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FIRST
SECTION
CASE OF VASILYEV AND KOVTUN v. RUSSIA
(Application
no. 13703/04)
JUDGMENT
STRASBOURG
13
December 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 Vasilyev and Kovtun
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,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13703/04)
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 two
Russian nationals, Mr Viktor Ivanovich Vasilyev and Mr Vasiliy
Grigoryevich Kovtun (“the applicants”), on 22 March 2004.
- The
applicants were represented by Mr P.A. Pursiainen, a lawyer
practising in St Petersburg. The Russian Government (“the
Government”) were initially represented by Ms V. Milinchuk,
and subsequently by Mr G. Matyushkin, the former and
current Representatives of the Russian Federation at the European
Court of Human Rights respectively.
- On
19 June 2007 the President of the First Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1). On
18 January 2011 the parties were asked to submit further observations
under Rule 54 § 2 (c) of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1951 and 1947 and live
in St Petersburg and Sosnoviy Bor
(Leningrad Region) respectively.
A. Customs proceedings
- As can be seen from a pro forma invoice dated 7 April
1999 and submitted by the first applicant (Mr Vasilyev), a private
company named Nissan Trading Europe Limited offered to undertake to
sell him a car and to ship it to him. The invoice indicated the means
of shipping (CIF Helsinki) and the details concerning the car,
including its price, namely 11,900 United States dollars (USD).
The second applicant (Mr Kovtun) submitted a similar invoice dated 30
March 1999 for a car priced at USD 14,900.
- In July 1999 the applicants submitted customs
declarations and the above invoices to the Russian customs
authorities for clearance. The applicants applied for a waiver of
customs duties, considering that their status under the
Chernobyl-related legislation entitled them to such an exemption. On
5 August 1999 the Sosnovoborsk Town Court of the Leningrad Region
ordered the customs authorities to release the second applicant’s
car for use without payment of any customs duties. The President of
the Leningrad Regional Court applied for supervisory review of this
decision. On 10 December 1999 the Presidium of the Leningrad Regional
Court (“the Presidium”) granted his request, and set
aside the judgment of 5 August 1999. The Presidium considered
that on the date of the application for customs clearance, the second
applicant had no entitlement to an exemption. It appears that
proceedings to the same effect also took place in respect of the
first applicant.
- In the meantime, on 27 July 1999 the national
authorities instituted criminal proceedings (case no. 990666)
against unspecified persons in relation to numerous unlawful imports
of cars from abroad. On 12 and 16 August 1999 an investigator
issued charging orders in respect of a large number of cars,
including the above-mentioned cars which had been submitted for
customs clearance by the applicants. They were interviewed as
witnesses. It was established that the applicants’ situation
was not related to the circumstances of case no. 990666. The
said charging orders were accordingly annulled.
- It
appears that in or around September 2000 the applicants were
requested to provide additional documents in order to finalise the
customs clearance. When they did not comply with this requirement in
time, the customs authority impounded the cars and placed them in the
hands of a State-owned enterprise.
- In
November 2000 the applicants offered to pay the required customs duty
for customs clearance of the cars. They also unsuccessfully sought
permission to take the cars out of Russian territory, citing
financial hardship.
B. Confiscation orders
- On
14 and 22 November 2000 customs officers compiled reports on the
applicants’ alleged violation of applicable customs regulations
and applied for confiscation orders on account of the applicants’
alleged non-declaration of imported goods, in breach of Article 279 §
1 of the Customs Code.
- By judgments of 24 July 2002 the Volkhov Town Court,
with Judge P. sitting in a single-judge formation, issued
confiscation orders in respect of the cars. The judge held as
follows:
“[The second applicant] was mentioned as the owner
of the car submitted for customs clearance...The customs inquiry and
the criminal inquiry concerning forgery of authority forms
established that [the second applicant] had been contacted by a
certain Sergey, whom he did not know, and had been asked to carry
out, for a fee, the customs clearance of a car for him (Sergey). On
17 July 1999 [the second applicant] had forged an authority form for
importing a specific car from abroad. He had not signed any other
document for the customs authorities, and had not handed over any
money to buy the car. As he explained, he indeed had signed an
authority form and had submitted the clearance documents, whereas the
car had been paid for by Sergey. [The second applicant] had been
present during the customs inspection of the car. He claims to be the
car owner. However, a handwriting expert report indicates that while
[the second applicant] has signed the authority form, the customs
declaration has been signed by another person. Thus, [the second
applicant] has not properly carried out the customs clearance.
The investigating authorities issued a charging order in
respect of the car... On 23 June 2000 the charging order was
revoked... On 27 September 2000 [the second applicant] was informed
of the need to process the customs clearance ... but he did not
comply with the required time-limits. Thus he committed a violation
of the customs regulations, in breach of Article 279 § 1 of the
Customs Code... No fine can be imposed, owing to the expiry of the
liability time-limits... [The second applicant] should be held liable
and the car should be seized as the direct object of the customs
offence... Such confiscation may be imposed irrespective of the
principal or subsidiary nature of the penalty ... and may be imposed
within three years of the date of the violation of the customs
regulations. Under Article 380 of the Code it does not matter whether
the person responsible for the violation owned the vehicle to be
seized as the object of the offence. Also, it does not matter whether
the owner has been established...”
