FIRST SECTION

CASE OF KALEYEV v. RUSSIA

(Application no. 14521/05)

JUDGMENT

STRASBOURG

12 November 2015

This judgment is final but it may be subject to editorial revision.

In the case of Kaleyev v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Julia Laffranque,
	Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 20 October 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 14521/05) 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”) on 3 November 2004 by a Russian national, Mr Vyacheslav Nikolayevich Kaleyev (“the applicant”).
2.  The applicant was represented by Ms M. Misakyan, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  On 27 August 2010 a part of the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1975 and lives in Norilsk.
5.  The applicant was convicted in 1998 and 2000; having partially served his sentence of 2000, he was released on parole.in 2002.
6.  On 14 October 2003 the police carried out a test buy of drugs from the applicant, searched his flat and seized, in particular, the drugs, an audio system and 9,000 Russian roubles (RUB).
7.  On 21 November 2003 the Norilsk town court (“the town court”) retroactively upheld the seizure of the audio system and RUB 9,000 for securing an eventual confiscation order. A sum of RUB 1,500 was also seized on an unspecified date. The investigator deposited the audio system to the police warehouse; the sum of RUB 10,500 was deposited onto the police bank account.
8.  The applicant was charged with drug-related crimes. On an unspecified date the investigation file was transferred to the town court for trial.
9.  On 3 March 2004 the applicant’s retained lawyer Mr B. failed to attend a trial hearing. The town court rescheduled the hearing on 12 March 2004.
10.  On 12 March 2004 Mr B. again failed to attend the hearing; the trial court appointed Ms V., a legal-aid lawyer, to represent the applicant. It follows from the trial record that the applicant did not indicate any failings on the part of Ms V. to the trial court.
11.  At some point between 12 and 30 March 2004 the applicant decided to replace Mr B. with Ms M. as his retained lawyer.
12.  On 30 March 2004 the town court held the second hearing. It convicted the applicant of a drug‑related offence and procurement and possession of firearms and sentenced him to ten years’ imprisonment. The town court ordered that RUB 10,500 and the audio system be confiscated as “unlawfully acquired”.
13.  On 6 July 2004 the Krasnoyarsk regional court (“the regional court”) quashed the conviction for procurement and possession of firearms and reduced the applicant’s sentence for the drug‑related crime to nine years and six months’ imprisonment. In the remaining part the judgment of 30 March 2004 was upheld and became final and enforceable.
14.  On 3 November 2004 the applicant sent an introductory letter to the Court in which no specific complaint was raised.
15.  On 15 November 2004 the sum of RUB 10,500 was added to the State budget.
16.  On 6 June 2005 the applicant sent to the Court a completed application form complaining for the first time that Mr B. had not represented him on 12 March 2004.
17.  On 3 November 2005 the audio system was sold for RUB 2,274.30; the proceeds were added to the State budget.
18.  On 21 April 2006 the town court brought the applicant’s sentences for the crimes committed in 2000 and 2004 into conformity with the amendments in law; the decision was upheld on appeal on 20 June 2006.
19.  On 20 June 2007 the applicant complained to the Court for the first time about the order to confiscate his property contained in the judgments of 30 March and 6 July 2004.
20.  On 11 November 2007 the presidium of the regional court delivered two separate supervisory review rulings: one in respect of the decisions bringing the sentences of 2000 and 2004 into conformity with the new law, by which it mitigated the sentences on technical grounds, and one in respect of the judgments of 30 March and 6 July 2004. In the latter the presidium briefly confirmed lawfulness of the applicant’s conviction and declared the judgments unlawful in the part concerning confiscation of the applicant’s property, which it remitted for a fresh examination in the first instance.
21.  On 5 May 2008 the town court decided that RUB 10,500 should be repaid and the audio system should be returned to the applicant. The decision became final and enforceable. On the same date a writ of execution was issued.
22.  On 11 July 2008 the bailiffs’ service opened enforcement proceedings in respect of the writ of 5 May 2008. No further actions to ensure enforcement were taken.
23.  The final decision of 5 May 2008 remained unenforced as the audio system had been sold and the money sent to the State budget.
24.  On 29 April 2009 the Registry of the Court requested the applicant to produce a copy of the trial record.
25.  The applicant asked the town court for a copy; the request was denied as the applicant had already been provided with a free‑of-charge copy and had failed to pay a court fee for an additional one as required by domestic regulations.
26.  On 29 May 2009 the applicant informed the Court that he had been trying to obtain a copy of the record. Later he succeeded at that.
27.  On 8 November 2010 the Norilsk town prosecutor’s office criticised the bailiffs’ failure to act and issued an instruction ordering them to take measures to enforce the decision of 5 May 2008.
28.  On 24 November 2010 the town court changed the manner of execution of the decision of 5 May 2008 in respect of the audio system and decided that the applicant should be paid RUB 2,274.30, the sum for which the audio system had been sold.
29.  The decision of 5 May 2008 remained unenforced.
II.  RELEVANT DOMESTIC LAW
