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FIRST
SECTION
CASE OF ALEKSANDR IVANOV v. RUSSIA
(Application
no. 3436/05)
JUDGMENT
STRASBOURG
8
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 Aleksandr Ivanov 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 K. Hajiyev,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 18 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3436/05) 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 Aleksandr Vasilyevich
Ivanov (“the applicant”), on 16 December 2004.
- The
applicant was represented before the Court by
Mr M. Melnichenko,
a lawyer practising in the Orenburg Region. The Russian Government
(“the Government”) were represented by
Mr P.
Laptev, Representative of the Russian Federation at the European
Court of Human Rights.
- The
applicant complained, under Article 6 of the Convention and Article 1
of Protocol No. 1, about continued non-enforcement of a judgment in
his favour.
- 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 CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in the Orenburg Region.
- In
May 2003 the applicant, a retired military officer, sued the Military
Department of the Orenburg Region for an increase of his pension and
compensation for pecuniary damage.
- On
21 May 2003 the Totskiy District Court of the Orenburg Region allowed
the applicant's action and awarded him 21,677.10 Russian roubles
(RUR, approximately 602 euros). The judgment was not appealed
against.
- In
October 2003 the applicant submitted a writ of execution to the
bailiffs' service. The bailiffs' service opened enforcement
proceedings.
- On
22 December 2003 the bailiffs' service discontinued the enforcement
proceedings because the debtor had no available funds.
- On
13 March 2005 the Military Department transferred the amount due into
the applicant's bank account.
- On
16 May 2005 a prosecutor decided not to institute criminal
proceedings against the head of the Military Department for his
failure to enforce the judgment, finding that he had not acted with
intent.
THE LAW
I. 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 that the judgment of 21 May 2003 had not been
enforced in good time. The relevant parts of the invoked 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
- The Government claimed that the applicant was no
longer a “victim” of the alleged violation because the
judgment of 21 May 2003 had been enforced and because the Military
Department had offered him to enter into a friendly settlement. The
applicant had rejected the offer and made a counter-offer for a
bigger amount.
- 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 had 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 status as a “victim” under
the Convention (see, e.g., Petrushko v. Russia, no. 36494/02,
§ 16, 24 February 2005).
- Accordingly,
the Court dismisses the Government's argument that the applicant is
no longer a “victim” of the alleged violation.
- 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
applicant maintained that the delay in enforcement had been
excessively long and that the bailiffs had not used the legal means
available to them for compelling the Military Department to make
payment.
- The
Government stressed that at the material time the Military Department
had experienced financial difficulties and that the judgment had been
eventually enforced.
- The
Court observes that on 21 May 2003 the applicant obtained a judgment
in his favour by which he was to receive a certain sum of money from
the Military Department. The judgment was not appealed against and
became enforceable ten days later. However, the debt was only paid on
13 March 2005. It follows that the judgment of 21 May 2003
remained without enforcement for almost two 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 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 an extended period of time, 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 5,000 euros (EUR) in respect of non-pecuniary
damage. He also claimed an unspecified amount in respect of pecuniary
damage, representing the adjustment of the original award in line
with inflation on the basis of the marginal interest rate of the
Russian Central Bank.
- The
Government submitted that a finding of a violation would constitute a
sufficient just satisfaction and that, in any event, the award should
not exceed the original debt.
- The
Court notes that the applicant did not indicate the exact amount he
claimed in respect of pecuniary damage. Nor did he produce the
elements – such as information on fluctuation of the Central
Bank's interest rate – which would have enabled the Court to
calculate the award in a precise manner. Accordingly, the Court
rejects his claim in respect of pecuniary damage.
- The
Court, however, considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to enforce the judgment in his favour. Taking into account
the relevant aspects, such as the length of enforcement and the
nature of the award, and making its assessment on an equitable basis,
it awards the applicant EUR 1,600 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed RUR 2,000 for his representation before the
Court. He submitted a copy of the contract with his representative.
- The
Government did not make specific comments.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only 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 the above criteria, the Court considers it
reasonable to award the amount claimed, that is, RUR 2,000, plus any
tax that may be chargeable on it.
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) EUR 1,600 (one thousand six hundred euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of the settlement;
(ii) RUR 2,000 (two thousand Russian roubles) 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 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
