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FIRST
SECTION
CASE OF TOKAZOV v. RUSSIA
(Application
no. 19440/05)
JUDGMENT
STRASBOURG
13 January 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Tokazov v. Russia,
The
European Court of Human Rights (First Section), sitting as a
committee composed of:
Elisabeth Steiner,
President,
Anatoly Kovler,
George Nicolaou,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 9 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19440/05) 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 Yuriy Mikhaylovich
Tokazov (“the applicant”), on 21 April 2005.
- The
applicant was represented by Ms Y.V. Akhmineyeva, a lawyer practising
in Maykop, the Republic of Adygeya. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
7 October 2008 the President of the First Section decided to give
notice of the application to the Government. In accordance with
Protocol No. 14, the application was allocated to a
Committee.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in the Krasnodar Region.
- In
August 1995 tax authorities carried out an inspection of the
enterprise owned by the applicant and found some breaches of tax law.
In September 1995 criminal proceedings were initiated against him on
suspicion of tax offence. The applicant successfully challenged the
results of the inspection in a commercial court. In June 1998 the
criminal proceedings against him were discontinued for lack of corpus
delicti.
A. Proceedings for compensation for unlawful criminal
prosecution
1. First examination of the case
- On
15 March 2001 the applicant lodged an action with the Maykop Town
Court of the Republic of Adygeya (“the Town Court”)
against the local branch of the Federal Tax Police Department of
Russia (Управление
федеральной
налоговой
полиции
Российской
Федерации
по Республике
Адыгея)
seeking compensation for unlawful criminal proceedings against him
and reimbursement of legal costs incurred before the commercial
courts and during the criminal proceedings.
- At
the first hearing that took place on 16 April 2001 the applicant
motioned for obtainment of the documents contained in his criminal
and commercial case-files. The respondent requested that the hearing
be adjourned due to its representative’s unavailability.
- The
hearings scheduled for 24 May and 4 October 2001 were postponed at
the applicant’s request, first due to the delay in arrival of
the commercial case-file and then pending the outcome of another
dispute at a commercial court.
- On
20 December 2001 the court granted the applicant’s request for
adjournment as he needed to re-calculate the amount of his claims.
- On
7 March 2002 the court granted the applicant’s motion for an
audit expert examination. The examination was completed on 14 August
2002, following which the court scheduled the next hearing for
4 December 2002.
- On
18 February 2003 the Town Court granted the claims in part. The
applicant appealed and requested that the appeal hearing be postponed
due to his illness. On 22 April 2003 the Supreme Court of the
Republic of Adygeya (“the appeal court”) overturned the
judgment on appeal for erroneous application of the substantive law,
suggested that the Town Court replace the incompetent respondent and
remitted the case for fresh examination.
2. Second examination of the case
- The
Town Court joined the local branch of the Federal Treasury of Russia
to the proceedings. On 30 June 2003 it again granted the applicant’s
claims in part. The applicant appealed and again requested that the
appeal hearing be postponed due to his illness.
- On
5 September 2003 the appeal court held that the first-instance court
had failed to implement its previous instructions and had erroneously
applied substantive law. The judgment was set aside, and a new
hearing was required.
3. Third examination of the case
- On
3 November 2003 the Town Court granted the applicant’s claims
in part.
- On
5 December 2003 the appeal court ruled that the first-instance court
had failed to adequately establish the facts of the case, reversed
the judgment and ordered new examination of the case.
4. Fourth examination of the case and the judgment of
31 March 2004
- On
10 February 2004 the Town Court terminated the proceedings in the
part concerning reimbursement of legal costs incurred before the
commercial courts and during the criminal proceedings on the ground
that those claims could not be examined in civil proceedings. The
applicant did not challenge that decision.
- On
31 March 2004 the Town Court awarded the applicant 1,982 Russian
roubles (RUB) in respect of pecuniary damage and RUB 50,000 in
respect of non-pecuniary damage, to be paid by the Ministry of
Finance. It dismissed the remainder of the applicant’s claims.
- On
14 May 2004 the appeal court held that the first-instance court had
breached substantive and procedural law. It quashed the judgment of
31 March 2004 in the part concerning compensation for pecuniary
damage and remitted that part for fresh examination to the
first instance court. It upheld the judgment in the part
awarding compensation for non-pecuniary damage.
5. Fifth examination of the case and the judgment of 20
October 2004
- On
19 July 2004 the applicant motioned for postponement of the hearing
due to his involvement in different proceedings.
