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    You are here: BAILII >> Databases >> European Court of Human Rights >> VAKULENKO v. RUSSIA - 38035/04 [2008] ECHR 1453 (14 November 2008)
    URL: http://www.bailii.org/eu/cases/ECHR/2008/1453.html
    Cite as: [2008] ECHR 1453
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    FIRST SECTION







    CASE OF VAKULENKO v. RUSSIA


    (Application no. 38035/04)












    JUDGMENT




    STRASBOURG


    14 November 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 Vakulenko v. Russia,

    The European Court of Human Rights (First Section), sitting as a Chamber composed of:

    Christos Rozakis, President,
     Nina Vajić,
     Anatoly Kovler,
     Elisabeth Steiner,
     Khanlar Hajiyev,
     Giorgio Malinverni,
     George Nicolaou, judges,
    and Søren Nielsen, Section Registrar,

    Having deliberated in private on 21 October 2008,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in an application (no. 38035/04) 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 Larisa Ivanovna Vakulenko (“the applicant”), on 30 July 2004.

  2. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

  3. On 6 November 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The Government objected to the joint examination of the admissibility and merits, but the Court rejected this objection.

    4. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1966 and lives in Zernograd, a town in the Rostov Region.

  5. The applicant's family has modest means. By virtue of two judgments of the Justice of the Peace of the First Court Circuit of the Zernogradskiy District of the Rostov Region of 3 April 2003, a local welfare authority was to pay the applicant 438.35 Russian roubles (RUB) in subsistence allowance (адресная социальная помощь). These judgments became binding on 8 May 2003 and have been enforced by 19 December 2007.

    6. II. RELEVANT DOMESTIC LAW

  6. 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.

    7. THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

  7. The applicant complained under Articles 6 and 14 of the Convention, and Article 1 of Protocol No. 1 about the delayed enforcement of the judgments. The Court will examine this complaint under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1. Insofar as relevant, these Articles read as follows:

    8. 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

  8. The Government argued that this complaint was inadmissible. The applicant had failed to submit enforcement papers to the correct authority in time. Besides, the applicant had not exhausted such domestic remedies as a negligence complaint, a claim for non-pecuniary damages, and adjustment for the cost of living.

  9. The applicant maintained her complaint.

  10. The Court considers that the remedies cited by the Government would be ineffective. A negligence complaint would yield a declaratory judgment that would reiterate what was in any event evident from the original judgment: the State was to honour its debt. This new judgment would not bring the applicant closer to her desired goal, that is the actual payment of the judicial awards or, if appropriate, compensation for late payment (see Jasiūnienė v. Lithuania (dec.), no. 41510/98, 24 October 2000; Plotnikovy v. Russia, no. 43883/02, § 16, 24 February 2005). A claim for non-pecuniary damages has not been shown to be sufficiently certain in practice so as to offer the applicant reasonable prospects of success as required by the Convention. Likewise, the adjustment for the cost of living would not compensate pecuniary and non-pecuniary damage.

    11. It follows that this complaint cannot be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

  11. The Court notes that this complaint 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.

    12. B.  Merits

  12. 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).

    13. 13.  In the case at hand, the period of enforcement was four years and seven months: from the date the judgments had become binding to the date of the last payment. The Government argue that this period should run from the date when the applicant had submitted the enforcement papers to the correct authority, but the Court reiterates that where a judgment is against the State, the State must take the initiative to enforce it (see Akashev v. Russia, no. 30616/05, § 21–23, 12 June 2008).

  13. The above period is incompatible with the requirements of the Convention. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

    14. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

  14. The applicant complained that she had no effective domestic remedy against the non-enforcement of the judgments. Article 13 reads as follows:

    15. “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.”

  15. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

  16. The Court has found above that the remedies suggested by the Government were ineffective. There has, accordingly, been a violation of Article 13 of the Convention.

    17. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

  17. Article 41 of the Convention provides:

    18. “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

  18. The applicant claimed 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

  19. The Government contested this claim as excessive and unreasonable.

  20. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicant must have been distressed by the delayed enforcement of the judgments. Making its assessment on an equitable basis, the Court awards EUR 3,500 under this head.

    21. B.  Costs and expenses

  21. The applicant also claimed RUB 1,000 for the costs and expenses incurred before the domestic courts and the Court.

  22. The Government contested this claim as unsubstantiated.

  23. 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 Court considers it reasonable to award the sum of EUR 27 covering costs under all heads.

    24. C.  Default interest

  24. 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.

    25. FOR THESE REASONS, THE COURT UNANIMOUSLY

  25. Declares the application admissible;


  26. Holds that there have been violations of Articles 6 § 1 and 13 of the Convention, and Article 1 of Protocol No. 1;


  27. Holds

    28. (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 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    (iii)  EUR 27 (twenty-seven 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;


  28. Dismisses the remainder of the applicant's claim for just satisfaction.

    29. Done in English, and notified in writing on 14 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Søren Nielsen Christos Rozakis
    Registrar President



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