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FIRST
SECTION
CASE OF KRASNOV v. RUSSIA
(Application
no. 18892/04)
JUDGMENT
STRASBOURG
22
November 2011
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 Krasnov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18892/04)
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 Pavel Nikolayevich Krasnov (“the
applicant”), on 16 April 2004.
2. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
22 April 2008 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, ECHR 2009 ...), this application was
adjourned pending its resolution at the domestic level.
- The
Government later informed the Court that enforcement of the judgment
in the applicant’s favour was impossible as the applicant’s
successor was obstructing the enforcement. The Court therefore
decided to resume examination of the present case.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lived in Vetluga,
Nizhniy Novgorod Region.
- By
a judgment of 23 September 2002 the Vetluga District Court of the
Nizhniy Novgorod Region (“the District Court”) granted in
part the applicant’s claim for recovery of unpaid military
allowance and awarded him 224,926 Russian roubles (RUB) to be
recovered from military unit 3761.
- The
judgment became final on 4 October 2002 and shortly thereafter the
applicant obtained a writ of execution. Between September 2004 and
November 2005 the Departments of the Federal Treasury of the Chechen
Republic and of the Republic of North Ossetia-Alania returned the
enforcement documents to the applicant on three occasions without
enforcement due to his failure to submit his bank account details and
then due to re-organisation of the debtor.
- By
a decision of 10 October 2006 the District Court allowed the
applicant’s request and changed the method and order of
enforcement of the judgment of 23 September 2002, replacing the
defunct debtor with the Ministry of the Interior of Russia.
- The
applicant forwarded the writ of execution concerning the decision of
10 October 2006 to the head office of the bailiffs’ service in
Moscow in November 2006. It appears from the correspondence and the
applicant’s submissions that the writ was subsequently lost.
- On
19 November 2007 the applicant died.
- By
a decision of 15 September 2008 the District Court ruled that the
deceased applicant was to be succeeded by his mother, Natalya
Vyacheslavovna Zintsova.
- According
to Ms Zintsova, in May 2010 she was contacted by a representative of
the Ministry of the Interior who explained to her that she was to
obtain a copy of the lost writ of execution at the trial court and
forward it to the authorities to enable further enforcement
proceedings.
- On
30 August 2010 the Chief Command Office of the Internal Armed Forces
of the Ministry of the Interior informed that the debtor was ready to
pay the due amount provided that they received the pertinent
documents, including the writ of execution.
- The
Government submitted that the applicant’s mother had refused to
obtain a copy of the writ of execution from the trial court despite
the authorities’ repeated invitations thereto, convinced that
the award could be obtained only through the proceedings at the
Court. Ms Zintsova did not dispute this allegation.
- The
judgment of 23 September 2002, as amended on 10 October 2006,
remains unenforced to date.
THE LAW
I. LOCUS STANDI
- The
Court takes note of the applicant’s death and of the wish of
Ms Zintsova, his mother, to pursue the proceedings he initiated.
- The Court reiterates that where an applicant dies
during the examination of a case his or her heirs may in principle
pursue the application on his or her behalf (see Ječius v.
Lithuania, no. 34578/97, § 41, ECHR 2000-IX).
Furthermore, in some cases concerning non-enforcement of court
judgments, the Court recognised the right of the relatives of the
deceased applicant to pursue the application (see Shiryayeva v.
Russia, no. 21417/04, §§ 8-9, 13 July
2006).
- The
Court notes that the rights at stake in the present case are very
similar to those at the heart of the case referred to above. Nothing
suggests that the rights the applicant sought to protect through the
Convention mechanism were eminently personal and non-transferable
(see Malhous v. the Czech Republic [GC], no. 33071/96,
§ 1, 12 July 2001). The Government did not contend that
Ms Zintsova had no standing to pursue the case. Therefore, the
Court considers that the applicant’s mother has a legitimate
interest in pursuing the application.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained about the authorities’
failure to enforce the judgment of 23 September 2002. She relied on
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1,
which in the relevant part read as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
“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 the applicant had failed firstly
to submit the necessary enforcement documents to the right
enforcement body and then to obtain a copy of the lost writ of
execution at the court and re submit it for enforcement. They
further contended that the authorities were deprived of the
opportunity to enforce the judgment owing to the applicant’s
behaviour.
- The
applicant submitted that the authorities had failed for many years to
pay the award due to her late son through no fault of his own and she
no longer trusted them.
- 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 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 v. Russia, no. 30616/05,
§ 21, 12 June 2008). 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 (ibid, § 22).
- The
Court observes that in the instant case the judgment of 23 September
2002 has been pending enforcement for almost nine 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.
