BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ZAKOMLISTOVA v. RUSSIA
(Application
no. 24277/03)
JUDGMENT
STRASBOURG
14
February 2008
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 Zakomlistova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoli
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and Søren Nielsen, Section
Registrar,
Having
deliberated in private on 24 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24277/03) 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, Mrs Olga Fedorovna
Zakomlistova (“the applicant”), on 11 June 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights.
- On
12 December 2005 the Court decided to communicate the application to
the 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Novosibirsk.
- She
is entitled to welfare payments for her child (child benefits). In
2000 the applicant brought proceedings against the regional welfare
authority, claiming arrears in those payments with indexation.
- On
19 July 2000 the Dzerzhinskiy District Court of Novosibirsk awarded
the applicant 1,520.77 Russian roubles (RUB) in arrears. It appears
form the parties' submissions that by the same judgment the District
Court also awarded the applicant RUB 1,055 on account of indexation.
The judgment was not appealed against and entered in force on 30 July
2000. The enforcement proceedings were commenced accordingly.
- On
23 August 2002 the applicant received RUB 351.98. On 31 March 2003
the bailiff discontinued the enforcement proceedings referring to the
lack of funds at the defendant's disposal.
- On
14 January, 8 April, 2 June 2005 and 9 February 2006 the applicant
received several payments from the authorities which, taken together
with the previous payments, amounted to RUB 1,812.98.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained about the non-enforcement of the judgment in her
favour. The Court will examine this complaint under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 to the
Convention. These Articles, in so far as relevant, provide 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
parties advanced no arguments as to the admissibility of the present
application. The Court notes 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
- The
applicant maintained her complaints. She argued that the judgment of
19 July 2000 was not enforced in full, as she has not received the
amount of indexation ordered by the court.
- The
Government acknowledged that the delay in the enforcement of the
judgment in the applicant's favour violated her rights under the
Convention. They explained that the amount received by the applicant
(RUB 1,812.98) represented the arrears, awarded by the judgment,
and the allowance due to the applicant after the date on which the
judgment was delivered. A regards the amount of indexation, ordered
by the judgment, the Government acknowledged that it has not been
paid to the applicant.
- The
Court notes that the judgment in the applicant's favour of 19 July
2000, was not fully enforced to date, i.e. for the period of more
than seven years.
- The Court has found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in many cases
raising issues similar to the ones in the present case (see, among
other authorities, Burdov v. Russia, no. 59498/00, ECHR
2002-III; and, more recently, Petrushko v. Russia,
no. 36494/02, 24 February 2005, or Poznakhirina v. Russia,
no. 25964/02, 24 February 2005).
- 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. In
view of its case-law on the subject, the Court finds that by failing
for such a substantial period to comply with the enforceable judgment
in the applicant's favour the domestic authorities prevented her from
receiving the money which she was entitled to receive under the final
and binding judgment.
- There
has accordingly been a violation of Articles 6 § 1 of the
Convention and 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
- The
applicant asked the Court to order the Government to enforce the
judgment in full. She also claimed non-pecuniary damage, the amount
of which she left to the determination of the Court.
- The
Government submitted that they are taking measures to enforce the
judgment. As regards non-pecuniary damage they suggested that finding
of a violation would by itself constitute sufficient just
satisfaction.
- The Court notes that the State's obligation to enforce
the judgment in the applicant's favour is not in dispute. The
Court recalls 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 he would have been had the
requirements of Article 6 not been disregarded (see Piersack
v. Belgium (Article 50), judgment of 26 October 1984, Series
A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003). The
Court finds that in the present case this principle applies as well,
having regard to the violations found (see Poznakhirina v. Russia,
no. 25964/02, § 33, 24 February 2005). It therefore considers
that the Government shall secure, by appropriate means, the
enforcement of the award made by the domestic court in the
applicant's favour.
- In so far as the compensation of non-pecuniary damage
is concerned, the Court would not exclude that the applicant might
have suffered distress and frustration resulting from the State
authorities' failure to enforce the judgment in her favour. In these
circumstances, having in mind the delay in the enforcement, the
nature of the judgment debt, as well as other relevant factors, and
making its assessment on an equitable
basis, the Court
awards the applicant 1,000 euros (EUR) for non-pecuniary damage
sustained by her.
B. Costs and expenses
- The
applicant claimed 1,365 Russian roubles (RUB) for the costs and
expenses incurred before the Court, of which RUB 1,000 represented
translation expenses, RUB 330 postal expenses and RUB 35 banking
expenses. The applicant submitted the receipts as proof of the postal
and the banking expenses. She explained that she could not provide
the Court with documents from the translator, as she did not have
any.
- The
Government recalled that in order for the Court to award the
applicant costs and expenses it must be established that they have
been actually and necessarily incurred. They did not make any
particular comments on the amounts claimed by the applicant.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his 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. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the applicant
EUR 40, plus any tax that may be chargeable on that amount.
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;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention, shall secure, by appropriate means, the enforcement of
the domestic court's judgment of 19 July 2000;
(b) 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:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage
sustained by the applicant, to be converted into Russian roubles at
the rate applicable at the date of settlement;
(ii) EUR
40 (forty euros) in respect of costs and expenses, to be converted
into Russian roubles at the rate applicable at the date of
settlement;
(iii) any
tax that may be chargeable on the above amounts;
(c) 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 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
