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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Vladimir Mikhaylovich FURSOV v Russia - 16596/04 [2011] ECHR 2045 (22 November 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2045.html Cite as: [2011] ECHR 2045 |
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FIRST SECTION
DECISION
Application no.
16596/04
by Vladimir Mikhaylovich FURSOV
against
Russia
The European Court of Human Rights (First Section), sitting on 22 November 2011 as a Chamber composed of:
Peer
Lorenzen,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Linos-Alexandre
Sicilianos,
Erik
Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 20 March 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vladimir Mikhaylovich Fursov, is a Russian national who was born in 1957 and lives in Salsk, Rostov Region. The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk, former Representative of the Russian Federation before the European Court of Human Rights, and then by their Representative Mr G. Matyushkin.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings against the Salsk town administration
Between 2001 and 2003 the applicant was legal counsel in several child benefits cases. The domestic courts allowed all of his clients’ claims against the Salsk town administration and awarded them various sums for legal representation by the applicant.
Some of the judgments were enforced between 2001 and 2003, and the applicant received the legal fee from his clients.
On an unspecified date in 2003 the clients assigned the right to claim the enforcement of the remaining judgments to the applicant. The assignment agreements were confirmed by courts.
On an unspecified date in 2004 the bailiff service recognised the applicant as his clients’ successor in the enforcement proceedings.
According to the applicant, initially he submitted for enforcement to the bailiff service 1,342 writs of execution for the total amount of 668,012 Russian roubles (RUB). However, the Government asserted that between July 2002 and April 2004 the applicant had submitted 1,170 writs of execution for the total amount of RUB 553,441.
The parties concurred that between October 2002 and July 2003 the applicant had been paid RUB 114,570 on 172 writs of execution. The remaining writs were returned to the applicant in 2004 because the debtor had no available funds.
According to the Government, in 2005 the applicant submitted 1,118 writs of execution for the total amount of RUB 514,952. This amount was paid to the applicant in full between February and June 2005.
According to a letter from the Ministry of Labour and Social Development of 4 September 2007 and a letter from the Salsk town administration of 14 April 2010, no more writs of execution in the applicant’s favour remained pending.
2. Claim for damages incurred through the delay in the enforcement
The applicant sued the Salsk town administration for compensation in respect of pecuniary and non-pecuniary damage incurred through the delay in the enforcement. By a final judgment of 10 September 2003 the Rostov Regional Court dismissed his claims as having no basis in domestic law.
The applicant again sued the town administration for non-pecuniary damage, claiming that the failure to pay him the legal fee had violated Article 4 of the Convention. By a final decision of 15 October 2003, the Rostov Regional Court again dismissed his claims as having no basis in domestic law.
3. Proceedings against the Ministry of Finance and the Savings Bank
The applicant is the owner of several State premium bonds of 1992 having a nominal value of RUB 500 or 1,000. These bonds were issued by the Russian Government in 1992 for financing certain State programmes. According to the conditions of the issue, the bonds were to be redeemed by the Government at their nominal value by 2004 at the latest.
By the Presidential decree of 4 August 1997, the Russian rouble was denominated so that the new rouble was equivalent to 1,000 old roubles.
The Government Decree of 18 September 1997 provided that the nominal value of the State premium bonds of 1992 was to be reconsidered with reference to the denominated rouble.
On 5 November 2003 the applicant applied to the Savings Bank for redemption of his State premium bonds. The Savings Bank proposed to redeem the bonds having nominal value of RUB 1,000 for RUB 1, and bonds having nominal value RUB 500 for RUB 0.5.
The applicant sued the Ministry of Finance and the Savings Bank, claiming that he was entitled to receive RUB 1,000 or RUB 500 for each of his bonds.
On 6 May 2004 the Salsk Town Court dismissed his claims as having no basis in domestic law, with reference to the decrees of 4 August and 18 September 1997. On 11 August 2004 the Rostov Regional Court upheld the judgment on appeal.
COMPLAINTS
THE LAW
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“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.”
By a letter of 16 July 2010 the Government informed the Court that they acknowleged a delay in the enforcement of a number of judgments delivered in favour of the applicant’s clients between 2001 and 2003 and proposed to make a unilateral declaration with a view to resolving the issue. They further requested the Court to strike out the application in this part in accordance with Article 37 of the Convention.
The declaration provided as follows:
“I, Georgy Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights, hereby declare that the Russian authorities acknowledge the lengthy enforcement of the judgments of the Justice of Peace of the Town of Salsk and the Salskiy District of the Rostov Region delivered in 2001-2003 in favour of the clients of Vladimir Mikhaylovich Fursov, whose interests he represented before the domestic courts.
