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PETUKHOV v. RUSSIA - 40322/02 [2008] ECHR 562 (26 June 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/562.html
Cite as:
[2008] ECHR 562
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FIFTH
SECTION
CASE OF PETUKHOV v. RUSSIA
(Application
no. 40322/02)
JUDGMENT
STRASBOURG
26 June
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 Petukhov v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Volodymyr
Butkevych,
Anatoly
Kovler,
Renate
Jaeger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 3 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 40322/02) 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 Anatoliy Aleksandrovich
Petukhov (“the applicant”), on 2 October 2002.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights.
On
27 February 2006 the Court decided to communicate the complaint
concerning the non-enforcement of domestic judgments 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
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1949 and lives in Kirov.
In
August 1997 the applicant was mistreated by the police. He brought
two civil actions against them.
On
29 March 2000 and 9 January 2001 the Oktyabrskiy District Court of
Kirov held for the applicant and awarded him compensation. It appears
that both judgments became binding ten days after their
pronouncement. The judgment of 29 March 2000 was not enforced,
because the Ministry of Finance had lost the writ of enforcement. The
judgment of 9 January 2001 was enforced on 5 June 2006.
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 that about the lengthy non-enforcement of the
judgments. The Court examined this complaint under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1. As far as
relevant, these Articles read as follows:
Article 6
“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 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.
B. Merits
The
Government admitted that there has been a violation of Article 6 § 1
of the Convention and of Article 1 of Protocol No. 1.
There
has, accordingly, been a violation of these Articles.
ALLEGED VIOLATION OF ARTICLES 1, 3, AND 5 OF THE
CONVENTION
The
applicant complained under Articles 1, 3, and 5 of the Convention
about the mistreatment by the police and the lack of an effective
investigation.
The
Court notes that the facts complained about predate 5 May 1998, when
the Convention entered into force in respect of the Russian
Federation.
It
follows that this part of the application is incompatible ratione
temporis with the provisions of the Convention within the meaning
of Article 35 § 3, and must be rejected in accordance with
Article 35 § 4 (see Voroshilov v. Russia (dec.),
no. 21501/02, 8 December 2005).
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 51,100 euros (EUR) in respect of pecuniary damage
and EUR 300,000 in respect of non-pecuniary damage.
The
Government argued that the claim in respect of pecuniary damage was
unsubstantiated and that the claim in respect of non-pecuniary damage
was excessive.
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, making its assessment on an equitable basis, it
awards the applicant EUR 3,900 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant also claimed 456.50 Russian roubles for the costs and
expenses incurred before the Court.
The
Government argued that this claim was unsubstantiated.
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 10 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 complaint concerning
non-enforcement of domestic judgments admissible and the remainder of
the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention and of 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 3,900 (three thousand nine
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 10 (ten 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 June 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
