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FIRST
SECTION
CASE OF BRAGINA v. RUSSIA
(Application
no. 20260/04)
JUDGMENT
STRASBOURG
1
February 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 Bragina v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A.
Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 11 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20260/04) 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, Ms Tatyana Ivanovna Bragina
(“the applicant”), on 8 May 2004.
- The
applicant was represented by Mr V.I. Tarnarutskiy, a lawyer
practising in Voronezh. The Russian Government (“the
Government”) were represented by Mr P. Laptev, Representative
of the Russian Federation at the European Court of Human Rights.
- On
13 October 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 CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Voronezh.
- She
brought civil proceedings against her local authority requesting
arrears of child benefit due to her.
- On
9 June 2000 the Zheleznodorozhny District Court of Voronezh granted
her claims and awarded her the arrears in the amount of
2,040.02 roubles (RUR). The judgment was not appealed against
and became final on 20 June 2000.
- On
an unspecified date a writ of execution was issued.
- On
26 July 2001 the writ was returned to the applicant by the bailiff's
service owing to a lack of funds in the debtor's account.
- The
applicant forwarded the writ of execution to the debtor's bank and
requested it to debit the sum due from the debtor's account, but the
bank refused.
- She
then brought proceedings against the bank claiming damages for its
refusal to enforce the judgment of 9 June 2000.
- On
17 April 2003 the Justice of the Peace of the Second Circuit of the
Central District of Voronezh dismissed the applicant's claims on the
ground that the bank had not been at fault in refusing to enforce the
judgment of 9 June 2000. On appeal, the judgment was upheld by the
Central District Court of Voronezh on 10 November 2003.
- In
February 2004 the applicant received RUR 1,110.36 in execution of the
judgment of the Zheleznodorozhny District Court of Voronezh of 9 June
2000.
- On
13 December 2005 she received the outstanding balance of RUR 929,66,
thus completing full execution of the judgment.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- In
their observations, the Government invited the Court to strike out
the application in accordance with Article 37 of the Convention on
account of the applicant's refusal to accept a friendly settlement.
- The
Court observes at the outset that the parties were unable to agree on
the terms of a friendly settlement of the case. It reiterates that
under certain circumstances an application may indeed be struck out
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 (see
Tahsin Acar v. Turkey [GC] (preliminary issue),
no. 26307/95, § 76, ECHR 2003-VI). It notes,
however, that this procedure is an exceptional one and is not, as
such, intended to circumvent the applicant's opposition to a friendly
settlement.
- Furthermore,
the Court observes that 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 (see Androsov
v. Russia, no. 63973/00, § 45, 6 October 2005).
- On
the facts, the Court observes that the Government have failed to
provide it with any formal statement capable of falling into the
latter category and offering a sufficient basis for finding that
respect for human rights as defined in the Convention does not
require it to continue with its examination of the case.
- That
being so, the Court rejects the Government's request to strike the
application out under Article 37 of the Convention and will
accordingly pursue its examination of the admissibility and merits of
the case.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 about the prolonged failure to execute the judgment
in her favour. Article 6, in so far as relevant, provides as follows:
“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 reads as follows:
“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 judgment of the Zheleznodorozhny
District Court of Voronezh of 9 June 2000 was fully executed.
- The
applicant argued that she retained victim status in respect of the
alleged violation of Article 6 of the Convention and Article 1 of
Protocol No. 1 notwithstanding the fact that the judgment of the
Zheleznodorozhny District Court of Voronezh of 9 June 2000 was
fully executed, because the execution proceedings had taken too long.
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 notes that the delay in executing the judgment in the
applicant's favour totalled approximately five years. 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 those in the present case (see, among other authorities,
Burdov v. Russia, no. 59498/00, ECHR
2002-III;
Androsov, cited above; and Gorokhov and Rusyayev v. Russia,
no. 38305/02, 17 March 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 years to execute the final judicial decisions in the
applicant's favour the domestic authorities deprived the provisions
of Article 6 § 1 of all useful effect and prevented her from
receiving the money she could reasonably have expected to receive.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention and of Article 1 of Protocol No. 1.
