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FIRST
SECTION
CASE OF FITISOV v. RUSSIA
(Application
no. 41842/04)
JUDGMENT
STRASBOURG
8
November 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 Fitisov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 11 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41842/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Vasiliy Nikolayevich
Fitisov (“the applicant”), on 15 November 2004.
- 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 complained about non-enforcement of judgments in his
favour.
- On
22 June 2006 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
applicant was born in 1939 and lives in the town of Obninsk in the
Kaluga Region.
- The
applicant was engaged in emergency operations at the site of the
Chernobyl nuclear plant disaster. As a consequence, he was entitled
to disability settlement structured in monthly payments.
A. Proceedings concerning disability payments
- The
applicant sued the Obninsk Pension Fund (Управление
Пенсионного
Фонда
РФ по
г. Обнинску)
for increase in the monthly payments and for arrears. On 14 October
1999 the Obninskiy District Court of the Kaluga Region increased the
monthly payments to 15,749.44 Russian roubles (RUB) and awarded
the arrears in the sum of RUB 295,381.72. On 13 April 2000 the
Kaluga Regional Court upheld the judgment on appeal.
- In
2003 the applicant sued the Obninsk Town Social Security Service
(“the social security service”) for arrears and increase
in the monthly payments. On 28 April 2003 the Obninsk Town Court
awarded the applicant a lump sum of RUB 208,427.40 in arrears and
increased the monthly payments up to RUB 30,000. On 7 July
2003 the Kaluga Regional Court upheld the judgment on appeal and it
became enforceable.
- On
11 December 2003 the applicant received the lump sum. It follows from
a certificate from the social security service that on 9 November
2004 it owed the applicant RUB 114,004.48 in monthly payments.
- By
letter of 29 April 2005, the Kaluga Regional prosecutor's office
informed the applicant that the social security service's debt
amounted to RUB 171,000.
- On
21 March 2006 the Obninsk Town Court quashed the judgment of 28 April
2003 at the applicant's request on account of a newly-discovered
circumstance and remitted the case for a new examination.
- On
5 March 2007 the Obninsk Town Court recalculated the amount of the
monthly payments due from 2002 and awarded the applicant
RUB 3,715,846.50 in arrears for the period from 2002 to 2006
against the Ministry of Finance. It also increased the monthly
payments to RUB 129,395.22 starting from 1 January 2007. On 3
May 2007 the Kaluga Regional Court upheld the judgment on appeal.
B. Proceedings concerning other payments
- On
19 February 2004 the Obninsk Town Court allowed the applicant's
action against the Kaluga Regional Office of the Ministry of Finance
(Министерство
финансов
РФ в
лице
Управления
федерального
казначейства
по Калужской
области)
and awarded him a lump sum of RUB 6,838.57, monthly food allowance of
RUB 676.52 and annual payments of RUB 1127.53. On 19 April
2004 the Kaluga Regional Court upheld the judgment on appeal.
- On
15 May 2004 the Obninsk Town Court sent the writ of execution to the
applicant.
- In accordance with the Instruction on payment of
social benefits issued by the Ministry of Finance on 28 January 2005,
the applicant submitted the writ of execution to the social security
service.
- On
7 November 2005 the social security service returned the writ of
execution to the applicant and advised him to apply to the Kaluga
Regional Office of the Ministry of Finance.
- The
applicant submitted the writ of execution to the Kaluga Regional
Office of the Ministry of Finance. By letter of 11 November 2005, the
Kaluga Regional Office of the Ministry of Finance refused to pay and
referred the applicant to the Ministry of Finance.
- On
17 January 2006 the applicant submitted the writ of execution to the
Ministry of Finance.
- On
3 April 2006 the Oninsk Town Court quashed the judgment of
19 February 2004 at the applicant's request on account of a
newly-discovered circumstance and remitted the case.
-
On 15 May 2006 the Obninsk Town Court recalculated the amounts of
monthly food allowance and annual payments due from 2000 and awarded
the applicant RUB 63,378.93 in arrears for the period from 2000 to
2005. It also increased the monthly food allowance to RUB 1,732.35
and the annual payments to RUB 2,550 starting from 1 January 2006.
