 the Stupino Pensions Department
asked the Moscow Pensions Fund for the resources necessary to pay the
debt to the applicant. On 5 February 2004, in response to an inquiry
by a bailiff into the progress of the request, the Moscow Pensions
Fund replied that they had asked the Ministry of Labour and Social
Development to allocate the necessary amount (RUR 5,412,251.81).
- On 6 February 2004 the Supreme Court of the Russian
Federation examined “an application by Pensions Department no.
25 for supervisory review of the Korenovskiy District Court’s
judgment of 5 April 2002... which contained a request for a stay of
enforcement”. Pursuant to Article 381 §§ 2 (1) and 4
of the Code of Civil Procedure, it decided to obtain the case file
and suspended enforcement proceedings.
- On 20 February 2004 the bailiffs received the Supreme
Court’s decision and stayed the enforcement proceedings.
D. Quashing of the judgment by way of supervisory
review
- On 21 May 2004 the Supreme Court of the Russian
Federation examined “an application by the Head of Pensions
Department no. 25 Ms L[.] for supervisory review of the case”.
The Supreme Court accepted as meritorious Ms L.’s argument that
that the Korenovskiy District Court had not been competent to issue
the judgment of 5 April 2002. Pursuant to Article 384 of the Code of
Civil Procedure, it remitted the supervisory-review application for
examination on its merits by the Presidium of the Krasnodar Regional
Court.
- On 22 July 2004 the Presidium of the Krasnodar
Regional Court quashed, by way of supervisory review, the judgment of
5 April 2002 and remitted the applicant’s request for
supplementing of the operative part of the judgment of 18 December
1997 to the Korenovskiy District Court for a new examination.
- On 13 September 2004 the Korenovskiy District Court
determined that it had issued the judgment of 5 April 2002 in excess
of jurisdiction because the Code of Civil Procedure had not provided
for issuing of judgments in such situations.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The RSFSR Code of Civil Procedure (in force until 1
February 2003)
- A judicial decision became legally binding upon expiry
of the time-limit for lodging an appeal if no such appeal had been
lodged (Article 208). The time-limit for lodging an appeal was set at
ten days (Article 284).
- A judgment was to be enforced after it had become
legally binding, unless it provided for immediate enforcement
(Article 209).
B. Code of Civil Procedure of the Russian Federation
- The Code of Civil Procedure of the Russian Federation
(“the new Code”) was enacted on 14 November 2002 and
replaced the RSFSR Code of Civil Procedure (“the old Code”)
from 1 February 2003. It provides as follows:
Article 362. Grounds for quashing or altering
judicial decisions by appeal courts
“1. The grounds for quashing or
altering judicial decisions by appeal courts are:
...
(4) violation or incorrect application of
substantive or procedural legal provisions.”
Article 376. Right to apply to a court exercising
supervisory review
“1. Judicial decisions that have become
legally binding, with the exception for judicial decisions by the
Presidium of the Supreme Court of the Russian Federation, may be
appealed against... to a court exercising supervisory review, by
parties to the case and by other persons whose rights or legal
interests have been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against
to a court exercising supervisory review within one year after they
became legally binding...”
Article 381. Examination of an application for
supervisory review
“2. Having examined an application for supervisory
review, the judge issues a decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision...
4. If a decision to obtain the file has been
made, the judge may suspend enforcement of the judicial decision
until the supervisory-review proceedings have been completed...”
Article 384. Decision on remitting the case for
examination on the merits
by a supervisory-review court
“1. A judicial decision on remitting
the case for examination on the merits by a supervisory-review court
must contain:
(7) a reasoned description of the grounds for
remitting the case for examination on the merits...”
Article 387. Grounds for quashing or altering
judicial decisions
by way of supervisory review
“Judicial decisions of lower courts may be quashed
or altered by way of supervisory review on the grounds of substantial
violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review
court
“1. Having examined the case by way of
supervisory review, the court may...
(2) quash the judicial decision issued by a
court of first, second or supervisory-review instance in whole or in
part and remit the matter for a fresh examination;...
(5) quash or alter the judicial decision
issued by a court of first, second or supervisory-review instance and
issue a new judicial decision, without remitting the matter for a
fresh examination, if substantive legal provisions have been
erroneously applied or interpreted.”
