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FIRST
SECTION
CASE OF FURMAN v. RUSSIA
(Application
no. 5945/04)
JUDGMENT
STRASBOURG
5
April 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 Furman v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 15 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5945/04) 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, Mr Login Arsenyevich Furman
(“the applicant”), on 19 January 2004.
- 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 about the non-enforcement of the final judgment
in his favour and alleged a violation of his property rights.
- On
30 March 2006 the Court communicated the application to the
respondent 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 1945 and lives in Bolshaya Markha in the
Republic of Sakha (Yakutiya).
- In
1994 the applicant founded an individual enterprise “Pyramid”
(Частное
Индивидуальное
Предприятие
«Пирамида»).
- On 15 March 1999 he
signed an agreement with a State-owned maintenance company
“Department of housing and communal services of Yakutsk”
according to which the applicant's company undertook to perform
certain construction works for the company. Upon the completion of
the works, the maintenance company refused to pay. Following a
financial dispute, the parties signed a friendly settlement,
according to which the maintenance company owed the applicant's
company 43,517 RUR
(~ EUR 1,609).
- This settlement was
confirmed by a judgment of the Commercial Court of the Republic of
Sakha (Yakutiya) delivered on 11 June 2002, and became enforceable.
- On
25 March 2003 the bailiffs informed the applicant about the
impossibility to enforce the settlement because the maintenance
company lacked funds. On 26 March 2003 they closed the enforcement
proceedings.
- The
applicant contested the bailiffs' decision before the Commercial
Court of the Republic of Sakha but on 11 July 2003 his application
was left without consideration due to the failure to comply with the
procedural requirements.
- Meanwhile
the State-owned maintenance company changed its structure and became
a municipal maintenance company (Муниципальное
учреждение
«Дирекция
единого заказчика»).
- In
March 2004 the applicant retired, liquidated his enterprise and
closed its accounts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE
NON-ENFORCEMENT OF THE JUDGMENT IN THE APPLICANT'S FAVOUR
- The
applicant complained that the prolonged non-enforcement of the
judgment in his favour violated his “right to a court”
under Article 6 § 1 of the Convention and his
right to the peaceful enjoyment of possessions provided in Article 1
of Protocol No. 1 to the Convention. 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 ... 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.”
A. Admissibility
- The
Government contested the admissibility of the application on two
grounds: 1) the applicant failed to exhaust domestic remedies as he
had not applied to the bailiffs' service for enforcement of the
judgment after the closure of the proceedings; 2) the applicant
failed to apply for substitution of the debtor as the State-owned
company was reorganised and acquired a new structure and name.
- The
applicant did not accept that he had to file the writ of execution
for a second time to the bailiffs. He contended that he had applied
to the bailiffs' service in due course and that the Russian
Federation was responsible for the non-execution of the judgment. The
applicant made no comments as to the failure to apply for the
substitution of the debtor in his case.
- The
Court reiterates that Article 35 § 1 of the Convention, which
sets out the rule on exhaustion of domestic remedies, provides for a
distribution of the burden of proof. It is incumbent on the
Government claiming non exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see Selmouni
v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud
v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The
Court further recalls that the domestic remedies must be “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
had already occurred (see Kudła
v. Poland [GC], no.
30210/96, § 158, ECHR 2000 XI).
- The
Court notes that the validity of the judgment of 11 June 2002 against
the State maintenance company is undisputed. The Court considers
that, having obtained a judgment and an execution order against a
particular State authority, the applicant should not be required to
take any further steps in order to have it enforced. Moreover, even
assuming that the applicant would have filed the writ of execution to
the bailiffs for the second time, the underlying problem of the
non-enforcement of the judgment of
11 June 2002 would remain. The
Court concludes that such an action would not have been an effective
remedy within the meaning of Article 35 § 1 of the Convention.
- Concerning the Government's argument as to the
applicant's failure to request the substitution of the debtor, no
such action was to be demanded of the applicant. The fact that the
State-owned company changed its status and became a municipal company
did not result in a change of it's individual tax number or bank
requisites and did not lift its obligation under the judgment in the
applicant's favour. It was incumbent on the bailiffs to follow the
procedure prescribed by law for cases when the debtor was undergoing
reorganisation and to recover the debt.
