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FIRST
SECTION
CASE OF TIMISHEV v. RUSSIA (no. 3)
(Application
no. 18465/05)
JUDGMENT
STRASBOURG
14
June 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 Timishev v. Russia (no. 3),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18465/05) 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, Mr Ilyas Yakubovich
Timishev (“the applicant”), on 11 April 2005.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged that the State had failed to honour a judgment
debt.
- On
2 September 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in the town of
Nalchik, in the Kabardino-Balkaria Republic of the Russian
Federation. The applicant is a lawyer.
-
On 28 November 2002 the Nalchik Town Court of the Kabardino-Balkaria
Republic awarded the applicant 27,780 Russian roubles (RUR) in
outstanding child benefits against the Ministry of Labour of
the Kabardino-Balkaria Republic. It also ordered that
starting from 1 December 2002 the Ministry of Labour pay the
applicant RUR 70 (about 2.2 euros) a month for each of his three
children. The amount was to be increased in line with the statutory
minimum wage.
7. On
14 April 2003 the lump sum was paid to the applicant.
8. On
18 November 2003 the bailiffs' service opened enforcement proceedings
in respect of the monthly payments.
9. The
bailiffs applied to the Nalchik Town Court, asking to clarify
the operative part of the judgment of 28 November 2002. On 5 July
2004 the court amended the judgment and specified the names of the
children and their dates of birth.
- The Ministry of Labour asked the court to review the
judgment of 28 November 2002 on account of newly-discovered
facts. They submitted that the applicant had divorced his wife and
that the children had stayed with the mother. The applicant thus no
longer had the right to child benefits. On 2 December 2004 the
Nalchik Town Court dismissed the request as having no basis in
the domestic law.
- The
applicant challenged the bailiffs' failure to act before a court. On
7 February 2005 the Nalchik Town Court held that the bailiffs
had failed to undertake the steps required under the domestic law to
secure enforcement of the judgment. On 2 March 2005 the Supreme Court
of the Kabardino-Balkaria Republic upheld the decision on appeal.
- On
19 October 2005 the applicant received the child benefits for the
period from December 2002 to September 2005, and on 10 April 2006 for
the period from October 2005 to April 2006.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- Referring
to the Court's decision in the case of Aleksentseva and Others v.
Russia (nos. 75025/01 et seq., 4 September 2003), the
Government invited the Court to strike the application out of its
list of cases in accordance with Article 37 of the Convention on
account of the applicant's refusal to accept a friendly settlement.
- The
applicant submitted that he had not accepted the friendly settlement
because the compensation proposed by the domestic authorities had
been negligible.
- The
Court observes that it has already examined the same argument by the
Russian Government and rejected it (see Silchenko v. Russia,
no. 32786/03, §§ 33-37, 28 September 2006; Kazartsev
v. Russia, no. 26410/02, §§ 11-15, 2 November 2006,
etc.). The Court does not find any reason to depart from that finding
in the present case and dismisses the Government's request to strike
the application out under Article 37 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about non-enforcement of the judgment of 28
November 2002. The Court considers that the complaint falls to be
examined under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1. The relevant parts of these provisions read as
follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... 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 Government submitted that the domestic authorities
had paid the judgment debt in full and acknowledged a violation of
the applicant's rights. Therefore, the applicant can no longer claim
to be a victim.
- The applicant maintained that the judgment debt had
been paid with a significant delay for which he had received no
compensation.
- The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, for example, Amuur
v. France, judgment of 25 June 1996, Reports of Judgments and
Decisions 1996-III, p. 846, § 36, and Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999-VI). The Court notes that in
the present case the Government had acknowledged the breach of the
Convention and paid the judgment debt. Nevertheless, the payment,
which intervened only after a substantial delay and after the present
application had been communicated to the Government, did not afford
the applicant adequate redress (see Burdov v. Russia,
no. 59498/00, § 31, ECHR 2002 III; Metaxas v.