30.  For the relevant provisions of the domestic law regarding the enforcement of final judgments, see Burdov v. Russia (no. 2) (no. 33509/04, §§ 22 and 26-29, 15 January 2009), and Gerasimov and Others v. Russia (nos. 29920/05, 3553/06, 18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11, 45381/11, 55929/11 and 60822/11, §§ 92-97, 1 July 2014).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF NON‑ENFORCEMENT
31.  The applicant complained about non-enforcement of the decision of 5 May 2008. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read in so far as relevant 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.”
32.  The Government submitted that the applicant had failed to exhaust effective domestic remedies available to him as he had not instituted any proceedings under Federal Law № 68-ФЗ of 30 April 2010 of 30 April 2010 (in force from 4 May 2010) (“the Compensation Act”). They further stated that the writ of execution of 5 May 2008 in respect of RUB 10,500 and the audio system had remained unenforced as the bailiffs “had taken no actions aimed at enforcement of the writ” and that on 8 November 2010 the Norilsk town prosecutor’s office had noted that failure.
33.  The applicant insisted that the Compensation Act would not be an effective remedy in his case as he had lodged the application with the Court long before its adoption and maintained his complaint about the lengthy non‑enforcement of the decision in his favour.
A.  Admissibility
34.  Turning to the Government’s plea of non-exhaustion, the Court notes that the decision of 5 May 2008 provided, in particular, that the applicant be returned the audio system. It follows that in the present case the judicial award imposed an obligation in kind on the relevant domestic authorities and was not limited to monetary payments against the State. The Court has already found that there is no effective domestic remedy in Russia allowing acceleration of – or compensation for – delayed enforcement of domestic judgments delivered against State authorities in all cases that do not fall within the scope of the Compensation Act, which is limited to judgments ordering monetary payments from the State budget (see Gerasimov and Others, cited above, § 165). The Court accordingly considers that the applicant had no prospects of success were he to attempt to institute proceedings under the Compensation Act prior to 24 November 2010.
35.  In any event, the Court reiterates that it would be unfair to request the applicants, whose cases have already been pending for many years in the domestic system and who have come to the Court to seek relief, to bring their claims before domestic tribunals again (see Burdov (no. 2), cited above, § 144). In line with this principle, the Court decides to proceed with the examination of the applicant’s complaint (see Kazmin v. Russia, no. 42538/02, §§ 69-71, 13 January 2011; Buldakov v. Russia, no. 23294/05, § 34, 19 July 2011; and Nosov and Others v. Russia, nos. 9117/04 and 10441/04, § 42, 20 February 2014).
36.  The Court further notes that the non-enforcement complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
37.  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). In the present case, the State has avoided enforcing the final decision on the applicant’s favour for several years, which is prima facie incompatible with the Convention requirements (see, among others, Kozodoyev and Others v. Russia, nos. 2701/04 et al., § 11, 15 January 2009, and Tkhyegepso and Others v. Russia, nos. 44387/04 et al., § 17, 25 October 2011). The Government did not provide any argument to the contrary and admitted that the domestic prosecutors had criticised the bailiffs’ failure to enforce the judgment of 5 May 2008.
38.  Regard being had to its well-established practice, the Court considers that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
II.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (C) OF THE CONVENTION
39.  The applicant complained that at the hearing of 12 March 2004 he had not been represented by a lawyer of his choosing, namely Mr B. The complaint falls to be examined under Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(c)  to defend himself in person or through legal assistance of his own choosing...”
40.  The Government stated that the six-month rule had been complied with. They further stated that Mr B. had failed to attend two trial hearings and that the town court had appointed Ms V. to avoid undue protraction of the proceedings. They pointed out that neither the applicant nor Ms V. had complained to the town court of being be poorly prepared for the hearings of 12 and 30 March 2004. Moreover, the applicant had never complained to the town court about any failings on Ms V.’s part. At the hearing of 30 March 2004 he applicant had been represented by Ms V. and Ms M. The Government concluded that overall fairness of the proceedings had not been affected in the present case.
41.  The applicant submitted that on 12 March 2004 he had expressed his had orally objected to the appointment of Ms V. but the town court had failed to note the objection in the trial record. Ms V. had been passive throughout the hearing of 12 March 2004.
42.  The Court reiterates at the outset that, in contrast with an objection on the basis of non‑exhaustion of domestic remedies (which must be raised by the respondent Government), it is not open to it to dispense with the application of the six-month rule solely because the respondent Government have not made an objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III).
43.  Article 35 § 1 of the Convention permits the Court to deal with a matter only if the relevant application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002).
44.  The Court observes in this respect that the original criminal proceedings against the applicant ended on 6 July 2004 (see paragraph 13 above), that is, clearly more than six months before 6 June 2005, the date on which the complaint about replacing Mr B. with Ms V. was raised for the first time before the Court (see paragraphs 14 and 16 above).
