[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF GLUSHAKOVA v. RUSSIA (No. 2)
(Application
no. 23287/05)
JUDGMENT
STRASBOURG
10 May
2007
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 Glushakova v. Russia (No. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 10 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23287/05) 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, Ms Valentina Viktorovna
Glushakova (“the applicant”), on 1 June 2005.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
4 April 2006 the Court decided to give notice of the application.
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
- The
applicant was born in 1927 and lives in the town of Shakhty in the
Rostov Region.
- On
3 June 2004 the Shakhty Town Court ordered that the Ministry of
Finance should pay the applicant 298,650 Russian roubles (RUR,
approximately 8,420 euros), representing a subvention for buying a
flat. On 11 October 2004 the Rostov Regional Court upheld the
judgment.
- Following
the institution of enforcement proceedings by the Shakhty Town
Division of Bailiffs' Service on 16 November 2004, the Ministry
of Finance petitioned the Supreme Court of the Russian Federation for
a revision of the judgment of 3 June 2004 and a stay in the
enforcement proceedings. Those requests were dismissed on 25 April
2006.
- On
21 February 2006 the bailiffs closed the enforcement proceedings
because it was necessary to send the writ of execution to another
division of the bailiffs' service. A copy of that decision and the
writ were sent to the Head of the Main Department of the Federal
Bailiffs' Service in Moscow. The applicant and the Ministry of
Finance were notified of the decision.
- According
to the Government, the enforcement proceedings were closed because a
new procedure for enforcement of court decisions against State bodies
had been introduced on 1 January 2006. Under the new procedure the
applicant was to submit a writ to the Ministry of Finance, however,
she did not do it.
- On
23 March 2006 a bailiff of the Second Division of the Tsentralniy
District of the Main Department of the Federal Bailiffs' Service in
Moscow instituted enforcement proceedings and ordered that the
Ministry of Finance should execute the judgment of 3 June 2004 within
five days. The bailiff also indicated that the failure to execute the
judgment will lead to the imposition of a fine. A copy of that
decision was sent to the Ministry of Finance.
- On
20 June 2006 the enforcement proceedings were closed because it was
“impossible to enforce” the judgment.
- The
judgment of 3 June 2004, as upheld on appeal on 11 October 2004,
remains unenforced.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the judgment 3 June 2004, as upheld on
appeal on 11 October 2004, remained unenforced. The Court considers
that this complaint falls to be examined under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 (see Burdov
v. Russia, no. 59498/00, § 26, ECHR 2002 III).
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 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
Government argued that the non-enforcement of the judgment in the
applicant's favour had resulted from her failure to submit the writ
of execution to the Ministry of Finance in compliance with the new
procedure.
- The
applicant averred that in November 2004 the bailiffs had instituted
the enforcement proceedings and had notified the Ministry of Finance.
However, the judgment had not been enforced. In February 2006 the
bailiffs had closed the enforcement proceedings because it had been
necessary to transfer the enforcement documents to the Moscow
division of the bailiffs' service. The Ministry of Finance had been
appraised of the re-opening, however, the judgment had not been
enforced and the proceedings had been closed again. The Ministry of
Finance had received the writ and its copies on several occasions and
it had been well aware of the developments in the enforcement
proceedings.
- The
Court observes that on 3 June 2004 the applicant obtained a judgment
in her favour by which she was to be paid a certain sum of money by
the Ministry of Finance. The judgment was upheld on appeal on
11 October 2004 and became final and enforceable. However, it
has not been enforced yet. It follows that it has, so far, remained
unenforced for approximately two and a half years.
- The
Court notes the Government's argument that a delay in the enforcement
proceedings was caused by the applicant's failure to provide the
Ministry of Finance with the writ of execution in compliance with the
new procedure. However, the Court has already examined and dismissed
the similar argument by the Russian Government. In particular, in the
case of Reynbakh v. Russia the Court held as follows:
“The Court observes that... the applicant obtained
a judgment in his favour against the federal treasury, which has not
been enforced to date. A competent State agency, the bailiffs'
service, was promptly served with the writ of execution... It is true
that the applicant did not resubmit the writ of execution to a
different authority after the changes in the domestic law had been
introduced... However, the Court considers that it is incumbent on
the State to organise its legal system in such a way that ensures
co-ordination between various enforcement agencies and secures
honouring of the State's judgment debts in good time, irrespective of
changes in the domestic law. It would impose an excessive burden on
the applicant if he were to follow every such change and forward the
writ of execution from one competent State agency to another.