A
judgment in similar terms was issued by the judge also in respect of
the first applicant. The applicants had not been notified of the
hearing and did not attend it.
- Having
learnt about the above judgments, on 29 July and 2 August 2002
the applicants’ representatives lodged appeals.
- Despite
the pending appeal proceedings, on 6 August 2002 the confiscation
orders were submitted to the local bailiffs’ office for
execution. The orders bore the Town Court’s stamp, indicating
that they had become final, and were signed by Judge P. and the court
registrar.
- On
8 August 2002 the bailiff handed over the cars to a State enterprise,
which subsequently sold them.
- On
27 November 2002 the Leningrad Regional Court examined the
applicants’ appeals against the confiscation orders of 24 July
2002 and annulled them on the ground that the Volkhov Town Court had
had no jurisdiction to hear the case. The case was remitted for
examination by the Primorskiy District Court of St Petersburg.
- On
5 February 2003 the Primorskiy District Court held the following:
“As follows from Article 4.5 of the Code of
Administrative Offences in force since 1 July 2002, a decision
concerning a customs offence cannot be issued after the expiry of one
year from the date on which the offence was committed. Under Article
24.5 § 6 of the Code, administrative offence proceedings cannot
be initiated or continued if the time-limits for liability have
expired. Since the offence was committed more than one year ago, the
proceedings should be discontinued...
The car ... and the documents should be returned to the
lawful holder after the necessary customs clearance. If the holder
cannot be identified, what should be done with the car should be
considered in civil court proceedings...”
No
appeal was lodged against this decision, which accordingly became
final.
C. Attempts to obtain compensation
- The
applicants sought the institution of criminal proceedings against
Judge P., who had wrongly allowed the enforcement of the confiscation
orders to proceed before the appeal proceedings against these orders
had been determined. By a letter of 7 May 2003 the Prosecutor’s
Office of the Leningrad Region dismissed their request, noting that
the confiscation orders had been annulled. The regional Judges
Qualifications Board also refused to deal with the applicants’
complaint.
- In
addition, the applicants, acting through Mr Pursiainen,
brought civil proceedings against the Judicial Department of the
Supreme Court of the Russian Federation, the Ministry of Justice and
the customs office. They claimed compensation for the pecuniary loss
caused to them by the premature execution of the confiscation orders.
The applicants complained that the reports of 14 and 22 November 2000
(see paragraph 10 above) had been unlawfully compiled in their
absence, that they had not been notified of those reports and that
the customs office had applied to the wrong court for the
confiscation orders. According to the applicants, the bailiffs had
unlawfully initiated enforcement proceedings and should have declined
jurisdiction in favour of another bailiffs’ office. The
applicants contended as follows:
“The disposal of the cars was rendered possible
owing to the violation of the legislation by the officials of the
customs office, the judge of the Town Court and the bailiff. An
individual violation by one of those public officials could not have,
in itself, resulted in the unlawful disposal of the cars which caused
pecuniary damage... The actions of the above authorities, taken in
their entirety, have caused significant pecuniary damage.”
The
applicants relied on Article 6 of the Convention, Article 53 of the
Constitution and the Constitutional Court’s ruling of 25
January 2001, as well as Article 322, Article 1064 and Article 1070 §
2 of the Civil Code (see paragraphs 25 and 28-30 below).
- By
a procedural decision of 30 June 2003 the Oktyabrskiy Court of the
Admiralteyskiy District of St Petersburg held that the case could not
be examined. Referring to Articles 132 and 136 of the Code of Civil
Procedure, the court held that the action for damages required
evidence of a prior criminal conviction of a judge. Thus, the
applicants were required to submit a copy of such a judgment.
- In
November 2003 the applicants wrote to the above court, inquiring
about the state of the proceedings in their case. The District Court
replied, restating the contents of the decision of 30 June 2003.
Considering that the applicants had not received a copy of that
decision, the court allowed them to submit the required documents by
11 December 2003. Alternatively, they were informed of their right to
lodge an appeal against the decision of 30 June 2003, also
seeking that the expired time-limit for an appeal be extended on
account of a valid reason.
- The
applicants’ lawyer appealed, relying on the ruling of the
Constitutional Court of 25 January 2001 (see paragraph 29 below), and
arguing that a criminal court judgment was not indispensable in the
circumstances.
- On
28 January 2004 the St Petersburg City Court examined the appeal and
endorsed the reasoning of the decision of 30 June 2003.