- Lastly,
the Court notes that the Government accepted that in the light of the
Court's case-law, the applicant could be considered a victim of the
alleged violation of the Convention, as Mr Furman was the sole
founder and proprietor of all property of the individual enterprise
“Pyramid” and was its “higher authority”
(see, mutatis mutandis, Ankarcrona v. Sweden (dec.),
no. 35178/97, 27 June 2000).
- The Court notes, accordingly, 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 observes that on 11 June 2002 the applicant obtained a judgment
in his favour against the State-owned maintenance company. As no
appeal was lodged within the established time-limit, the judgment
became final and enforceable. However, it has not been enforced to
date.
- The
Government do not contest the State's responsibility for the debts of
the municipal enterprise arising from the judgment in the applicant's
favour (see, by contrast, Gerasimova v. Russia (dec.),
no.
24669/02, 16 September 2004). Neither did the Government contest that
the applicant's status allowed him to be a victim of the alleged
violation. However, they did not give any justification for the
prolonged non-enforcement of the judgment of 11 June 2002.
- The
applicant maintained his claims.
- 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, ECHR 2002 III, Reynbakh v. Russia, no.
23405/03, 29 September 2005).
- Having
examined the materials submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
justifying the delay in enforcement of the judgment. It finds, and
that is not disputed by the Government, that by failing for years 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 had legitimately 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
- In
respect of the pecuniary damage, the applicant claimed the amount due
to him under the judgment of 11 June 2002, which is
RUR 43 517,
and the interests thereof, the total sum amounting to
RUR
112 518. The applicant produced certificates of the National
Bank of the Republic of Sakha (Yakutiya) showing the marginal
interest rates adopted by the Central Bank of the Russian Federation
during the period from July 1998 to July 2006. He further claimed RUR
70 000 in respect of non-pecuniary damage.
- The
Government submitted that the applicant's claims relating to the
failure to execute the judgment of the Commercial Court of the
Republic of Sakha (Yakutiya) of 11 June 2002 were excessive and
unsubstantiated. In respect of non-pecuniary damage, they submit that
the finding of a violation constitutes in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the applicant.
- The
Court notes that the State's outstanding obligation to enforce the
judgment of the Commercial Court of the Republic of Sakha (Yakutiya)
of 11 June 2002 is not in dispute. Accordingly, the applicant is
still entitled to recover the principal amount of the debt in the
course of domestic proceedings. The Court recalls that the most
appropriate form of redress in respect of a violation of Article 6 is
to ensure that the applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not
been disregarded (see Makarova and Others v. Russia,
no. 7023/03, § 47, 24 February 2005 and Poznakhirina v.
Russia,
no. 25964/02, § 33, 24 February 2005). The Court
finds that in the present case the same principle applies, having
regard to the violations found. It therefore considers that the
Government should secure, by appropriate means, the enforcement of
the award made by the domestic courts. It further considers 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 (see Gizzatova v. Russia, no. 5124/03, § 28,
13 January 2005; Metaxas v. Greece, no. 8415/02, § 36,
27 May 2004). The applicant produced a certificate by the National
Bank of the Republic of Sakha (Yakutiya) showing the inflation rate
in the period from July 1998 to
July 2006. As the Government did
not comment on the applicant's method of calculation of compensation,
the Court accepts the applicant's claim in respect of the pecuniary
damage caused by inflation losses. The Court notes, nevertheless,
that the period referred to by the applicant starts when the
applicant should have received the award for his work from the
debtor, e.g. in July 1999. However, the Court considers that the
period to be taken into the consideration starts in June 2002 when
the judgment securing the friendly settlement was delivered and
entered into force. Having regard to the materials in its possession
and the fact that the Government did not furnish any objection as to
the applicant's method of calculation of compensation, the Court
awards the applicant EUR 750 in respect of pecuniary damage, plus any
tax that may be chargeable.
- The Court accepts that the applicant suffered distress
because of the State authorities' failure to enforce the judgment at
issue during four years. The Court takes into account the applicant's
claim for non-pecuniary damage, the amount and nature of the award
and the fact that the judgment has not been enforced. Making its
assessment on an equitable basis, it awards the applicant EUR 2,000
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 claims in respect of the costs and
expenses incurred before the domestic courts and before 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 § 1 of the Convention and Article 1 of Protocol No.1 to the
Convention;
- Holds
(a) that the respondent State, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, shall secure,
by appropriate means, the enforcement of the award made by the
domestic court, and in addition pay the applicant EUR 750 (seven
hundred fifty euros) in respect of pecuniary damage and EUR 2,000
(two thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(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 5 April 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
