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    European Court of Human Rights

    You are here: BAILII >> Databases >> European Court of Human Rights >> KUKALO v. RUSSIA (no. 2) - 11319/04 [2008] ECHR 692 (24 July 2008)
    URL: http://www.bailii.org/eu/cases/ECHR/2008/692.html
    Cite as: [2008] ECHR 692
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    FIRST SECTION








    CASE OF KUKALO v. RUSSIA (no. 2)


    (Application no. 11319/04)










    JUDGMENT




    STRASBOURG


    24 July 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 Kukalo v. Russia,

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

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

    Having deliberated in private on 3 July 2008,

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

    PROCEDURE

  1. The case originated in an application (no. 11319/04) 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, Mr Mikhail Mikhaylovich Kukalo (“the applicant”), on 25 March 2003.

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

  3. On 12 June 2007 the Court decided to communicate the complaint concerning non-enforcement of binding 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.

    4. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1941 and lives in Kurgan, a city in the Kurgan Region.

  5. As a victim of Chernobyl, the applicant was entitled to social benefits. The benefits were underpaid, and the applicant sued the local welfare authority.

  6. The Kurgan Town Court held for the applicant eight times.

  7. On 25 March 2003 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 8 May 2003 and was enforced in July 2003.

  8. On 3 April 2003 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 17 April 2003 and was enforced on 21 July 2005.

  9. On 19 February 2004 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 6 March 2004 and was enforced on 21 July 2005.

  10. On 11 March 2004 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 27 March 2004 and was enforced in July 2005.

  11. On 27 April 2004 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 8 May 2004 and was enforced in July 2005.

  12. On 20 December 2004 the court awarded inationary loss caused by the non-enforcement of the previous four judgments, awarded arrears, and fixed a new amount of periodic benefits. This judgment became binding on 11 January 2005 and was enforced on 27 October 2006.

  13. On 22 May 2006 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 6 June 2006 and has been enforced in part.

  14. On 28 June 2006 the court awarded arrears and fixed a new amount of periodic benefits. This judgment became binding on 14 July 2006 and has been enforced in part.

    15. II.  RELEVANT DOMESTIC LAW

  15. 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.

    16. THE LAW

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

  16. The applicant complained about the non-enforcement of the judgments. The Court examined this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Insofar as relevant, these Articles read as follows:

    17. 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

  17. The Government argued that these complaints were inadmissible.

    18. With regard to the judgment of 25 March 2003, the complaint had been manifestly ill-founded and introduced out of time. The judgment had been enforced promptly. The application should have been considered as introduced on 27 July 2004 (the date of the application form), and by that date the judgment had long been enforced.

    With regard to the other judgments, the applicant had failed to exhaust domestic remedies, as he had not complained to bailiffs or prosecutors.

    With regard to the judgments of 3 April 2003, 19 February 2004, 11 March 2004, and 27 April 2004, the applicant had lost his status as a victim, because by the judgment of 20 December 2004 the authorities had recognised their fault for the non-enforcement and awarded compensation.

    Furthermore, in his application the applicant had not complained about the non-enforcement of the judgments of 20 December 2005, 22 May 2006, and 28 June 2006, hence the Court had had no competence to examine that part of the complaint.

  18. The applicant argued that his complaints were admissible. His application should have been considered as submitted on 25 September 2003 (the date of his first letter to the Court). The judgments of 22 May 2006 and 28 June 2006 had not been enforced fully. The applicant had complained about the non-enforcement to competent authorities.

  19. As to the date of introduction, the Court reiterates that this date is determined by the date of the first letter indicating an intention to lodge an application and giving some indication of its nature (see Chalkley v. United Kingdom (dec.), no. 63831/00, 26 September 2002). The applicant wrote such a letter to the Court on 25 September 2003, some two months after the enforcement of the judgment of 25 March 2003. It follows that the application has been submitted in time.

