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FIRST
SECTION
CASE OF ZUBAREV v. RUSSIA
(Application
no. 38845/04)
JUDGMENT
STRASBOURG
2 October
2008
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 Zubarev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38845/04) 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 Vladislav Afanasyevich
Zubarev (“the applicant”), on 9 September 2004.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Mrs V. Milinchuk, former Representatives
of the Russian Federation at the European Court of Human Rights.
- On
29 August 2006 the President of the First Section decided to give
notice of the application to the Government. He also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Obninsk, a town in the Kaluga
Region.
- As
a victim of Chernobyl, the applicant was entitled to benefits.
Considering himself underpaid, he sued the local welfare authority.
- On
19 March 2004 the Obninsk Town Court awarded the applicant arrears
and fixed new amounts of periodic payments. This judgment became
binding on 30 March 2004 but was not fully enforced.
- On
the applicant's request, on 9 March 2006 the Town Court set the
judgment aside due to newly-discovered circumstances.
- On
17 April 2006 the Town Court awarded the applicant arrears (including
sums outstanding after the judgment of 19 March 2004) and fixed new
amounts of periodic benefits.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months. Under
section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of
Finance must enforce a judgment within three months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 about the non-enforcement of the judgment of
19 March 2004. Insofar as relevant, these Articles 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 argued that this complaint was inadmissible. They
acknowledged delays in the enforcement of the judgment of 19 March
2004. But since the judgment of 17 April 2006 awarded any outstanding
amounts, they considered that the applicant's rights had been
restored.
- The
applicant maintained his complaint. He submitted that the judgment of
17 April 2006 had not been enforced in time either.
- The
Court reiterates that to deprive an applicant of his status as a
victim, the State must acknowledge a breach of his rights and afford
adequate redress (see Amuur v.
France, judgment of 25 June 1995,
Reports of Judgments and Decisions
1996-III, § 36). In the present
case, the judgment of 17 April 2006 awarded the applicant outstanding
benefits. It did not, however, award him pecuniary or non-pecuniary
damages for the delayed enforcement of the earlier judgment. For this
reason, the Court cannot accept this measure as an “adequate
redress”. It follows that the application cannot be rejected as
incompatible ratione personae
with the provisions of the Convention.
- 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 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). To decide if the delay was
reasonable, the Court will look at how complex the enforcement
proceedings were, how the applicant and the authorities behaved, and
what the nature of the award was (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
- In
the case at hand the enforcement of the judgment of 19 March 2004
lasted one year and eleven months: from the
date when it became binding to the date when it was set aside on the
applicant's request.
17. This
period is prima facie incompatible with the requirements of
the Convention, and the Government have not provided any plausible
justification for the delay.
- There
has accordingly been a violation of Article 6 § 1 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 pecuniary damage, the applicant claimed 10,112.53 Russian
roubles (RUB). This sum represented his inflationary loss. The
Government considered this claim unsubstantiated.
- Having
regard to the information at its disposal, the Court estimates the
applicant's pecuniary damage at 300 euros (EUR). It accordingly
awards this sum under this head.
- In
respect of non-pecuniary damage, the applicant claimed EUR 4,100. The
Government considered this claim excessive and suggested that any
possible award should be equal to the one in the case of Burdov v.
Russia.
- The
Court accepts that the applicant might have been distressed by the
non-enforcement of the judgment. Making its assessment on an
equitable basis, the Court awards EUR 1,600 under this head.
B. Costs and expenses
- The
applicant also claimed RUB 1,034.10 for the costs and expenses
incurred before the Court. The Government considered this claim
reasonable and substantiated.
- According
to the Court's case-law, 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the
considers it reasonable to award the sum of EUR 30 for the
proceedings before the Court.
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;
- Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 300 (three hundred euros),
plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 1,600 (one thousand six
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(iii) EUR 30 (thirty euros), plus
any tax that may be chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount[s] 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 2 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