C. Resolution of the Plenary Supreme Court of the
Russian Federation
- Resolution no. 2 of the Plenary Supreme Court of the
Russian Federation of 20 January 2003, “On certain issues
arising in connection with adoption and coming into force of the Code
of Civil Procedure of the Russian Federation”, provided that –
“22. ...The [one-year] time-limit for
lodging an application for supervisory review of judicial decisions
that became legally binding before 1 February 2003, shall run from
1 February 2003.”
D. Case-law review of civil cases in the second quarter
of 2004 by the Supreme Court (Resolution of 6 October 2004)
- In response to question no. 4 concerning calculation
of the time-limit for lodging an application for supervisory review
of judicial decisions that became legally binding before 1 February
2003, the Presidium of the Supreme Court clarified that the final
date for lodging such an application should be 2 February 2004.
E. Enforcement Proceedings Act (Law of 21 July 1997)
- Once instituted, enforcement proceedings must be
completed within two months upon receipt of the writ of execution by
the bailiff (Section 13).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE
QUASHING OF THE JUDGMENTS
- The Court will firstly examine the applicant’s
complaints concerning the quashing of the judgment of 5 April 2002 by
way of supervisory-review proceedings. The applicant complained that
the act of quashing had violated his “right to a court”
under Article 6 § 1 of the Convention and his
right to the peaceful enjoyment of possessions under Article 1 of
Protocol No. 1. The relevant parts of these provisions read as
follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time... 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...”
A. Admissibility
- The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. Arguments by the parties
- The Government submitted that the Presidium of the
Krasnodar Regional Court quashed the judgment of 5 April 2002 with a
view to correcting the “judicial error” committed by the
District Court. It did not issue a new judgment but rather remitted
the matter for a new examination. The Government lay special emphasis
on the fact that, by contrast with the Ryabykh case (see
Ryabykh v. Russia, no. 52854/99, § 54, ECHR
2003 IX), the supervisory-review proceedings had been initiated
by a party to the case, Department no. 25 of the Pension Fund for
Moscow and the Moscow Region (the former “Stupino Pensions
Department”). They concluded that there had been no violation
of the applicant’s rights under Article 6 § 1 of the
Convention or Article 1 of Protocol No. 1.
- The applicant replied that the judgment of 5 April
2002 had been quashed two years after it had become binding. Neither
the Presidium’s decision nor other judicial act refer to any
“judicial error” that had been allegedly committed by the
District Court in the original judgment. The applicant considered
that the quashing of that judgment had irremediably impaired the
principle of legal certainty and violated his right to peaceful
enjoyment of possessions.
2. The Court’s assessment
(a) Article 6 of the Convention
- The Court reiterates that the right to a fair hearing
before a tribunal as guaranteed by Article 6 § 1 of the
Convention must be interpreted in the light of the Preamble to the
Convention, which declares, in its relevant part, the rule of law to
be part of the common heritage of the Contracting States. One of the
fundamental aspects of the rule of law is the principle of legal
certainty, which requires, among other things, that where the courts
have finally determined an issue, their ruling should not be called
into question (see Brumărescu v. Romania, judgment of 28
October 1999, Reports of Judgments and Decisions 1999-VII, §
61).
- This principle insists that no party is entitled to
seek re-opening of the proceedings merely for the purpose of a
rehearing and a fresh decision of the case. Higher courts’
power to quash or alter binding and enforceable judicial decisions
should be exercised for correction of fundamental defects. The mere
possibility of two views on the subject is not a ground for
re-examination. Departures from that principle are justified only
when made necessary by circumstances of a substantial and compelling
character (see, mutatis mutandis, Ryabykh v. Russia,
no. 52854/99, § 52, ECHR 2003-X; and Pravednaya
v. Russia, no. 69529/01, § 25, 18 November 2004).
43. The Court reiterates that Article 6
§ 1 secures to everyone the right to have any claim relating to
his civil rights and obligations brought before a court or tribunal.
In this way it embodies the “right to a court”, of which
the right of access, that is the right to institute proceedings
before courts in civil matters, constitutes one aspect. However, that
right would be illusory if a Contracting State’s domestic legal
system allowed a final and binding judicial decision to be quashed by
a higher court on an application made by a State official whose power
to lodge such an application is not subject to any time-limit, with
the result that the judgments were liable to challenge indefinitely
(see Ryabykh, cited above, §§ 54-56).