- On
20 October 2004 the Town Court awarded the applicant RUB 373,578
in respect of pecuniary damage and legal costs, to be paid by the
Ministry of Finance. It dismissed the remainder of his claims.
- On
7 December 2004 the appeal court reduced the award to RUB 284,289.
B. Indexation of court awards
- On
2 June 2006 the Town Court index-linked the courts’ awards of
31 March and 20 October 2004 and awarded the applicant RUB
69,729. On 7 July 2006 the Supreme Court upheld this decision.
- On
19 June 2007 the Town Court index-linked the awards of 31 March
2004, 20 October 2004 and 2 June 2006 and awarded the applicant RUB
98,570. On 31 July 2007 the Supreme Court corrected an arithmetical
error in the decision of 19 June 2007 and held that the applicant was
to be paid RUB 39,357.
- On
10 April 2008 the Town Court index-linked the awards of 20 October
2004 and 19 June 2007 and awarded the applicant RUB 25,837. On
13 May 2008 the Supreme Court upheld this decision.
C. Enforcement of the judgments
- The
judgment of 31 March 2004 was enforced on 26 December 2006.
- The
writ of execution for the judgment of 20 October 2004, as upheld on 7
December 2004, was submitted to the Ministry of Finance on 14
February 2005. The executing authority returned the documents on
1 February 2007 to the applicant for correction of certain
defects. After the applicant failed to collect the documents from the
post office, they were remitted to the trial court on 6 June 2007.
Following the court’s failure to remedy the defects, the
documents were again sent back to it on 19 July 2007 and 7 May
2008. On 26 September 2008 the appeal court corrected an arithmetical
error and reduced the award to RUB 284,288. It was enforced on 5
February 2009.
- The
writ of execution for the decision of 2 June 2006 was returned to the
applicant by the Ministry of Finance on 19 April 2007. After
correction of defects, the decision was enforced on 10 July 2007.
- The
decision of 19 June 2007, as upheld on 31 July 2007, was enforced on
3 March 2008.
- The
writ of execution for the decision of 10 April 2008, as upheld on 13
May 2008, was returned to the applicant on 11 June 2009. After
correction of defects, the decision was enforced on 31 August 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant complained under Article 6 § 1 of the Convention that
the domestic courts had taken too long to examine his claims. The
relevant part of the provision reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Government submitted that the complaint was manifestly ill-founded
and should be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
- The
Court notes that this complaint does not appear to be 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 case had been complex in view of the
ongoing liquidation of the initial respondent and its subsequent
replacement, as well as involvement of a number of third parties.
They further contended that the applicant had borne principal
responsibility for the length of the proceedings following his
alterations of claims, request for an expert examination and motions
for adjournment of the hearings.
- The
applicant maintained his complaint.
- The
Court observes that the proceedings in the applicant’s case
commenced on 15 March 2001 and ended on 7 December 2004. They thus
lasted approximately three years and nine months, during which period
the courts examined the claims five times at two levels of
jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court considers that the applicant’s case had not been complex,
having involved a straightforward claim for damages.
- As
to the applicant’s conduct, the Court observes that indeed
during the proceedings he asked to postpone or adjourn three hearings
at the first instance and motioned for adjournment of two appeal
hearings due to his illness, which thwarted the progress of the case
to a certain extent. As to the alterations of the claims, the Court
is not convinced that the applicant abused his procedural rights and
reiterates that an applicant cannot be blamed for taking full
advantage of the resources afforded by the national law in defence of
his interests (see, mutatis mutandis, Yağcı and Sargın
v. Turkey, 8 June 1995, § 66, Series A no. 319 A).
- Turning
to the conduct of the authorities, the Court recalls that they
examined the case in five rounds of proceedings. While it does not
detect any obvious procrastination on the part of the courts in
scheduling the hearings and resolving the parties’ motions, it
takes cognisance of the fact that the first-instance judgments were
set aside on appeal four times for breaches of the law, with the
appeal court specifically pointing out that the trial court had
repeatedly made the same errors. In this respect the Court reiterates
that the Convention and its Protocols must be interpreted as
guaranteeing rights which are practical and effective as opposed to
theoretical and illusory. The right to have one’s claim
examined within a reasonable time would be devoid of all sense if
domestic courts examined a case endlessly, even if at the end the
length of proceedings per instance did not appear particularly
excessive (see, mutatis mutandis, Svetlana
Orlova v. Russia, no. 4487/04, §
47, 30 July 2009).
