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GAYVORONSKIY v. RUSSIA - 13519/02 [2008] ECHR 222 (25 March 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/222.html
Cite as:
[2008] ECHR 222
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THIRD
SECTION
CASE OF GAYVORONSKIY v. RUSSIA
(Application
no. 13519/02)
JUDGMENT
STRASBOURG
25
March 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 Gayvoronskiy v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Anatoly
Kovler,
Alvina
Gyulumyan,
Egbert
Myjer, judges,
and Santiago
Quesada, Section Registrar,
Having
deliberated in private on 4 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 13519/02) 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 Petr Dmirtriyevich
Gayvoronskiy (“the applicant”), on 9 February 2002.
The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
Mrs V. Milinchuk.
The
applicant complained, in particular, about delays in enforcement of
several judgments in his favour.
On
12 September 2006 the Court decided to communicate the
non-enforcement complaint to the 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
applicant was born in 1946 and lives in Kaliningrad.
On
19 March 1997 the applicant was convicted of assault and battery and
sentenced to one year's imprisonment.
On
29 March 1999 the Kaliningrad Regional Court quashed the judgment of
19 March 1997 on supervisory review and discontinued the criminal
case against the applicant for the lack of corpus delicti in
his actions.
A. Proceedings for compensation for non-pecuniary
damage sustained as a result of wrongful conviction
On
11 October 2000 the Tsentralniy District Court of Kaliningrad awarded
the applicant 10,000 Russian roubles (RUB) against the Ministry of
Finance in compensation for the non-pecuniary damage sustained as a
result of wrongful conviction and unlawful detention. It also ordered
that the Ministry of Finance reimburse the legal fee paid by the
applicant in the amount of RUB 500.
On
27 December 2000 the Kaliningrad Regional Court increased the award
to RUB 20,000.
On
26 March 2001 the Presidium of the Kaliningrad Regional Court, acting
on supervisory review, increased the award to RUB 50,500. The
judgment became enforceable on the same day. On 9 August 2001 the
court issued a writ of execution.
On
17 October 2001 the applicant submitted the writ of execution to the
local office of the Ministry of Finance which forwarded the writ to
the central office of the Ministry of Finance. The Ministry of
Finance received it on 30 October 2001.
On
6 June 2002 the Ministry of Finance returned the writ to the
applicant because he had not indicated his bank details and had not
submitted a certified copy of the judgment of 26 March 2001.
On
27 July 2002 the applicant resubmitted the writ to the Ministry of
Finance. On 17 September 2002 the Ministry returned the writ to the
applicant for the same reasons as before.
On
26 September 2002 the applicant submitted the writ to the local
bailiffs' service. On 17 October 2002 the bailiffs forwarded the writ
to the Moscow bailiffs' service. On 1 January 2003 the Moscow
bailiffs' service returned the writ to the applicant and advised him
to submit it to the Ministry of Finance.
On
9 January 2003 the applicant for a third time submitted the writ to
the Ministry of Finance.
The
applicant received the award on 20 March 2003.
B. Proceedings for compensation for pecuniary damage
sustained as a result of wrongful conviction
On
24 September 2001 the Leningradskiy District Court awarded the
applicant RUB 60,753 against the Ministry of Finance as compensation
for the loss of salary during his detention, plus reimbursement of
the legal fees. The judgment became enforceable ten days later.
On 17 October 2001 the applicant submitted the writ of
execution to the local office of the Ministry of Finance which
forwarded it to the Ministry of Finance.
On
31 January 2002 the Leningradskiy District Court issued a duplicate
writ and sent it to the local bailiffs' service. On 10 September 2002
the bailiffs opened enforcement proceedings.
On
16 October 2002 the bailiffs forwarded the writ to the Moscow
bailiffs' service.
By
letter of 23 May 2003, the Moscow bailiffs' service informed the
applicant that the writ had been returned to the Leningradskiy
District Court on 28 November 2002 for corrections in the debtor's
name and address.
On
30 May 2003 the applicant asked the Leningradskiy District Court to
issue a duplicate writ of execution. The court issued a duplicate
writ on 21 July 2003.
On
31 July 2003 the applicant submitted the writ to the Ministry of
Finance.
The
applicant received the award on 17 November 2003.
C. Proceedings for compensation of pecuniary damage
sustained as a result of belated enforcement
On
19 June 2003 the Tsentralniy District Court of Kaliningrad awarded
the applicant RUB 17,018 against the Ministry of Finance in respect
of inflation losses sustained as a result of the belated enforcement
of the judgment of 26 March 2001. The judgment became enforceable ten
days later.
On
5 August 2003 the applicant submitted the writ of execution to the
Ministry of Finance.
The
applicant received the award on 3 May 2005.
D. Proceedings for compensation of non-pecuniary damage
sustained as a result of belated enforcement
On
19 August 2004 the Tsentralniy District Court awarded the applicant
RUB 1,200 against the Ministry of Finance in respect of non-pecuniary
damage sustained as a result of the belated enforcement of the
judgment of 26 March 2001.
