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FIRST
SECTION
CASE OF OOO PKG “SIB-YUKASS” v. RUSSIA
(Application
no. 34283/05)
JUDGMENT
STRASBOURG
8
November 2007
Request
for referral to the Grand Chamber pending
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 OOO PKG “Sib-YUKASS” v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr S.E. Jebens,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 18 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34283/05) 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 OOO PKG “Sib-YUKASS” (ООО
Промышленно-коммерческая
группа
“Сиб-ЮКАСС”,
“the applicant company”), on 26 August 2005.
- The
applicant was represented by Mr I. Tanzybayev, its director-general,
and by Mr O. Fedorov, a lawyer practising in Irkutsk. The Russian
Government (“the Government”) were represented by Mr P.
Laptev, the Representative of the Russian Federation at the European
Court of Human Rights.
- The
applicant company alleged that the State had failed to honour a
judgment debt.
- On
3 July 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 a Russian limited liability company having its registered
office in Irkutsk.
- On
26 August 1997 a limited liability company PKG “SVL”
(“the SVL company”) signed a fuel supply agreement with
the Primorskiy Regional Department of Housing Maintenance and Fuel
Supplies (Департамент
по
жилищно-коммунальному
хозяйству
и топливным
ресурсам
администрации
Приморского
края,
hereinafter “the housing department”).
- As
the housing department did not pay for the fuel, the SVL company sued
it for arrears and penalty.
- On
23 July 1998 the Commercial Court of the Primorskiy Region awarded
the SVL company 8,701,895.73 Russian roubles (RUB) in arrears and RUB
6,330,764.07 in penalty against the housing department.
- On
22 April 1999 the Commercial Court of the Primorskiy Region ordered
that the housing department pay the SVL company an additional penalty
of RUB 2,958,526.20.
- On
an unspecified date the housing department paid the SVL company RUB
4, 351,143.95.
- On
20 January 2000 the Commercial Court of the Primorskiy Region awarded
the SVL company RUB 3,907,856.05 by way of penalty against the
housing department.
- The
SVL company submitted three writs of execution to the bailiffs'
service. The bailiffs opened joint enforcement proceedings. They
established that the housing department owed in total
RUB 9,882,908.24 to the SVL company.
- On
8 October 2000 the SVL company sold the debt to the applicant
company. The bailiffs recognized the applicant company as the
successor of the SVL company in the enforcement proceedings.
- On
8 June 2001 the prosecutor's office of the Leninskiy District of
Vladivostok opened criminal proceedings against persons unknown on
suspicion that the writs of execution had been a forgery. On 16 July
2001 the writs were taken away from the bailiffs and attached to the
criminal case-file.
- On
19 December 2001 the bailiffs discontinued the enforcement
proceedings. On 27 March 2003 the Commercial Court of the Primorskiy
Region held that the decision of 19 December 2001 had been unlawful
and quashed it.
- By
letter of 5 November 2003, the Ministry of the Internal Affairs
informed the applicant company that the criminal case into forgery of
the writs of execution had been opened unlawfully. On an unspecified
date in 2004 the criminal proceedings were discontinued and the writs
of execution were returned to the applicant company.
- On 18 October 2004 the Federal Commercial Court of the
Far-Eastern Circuit changed the debtor and ordered that the
outstanding debt of RUB 9,882,908.24 should be payable by the
Primorskiy Regional Government.
- On
18 November 2004 the bailiffs' service opened enforcement proceedings
against the Primorskiy Regional Government.
- On
23 December 2004 the Commercial Court of the Primorskiy Region
allowed the debtor's request to stay the enforcement proceedings
until 1 May 2005. On 19 May 2005 the Federal Commercial Court of
the Far-Eastern Circuit upheld the decision on appeal.
- On
26 February 2006 the applicant company withdrew the writs of
execution from the bailiffs' service. On 23 March 2006 the
enforcement proceedings were discontinued and the writs were returned
to the applicant company. On the same day it received RUB 221,826.81.