- The Court has found a violation of an applicant’s
“right to a court” guaranteed by Article 6 § 1 of
the Convention in many cases in which a judicial decision that had
become final and binding, was subsequently quashed by a higher court
on an application by a State official whose power to intervene was
not subject to any time-limit (see Roseltrans v. Russia,
no. 60974/00, §§ 27-28, 21 July 2005; Volkova
v. Russia, no. 48758/99, §§ 34-36, 5
April 2005; and Ryabykh, cited above, §§ 51-56).
- In the present case the judgment of 5 April 2002 in
the applicant’s favour was set aside by the way of a
supervisory review on the ground that the District Court had had no
jurisdiction over the matter. The Court has to assess whether the
power to conduct a supervisory review was exercised by the
authorities so as to strike, to the maximum extent possible, a fair
balance between the interests of the individual and the need to
ensure the proper administration of justice (see, mutatis
mutandis, Nikitin v. Russia, no. 50178/99, §§ 57
and 59, ECHR 2004 ...).
- The Government distinguished the present application
from the above-mentioned cases on account of the fact that the
supervisory-review procedure had been initiated by the Stupino
Pensions Department, that is a party to the case, rather than a State
official. The Court, however, is not persuaded that this distinction
is of crucial importance for its analysis.
- The Court notes, firstly, an exceptionally long period
of time – more than two years and three months – that
lapsed from the date the judgment in the applicant’s favour had
become binding to the date the supervisory-review proceedings were
instituted. It observes that the RSFSR Code of Civil Procedure set no
time-limit for lodging an application for supervisory review thus
permitting a final judgment to be challenged indefinitely (see
Ryabykh, cited above). The supervisory-review proceedings in
the present case were instituted under the new Code of Civil
Procedure which limited the time-limit to one year (Article 376 §
2, cited in paragraph 33 above). However, the transitional provisions
governing the entry into force of the new Code of Civil Procedure, as
they were clarified by the Plenary Supreme Court of the Russian
Federation, introduced the possibility for lodging an application for
supervisory review of any judgment that had become legally binding
before 1 February 2003 (see paragraphs 34 and 35 above). In the
present case the Stupino Pensions Department availed itself of this
opportunity to challenge the judgment in the applicant’s favour
that had become binding twenty-five months earlier.
- The Court stresses that a binding and enforceable
judgment should only be quashed in exceptional circumstances rather
than for the sole purpose of obtaining a different decision in the
case (see the case-law cited in paragraph 42 above). In the Russian
legal system, the grounds for quashing or altering judgments by
appeal courts largely overlap with those for quashing or altering
judgments by way of supervisory review (compare Article 362 § 1
(4) and Article 387 of the Code of Civil Procedure). Thus, a
situation where the binding judgments in the applicant’s favour
were called into question could have been avoided, had the Department
lodged an ordinary appeal. It is noteworthy, however, that the
Russian Codes of Civil Procedure, both that of RSFSR and that of the
Russian Federation, permitted a party to apply for supervisory review
even if it had not previously exhausted an ordinary appeal. In the
present case the Department failed to exercise its right to lodge an
ordinary appeal on at least two occasions and twice permitted the
statutory ten-day time-limit to expire without challenging either the
judgment of 5 April 2002 or the decision of 14 October 2002
which concerned the same matter. In fact, the Department’s
representative did not appear at the hearing on 14 October 2002,
although – as the District Court noted – the Department
had been duly notified thereof. The Government did not point to any
exceptional circumstances that would have prevented the Department
from exposing its arguments to the District Court or making use of an
ordinary appeal in good time.
- Finally, the Court notes that the Government did not
produce a copy of the Department’s application for supervisory
review. It appears, however, that there were two distinct
applications. The first one was filed by the Department and contained
a request for suspension of enforcement proceedings (see paragraph 26
above), whereas the second application was introduced by its head and
exposed certain arguments on the merits (see paragraph 28 above). In
any event, it does not appear that either application was
communicated to the applicant with a view to obtaining his comments
because the new Code of Civil Procedure did not make a provision for
communicating these documents to him.