- On
1 March 2004 the District Court established that the applicants had
not complied with the decision of 30 June 2003, and thus discontinued
the case. The applicants did not appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Procedural requirements concerning examination of a
civil case
1. Code of Civil Procedure of 2002
- Article 132 of the Code of Civil Procedure of 2002
(“the CCP”) provides that a statement of claim is to be
accompanied by, inter alia, documents confirming the
circumstances underlying the claims. The claimant’s failure to
comply with the requirements of Article 132 would result in the court
refraining from examining the case and affording the claimant a
time-limit for remedying the shortcoming. If the shortcoming has not
been remedied within the time-limit provided, the statement of claim
should be treated as never having been lodged and should be returned
to the claimant (Article 136).
2. Subsequent jurisprudence of the Russian
Constitutional Court
- The Constitutional Court of Russia considered that a
judge had a discretionary power, including a power to establish a
reasonable time-limit for remedying shortcomings in such claims. The
judge’s discretionary power was aimed at ensuring the correct
and timely examination of civil cases, and did not violate a
claimant’s rights. In any event, the claimant could resubmit
his statement of claim in new proceedings (see, among others,
decision no. 1463-О-О
of 25 November 2010). The judge should issue a reasoned decision
concerning a refusal to process a case (see, among others, decision
no. 68-О-О
of 25 January 2007).
- The Constitutional Court has also held, with reference
to Articles 134 and 13 of the CCP, that the absence of a special
statute concerning jurisdictional matters for claims against unlawful
actions or inaction on the part of a judge did not imply that this
type of cases should not be governed by the general jurisdictional
rules of the CCP (see, among others, decision no. 431-О-О
of 19 June 2007, and decision no. 233-О-О
of 19 March 2009). Any other interpretation would result in
a denial of access to court, and a denial of compensation for damage
(see decision no. 210-O of 27 May 2004). In the absence of a
special legal regulation (concerning the grounds and procedure for
claiming compensation from the State in respect of damage caused by
unlawful actions or inaction on the part of a court or a judge), the
courts should directly apply the relevant provisions of the
Constitution (see decision no. 685-О-О
of 26 May 2011).
- Article
392 of the CCP contains a list of situations which may justify the
reopening of a finalised case on account of newly discovered
circumstances. By a ruling of 26 February 2010 the Constitutional
Court of Russia indicated that this Article should be interpreted as,
in principle, allowing the launching of a procedure to have a final
judgment re-examined on account of newly discovered circumstances,
such as the finding of a violation of the European Convention in a
given case by the European Court of Human Rights (see also the
Constitutional Court’s decision no. 853-О-О
of 7 June 2011). Article 392 of the Code was amended accordingly with
effect from 1 January 2012.
B. State liability
- Article 1069 of the Civil Code (“the Code”)
provides that loss sustained as a result of unlawful actions or
inaction on the part of public authorities or their officials should
be compensated. Loss sustained as a result of the administration of
justice is recoverable if the judge’s fault has been
established in criminal proceedings (Article 1070 § 2 of the
Code).
- By a ruling of 25 January 2001, the Constitutional
Court provided an interpretation of Article 1070 § 2 of the
Code. It held that a judge’s criminal conviction was a
necessary element for a claim for damages on account of an unlawful
judicial decision issued by that judge in the context of civil
proceedings. However, a criminal conviction was not required if the
claim concerned loss or damage sustained through other violations in
judicial proceedings, such as, for instance, a failure to examine the
case within a reasonable time. The Constitutional Court held that the
federal legislature should adopt a legislative framework governing
that second category of tort claims and, in particular, clarifying
the grounds for recovering damages and related jurisdictional
matters.
- The Constitutional Court indicated that the absence of
the above-mentioned legislative framework should not serve as a
reason for refusing to deal with a case. The absence of such a
framework did not imply the inapplicability of the general rules
concerning the grounds and procedure for establishing State liability
or concerning jurisdictional matters (see decision no. 210-O of
27 May 2004 and decision no. 278-O-П
of 5 March 2009). Subsequently, the Constitutional Court
developed its position (see decision no. 524-О-П
of 8 April 2010) as follows:
“Administration of justice is a special type of
State authority. When applying a general legal rule in the
circumstances of a given case, a judge provides an interpretation of
the rule, takes a decision within the scope of his (at times wide)
margin of appreciation provided by the law and, often, assesses the
circumstances without the benefit of sufficient information... A
party to court proceedings benefiting from an annulment or amendment
of a judgment by a higher court is entitled to consider that that
judgment had not been in compliance with the law through the judge’s
fault... Article 1070 § 2 excludes a presumption of culpability
on the tortfeasor’s part, and requires the establishment of the
judge’s guilt in a criminal judgment as an additional condition
of State liability... Thus, Article 1070 § 2 links State
liability to a criminal act of a judge, which was premeditated or
owing to the improper exercise of his powers ... when examining a
case and taking a judicial decision...The above does not preclude
compensation in respect of damage caused in other circumstances or
contexts, when the judge’s guilt may be established by a court
decision outside the sphere of criminal law...”