- On
22 June 2006 the applicant company submitted the writs to the
financial department of the Primorskiy Regional Government. On
20 September 2006 it received RUB 9,661,081.43.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained about non-enforcement of the judgments of the
Commercial Court of the Primorskiy Region of 23 July 1998, 22 April
1999 and 20 January 2000, and the judgment of the Federal Commercial
Court of the Far-Eastern Circuit of 18 October 2004. It 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 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.
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 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 acknowledged that the delay in enforcement of the judgment
of 18 October 2004 had breached Article 6 of the Convention and
Article 1 of Protocol No. 1. However, they argued that the applicant
company had not been entitled to claim enforcement of the judgments
of 23 July 1998, 22 April 1999 and 20 January 2000
which had been made in favour of the SVL company.
- The
applicant company submitted that on 8 October 2000 it had bought the
debt from the SVL company. Since that date it had been entitled to
claim enforcement of the judgments of 23 July 1998, 22 April
1999 and 20 January 2000.
- The
Court observes that on 8 October 2000 the applicant company bought
the debt under the judgments of 23 July 1998, 22 April 1999
and 20 January 2000 from the SVL company. It became entitled to
seek enforcement of those judgments, which was confirmed by the
bailiffs' decision to recognise it as the successor in the
enforcement proceedings. The judgment of 18 October 2004 did not
confer any new entitlement on the applicant company, it only
confirmed the amount of the debt and transferred it from one State
agency to another (see paragraph 17 above). The debt had not been
paid until 20 September 2006. It follows that the enforcement
proceedings in respect of the applicant company lasted five years and
eleven months.
- 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 Reynbakh v.
Russia, no. 23405/03, § 23 et seq., 29 September
2005; Petrushko v. Russia, no. 36494/02, § 23 et
seq., 24 February 2005; Gizzatova v. Russia, no. 5124/03,
§ 19 et seq., 13 January 2005; Wasserman v. Russia,
no. 15021/02, § 35 et seq., 18 November 2004; Burdov v.
Russia, no. 59498/00, § 34 et seq., ECHR
2002 III).
-
Having regard to its case-law on the subject, the Court finds that by
failing for years to comply with the enforceable judgments the
domestic authorities violated the applicant company's right to a
court and prevented it from receiving the money it 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 11,665,146 in respect of interest on the
judgment debt for the period from 28 February 2001 to 19 September
2006 calculated at the marginal lending rate of the Russian Central
Bank.
- The
Government did not submit their comments within the established
time-limit.
- The
Court 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 judgments in the applicant company's favour had only been
enforced with a significant delay. In this connection the Court
recalls 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
Reynbakh, cited above, § 35, with further
references). The Court accepts the applicant company's claim in
respect of interest accrued on the judgment debt. It notes however
that the applicant company's calculations contained an arithmetical
mistake in that they employed 28 February 2000 instead of 28 February
2001 as the starting date. Having regard to the materials in its
possession, it awards the applicant company RUB 8,798,560, which was
equivalent to 253,560 euros (EUR) at the date on which the applicant
company lodged its claims, plus any tax that may be chargeable on
that amount. It dismisses the remainder of the claim for pecuniary
damage.
B. Costs and expenses
- The
applicant company claimed RUB 360,000 for its representation by Mr O.
Fedorov in the domestic proceedings and before the Court.
- The
Government did not submit their comments within the established
time-limit.
- According
to the Court's case-law, the applicant company is entitled to
reimbursement of its costs and expenses in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and taking into account the work
performed by the applicant company's representative in order to
obtain the enforcement of the judgments and put right the violations
at the domestic level, the Court considers it reasonable to award the
sum of EUR 10,000, 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 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant company, 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 253,560 (two hundred and fifty-three thousand five hundred and
sixty euros) in respect of the pecuniary damage;
(ii)
EUR 10,000 (ten thousand 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 8 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis
Loucaides
Registrar President