45.  The Court notes in this connection that it has already established that the proceedings for bringing a sentence into conformity with the new criminal law do not involve a “determination of a criminal charge” against an applicant (see Zheltkov v. Russia (dec.), no. 12607/03, 30 March 2010). Accordingly, the decisions of 21 April and 20 June 2006 (see paragraph 18 above) should not be taken into account for the purposes of the six‑month rule.
46.  Furthermore, the Court considers that in the circumstances of the present case the supervisory‑review procedure before the presidium of the regional court that ended with the ruling of 11 November 2007 (see paragraph 20 above) should not be considered as an integral part of the criminal proceedings against the applicant capable of restoring the six‑month time‑limit on the following grounds. Firstly, the presidium did not re‑examine the charges against the applicant and focused on the issue of confiscation of his property. Secondly, it appears from the materials at the Court’s possession that the applicant did not raise the issue of Mr B.’s replacement with Ms V. in his supervisory review request.
47.  Accordingly, the Court finds that the complaint under Article 6 §§ 1 and 3 (c) is lodged out of time.
48.  It follows that this part of the application is inadmissible on the grounds of non‑compliance with the six-month rule set out in Article 35 § 1, and must be rejected pursuant to Article 35 § 4 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF CONFISCATION OF THE APPLICANT’S PROPERTY
49.  The applicant complained about the court order to confiscate his property for the first time in his letter of 20 June 2007. He invoked in substance Article 1 of Protocol No. 1.
50.  The Government submitted that the applicant had lost victim status in respect of this complaint owing to the fact that the confiscation order had been quashed on 5 May 2008.
51.  Bearing in mind the principles governing the application of the six‑month rule (see paragraphs 42 and 43 above), the Court observes that the judgment of 30 March 2004 containing the confiscation order became final on 6 July 2004 (see paragraph 13 above). Considering that the applicant raised the issue before the Court for the first time long after the expiry of the six-month period (see paragraph 19 above), the Court finds that this complaint is lodged out of time. In such circumstances it does not deem it necessary to examine the issue of victim status.
52.  It follows that this part of the application is inadmissible on the grounds of non‑compliance with the six-month rule set out in Article 35 § 1, and must be rejected pursuant to Article 35 § 4 of the Convention.
IV.  ARTICLE 34 OF THE CONVENTION
53.  The applicant vaguely claimed that he had had difficulties in obtaining a copy of the trial record at the Registry’s request. This grievance falls to be examined under Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
54.  The Government submitted that the applicant’s lawyer had taken copies of all documents in the criminal file. When the applicant had asked for an additional copy on 26 June 2009, he had not specified that the request had been made in connection with his application pending before the Court. Given that he had not paid a fee for an additional copy as required by domestic rules, the town court had instructed him to correct the omission. The Government concluded that there had been no hindrance with the applicant’s right of petition.
55.  The applicant maintained his complaint.
56.  The Court considers that a requirement to pay a fee for an additional copy of court documents could not be considered as such as a form of hindrance with the right of individual petition on the part of the respondent State’s authorities.
57.  In such circumstances the Court is not persuaded that there is sufficient basis on which to find any hindrance of the right of individual petition in the present case and decides not to pursue the matter (see Charalambous and Others v. Turkey (dec.), nos. 46744/07, 16622/08, 29673/08, 37368/08, 45656/08, 4584/10, 4649/10, 4852/05, 5189/10, 5210/08, 5247/08, 5270/08, 5277/08, 5281/08, 59490/09, 60676/08, 60678/08, 60688/08, 60696/08, 60719/08, 60734/08, 60742/08, 60771/08, 6081/10, 7048/08, 7086/08, 7439/08, 7512/08, 7839/10, § 74, 3 April 2012; and Beçaj v. Albania (dec.), no. 1542/13, § 44, 24 June 2014).
V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
58.  The applicant raised a number of other complaints under various Convention provisions. Having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
59.  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
60.  The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.
61.  The Government considered the amount claimed to be excessive.
62.  The Court finds it appropriate to award the applicant EUR 6,000 in respect of non-pecuniary damage and rejects the remainder of his claims.
B.  Costs and expenses
63.  The applicant also claimed EUR 1,500 in legal fees for the costs and expenses incurred before the Court. He did not provide any documents in support of his claim.
64.  The Government submitted that the claim under this head was not supported by any evidence.
65.  The Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Considering that the applicant has failed to substantiate his claims with relevant documents, it rejects the claim in full.
C.  Default interest
66.  The Court considers it appropriate that the default interest rate 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,
1.  Decides not to pursue the matter of the alleged hindrance with the right of individual petition;

2.  Declares the complaint concerning non-enforcement of the decision of 5 May 2008 admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Khanlar Hajiyev
	Deputy Registrar	President