C. Customs Code of 1993
- Article 380 of the Customs Code provided that the
execution of a confiscation order could only occur after the expiry
of the time-limit for appeal. Confiscation could proceed irrespective
of whether or not the goods to be confiscated were owned by the
person who had been found to be in breach of the customs regulations,
for instance under Article 279 of the Code concerning the
non-declaration of imported goods. By a ruling of 14 May 1999
the Constitutional Court held that Article 380 was in compliance with
the Constitution. The court noted that frequently the person charged
with a customs offence, for instance the person omitting to make a
customs declaration, was not necessarily the owner of the goods to be
cleared; the person could be just a carrier or an intermediary, such
as a customs broker.
- Article
380 of the Code ceased to have effect on 1 July 2002.
D. Civil Code
- Civil
rights and obligations are conferred by virtue of legal grounds
prescribed by law, such as contracts, acts of public authorities if
required by law, or a court judgment. An entitlement concerning
property, which should be subject to State registration, arises, as a
rule, from the moment of such registration (Article 8 of the Civil
Code). The Russian Government’s Decree no. 938 of 12
August 1994 required State registration of vehicles, including those
imported from abroad.
- Under Article 167 of the Civil Code, a voided
transaction does not give rise to any legal consequences beyond those
related to its annulment, and is void ab initio. In the case
of a voided transaction, the parties should return to each other what
they have received or, if this is not practicable, they should pay
compensation. Under Article 302 of the Civil Code, the original
owner can claim property back from a bona fide purchaser who
has acquired it from an unauthorised seller without knowing or being
in a position to know that the seller was unauthorised. However, such
a claim can only arise if the property was lost, stolen, or otherwise
taken out of the original owner’s control.
- In accordance with a ruling of 25 February 1998 by the
Plenary Session of the Supreme Commercial Court of Russia (“the
ruling”), if a property had been sold at a public auction held
in compliance with the Enforcement Proceedings Act, the court should
grant the owner’s claim for restitution of his property under
Article 302 of the Civil Code if the property sold had been lost by
the owner or had been stolen from him, or had otherwise been taken
out of his control; the above should be applied even against a bona
fide purchaser of the property (paragraph 26 of the ruling).
- By a ruling of 21 April 2003, the Constitutional Court
interpreted Article 167 of the Civil Code as not allowing the
original owner to reclaim his property from a bona fide
purchaser, unless there was a special legislative provision to this
effect. Instead, a claim vindicating prior rights (виндикационный
иск) could be lodged under Article 302 of the
Civil Code.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicants complained that they had been denied
access to court because the national courts had refused to examine
their claims for compensation against a number of public authorities.
The Court will examine this complaint under Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Submissions by the parties
- The Government contended that the application form had
been lodged on 31 May 2004 and had been signed by Mr Pursiainen,
whereas the respective authority forms had been submitted much later,
namely on 31 March and 4 April 2006. The Government
concluded that the application had therefore been validly lodged only
on 31 March and 4 April 2006, that is, after the expiry of the
six-month time-limit under Article 35 § 1 of the Convention. As
to the substance of the present complaint, the respondent Government
argued that the applicants had no title or pecuniary rights in
respect of the cars. It had been incumbent on them to substantiate
their title with due regard to the principle affirmanti incubit
probatio. Thus, their claims in the compensation proceedings
before the national courts had not been in relation to any “civil
rights”. Consequently, the courts’ refusal to examine
their case on the merits had not frustrated their right to a
court. In any event, the applicants had been rightly required to
produce a criminal court judgment confirming the criminal conviction
of a judge. The claims, which were directed against several public
authorities, had depended directly on the existence of such a
judgment and could not be processed without it. The applicants had
referred to Article 1070 § 2 of the Civil Code citing, as
the basis for their action, an unlawful action by a judge, rather
than the delivery of an unlawful court decision.
- The
applicants argued that they had complied with the admissibility
criteria under Article 35 § 1 of the Convention. In particular,
they submitted that the respective authority forms had first been
enclosed with the application form in 2004. As to the substance of
the present complaint, the applicants argued that they had been the
owners of the confiscated cars and that no court had ever made
findings to the contrary. The national courts had arbitrarily refused
to deal with their claims for compensation directed against the
public authorities.
B. The Court’s assessment
1. Admissibility
- As to the six-month rule, the Court observes that the
case file contains authority forms dated 21 and 22 May 2004,
authorising Mr Pursiainen to be the applicants’
representative before the Court. The complaint was lodged on 31 May
2004 within six months after the domestic court decisions issued on
28 January and 1 March 2004. The Government’s argument
should consequently be dismissed.
- Furthermore,
the Government argued that no “civil rights” had been at
stake in the relevant court proceedings, as the applicants had had no
title to the cars and could not have suffered any damage of account
of their confiscation and subsequent sale. The Court reiterates, in
that connection, that Article 6 § 1 extends to “contestations”
(disputes) over “civil rights” which can be said, at
least on arguable grounds, to be recognised under domestic law,
irrespective of whether they are also protected under the Convention
(see, as a recent authority, Enea v. Italy [GC], no. 74912/01,
§ 103, ECHR 2009 ...)