C. Proceedings for recovery of the debt
- The
applicant brought a civil action against the Obninsk Town
Administration and the Ministry of Finance, complaining about
non-enforcement of the judgments of 28 April 2003 and 19
February 2004 and seeking penalty assessed at the marginal interest
rate of the Russian Central Bank. On 11 March 2005 the Obninsk Town
Court dismissed his action as having no basis in the domestic law. On
12 May 2005 the Kaluga Regional Court upheld the judgment on appeal.
- The
applicant sued the Obninsk Town Administration and the Ministry of
Finance, seeking payment of the amounts outstanding under the
judgments of 28 April 2003 and 19 February 2004 and adjustment
of those amounts to take account of increases in the minimum
subsistence level. On 11 May 2005 the Obninsk Town Court dismissed
the applicant's claims. It established that the Obninsk Town
Administration owed RUB 128,255.04 to the applicant and the Ministry
of Finance RUB 6,838.57. However, it held that the applicant should
seek recovery of the debt through enforcement agencies, his claim for
enforcement being not amenable to judicial review. The applicant did
not appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained about non-enforcement of the judgments of the
Obninsk Town Court of 28 April 2003, as upheld on 7 July 2003,
and of 19 February 2004, as upheld on 19 April 2004. He relied
on Article 6 of the Convention and Article 1 of Protocol No. 1, the
relevant parts of which 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.”
- The
Government submitted that the applicant had received the lump sum
under the judgment of 28 April 2003 and that the monthly payments had
been paid to him in part. On 21 March 2006 that judgment had been
quashed at the applicant's request and was no longer enforceable. The
applicant had not submitted the writ of execution in respect of the
judgment of 19 February 2004 to the Ministry of Finance until 2
February 2006. On 3 April 2006 that judgment had been also
quashed at the applicant's request. The enforcement proceedings had
therefore been pending only for two months. The applicant's
complaints were therefore manifestly ill-founded.
- The
applicant maintained his claims.
A. Admissibility
- 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
Court observes that on 28 April 2003 and 19 February 2004 the
applicant obtained two judgments in his favour against the State. The
judgments became enforceable on 7 July 2003 and 19 April
2004 respectively. On 21 March and 3 April 2006 both judgments
were quashed at the applicant's request. It follows that at least
from 7 July 2003 to 21 March 2006 and from 19 April 2004 to 3
April 2006 the judgments were enforceable and it was incumbent on the
State to abide by their terms. The judgment of 28 April 2003 was
enforced only in part, while the judgment of 19 February 2004
remained unenforced.
- The
Government claimed that the judgment of 19 February 2004 was not
enforced because the applicant had delayed in submitting the writ of
execution to the Ministry of Finance. The Court observes that the
applicant submitted the writ of execution to the social security
service in accordance with the Instruction of the Ministry of
Finance. The social security service refused to process his writ and
advised him to apply to the local department of the Ministry of
Finance. The applicant followed that advice, but the local department
of the Ministry of Finance also refused to pay. After that he
submitted the writ to the Ministry of Finance (see paragraphs 15 et
seq.). In the Court's view, in the absence of clear instructions as
to the enforcement procedure to be followed, the applicant cannot be
blamed for the delay in submitting the writ of execution to the
competent agency. 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. It would impose an excessive burden on the
applicant if he has to forward the writ of execution from one
competent State agency to another (see Reynbakh v. Russia, no.
23405/03, § 23, 29 September 2005). The Court does not see
any reason to depart from its findings in the Reynbakh case,
and concludes that the applicant took reasonable steps to obtain
execution of the judgment in his favour.
- 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 judgments in his favour became enforceable, it was incumbent
on the State to comply with them.
- The
Court concludes that the Government did not offer any plausible
justification for the delay in the enforcement of the judgments 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
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 v.
Russia, 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 to comply with the enforceable judgments in the applicant's
favour for more than two years and eight months in respect of the
judgment of 28 April 2003, as upheld on 7 July 2003, and almost
two years in respect of the judgment of 19 February 2004, as upheld
on 19 April 2004, the domestic authorities violated 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 RUB 3,032,466 in respect of pecuniary damage and
60,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government submitted that the claims for pecuniary damage were
unsubstantiated and his claims for non-pecuniary damage were
excessive.
- The
Court reiterates 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 in which 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). Turning to the instant case, the
Court observes that the judgments in the applicant's favour were
quashed and are no longer enforceable under domestic law. However, on
15 May 2006 and 5 March 2007 the domestic court awarded the applicant
social payments arrears, including the amounts which were due to him
under the judgments of 28 April 2003 and 19 February 2004. The
court therefore considers that the enforcement of the judgments of 15
May 2006 and 5 March 2007 will constitute the appropriate redress for
the violations found. It therefore considers that the Government
should secure, by appropriate means, the enforcement of the awards
under the judgments of 15 May 2006 and 5 March 2007.
- The Court further considers that the applicant must
have suffered distress and frustration resulting from the State
authorities' failure to enforce the judgments in his favour. However,
it considers that the amount claimed by the applicant is excessive.
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
2,300 euros in respect of non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim any costs and expenses and, accordingly,
there is no call to award him 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 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 the enforcement of the awards under the
judgments of 15 May 2006 and 5 March 2007;
(b) that
the respondent State shall 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 2,300 (two
thousand three hundred euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(c) 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 8 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