- The
Court is aware of the fact that after May 2010 the applicant has
refused to cooperate with the authorities by obtaining a copy of the
lost writ of execution but considers that the delay caused by her
behaviour is negligible in the circumstances where at the time of her
refusal the enforcement had already been pending for over seven years
and where the creditor’s previous initiatives had not been
successful.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the authorities failed to comply with their obligations
under the Convention.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained under Article 13 of the Convention that she
did not have at her disposal an effective domestic remedy in respect
of the excessive delays in the enforcement of the judgment. The
relevant provision reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government did not specify their position in relation to this
complaint.
- The
Court takes cognisance of the existence of a new remedy introduced by
the federal laws № 68-ФЗ
and № 69-ФЗ in the
wake of the pilot judgment adopted in the case of Burdov (no. 2),
cited above. These statutes, which entered
into force on 4 May 2010, set up a new remedy which enables
those concerned to seek compensation for the damage sustained as a
result of excessive delays in the enforcement of court judgments
against the State.
- On
23 September 2010 the Court decided that all new cases introduced
after the Burdov (no. 2) pilot judgment and falling
within the scope of the new domestic remedy had to be submitted in
the first place to the national courts (see Nagovitsyn and
Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §
41, 23 September 2010). In so doing, the Court relied in particular
on the transitional provisions of the new law allowing all applicants
before the Court to lodge their complaints to domestic courts during
six months after its entry into force (see paragraph 13 above).
- At
the same time, the Court recalls that in the pilot judgment cited
above it decided to follow a different course of action in respect of
the applications lodged before the delivery of the judgment. The
Court considered that it would be unfair if the applicants in such
cases, who had allegedly been suffering for years of continuing
violations of their right to a court and sought relief in this Court,
were compelled yet again to resubmit their grievances to the domestic
authorities, be it on the grounds of a new remedy or otherwise (see
Burdov (no. 2), cited above, § 144). The Court
therefore resumed examination of the present application on its
merits notwithstanding the existence of an effective domestic remedy
which was available to the applicant pursuant to the transitional
provisions of the new law and remains available up to date as the
domestic judgment in her favour remains unenforced.
- Having
regard to these special circumstances, although admissible, the Court
does not find it necessary to consider separately the applicant’s
complaint under Article 13 (see,
mutatis mutandis, Kravchenko and Others (military housing)
v. Russia, nos. 11609/05 et al., § 45, 16
September 2010).
IV. 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
respect of pecuniary damage the applicant
claimed the judgment debt in the amount of 224,926 Russian roubles
(RUB) (approximately 5,300 euros (EUR)) and an additional RUB 285,160
(approximately EUR 6,700) to cover depreciation of the award due to
the inflation losses. She calculated the latter amount based on the
consumer price indexes for the years when the enforcement had been
pending. She claimed additionally an interest rate that had allegedly
accrued since 1 January 2003 and requested that the Court determine
this rate according to its own standards. Finally, she claimed EUR
20,000 as non-pecuniary damage.
- The
Government did not comment on the claim for pecuniary damage. They
found the amount claimed as non-pecuniary damage excessive and
unsubstantiated, suggesting that in the case of finding of a
violation the Court’s award to the applicant under this head
should not exceed EUR 2,500.
- The
Court reiterates that the most appropriate form of redress in respect
of the violations found would be to put the applicants as far as
possible in the position they 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). The Court 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).
- The
Court notes in the instant case that the applicant demonstrated the
method she used to calculate her claim for pecuniary damage. It
further notes that the Government did not provide an alternative
method of calculation, nor did it supply any other comments on this
claim. It considers that in view of the length of the delay in the
enforcement of the judgment, the amount claimed does not appear
unreasonable. At the same time, the Court does not discern a need for
additional application of an interest rate. In total, it awards the
applicant EUR 12,000 as pecuniary damage.
- As
to non-pecuniary damage, the Court accepts that the applicant
suffered distress and frustration caused by the authorities’
lengthy failure to honour the State’s debt. Deciding on an
equitable basis and having regard to all relevant factors, in
particular those mentioned in paragraphs 26-27 above (see, in
addition, Burdov (no. 2), cited above, §§ 154-157),
it awards the applicant EUR 6,000 as non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim for costs and
expenses. The Court will therefore make no 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 § 1 of the Convention and of Article 1 of Protocol No. 1
on account of lengthy non enforcement of the judgment in the
applicant’s favour;
- Holds that there is no need for separate
examination of the complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, Ms
Zintsova, 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
12,000 (twelve thousand 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