Greece, no. 8415/02, § 19, 27 May 2004). The Court
also takes into account that the applicant did not receive any
compensation for the delay in the enforcement. In these
circumstances, the Court considers that the applicant may still claim
to be a victim of a violation of Article 6 § 1 of the Convention
and of Article 1 of Protocol No. 1.
- The Court notes that the application 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 contended that on 13 February 2004 the applicant had
divorced his wife and that since that date the children had lived
with their mother. Therefore, the applicant was no longer entitled to
receive child benefits. They also claimed that the applicant did not
distribute the money among the children but kept it for himself on
his bank account.
- The
applicant maintained his claims. He argued that after the divorce he
had not lost entitlement to receive child benefits, that he paid
maintenance to his children, and that he had handed the money over to
them. He submitted written affidavits by the children who confirmed
that the applicant supported them financially. The children also
stated that in early 2006 a bailiff had come to their flat and urged
their mother to testify that the applicant had not distributed the
child benefits among them.
- The
Court observes that on 28 November 2002 the applicant obtained a
judgment in his favour against the local Ministry of Labour. However,
it remained unenforced until 19 October 2005, that is for slightly
less than two years and eleven months.
- The
Government argued that after the divorce the applicant had lost
entitlement to receive child benefits. However, the Court notes that
the domestic courts examined that argument, found that it had no
basis in the domestic law, and confirmed that the applicant's
entitlement to receive child benefits continued after the divorce
(see paragraph 10 above).
- As
regards the Government's allegation that the applicant did not
distribute the child benefits among the children, the Court notes
that the child benefits are payable to the parents. The operative
part of the judgment of 28 November 2002 expressly indicated that the
benefits should be paid to the applicant rather than directly to the
children. It was for the applicant to decide how to use the money in
the children's best interest.
- The
Court concludes that the Government did not offer any plausible
justification for the delay in the enforcement of the judgment in the
applicant's favour. It has frequently found violations of Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 in cases raising
issues similar to the ones in the present case (see Reynbakh v.
Russia, no. 23405/03, § 23 et seq., 29 September
2005; Gizzatova v. Russia, no. 5124/03, § 19 et seq.,
13 January 2005; Petrushko v. Russia, no. 36494/02,
§ 23 et seq., 24 February 2005; Wasserman v. Russia,
no. 15021/02, § 35 et seq., 18 November 2004; Burdov,
cited above, § 34 et seq.).
-
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, the Court finds that by
failing for years to comply with the enforceable judgment in the
applicant's favour the domestic authorities prevented him from
receiving the money he 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed RUR 500,000 in respect of non-pecuniary damage.
- The
Government submitted that the claim should be rejected because the
amount of the child benefits was insignificant.
- The Court accepts that the applicant must have
suffered distress and frustration resulting from the delay in the
enforcement of the judgment in his 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 1,800 euros (EUR) in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed RUR 2,000 for postal and translation expenses
and RUR 28,500 (approximately EUR 800) in compensation for the
nineteen days he had spent trying to recover the judgment death
through the domestic enforcement proceedings and preparing the
materials for the Strasbourg proceedings.
- The
Government did not comment.
- The
Court notes that the applicant did not submit any receipts or other
vouchers confirming that the postal and translation expenses had been
actually incurred. Accordingly, the Court does not make any award
under this head.
-
As to the remaining claims, it transpires from the applicant's
submissions that he spent thirteen days on the domestic proceedings
and six days drafting documents in the Strasbourg proceedings. The
sum of RUR 1,500 (approximately EUR 43) claimed as the average
value of a lawyer's working day does not appear excessive.
Accordingly, having regard to the materials in its possession, the
Court awards the applicant EUR 800 in respect of costs and expenses
incurred before the domestic courts and the Court.
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 Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i)
EUR 1,800 (one thousand and eight hundred euros) in respect of
non-pecuniary damage;
(ii)
EUR 800 (eight hundred euros) in respect of costs and expenses;
(iii)
any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