  20. Nevertheless, the Court also notes that the enforcement of that judgment lasted one month. This period is prima facie compatible with the requirements of the Convention. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

  21. As to domestic remedies, the Court reiterates that when the existence of domestic remedies under Article 35 § 1 is at issue, it is the Government who bear the burden of proof. The Government must show that the remedy was effective, accessible, capable of providing redress, and that it offered reasonable prospects of success (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 V). In the present case, the Government have not shown how complaints to bailiffs or prosecutors would have met these requirements (compare with, for example, John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, §§ 39–46, 16 October 2007). It follows that this part of the complaint cannot be rejected for non-exhaustion of domestic remedies.

  22. As to the applicant’s status as a victim, the Court reiterates that to deprive an applicant of this status, the State must acknowledge a breach of his rights and afford adequate redress (see Amuur v. France, judgment of 25 June 1995, Reports of Judgments and Decisions 1996-III, § 36). In the present case, the Court notes that the judgment of 20 December 2005 compensated the applicant’s inationary loss, but did not award damages, pecuniary or non-pecuniary, in respect of the non-enforcement. It did not therefore provide adequate redress.

  23. As to the applicant’s alleged failure to complain about the non-enforcement of the judgments of 20 December 2005, 22 May 2006, and 28 June 2006, the Court notes that the relevant complaint was contained in the applicant’s letter of 1 October 2006 and formed an integral part of the application.

  24. The Court notes that the part of the application concerning the judgments of 3 April 2003, 19 February 2004, 11 March 2004, 27 April 2004, 20 December 2004, 22 May 2006, and 28 June 2006 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.

    25. B.  Merits

  25. 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 (Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).

  26. The enforcement of the judgment of 3 April 2003 lasted two years and three months. The enforcement of the judgment of 19 February 2004 lasted one year and four months. The enforcement of the judgment of 11 March 2004 lasted one year and three months. The enforcement of the judgment of 27 April 2004 lasted one year and one month. The enforcement of the judgment of 20 December 2004 lasted one year and nine months. The enforcement of the judgment of 22 May 2006 has lasted for over one year and ten months, and is pending. The enforcement of the judgment of 28 June 2006 has lasted for over one year and nine months, and is pending.

  27. In the circumstances of the present case, and given the nature of the award (benefits to a victim of a nuclear disaster), the Court finds that the above periods were incompatible with the requirements of the Convention.

  28. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

    29. II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

  29. The applicant also complained, without referring to any particular set of proceedings, that the authorities failed to apply a given multiplier to the cost-of-living adjustment of his benefits.

  30. The Court reiterates, however, that the Convention does not guarantee as such social benefits of any given kind or amount (see Burdov v. Russia (dec.), no. 59498/00, ECHR 2001 VI).

  31. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

    32. III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  32. Article 41 of the Convention provides:

    33. “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

  33. The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

  34. The Government made no comments on this claim.

  35. As to pecuniary damage, the Court reiterates that the violation found is best redressed by putting the applicant in the position he would have been if the Convention had been respected. The Government shall therefore secure, by appropriate means, the enforcement of the domestic courts’ outstanding awards (see, with further references, Poznakhirina v. Russia, no. 25964/02, § 33, 24 February 2005).

  36. As to non-pecuniary damage, the Court accepts that the applicant must have suffered distress caused by the prolonged non-enforcement of the judgments. Making its assessment on an equitable basis, the Court awards EUR 1,900 under this head.

    37. B.  Costs and expenses

  37. The applicant has made no specific claim for costs and expenses. Accordingly, the Court makes no award under this head.

    38. C.  Default interest

  38. 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.

    39. FOR THESE REASONS, THE COURT UNANIMOUSLY

  39. Declares the complaint concerning the non-enfocement of the judgments of 3 April 2003, 19 February 2004, 11 March 2004, 27 April 2004, 20 December 2004, 22 May 2006, and 28 June 2006 admissible and the remainder of the application inadmissible;


  40. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1;


  41. Holds

    42. (a)  that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the outstanding awards made by the domestic court, and in addition pay the applicant EUR 1,900 (one thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;

    (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;


  42. Dismisses the remainder of the applicant’s claim for just satisfaction.

    43. Done in English, and notified in writing on 24 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Søren Nielsen Christos Rozakis
    Registrar President

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