- Although
the Court is not in a position to analyse the juridical quality of
the domestic courts’ decisions, it considers that multiple
repetition of re-examination orders within one set of proceedings may
disclose a deficiency in the judicial system (see Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003; Matica
v. Romania, no. 19567/02, § 24, 2 November 2006; and
Falimonov v. Russia, no. 11549/02, § 58, 25 March
2008). The fact that the domestic courts heard the case several times
did not absolve them from complying with the reasonable time
requirement of Article 6 § 1 (see Litoselitis v. Greece,
no. 62771/00, § 32, 5 February 2004; and Svetlana
Orlova, cited above, § 50). The Court therefore arrives at
the conclusion that the repeated referrals of the case to the first
instance significantly contributed to the length at hand.
- While
the Court acknowledges that the total length of the proceedings was
not particularly grave and that the applicant contributed to it to a
certain extent, the Court considers that the defects in the
authorities’ conduct in the case at hand were serious enough to
lead to a breach of the “reasonable time” requirement.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention on account of unreasonable length of proceedings.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION ON ACCOUNT OF NON-ENFORCEMENT
- The
applicant also complained that the final judgments in his favour
handed down by the courts on 31 March and 20 October 2004, 2
June 2006, 19 June 2007 and 10 April 2008 had not been enforced
within a reasonable time. He relied on Articles 6 and 13 of the
Convention. The Court considers that this complaint should be
examined under Article 6 § 1, the relevant part of which reads
as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
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 asserted that the impugned judgments had been enforced
without undue delays after the authorities had received the duly
drafted documents either from the applicant or from the court.
- The
applicant maintained his complaint.
47. The Court reiterates that an
unreasonably long delay in the enforcement of a binding judgment may
breach the Convention (see Burdov v.
Russia, no. 59498/00, ECHR
2002 III). To decide if the delay
was reasonable, it will look at how complex the enforcement
proceedings were, how the applicants and the authorities behaved, and
what was the nature of the award (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
- The
Court observes that the awards were of merely monetary nature and did
not require any complex enforcement proceedings.
- It
further observes that the judgments in the applicant’s favour
were enforced with the following delays from the date when they
became final: the judgment of 31 March 2004 was enforced in two years
and nine months, the judgment of 20 October 2004 in four years and
two months, the judgment of 2 June 2006 in one year and one month,
and the judgment of 10 April 2008 in one year and three months.
The Court notes that the delays in the enforcement of the three
latter judgments had been caused by the court’s errors in
drafting of the documents and in calculations, and considers that
these cannot in any way be put down as the applicant’s
responsibility.
- Having
regard to its established case-law, the Court considers that the
authorities’ failure to comply with the above judgments within
a reasonable time breached the requirements of Article 6. There has,
accordingly, been a violation of Article 6 § 1 on this account.
- As
to the judgment of 19 June 2007, the Court observes that it was
enforced in seven months, which did not breach the standards laid
down in its case-law (see Presnyakov v. Russia (dec.), no.
41145/02, 10 November 2005). Accordingly, it does not discern a
violation of the Convention in this part of the complaint.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that the amount of compensation awarded by
the judgments of 31 March and 20 October 2004 for unlawful criminal
proceedings against him had not been sufficient to cover his
pecuniary damage and to remedy the distress suffered by him.
- Having
regard to all the materials in its possession, and in so far as this
complaint falls within its competence, the Court finds that there is
no appearance of a violation of the rights and freedoms set out in
these provisions in that respect. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 1, 3 and 4 of
the Convention.
IV. 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 30,000 euros (EUR) in respect of pecuniary damage
and an equal amount in respect of non-pecuniary damage.
- The
Government disputed the claimed amounts as unfounded and excessive.
- The
Court observes that the applicant did not provide any explanation in
respect of the claimed amount for pecuniary damage. Taking into
additional consideration the fact that the amounts awarded originally
had been index-linked at the domestic level, it rejects this claim.
- On
the other hand, the Court accepts that the applicant suffered
considerable distress and frustration both on account of the
excessive length of the proceedings and the delayed enforcement of
the judgments in his favour. Deciding on an equitable basis, it
awards the applicant EUR 6,200 in respect of non-pecuniary
damage.
B. 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 complaints concerning undue length
of the proceedings and delayed enforcement of the judgments of 31
March 2004, 20 October 2004, 2 June 2006 and 10 April 2008
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of excessive length of the
proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of delayed enforcement of
domestic judgments;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 6,200 (six thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(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 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Elisabeth Steiner
Deputy
Registrar President
