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FIRST
SECTION
CASE OF SHITIKOV v. RUSSIA
(Application
no. 10833/03)
JUDGMENT
STRASBOURG
30
November 2006
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 Shitikov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 9 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10833/03) 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 Valeriy Ivanovich
Shitikov (“the applicant”), on 20 February 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
28 February 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 FACTS
- The
applicant was born in 1945 and lives in the village of Khrenovoye in
the Voronezh region.
- On
11 September 2002 the Justice of the Peace of the 1st
Court Circuit of the Bobrovskiy District of the Voronezh Region
granted the applicant's and his wife's civil action against the
Voronezh Regional Administration and awarded them 3,026.24 Russian
roubles (RUR, approximately 100 euros). The judgment was not appealed
against and became final.
- Enforcement
proceedings were instituted but the judgement was not enforced
because the Regional Administration lacked necessary funds.
- On
29 April 2005 the Bobrovskiy District Administration Division of
Labour and Social Development transferred RUR 3,026.24 to the
applicant's wife's bank account. According to the Government, on the
same day the applicant was paid additional RUR 3,026.24 as an
adjustment of the judgment award to take account of inflation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Articles 13 and 17 of the Convention and
Article 1 of Protocol No. 1 that the judgment of 11 September 2002
had not been enforced in good time. The Court considers that this
complaint falls to be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 (see Burdov
v. Russia, no. 59498/00, § 26, ECHR 2002 III). The
relevant parts of these provisions 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...”
A. Admissibility
9. The
Government informed the Court that the Bobrovskiy District
Administration had attempted to secure a friendly settlement which
the applicant had refused. The Government indicated that the District
Administration had enforced the judgment of 11 September 2002 and had
also paid the applicant RUR 3,026.24, amounting to 100 percent
adjustment of the judgment award, to take account of inflation. The
Government provided the Court with a copy of payment order no. 175 of
29 April 2006, showing that the District Administration had
instructed its bank to transfer RUR 3,026.24 to an account according
to “attached lists”. The Government included a copy of
the list showing that RUR 3,026.24 had been credited to the
applicant's wife's account. Referring to the Court's
decision in the case of Aleksentseva and Others v. Russia (nos.
75025/01 et seq., 4 September 2003), the Government invited the
Court to strike the application out of its list of cases, in
accordance with Article 37 of the Convention.
- The applicant disagreed with the Government and
maintained his complaints. He claimed that the District
Administration had only enforced the judgment of 11 September 2002.
Neither he nor his wife had received any adjustment of the judgment
award to compensate the loss of its value.
- The Court firstly observes that the parties were
unable to agree on the terms of a friendly settlement of the case.
Whilst under certain circumstances an application may indeed be
struck out of the Court's list of cases under Article 37 § 1 (c)
of the Convention on the basis of a unilateral declaration by the
respondent Government even if the applicant wishes the examination of
the case to be continued, this procedure is not, as such, intended to
circumvent the applicant's opposition to a friendly settlement (see
Tahsin Acar v. Turkey [GC], no. 26307/95, § 76,
ECHR 2003; and Androsov v. Russia, no. 63973/00, § 44,
6 October 2005).
- Moreover,
a distinction must be drawn between, on the one hand, declarations
made in the context of strictly confidential friendly settlement
proceedings (Article 38 § 2 of the Convention and Rule 62 §
2 of the Rules of Court) and, on the other hand, unilateral
declarations made by a respondent Government in public and
adversarial proceedings before the Court.
- On
the facts, the Court observes that the Government failed to submit
any formal statement capable of falling into that category and
offering a sufficient basis for finding that respect for human rights
as defined in the Convention does not require the Court to continue
its examination of the case (see, by contrast, Akman v. Turkey
(striking out), no. 37453/97, §§ 23-24, ECHR 2001-VI).
- As regards the Government's argument that the judgment
in question have already been enforced, the Court considers that the
mere fact that the authorities complied with the judgments after a
substantial delay cannot be viewed in this case as automatically
depriving the applicant of his victim status under the Convention
(see, e.g., Petrushko v. Russia, no. 36494/02, § 16,
24 February 2005).
- As
to the Government's argument that in addition to the judgment award
the applicant received 100 percent adjustment of that award, the
Court notes that as it appears from the documents included in the
Government's memorandum, on 29 April 2006 the District Administration
had instructed the bank to credit RUR 3,026.24 to a certain account
whose holder had been indicated in the attached list. According to a
copy of the list, that sum had been transferred to the applicant's
wife's bank account. There is no evidence that any other payments,
save for the judgment award, had been made to the applicant and/or
his wife.
- In
the light of the above considerations, the Court rejects the
Government's request to strike the application out under Article 37
of the Convention.
- The
Court notes that the complaint 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 debt to the applicant had been fully paid
in April 2006.
- The
applicant maintained his complaints.
- The
Court observes that on 11 September 2002 the applicant and his wife
obtained a judgment in their favour by which they were to be paid a
certain sum of money by the Voronezh Regional Administration. The
judgment was not appealed against and became final and enforceable.
However, it was only enforced on 29 April 2006. It follows that the
judgment of 11 September 2002 remained without enforcement for
approximately three years and seven 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 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
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 for more than forty-three months 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 the increase of the judgement award of RUR 3,026.24
by two or three times in respect of pecuniary damage. He further
claimed RUR 90,000 in respect of non-pecuniary damage.
- The Government averred that the applicant's claims
should not be granted and the Court should strike the application out
of its list of cases because the applicant had turned down the
friendly-settlement offer.
- The
Court does not consider it necessary to address the Government's
request to strike the application out of the list of cases as it has
already been examined and dismissed (see paragraphs 9-16 above).
- The
Court reiterates that in the present case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in that the award in the applicant's favour had not been paid to him
in good time. It 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 Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005; Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). In this
respect, the Court observes that the applicant did not substantiate
his claim in respect of pecuniary damage. At the same time, the
Government indicated the sum of RUR 3,026.24 as an appropriate
adjustment of the judgment debt with the view to the period of
non-enforcement. Having regard to the materials in its possession and
the fact that the domestic authorities are better placed and equipped
for assessment and application of a method of calculation of
inflation losses, the Court awards the applicant RUR 3,026 in respect
of pecuniary damage, plus any tax that may be chargeable.
- The
Court further considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to enforce the judgment in his favour. 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 500 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 before 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 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 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, the following
amounts:
(i) RUR 3,026 (three thousand and twenty-six Russian roubles) in
respect of pecuniary damage;
(ii) EUR 500 (five hundred euros) in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the
date of the settlement;
(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 30 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