- The
Court notes that the applicants claimed compensation in respect of
allegedly unlawful actions on the part of several public authorities,
including a judge. It has not been seriously disputed that such a
substantive right to compensation was, at least on arguable grounds,
recognised under Russian law, as interpreted by the Russian
Constitutional Court (see paragraphs 28-30 above, and, by way of
comparison, Georgiadis v. Greece, 29 May 1997, §§
34-36, Reports of Judgments and Decisions 1997 III, and
Neves e Silva v. Portugal, 27 April 1989, § 37, Series A
no. 153 A). It is also observed that the right to compensation,
which the applicants sought to assert before the domestic courts, had
as a factual basis the pecuniary damage to what they considered to be
their property. The applicants’ ownership was not challenged in
the court proceedings at the heart of the present complaint.
- Therefore,
the Court considers that Article 6 of the Convention is applicable.
- The
Court also considers 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.
2. Merits
- The
Court reiterates that Article 6 § 1 secures to
everyone the right to have a claim relating to his civil rights and
obligations brought before a court or tribunal. In this way, that
provision embodies the “right to a court”, of which the
right of access to a court, that is, the right to institute
proceedings before a court, constitutes one aspect; however, it is an
aspect that makes it in fact possible to benefit from the further
guarantees laid down in paragraph 1 of Article 6 (see Sergey
Smirnov v. Russia, no. 14085/04, § 25, 22 December
2009, and Teltronic-CATV v. Poland, no. 48140/99, § 45,
10 January 2006).
- The
right to a court is not absolute and may be subject to limitations.
The limitations applied should not bar or restrict the access
afforded to the individual in such a way or to such an extent that
the very essence of that right is impaired. Furthermore, the Court
underlines that a limitation will not be compatible with Article 6
§ 1 unless it pursues a legitimate aim and there is a
reasonable relationship of proportionality between the means employed
and the legitimate aim sought to be achieved (see Sergey Smirnov,
cited above, §§ 26 and 27; Jedamski and Jedamska v.
Poland, no. 73547/01, § 58, 26 July 2005; and Kreuz
v. Poland, no. 28249/95, §§ 54 and 55, ECHR
2001 VI).
- The
Court further reiterates that it is not its task to take the place of
the domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation. The Court’s role is confined to ascertaining
whether the effects of such an interpretation are compatible with the
Convention (see Société Anonyme Sotiris and Nikos
Koutras Attee v. Greece, no. 39442/98, § 17, ECHR 2000 XII).
- Turning
to the present case, the Court observes that after having been
submitted to a court, the applicants’ case was not examined on
the merits because the statement of claim was not accompanied by a
document confirming the circumstances underlying the claims (a
criminal court judgment against a judge), as required under the
Russian Code of Civil Procedure (see paragraphs 24 and 25 above).
- The
main thrust of the applicants’ argument concerns their
disagreement with the national courts’ conclusion that their
case could be left unexamined for failure to confirm the
circumstances underlying the claims by providing a criminal judgment
convicting a judge of a criminal offence. In the instant case the
applicants attempted to sue the State for the damage caused by a
mistake allegedly committed by the court registrar and the judge who
had examined their case. The national courts refused to deal with the
applicants’ claims on the ground that they had not submitted a
criminal court judgment convicting the judge in question.
- Under
the Russian Civil Code, loss sustained as a result of the
administration of justice is recoverable if the judge’s fault
has been established in criminal proceedings. In 2001 the Russian
Constitutional Court held that a judge’s criminal conviction
was a necessary element for a claim for damages sustained as a result
of an unlawful judicial decision issued by that judge in civil
proceedings. However, a criminal conviction was not required if the
claim concerned damage incurred through other violations in judicial
proceedings, such as, for instance, a failure to examine the case
within a reasonable time. The Constitutional Court held that the
legislature should adopt a legislative framework governing that
second category of claims and, in particular, clarifying the grounds
for recovering damages and related jurisdictional matters (see
paragraphs 28 and 29 above).
- In
the Court’s view, the absence of the above-mentioned
legislative framework should not necessarily serve, in the Russian
legal system, as a reason for refusing to deal with a case. Indeed,
as the Russian Constitutional Court subsequently indicated in that
connection, the absence of such a framework did not imply the
inapplicability of the general rules concerning the grounds and
procedure for establishing State liability or concerning
jurisdictional matters (see paragraph 30 above).
- The
national courts in the present case failed to examine the applicants’
claims in the light of the Constitutional Court’s position as
to the kind of procedural framework which should have been applied
for processing such claims; and gave no reasons for their decision
that the applicants’ case fell within the first category of
cases which required a judge’s criminal conviction as a
condition for their examination.