On
10 February 2005 the applicant submitted the writ of execution to the
Ministry of Finance.
The
applicant received the award on 15 September 2006.
E. Other proceedings
The
applicant sued the Ministry of Finance for compensation for the loss
of profit during his detention. On 19 June 2001 the Tsentralniy
District Court dismissed his claims as unsubstantiated. On 25 July
2001 the Kalinigrad Regional Court upheld the judgment on appeal.
The
applicant sued the Ministry of Finance for the loss of income during
his detention. On 24 January 2002 the Tsentralniy District Court
dismissed his claim as unsubstantiated. On 27 February 2002 the
Kaliningrad Regional Court upheld the judgment on appeal.
In
2002 the applicant brought two court proceedings against the
bailiffs' service. On 31 July 2002 and 14 August 2002 the Kaliningrad
Regional Court dismissed the applicant' claims in the final instance.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The
applicant complained about the delay in enforcement of the judgments
of 26 March and 24 September 2001, 19 June 2003, and 19 August
2004. He relied on Article 6 § 1 of the Convention and Article 1
of Protocol No. 1, the relevant parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time ... 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...”
A. Admissibility
The
Government submitted that the applicant had received compensation in
respect of the pecuniary and non-pecuniary damage sustained as a
result of the belated enforcement of the judgment of 26 March
2001. Therefore, he could no longer claim to be a victim. The
applicant could have applied to a court for compensation in respect
of the pecuniary and non-pecuniary damage sustained as a result of
belated enforcement of the of the judgments of 19 June 2003 and 19
August 2004. As he had not done it, he had not exhausted domestic
remedies.
The
applicant maintained his claims.
The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, for example, Amuur
v. France, judgment of 25 June 1996, Reports of Judgments and
Decisions 1996-III, p. 846, § 36, and Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999-VI). In cases where a
judgment in the applicant's favour had been enforced with a delay,
the payment of compensation for the delay could, in principle,
constitute appropriate and sufficient redress. However, one of the
characteristics of sufficient redress relates to the amount awarded.
The Court has already had occasion to indicate that an applicant's
victim status may depend on the level of compensation awarded at
domestic level on the basis of the facts about which he or she
complains before the Court. The Court also reiterates that in order
to constitute sufficient redress, the compensation must be paid
without delays (see, mutatis mutandis, Scordino v. Italy
(no. 1) [GC], no. 36813/97, §§ 198, 202
and 209, ECHR 2006 ...; Cocchiarella v. Italy
[GC], no. 64886/01, §§ 89, 93 and 101, ECHR
2006 ...).
Turning to the facts of the present case, the Court
observes that the judgment of 26 March 2001 was enforced in full
on 20 March 2003. Subsequently, the applicant sued the Ministry
of Finance for compensation for the damage caused by the delay in
enforcement of that judgment. By judgments of 19 June 2003 and
19 August 2004, the courts granted his claims, acknowledging the
delay and ordering the Ministry of Finance to pay the applicant
compensation in respect of pecuniary and non-pecuniary damage.
With regard to pecuniary damage, the domestic courts
are clearly in a better position to determine its existence and
quantum (see Scordino, cited above, § 203). The
Court therefore will not question the findings of the domestic courts
in respect of the pecuniary damage. On the other hand, it will
assess, on the basis of the material in its possession and in the
light of its case-law, whether the compensation awarded in respect of
non-pecuniary damage was sufficient. The applicant was awarded
RUB 1,200 – which was equivalent to approximately 35 euros
(EUR) at the date of the adoption of the judgment – for the
two-year delay in enforcement. The Court observes that this amount is
approximately one per cent of what it has normally awarded in similar
cases against Russia. It therefore considers that the compensation
awarded to the applicant in respect of non-pecuniary damage was
insufficient (compare Scordino, cited above, §§
214 and 215).
The
Court further notes that the compensatory judgments were not enforced
in good time, as it took the domestic authorities about two years to
effect the payments.
Having
regard to the insufficient amount of the compensation in respect of
non-pecuniary damage sustained as a result of the delay in
enforcement of the judgment of 26 March 2001, which moreover was
not paid promptly, the Court finds that the applicant did not receive
sufficient redress for the alleged breaches of the Convention and can
still claim to be a victim.
As
to the exhaustion of domestic remedies, the Court reiterates that the
only remedies which Article 35 of the Convention requires to be
exhausted are those that relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002-VIII). The exhaustion
rule must be applied with some degree of flexibility and without
excessive formalism. It is neither absolute nor capable of being
applied automatically; in reviewing whether it has been observed it
is essential to have regard to the particular circumstances of each
individual case. This means amongst other things that it must take
realistic account, in particular, of the personal circumstances of
the applicants (see Akdivar and Others v. Turkey, judgment of
16 September 1996, Reports of Judgments and Decisions 1996 IV,
§ 69).
