European Court of Human Rights

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37059/05
by Sergey Fedorovich KOLESNIKOV
against Russia

The European Court of Human Rights (First Section), sitting on 13 November 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 20 September 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Fedorovich Kolesnikov, is a Russian national who was born in 1937 and lives in Mezhdurechensk, a town in the Kemerovo Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant obtained five judgments against his former employer, a private company: on 9 March 2000, 25 April 2001, 28 May 2001, 31 May 2001, and 24 May 2002 the Mezhdurechensk Town Court awarded the applicant a total of 59,728 Russian roubles (RUB). These judgments became binding respectively on 8 June 2000, 5 May 2001, 8 June 2001, 11 June 2001, and 11 June 2002.

In July 2002 the company was subjected to insolvency proceedings, and in November 2002 bailiffs passed the enforcement papers to the liquidation committee.

Dissatisfied that the enforcement had been taking longer than expected, the applicant sued the bailiffs for negligence. On 25 December 2003 the Town Court held that two bailiffs who had been in charge of the enforcement until January 2002 had not taken all requisite enforcement measures.

On the basis of that finding, the applicant sued the Ministry of Justice (the authority responsible for the bailiffs) for pecuniary damage caused by the bailiffs’ negligence. On 19 February 2004 the Tsentralnyi District Court of Kemerovo rejected this claim, because the damage had stemmed from the company’s insolvency, and not from the bailiffs’ omissions. On 14 May 2004 the Kemerovo Regional Court upheld this judgment.

In June 2006 the company was liquidated, and the judgments remain unenforced to date.

B.  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.

COMPLAINT

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the bailiffs had failed to enforce the judgments.

THE LAW

The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgments. 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.”

The Government argued that this complaint was inadmissible. The debtor company had been private, hence the State’s role had been no more than to urge the company to comply with the judgments. The bailiffs had done all they could to enforce the judgment. Their omissions recognised by the domestic court had been technical. The non-enforcement had been caused by the company’s insolvency.

The applicant maintained his complaint. The bailiffs’ negligence had been confirmed by the domestic court.

In the present case, domestic law offered the applicant an opportunity to sue the bailiffs for negligence and pecuniary damage. The applicant has taken this opportunity, and the final domestic decision was given on 14 May 2004, whereas the application was introduced on 20 September 2005.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President