- Furthermore,
the Court is not satisfied that the relevant rules in the present
case met the quality-of-law requirement under the Convention and were
sufficiently foreseeable. The applicants were entitled to expect a
coherent system based on a clear, practical and effective opportunity
to assert their claims against the State (see De Geouffre de la
Pradelle v. France, 16 December 1992, § 34, Series A
no. 253 B). The Court has previously found a violation of
Article 6 § 1 of the Convention on account of the State’s
prolonged and unexplained failure to provide a legislative framework,
thus depriving the applicant of a procedural possibility of bringing
a similar claim for compensation, and of obtaining its examination on
the merits (see Chernichkin v. Russia, no. 39874/03, §§
28-30, 16 September 2010).
- It
is true that despite the national courts’ decision to leave the
case unexamined, the applicants had the possibility of resubmitting
the case provided that they complied with the formal requirements,
including the one at the heart of the present complaint. However, the
Court considers that this possibility does not attenuate the
limitation on the right of access to court in the present case, since
the underlying problem resided in the applicable legislation (see, by
way of comparison, Kolovangina v. Russia, no. 76593/01, §
26, 11 December 2008). In view of the above considerations, the Court
concludes that the very essence of the applicants’ right of
access to court was adversely affected.
- Lastly,
the Court observes that the requirement to produce a criminal court
conviction in respect of a judge related to claims directed against
the judiciary and/or a judge. Indeed, this was the applicants’
central grievance. However, by leaving the relevant claim unexamined
for failure to submit a criminal court judgment, the national courts
also left unexamined the claims against the other respondents, namely
the customs office and the bailiff. It does not appear that the
examination of those claims required a criminal court judgment in
respect of a judge.
- In
view of the foregoing, there has been a violation of Article 6 §
1 of the Convention in that the applicants’ right of access to
a court was disproportionately impaired.
II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1
TO THE CONVENTION
- The
applicants complained that the seizure and subsequent sale of the
cars, as well as the lack of compensation, had violated their rights
under Articles 6 and 17 of the Convention, and under Article 1 of
Protocol No. 1. The Court will examine the above complaints
under Article 1 of Protocol No. 1, which read as follows:
“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. Submissions by the parties
1. The Government
- The
respondent Government argued that the applicants had not complied
with the six-month rule (see paragraph 38 above) and that they had
not brought any court proceedings challenging the lawfulness of the
charging orders issued in respect of the cars and their actual
impounding. The applicants should have brought civil proceedings to
determine who was entitled to benefit from the restitution of the
cars ordered by the judgments of 5 February 2003. The domestic
court decisions indicated that the cars were to be returned to their
“lawful holders”/“lawful possessors”
(«законные
владельцы»
in Russian) who were not necessarily the owners of the cars. In
addition, they should have sued the customs officials or the bailiff.
In any event, having received the orders of 5 February 2003, the
applicants had not attempted to reclaim the cars from the State or
under Article 302 of the Civil Code, which provided the owners with
the possibility of pursuing an action against any bona fide
purchasers of the cars.
- Furthermore,
the Government argued that the applicants had never had any title to
the cars. Nor had they produced any appropriate and sufficient
evidence to this effect before the Court. No court had ever confirmed
their title. The ownership issue had never been considered by the
national courts, since such a matter was extraneous to the
proceedings concerning customs offences and the eventual confiscation
of the imported cars.
- As
to the substance of the complaint, the Government argued that the
cars had been lawfully seized as physical evidence and attached to
the case file in relation to the customs offence. The confiscation
orders of 24 July 2002 had not impinged upon the rights of
any lawful owners, since those orders had been quashed on appeal. The
opening of enforcement proceedings by the bailiffs had been lawful.
The applicants had not been parties to the enforcement proceedings
and there was no requirement that they should have been informed
about them.
- It
followed from the above that the applicants had no right to
compensation against the State, since none of their substantive
rights had been violated.
2. The applicants
- The
applicants affirmed, with reference to invoices, that they had been
the owners of the cars at the time of the customs clearance and
during the ensuing proceedings. No other documents concerning
ownership title had been prepared during the purchase of the cars.
Their ownership of the cars could not be extinguished by the fact
that they had not complied with the applicable customs clearance
rules or the registration requirements. Their ownership had never
been challenged at the domestic level.
- The
applicants argued that they had exhausted domestic remedies by
lodging a court action against the State. However, they had been
denied access to a court in the context of that claim. As to a court
action against any bona fide purchasers of the cars, it would
have no prospect of success and, in any event, Russian law did not
allow for the restitution of property which had not previously
received customs clearance.
- The
applicants thus maintained that they had been arbitrarily deprived of
their cars. In particular, they contended that the execution of the
confiscation orders before they had become final had been unlawful.
The courts’ refusal to examine their claims for compensation
had also been unlawful.
B. The Court’s assessment
1. Admissibility
(a) The existence of “possessions”
within the meaning of Article 1 of Protocol No. 1
- The
Court reiterates that Article 1 of Protocol No. 1 applies only
to a person’s existing possessions and does not guarantee the
right to acquire possessions (see Marckx v. Belgium, 13 June
1979, § 50, Series A no. 31). Consequently, a person who
complains of a violation of his or her right under Article 1 of the
Protocol must first show that such a right existed; a “claim”
can only fall within the scope of that Article if it is sufficiently
established to be enforceable (see Novikov v. Russia, no.