The
Court takes note of the Government's argument that the applicant
could have applied for compensation for pecuniary and non-pecuniary
damage incurred through the delay in enforcement of the judgments of
19 June 2003 and 19 August 2004. However, the applicant had
already had recourse to that remedy in respect of the delay in
enforcement of another judgment. The remedy proved to be ineffective
because of the insufficient amount and belated payment of the
compensation awarded (see paragraph 39 above). The Court considers
that in those circumstances the applicant was not required to exhaust
that remedy also in respect of the judgments of 19 June 2003 and
19 August 2004.
The
Court concludes that the Government's objections must be rejected. It
considers that this part of 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
Government argued that the applicant had procrastinated in submitting
to the Ministry of Finance the writ of execution in respect of the
judgment of 24 September 2001 and a certified copy of the judgment of
26 March 2001 together with his bank details. The delay in the
enforcement of those judgments had been therefore attributable to the
applicant.
The
applicant maintained his claims.
A
delay in the execution of a judgment may be justified in particular
circumstances. It remains therefore to be determined whether the
delay was such as to amount to a breach of the applicant's right to
benefit from the judgment debt (see Grishchenko v. Russia
(dec.), no. 75907/01, 8 July 2004). The Court notes that the
applicant promptly submitted the writ of execution in respect of the
judgment of 26 March 2001 to the Ministry of Finance. The Government
claimed that the Ministry of Finance could not enforce it because the
applicant had not submitted a certified copy of the judgment and had
not indicated his bank details. The Court notes that the Ministry of
Finance did not inform the applicant about those defects until seven
months later. After the applicant re-submitted the writ, it took the
authorities another six months to pay the award. The Court accepts
that a certain delay in the enforcement of the judgment of 26 March
2001 was caused by the applicant's failure to indicate his bank
details. However, having regard to the overall delay in the
enforcement – at least thirteen months of which were
attributable to the authorities – the Court finds that the
judgment of 26 March 2001 was not enforced within a reasonable time.
As
regards the judgment of 24 September 2001, the applicant immediately
submitted the writ of execution to the local office of the Ministry
of Finance (see paragraph 18 above). Several months later he
submitted a duplicate writ to the bailiffs' service which was, at the
relevant time, competent to institute enforcement proceedings against
the State. However, the judgment remained unenforced for more than
two years. The Government did not provide any justification for the
delay. Nor did they provide justification for the two-year delay in
enforcement of the judgments of 19 June 2003 and 19 August 2004.
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 Reynbakh v. Russia,
no. 23405/03, § 23 et seq., 29 September 2005;
Gizzatova v. Russia, no. 5124/03, § 19 et seq.,
13 January 2005; Petrushko v. Russia, no. 36494/02,
§ 23 et seq., 24 February 2005; Gorokhov and Rusyayev v.
Russia, no. 38305/02, § 30 et seq., 17 March 2005;
Wasserman v. Russia, no. 15021/02, § 35 et seq.,
18 November 2004; Burdov v. Russia, no. 59498/00, §
34 et seq., ECHR 2002-III).
Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court finds that by
failing for a long time to comply with the enforceable judgments in
the applicant's favour, the domestic authorities violated his right
to a court and prevented him from receiving the money he could
reasonably have expected to receive.
There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, it
finds that those complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. 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
The
applicant claimed EUR 10,000 in respect of the loss of profit during
his unlawful detention and EUR 1,000 in respect of interest accrued
on the judgment debt. He also claimed EUR 10,000 in respect of
non-pecuniary damage.
The
Government submitted that the claims were excessive. The finding of a
violation would in itself constitute sufficient just satisfaction.
The Court does not discern any causal link between the
violation found and the pecuniary damage alleged in respect of the
loss of profit during the unlawful detention; it therefore rejects
this claim. As regards the claim for the interest accrued on the
judgment debt, the Court recalls that under Rule 60 of the Rules of
the Court, any claim for just satisfaction must be itemised and
submitted in writing together with the relevant supporting documents
or vouchers, “failing which the Chamber may reject the claim in
whole or in part”. The applicant failed to itemise his claim or
submit supporting documents, and the Court therefore rejects the
claim.
On
the other hand, the Court accepts that the applicant suffered
distress and frustration resulting from the delay in the enforcement
of the judgments in his favour. The Court takes into account the
relevant aspects, such as the length of the enforcement proceedings
and the nature of the award, and making its assessment on an
equitable basis, awards the applicant EUR 4,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
The
applicant also claimed EUR 1,000 for costs and expenses. The Court
notes that the applicant did not submit any receipts or other
vouchers confirming that the expenses had been actually incurred.
Accordingly, the Court does not make any 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 complaint concerning the delay in
enforcement of the judgments in the applicant's favour admissible and
the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 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 in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
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 amount 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 25 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada
Josep Casadevall
Registrar President