- Having regard to the above considerations, the Court
finds that, by granting the Department’s request to set aside
the judgment of 5 April 2002, the Presidium of the Krasnodar Regional
Court infringed the principle of legal certainty and the applicant’s
“right to a court” under Article 6 § 1 of the
Convention. There has accordingly been a violation of that Article.
(b) Article 1 of Protocol No. 1
- The Court reiterates that the existence of a debt
confirmed by a binding and enforceable judgment furnishes the
judgment beneficiary with a “legitimate expectation” that
the debt would be paid and constitutes the beneficiary’s
“possessions” within the meaning of Article 1 of Protocol
No. 1. Quashing of such a judgment amounts to an interference
with his or her right to peaceful enjoyment of possessions (see,
among other authorities, Brumărescu, cited above, §
74; and Androsov v. Russia, no. 63973/00, § 69, 6
October 2005).
- The Government denied that there had been a violation
of Article 1 of Protocol No. 1 on account of quashing of an
enforceable judgment in the applicant’s favour. They pointed
out that the applicant continued to receive monthly a certain amount
in compensation for the damage to his health.
- As it has not been alleged that the rules of civil
procedure governing quashing of judicial decisions were breached, the
Court assumes that the interference was lawful. It is not necessary
to determine whether it pursued a legitimate aim because, in any
event, it was disproportionate to whatever aim for the following
reasons.
- The Court observes that the proceedings concerned
compensation for the damage to the applicant’s health caused
during his participation in the clean-up operation at the site of the
Chernobyl nuclear plant. A substantial amount, representing the
unpaid emoluments and interest thereon, was recovered by a domestic
court from the State pensions authority. The quashing of the
enforceable judgment frustrated the applicant’s reliance on a
binding judicial decision and deprived him of an opportunity to
receive the money he had legitimately expected to receive (see
paragraph 30 above). In these circumstances, the Court considers that
the quashing of the judgment of 5 April 2002 by way of supervisory
review placed an excessive burden on the applicant and was therefore
incompatible with Article 1 of the Protocol No. 1. There has
therefore been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF LENGTHY
NON-ENFORCEMENT OF THE JUDICIAL DECISIONS
- The applicant further complained about the
non-enforcement of the judicial decisions of 5 April and 14 October
2002. He relied on Article 6 of the Convention and Article 1 of
Protocol No. 1, cited above.
A. Admissibility
- Referring to the re-opening of the proceedings by way
of supervisory review (see paragraph 26 et seq. above), the
Government submitted that “it [did] not seem possible to
conclude that the Convention provisions [had] been respected”
because the applicant’s complaints could only be examined by
the Court after a final judicial decision would have been issued.
- The Court observes that the issue to be examined is
whether the judicial decisions in the applicant’s favour were
enforced within a “reasonable time”. Accordingly, it is
necessary to ascertain that the judicial decisions were
“enforceable”. In the instant case, as no appeal was
lodged against the judicial decisions of 5 April and 14 October
2002, in accordance with the RSFSR Code of Civil Procedure then in
force the judicial decisions became legally binding and enforceable
ten days after their delivery (see paragraphs 31 and 32 above). From
that moment on, it was incumbent on the debtor, a State agency, to
comply with them. On 14 October 2002 the District Court issued the
applicant with a writ of execution and thereafter a court bailiff
opened enforcement proceedings. The Supreme Court’s decision of
6 February 2004 had the effect of staying the enforcement
proceedings but did not affect the validity of the underlying
judicial decisions which remained unenforced on that date (see
paragraph 26 above). The launching of the supervisory-review
procedure could not, in itself, extinguish the debtor’s
obligation to comply with an enforceable judicial decision which
obligation existed at least until 22 July 2004 when the
Krasnodar Regional Court quashed the judgment of 5 April 2002.
- It follows that at least between 5 April 2002 and 22
July 2004 the judicial decisions in the applicant’s favour were
“enforceable” and it was incumbent on the State agency to
abide by their terms. In any event, the Court reiterates that the
quashing of a judgment in a manner which has been been found to have
been incompatible with the principle of legal certainty and the
applicant’s “right to a court” cannot be accepted
as a justification for the failure to enforce that judgment (see
Sukhobokov v. Russia, no. 75470/01, § 26, 13 April
2006). Accordingly, the Government’s objection must be
dismissed.
