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FIRST
SECTION
CASE OF ZHELTKOV v. RUSSIA
(Application
no. 8582/05)
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 Zheltkov v. Russia,
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 S.E. Jebens,
Mr G.
Malinverni, 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. 8582/05) 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 Vladimir Grigoryevich
Zheltkov (“the applicant”), on 3 February 2005.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- On
24 October 2005 the Court decided to give notice of 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
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government's
objection, the Court dismissed it.
THE FACTS
- The
applicant was born in 1953 and lives in the town of Chistopol,
Tatarstan Republic. He is handicapped suffering from a double
above-knee amputation.
- In
early 1990s the applicant acquired State commodity bonds for purchase
of a Russian-made VAZ passenger car.
- After
the State had failed to exchange his bonds for a car, in 1999 the
applicant brought a civil action against the Ministry of Finance of
the Russian Federation. On 28 February 2000 the Supreme Court of
the Tatarstan Republic ordered the Ministry of Finance to pay the
applicant 67,300 Russian roubles (RUR).
- In
April 2000 a writ of execution was submitted to the Bailiffs Service
of the Ministry of Justice for a further transfer to the
local bailiff office which was competent to enforce the judgment.
- On
17 November 2000 the Bailiffs Office of the Central
Administrative District of Moscow requested the applicant to submit
details of his bank account.
- In
reply to the applicant's complaint about non-enforcement, on
4 December 2000 the Bailiffs Department of the Ministry of
Justice told him that he could collect the award from the Bailiff
Office of the Central Administrative Circuit of Moscow. On 4 January
2001 the Ministry of Finance informed the applicant that all
questions relating to the enforcement of the judgment in his favour
had to be addressed to the bailiff service.
- It
appears that the applicant wrote to the Bailiffs Office of the
Central Administrative District of Moscow in October and December
2001, and in March 2002. He also unsuccessfully sought supervisory
review of the judgment of 28 February 2000.
- According
to the Government, on 25 May 2001 a certain Mr K., pretending
to act on the applicant's behalf, received the award under the
judgment of 28 February 2000.
- On
19 June 2006 the monies due to the applicant were transferred into
his bank account.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO.1
- The
applicant complained firstly that his claim for a car had not been
granted and, secondly, that the judgment of 28 February 2000 had not
been enforced. His complaints fall to be examined under Article 6 of
the Convention and Article 1 of Protocol No.1, which read, in so far
as relevant, as follows:
Article 6
“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
- In
so far as the applicant complained that the courts had not awarded
him a car, the Court notes that the applicant did not appeal against
the judgment of 28 February 2000. As the applicant only lodged his
application with the Court on 3 February 2005, this complaint must be
rejected in accordance with Article 35 §§ 1 and 4 of the
Convention as introduced out of time or for a failure to exhaust the
domestic remedies.
- In
so far as the applicant complained about non-enforcement of the
judgment of 28 February 2000, the Government claimed that the
applicant should have sued the bailiff service, or complained to the
prosecutor's office or other public authorities. The applicant
replied that he had complained about non-enforcement to various
public authorities.
- The Court observes, and it is not contested by the
parties, that the applicant was not provided with any information
about the progress in the enforcement proceedings, in particular that
the payment under the judgment of 28 February 2000 had been made to
an unauthorised person. Being unaware of that fact, the applicant
could not be expected to challenge any allegedly unlawful action on
the part of the bailiffs. The Court therefore rejects the
Government's objection of non-exhaustion of domestic remedies.
- The
Court concludes that the part of the application concerning
non-enforcement of the judgment of 28 February 2000 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 claimed that the applicant had not submitted his bank
details to the bailiff service and that he should have enquired about
the state of enforcement after May 2001. They acknowledged, however,
that a payment to an unauthorised person had been effected through
the fault of the Bailiffs Office of the Central Administrative
District of Moscow which had not verified the authenticity of Mr K.'s
authority form. The Government admitted a violation of Article 6 of
the Convention and Article 1 of Protocol No.1.
- The
applicant replied that he had submitted his bank details to the
bailiff service in good time.
- The
Court notes, and it is not contested by the parties, that the
judgment of 28 February 2000 was enforced in full
on 19 June 2006. It follows that this judgment remained
without enforcement for approximately six years
and three months. A substantial part of that six-year period is
attributable to the domestic authorities' failure to verify whether
the person claiming to act on the applicant's behalf had been indeed
authorised to do so.
- The
Court 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 Burdov
v. Russia, no. 59498/00, § 35, ECHR 2002 III.;
Wasserman v. Russia, no. 15021/02, § 35 et seq.,
18 November 2004; and Gerasimova v.
Russia, no. 24669/02, § 17 et seq., 13 October 2005).
- Having
regard to its case-law on the subject and the Government's
acknowledgment of a violation, the Court finds that by failing, for a
long period of time, to comply with the enforceable judgment in the
applicant's favour the domestic authorities impaired the essence of
his right to a court and 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.
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 a VAZ car and RUR 1,000,000 in respect of
non-pecuniary damage.
- The
Government submitted that a finding of a violation would be a
sufficient just satisfaction.
- The
Court notes that the applicant's claim for a car relates to the
complaint which was declared inadmissible as submitted out of time
(see paragraph 15 above); it therefore rejects this claim. On the
other hand, the Court considers that the applicant suffered distress
because of the authorities' failure to enforce the judgment in his
favour within a “reasonable time”. However, the
particular amount claimed is excessive. Taking into account the
relevant aspects, such as the length of enforcement, and making its
assessment on an equitable basis, the Court awards the applicant EUR
3,900 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and the Court.
- Accordingly,
the Court does not award anything 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 applicant's complaint about the
belated enforcement of the judgment of 28 February 2000 admissible
and the remainder of the application inadmissible;
- 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 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, EUR 3,900
(three thousand nine hundred euros) in respect of non-pecuniary
damage, to be converted into Russian roubles at the rate applicable
at the date of the settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