In any event, the Court reiterates that a person who has
obtained an enforceable judgment against the State as a result of
successful litigation cannot be required to resort to enforcement
proceedings in order to have it executed (see Koltsov v. Russia,
no. 41304/02, § 16, 24 February 2005; Petrushko v.
Russia, no. 36494/02, § 18, 24 February 2005; and
Metaxas v. Greece, no. 8415/02, § 19, 27 May
2004). The State authorities were aware of the applicant's claims,
and, as soon as the judgment in the applicant's favour became
enforceable, it was incumbent on the State to comply with it.”
(Reynbakh v. Russia, no. 23405/03, §§ 23-24, 29
September 2005)
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject (see Burdov
v. Russia, no. 59498/00, § 19 et seq., ECHR 2002 III;
Gizzatova v. Russia, no. 5124/03, § 19 et seq.,
13 January 2005; Gerasimova v. Russia,
no. 24669/02, § 17 et seq., 13 October 2005),
the Court finds that by failing for several years to comply with the
enforceable judgment in the applicant's favour the domestic
authorities impaired the essence of her right to a court and
prevented her from receiving the money she could reasonably have
expected to receive.
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. 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 RUR 563,798.25 in respect of pecuniary damage, of
which RUR 298,650 represented the judgment award, RUR 80,348.25
represented interest on the judgment award at the marginal interest
rate of the Russian Central Bank and RUR 184,800 amounted to the
depreciation of the judgment award due to the inflation in the period
of the non-enforcement. The applicant further claimed EUR 6,000 in
respect of non-pecuniary damage.
- The
Government argued that no interest on the judgment award should be
granted as the domestic courts had awarded the money for the sole
purpose of buying a flat. The applicant could not use the award in
any other way and thus she could not receive any profit and she could
not lose interest on the awarded sum. As to the claim in respect of
non-pecuniary damage, it was excessive, ill-founded and unreasonable.
- The
Court notes that on 3 June 2004 the Town Court awarded the applicant
a sum of money for purchasing a flat. The applicant could not use
that money for any other purpose. The Court observes that the
applicant claimed RUR 80,348.25 representing interest on the judgment
award which she allegedly could have acquired if the money had been
duly paid and she had placed them on a deposit account. Having regard
to the purpose of the judgment award, the Court agrees with the
Government that the applicant had no right to profit from the award
by investing it or depositing the money on a bank account. The Court
therefore dismisses her claim under this head.
- The Court, however, notes that the State's outstanding
obligation to enforce the judgments in the
applicant's favour is not in dispute. Accordingly, the applicant is
still entitled to recover the principal amount of the judgment debt
in the domestic proceedings. 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 (cf 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 courts in the
applicant's favour.
- The
Court further notes that in the present case it found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in that the award in the applicant's favour had not been paid to her.
The Court further reiterates that the adequacy of the compensation
would be diminished if it were to be paid without reference to
various circumstances liable to reduce its value, such as an extended
delay in enforcement (see Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005; Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). Having
regard to the materials in its possession and the fact that the
Government did not furnish any objection to the applicant's method of
calculation of the inflation losses, the Court accepts the
applicant's claim under this head and awards her RUR 184,800, plus
any tax that may be chargeable on that amount.
- The
Court further considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to enforce the judgment in her favour. The Court takes into
account the relevant aspects, such as the length of the enforcement
proceedings and the nature of the award, and making its assessment on
an equitable basis, awards the applicant EUR 2,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant claimed EUR 100 and RUR 841.20 for the costs and expenses
incurred before the Court, of which RUR 841.20 represented postal
expenses and expenses for preparation of documents and EUR 100
represented expenses for presentation of her case before the Court
without legal assistance.
- The
Government argued that the applicant's claim for RUR 841.20 was
reasonable and supported by relevant documents. The claim for EUR 100
should be dismissed as she did not have a lawyer.
- 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. The Court notes that the
applicant was not represented in the Strasbourg proceedings. However,
she must have incurred expenses in providing her written pleadings
(see Lauko v. Slovakia, judgment of 2 September 1998,
Reports of Judgments and Decisions 1998 VI, § 75).
The Court further observes that the applicant provided receipts and
vouchers to substantiate her expenses for preparation of documents
and sending them to the Court. Regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 125 covering costs under all
heads, 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 and Article 1 of Protocol No. 1;
- 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 award made by the domestic courts in the
applicant's favour and, in addition, pay the applicant the following
amounts, to be converted, where appropriate, into Russian roubles at
the rate applicable at the date of settlement:
(i) RUR
184,800 (one hundred eighty-four thousand and eight hundred Russian
roubles) in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii)
EUR 125 (one hundred and twenty-five euros) in respect of costs and
expenses;
(iv) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