35989/02, § 33, 18 June 2009, with further references).
- The
concept of “possessions” referred to in the first part of
Article 1 of Protocol No. 1 has an autonomous meaning which is not
limited to the ownership of physical goods and is independent from
the formal classification in domestic law: certain other rights and
interests constituting assets can also be regarded as “property
rights”, and thus as “possessions” for the purposes
of this provision. In each case the issue that needs to be examined
is whether the circumstances of the case, considered as a whole,
conferred on the applicant title to a substantive interest protected
by Article 1 of Protocol No. 1 (see Depalle v. France
[GC], no. 34044/02, § 62, 29 March 2010).
- The
Court observes that in July 1999 the applicants submitted customs
declarations to the Russian customs authorities for clearance in
respect of two cars (see paragraphs 5 and 6 above). Subsequently,
they were allowed to appeal against the confiscations orders in
respect of these cars. The applicants’ ownership was not
challenged in the domestic court proceedings (see, for comparison,
Novikov, cited above, § 36).
- The
Court considers that the circumstances of the present case,
considered as a whole, conferred on the applicants titles to a
substantive interest protected by Article 1 of Protocol No. 1.
Thus, the Court accepts that the applicants may claim to have had
“possessions” in relation to the above-mentioned cars.
Thus, Article 1 of Protocol No. 1 is applicable.
(b) Exhaustion of domestic remedies and
the six-month rule
- The
Court reiterates that the main thrust of the applicants’
complaint concerns the allegedly unlawful confiscation orders and
precipitated sale of the cars, leading to the alleged impossibility
for them to regain possession of the cars, despite the judgments of
5 February 2003.
- The
Court reiterates that, according to Article 35 § 1 of the
Convention, it may only deal with an issue after the domestic
remedies have been exhausted. While in the context of the machinery
for the protection of human rights the rule of exhaustion of domestic
remedies must be applied with some degree of flexibility and without
excessive formalism, it does not require merely that applications
should be made to the appropriate domestic courts and that use should
be made of remedies designed to challenge impugned decisions which
allegedly violate a Convention right. It normally requires also that
the complaints intended to be made subsequently at the international
level should have been aired before those same courts, at
least in substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see, among other authorities,
Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR
2004-III).
- The
object of the rule on exhaustion of domestic remedies is to allow the
national authorities (primarily the judicial authorities) to address
the allegation made of a violation of a Convention right and, where
appropriate, to afford redress before that allegation is submitted to
the Court (see Kudła v. Poland [GC], no. 30210/96, §
152, ECHR 2000-XI).
- Article
35 § 1 of the Convention provides for a distribution of the
burden of proof. It is incumbent on the Government claiming
non-exhaustion to satisfy the Court that the remedy was an effective
one available in theory and in practice at the relevant time, that is
to say, that it was accessible, was capable of providing redress in
respect of the applicant’s complaints and offered reasonable
prospects of success (see Sejdovic v. Italy [GC], no.
56581/00, § 46, ECHR 2006 II). However, once this burden of
proof has been satisfied it falls to the applicant to establish that
the remedy advanced by the Government had in fact been used or was
for some reason inadequate and ineffective in the particular
circumstances of the case or that there existed special circumstances
absolving him or her from the requirement (see, among other
authorities, Akdivar and Others v. Turkey, 16 September 1996,
§ 68, Reports of Judgments and Decisions 1996 IV).
- The
Court observes that the facts of the case are as follows. A court
issued confiscation orders in respect of the cars. The applicants
appealed. However, for some reason, the confiscation orders had been
or were marked as final and enforceable. Having received the cars,
the bailiffs sold them at a public auction. Having examined the
applicants’ appeal, the appeal court declined jurisdiction in
favour of another court. The latter considered that the relevant
time-limits had expired and thus discontinued the proceedings. The
cars were to be returned to their “lawful holders”. In
any event, the cars could not be returned, having been sold to third
persons. The applicants’ actions against the State were not
examined for the reasons stated above under Article 6 § 1 of the
Convention.
- The
Government argued that the applicants should have brought court
proceedings under Article 302 of the Civil Code against the bona
fide purchasers of the cars. The applicants argued that they
could not have reasonably argued that the vehicles had been “taken
out of [their] control”, as required for a vindication claim,
and that they could not act under Russian law as “owners”
asserting such a claim without prior customs clearance.
- The Court reiterates that an applicant who has
exhausted a remedy that is apparently effective and sufficient cannot
be required also to have tried others that were available but
probably no more likely to be successful (see Aquilina v. Malta
[GC], no. 25642/94, § 39, ECHR 1999 III). When a remedy has
been pursued, use of another remedy which has essentially the same
objective is not required (see Micallef v. Malta [GC], no.
17056/06, § 58, 15 October 2009). In the circumstances of
the present case, the Court considers that the applicants have
complied with the exhaustion requirement and that it has not been
shown, and the Court does not consider, that another court action
would offer better prospect of success. Thus, the Government’s
argument should be dismissed.