III. 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 did not specify the amount she sought to obtain for
pecuniary damage, but requested the Court to adjust her judgment debt
by a coefficient of 150 % on account of inflation plus RUR 450. She
submitted a certificate by the Department of Statistics of the
Voronezh Region confirming the inflation rate in the period between
January 1997 and January 2006. In this regard she referred to the
case of Shestopalova and Others v. Russia, no. 39866/02, § 30,
17 November 2005. The applicant also claimed that she had
suffered non-pecuniary damage as a result of the violation. However,
she did not specify a particular amount and submitted rather confused
calculations.
- As
regards the applicant's claim for pecuniary damage, the Government
noted, firstly, that in their opinion damage should be determined
only on the basis of the specific circumstances of the present case.
Any references to the Court's case law in this regard were
irrelevant. They further stated that, having regard to the
certificate submitted by the applicant, the maximum amount of
compensation for pecuniary damage she could obtain in domestic
proceedings would be RUR 1,894.61. However, they said that she had
not lodged a claim for compensation before the domestic courts and,
therefore, had failed to make use of the available domestic remedy.
- As
regards the applicant's claim for non-pecuniary damage, the
Government noted, firstly, that the applicant had not specified the
amount. They accepted that she might have suffered distress as a
result of the State authorities' failure to enforce the judgment in
her favour during several years. However, they said that, should the
Court find a violation, that would in itself constitute sufficient
just satisfaction (Tolokonnikova v. Russia, no. 24651/03, 17
November 2005).
- The
Court finds that some pecuniary loss must have been occasioned by
reason of the period that elapsed between the date the judgment
became enforceable and the date of its execution (see, among other
authorities, Poznakhirina, cited above, § 34; Makarova
and Others v. Russia, no. 7023/03, 24 February 2005, §
38; and Shestopalova and Others v. Russia, cited above, §
32). Having regard to the material in its possession, the Court
awards the applicant EUR 70 for pecuniary damage, plus any tax that
may be chargeable on that amount.
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the State authorities' failure to execute
a final judicial decision in her favour, and that this cannot be
sufficiently compensated for by the finding of a violation. The Court
has taken into account the award it made in the case of Burdov
(cited above), the nature of the decision whose non execution
was at issue in the present case, the delay in the execution
proceedings and other relevant considerations. Making its assessment
on an equitable basis, it awards the applicant EUR 3,000 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 claim in respect of the costs and expenses
incurred before the domestic courts and before the Court within the
time-limits set by the Court.
- Accordingly,
the Court makes no award 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, EUR 70 (seventy euros) in respect of pecuniary damage and
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the
date of settlement, plus
(b) any tax that may be chargeable on the above amounts;
(c) 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 1 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr Kovler
is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE KOVLER
I
share the conclusion of the Chamber that there has been a violation
of Article 6 of the Convention and Article 1 of the Protocol No.1: by
failing to execute final court decisions in the applicant's favour
for 66 months, the national authorities deprived the above provision
of the Convention of all useful effects and prevented the applicant
from receiving the child benefits due to her.
My
problem is the application of Article 41 of the Convention. In
similar cases of non-enforcement of judgments of national courts
concerning the child benefits (see inter alia Pozhakhirina
v. Russia, 25964/01, Judgment of 6 July 2005; Suntsova v.
Russia, 55687/00, Judgment of 17 November 2005, Bratchikova v.
Russia, 66462/01, Judgment of 12 April 2006 and 9 similar
judgments adopted the same day in the cases from the same region) the
Court considered that having regard to the nature of the breach in
these cases (child benefits not constituting the main source of
income) finding a violation constituted in itself sufficient just
satisfaction for any non-pecuniary damage sustained by the applicant.
But the repeated character of this kind of violation, the increasing
amount of non-paid sums and prolonged period of non-enforcement
justify the Court's new approach: in Bragina judgment as in 6 other
judgments of the same nature (Nartova v. Russia, 33685/05,
Deykina v. Russia, 33689/05; Lyudmila Aleksentseva v.
Russia, 33706/05; Voloskova v. Russia, 33707/05; Zaichenko
v. Russia, 33720/05; Voronina v. Russia, 33728/05) the
Court decided to apply the principle of non-pecuniary damage
established in the case of Burdov v. Russia, so the non-paid
child benefits are now considered an integral part of the applicant's
income. I agree with this solution but I would like to see more
detailed arguments of this “old new” approach than those
given in
§ 31 of the Judgment.