The authorities are ready to pay the applicant ex gratia a sum of EUR 2,200 as just satisfaction.
The authorities therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
In a letter of 6 August 2010 the applicant disagreed with the suggestion to strike his application out of the Court’s list of cases. He averred that fifty two judgments for the total amount of RUB 38,489 remained unenforced.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
The Court recalls that in its pilot judgment cited above it ordered the Russian Federation to
“grant [adequate and sufficient] redress, within one year from the date on which the judgment [became] final, to all victims of non-payment or unreasonably delayed payment by State authorities of a judgment debt in their favour who [had] lodged their applications with the Court before the delivery of the present judgment and whose applications [had been] communicated to the Government under Rule 54 § 2 (b) of the Rules of the Court.”
In the same judgment the Court also held that:
“pending the adoption of the above measures, the Court [would] adjourn, for one year from the date on which the judgment [became] final, the proceedings in all cases concerning solely the non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by the State authorities, without prejudice to the Court’s power at any moment to declare inadmissible any such case or to strike it out of its list following a friendly settlement between the parties or the resolution of the matter by other means in accordance with Articles 37 or 39 of the Convention.”
Having examined the terms of the Government’s declaration, the Court understands them as intending to give the applicant redress in line with the pilot judgment (see Burdov v. Russia (no. 2), no. 33509/04, §§ 127 and 145 and point 7 of the operative part, ECHR 2009 ...).
The Court is satisfied that the excessive length of the execution of a number of judgments adopted between 2001 and 2003 is acknowledged by the Government explicitly. The Court also notes that the compensation offered is comparable with Court awards in similar cases, taking account, inter alia, of the specific delays in the case (see Burdov (no. 2), cited above, §§ 99 and 154).
As to the applicant’s objections, the Court notes that there is nothing in the material of the case to support his stance. While the Court is not in a position to determine conclusively the number of the writs of execution submitted and the number of the judgments enforced, the documentary evidence presented by both parties lends more credence to the Government’s version of the events. Indeed, the applicant has failed to present any evidence in support of his argument, whereas the Government provided statements from several sources testifying that there were no judgments in the applicant’s favour pending execution. The applicant’s objections must therefore be rejected.
Consequently, the Court considers that it is no longer justified to continue the examination of the applicant’s complaint about non enforcement. It is also satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue the examination of this complaint. Accordingly, in this part the application should be struck out of the list.
As regards the question of implementation of the Government’s undertakings, the Committee of Ministers remains competent to supervise this matter in accordance with Article 46 of the Convention (see the Committee’s decisions of 14-15 September 2009 (CM/Del/Dec(2009)1065) and Interim Resolution CM/ResDH(2009)1 58 concerning the implementation of the Burdov (no. 2) judgment). In any event the Court’s present ruling is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the present application to the list of cases (see E.G. v. Poland (dec.), no. 50425/99, § 29, ECHR 2008 ... (extracts)).
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government did not specify their position in relation to this complaint.
The Court takes cognisance of the existence of a new remedy against excessive length of enforcement of court judgments introduced by the federal laws no. 68-ФЗ and no. 69-ФЗ on 4 May 2010 in the wake of the pilot judgment adopted in the case of Burdov (no. 2), cited above.
On 23 September 2010 the Court decided that all new cases introduced after the Burdov pilot judgment and falling within the scope of the new domestic remedy had to be submitted in the first place to the national courts (see Nagovitsyn and Nalgiyev v. Russia, nos. 27451/09 and 60650/09, § 41, 23 September 2010). The Court also stated that its position may be subject to review in the future, depending in particular on the domestic courts’ capacity to establish consistent practice under the new law in line with the Convention requirements (ibid, § 42).
The Court notes that the applicant was in principle enabled to claim compensation under the transitional provisions of the new law and that he will in any event receive pecuniary compensation in respect of his grievances in accordance with the Government’s declaration examined above.
Having regard to these special circumstances, the Court does not find it necessary to continue a separate examination of the complaint under Article 13 in the present case (see, among others, Kravchenko and Others (military housing) v. Russia, nos. 11609/05 et al., § 45, 16 September 2010).
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in respect of the complaint about non-enforcement, in accordance with Article 37 § 1 (c) of the Convention;
Decides that there is no need for separate examination of the complaint of lack of an effective remedy;
Declares inadmissible the remainder of the application.
Søren Nielsen Peer
Lorenzen
Registrar President