- For
the reasons stated in paragraph 40 above, the Court also considers
that the applicants have complied with the six-month rule.
(c) Conclusion
- The
Court considers that this part of 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.
2. Merits
- Having
established that the applicants had “possessions” under
Article 1 of Protocol No. 1, the Court has to determine whether
the interference complained of was in compliance with the
requirements of that provision.
- However,
the Court does not have to determine whether the circumstances of the
case should be classified as a deprivation of possessions or control
of use.
- The
Court reiterates that any interference by a public authority with the
peaceful enjoyment of possessions should be lawful: the second
sentence of the first paragraph authorises a deprivation of
possessions only “subject to the conditions provided for by
law” and the second paragraph recognises that the States have
the right to control the use of property by enforcing “laws”
(see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR
1999 II).
- The
Court observes that in July 1999 the applicants submitted customs
declarations to the Russian customs authorities for clearance. Their
applications were not processed, in particular because they had court
proceedings concerning their claim for a waiver of customs duties.
Also, charging orders were issued in the meantime in respect of the
cars in the framework of a criminal case. These charging orders were
annulled as soon as it became clear that the applicants’
situation was not related to the circumstances of the criminal case.
Subsequently, the customs authority impounded the cars because the
applicants had not provided, within a time-limit, additional
documents in order to finalise the customs clearance. The applicants
offered to pay the required customs duty for customs clearance of the
cars. Subsequently, a court issued confiscation orders.
- The
Court observes that while owing to the expiry of the liability
time-limits no fine could be imposed, the cars were confiscated as
the direct objects of the customs offence. As stated by the Town
Court, such confiscation could be imposed within three years of the
date of the violation of the customs regulations. Later on, the
appeal court annulled the confiscation orders on the ground that the
Town Court had had no jurisdiction to hear the case. In the resumed
proceedings before another court, its was established that since 1
July 2002 a decision concerning a customs offence could not be issued
after the expiry of one year from the date on which the offence was
committed. Since the offence had been committed more than one year
before, the court discontinued the case and ordered that the vehicles
should be returned.
- In
view of the above considerations, the Court concludes that the
confiscation orders in the present case were in breach of Russian law
and that the applicants were not provided with adequate redress.
- The
Court also observes that until July 2002 the Customs Code
provided that the execution of a confiscation order could only occur
after the expiry of the time-limit for appeal (see paragraph 31
above). The Court reiterates that its power to review compliance with
domestic law is limited as it is in the first place for the national
authorities to interpret and apply that law. Therefore, having regard
to the Russian authorities’ consistent failure to indicate a
legal provision that could be construed as the basis for the
precipitated enforcement of the confiscation orders in late 2002, the
Court finds the impugned interference in terms of Article 1 of
Protocol No. 1 cannot be considered lawful.
- The
above findings make it unnecessary to examine whether a fair balance
has been struck between the demands of the general interest of the
community and the requirements of the protection of the individual’s
fundamental rights.
- There
has therefore been a violation of Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants complained under Article 6 of the Convention about the
supervisory review proceedings in 1999, and maintained that they had
not been given an opportunity to attend the hearing on 24 July 2002.
- 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 they do 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.
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
- The
first and second applicants claimed 11,655 and 14,593 euros (EUR),
respectively, as regards pecuniary damage (the purchase price of the
vehicles), and EUR 5,000 each in respect of non-pecuniary damage.
- The
Government contested the claims because, in their view, there had
been no violation of the applicants’ rights.
- The
Court has found that the circumstances of the present case disclosed
an unlawful interference with the applicants’ “possessions”
in breach of Article 1 of Protocol No. 1. In the circumstances
of the present case, noting the absence of the Government’s
specific comments concerning the calculations in respect of pecuniary
damage and having examined the available material, the Court finds it
appropriate to award EUR 8,000 and EUR 10,000 to the first and second
applicants respectively, plus any tax that may be chargeable.
- Furthermore,
having regard to the violations found, the Court awards each
applicant EUR 5,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
- Each
applicant also claimed EUR 3,563 for the legal
costs and expenses incurred at the national level and before the
Court.
- The
Government contested the claims, arguing that there was no evidence
that they related to the matters raised before the Court.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred, and are
reasonable as to quantum. In the present case,
regard being had to the documents in its possession and the
above criteria, and in so far as the
claims relate to the violations it has found, the Court considers it
reasonable to award each applicant the sum of EUR 1,000 under all
heads, plus any tax that may be chargeable to the applicants.
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 complaints concerning access to
court and the confiscation orders admissible, and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 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 is to pay, 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
8,000 (eight thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage, to the first applicant (Mr Vasilyev);
(ii) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage, to the second applicant (Mr Kovtun);
(iii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to each applicant;
(iv) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicants, in respect of costs and
expenses, to each applicant;
(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 applicants’ claim for just
satisfaction.
Done in English, and notified in writing on 13 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