- The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 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 challenged the legal grounds on which
the judgment of 5 April 2002 had been premised. They made no comments
on the merits of the non-enforcement complaint.
- The applicant maintained his claims.
- Turning to the instant case, the Court notes that the
Government did not contest the State responsibility for the debts of
the Stupino Pensions Department arising from the judicial decisions
in the applicant’s favour (see, by contrast, Gerasimova v.
Russia (dec.), no. 24669/02, 16 September 2004). As noted above,
the judgment of 5 April 2002 became enforceable ten days later, on 15
April 2002. From that day on and at least until 6 February 2004
when its execution was formally stayed by the Supreme Court’s
decision, it was incumbent on the State agency to comply with it. The
Court observes, however, that the judgment of 5 April 2002 remained
unenforced, even after the decision of 14 October 2002 was taken to
make up for the debtor’s failure to abide by the initial one.
- 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, e.g., Burdov v. Russia, no. 59498/00, ECHR
2002-III; and, more recently, Poznakhirina v. Russia, no.
25964/02, 24 February 2005; Wasserman v. Russia (no. 1), no.
15021/02, 18 November 2004; and Sukhobokov, cited above).
- Having examined the material submitted to it, the
Court notes that the Government did not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. They did not advance any justification for the
delay in enforcement. Having regard to its case-law on the subject,
the Court finds that by failing for such a substantial period to
comply with the enforceable judicial decisions in the applicant’s
favour the domestic authorities violated his “right to a court”
and prevented him from receiving the money which he was entitled to
receive.
- The Court finds accordingly that there was a violation
of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 as regards non-enforcement of the judicial decisions
in the applicant’s favour.
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 160,600 euros (EUR) in respect
of pecuniary damage which represented the principal amount due to him
under the judicial decisions of 5 April and 14 October 2002 and
interest thereon. He also claimed EUR 3,000 in respect of
non-pecuniary damage.
- The Government considered that no pecuniary damage
should be awarded because the judicial decisions had been quashed. As
to the claim for non-pecuniary damage, the applicant did not produce
evidence showing that he had suffered distress because of the actions
of State authorities.
- The Court recalls that in the instant case it found a
violation of Article 6 § 1 of the Convention and Article 1
of Protocol No. 1, in that the judicial decisions in the applicant’s
favour had remained unenforced for a long period of time and had been
subsequently quashed. The applicant was thereby prevented from
receiving the money he had legitimately expected to receive. There
has been therefore a causal link between the violations found and the
applicant’s claim for the pecuniary damage. At the time the
judicial decisions in the applicant’s favour were issued, the
award was approximately equivalent to EUR 154,500 at the official
exchange rate (see paragraph 17 above). Moreover, further pecuniary
loss must have been occasioned on account of the period that elapsed
from the time the judicial decisions had become enforceable until the
Court’s award (see Grinberg v. Russia, no.
23472/03, § 39, 21 July 2005). The applicant’s
assessment of that loss in the amount of EUR 6,100 does not appear
excessive or unreasonable. In any event, the Government did not
suggest a different method for calculation of interest. Accordingly,
the Court awards the applicant EUR 160,600 in respect of the
pecuniary damage, plus any tax that may be chargeable on that amount.
- The Court further considers that the applicant
suffered distress because of the State authorities’ failure to
enforce the judicial decisions in his favour and their subsequent
decision to quash them. The Court takes into account the amount and
nature of the award in the instant case, that is compensation for
work-related disability, and the period of the authorities’
inactivity. Making its assessment on an equitable basis, it awards
the applicant the entire amount he claimed in respect of
non-pecuniary damage, that is EUR 3,000, plus any tax that may be
chargeable on it.
B. Costs and expenses
- The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
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 of the Convention and Article 1 of Protocol No. 1 on account of the
quashing of the judgment of 5 April 2002 by way of supervisory
review;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
prolonged non-enforcement of the judicial decisions of 5 April and
14 October 2002;
- 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 160,600 (one hundred sixty thousand six hundred
euros) in respect of pecuniary damage;
(ii) EUR 3,000 (three thousand euros) in respect of
non-pecuniary damage;
(iii) any tax that may be chargeable on the above amounts;
(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.
Done in English, and notified in writing on 21 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
