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European Court of Human Rights
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BORMOTOV v. RUSSIA - 24435/04 [2008] ECHR 758 (31 July 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/758.html
Cite as:
[2008] ECHR 758
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FIRST
SECTION
CASE OF BORMOTOV v. RUSSIA
(Application
no. 24435/04)
JUDGMENT
STRASBOURG
31
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 Bormotov 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,
Giorgio Malinverni, 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
The
case originated in an application (no. 24435/04) 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 Sergey Aleksandrovich
Bormotov (“the applicant”), on 15 June 2004.
The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, the Representative of the Russian Federation
at the European Court of Human Rights.
On
2 May 2007 the Court decided to give notice of the application to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1958 and lives in Saint Petersburg.
As
a serviceman and victim of radiation, he is entitled to a State flat.
On 28 March 2002 the 224th Military Court of the Saint Petersburg
Garrison ordered the Naval Engineering Academy to provide the
applicant with a flat “meeting statutory requirements”.
This judgment became binding on 9 April 2002, but was not
enforced immediately.
In
2002–04 bailiffs several times urged the defendant to comply
with the judgment.
In
2002–04 the applicant rejected three settlement offers.
In
November 2002 he refused a three-room flat in Kommunar, a settlement
in the Leningrad Region located 2 km away from Saint Petersburg. In
February 2003 he refused a three-room flat in Gatchina, a town
in the Leningrad Region located 8 km away from Saint Petersburg. The
applicant rejected these two offers on the ground that they were
located outside Saint Petersburg.
In
February 2004 the applicant refused a flat in Pushkin, a town located
within the administrative city limits of Saint Petersburg. The
applicant rejected this offer on the ground that the flat was smaller
than that due.
In
December 2004 the debtor offered the applicant a four-room flat in
Saint Petersburg, and the applicant accepted it. On 12 January 2005
the enforcement proceedings were terminated. On an unspecified date
in 2005 the applicant moved into the flat and began to pay utility
bills. On 9 August 2007 the applicant’s tenancy was formally
recorded.
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about the non-enforcement of the
judgment. 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.”
A. Admissibility
The
Government argued that the application was inadmissible. Article 6
had not applied to the proceedings in question because the applicant
had been a serviceman. The applicant had not exhausted domestic
remedies because he could have sued the authorities for non-pecuniary
damage caused by the non-enforcement. In any event, the authorities
had done everything they could to enforce the judgment. The applicant
had been responsible for the delay, because he had rejected three
reasonable settlement offers. The delay had been justified by the
nature of the award. Flats had been in short supply, and there had
been a queue of creditors. The applicant had been entitled to a flat
measuring at least 90 m², and the first such flat had become
available only in December 2004. The judgment had been enforced in
2005, after the applicant had moved into the flat.
The
applicant maintained his complaint. The bailiffs had been
inefficient. The first three settlement offers had fallen short of
the court’s award. The judgment had been enforced only on 9
August 2007 when the applicant’s title to the flat had been
formally recorded.
With
regard to the applicability of Article 6, the Court reiterates that
this Article does not apply to cases where domestic law expressly
excludes access to a court for the category of staff in question, and
where this exclusion is justified by the State’s objective
interest (see Vilho Eskelinen and Others v. Finland [GC],
no. 63235/00, § 62, ECHR 2007 ...). In the case at
hand, however, the applicant did have access to a court under
domestic law. He used this right and sued his former employer. The
Military Court examined and granted the applicant’s claim.
Nothing suggests that domestic law barred the applicant’s
access to a court. Accordingly, Article 6 is applicable (compare with
Dovguchits v. Russia, no. 2999/03, § 24, 7 June 2007),
and the Government’s objection must be dismissed.
With
regard to the exhaustion of domestic remedies, the Court considers
that the possibility to receive non-pecuniary damages for
non-enforcement has not been shown sufficiently established in
practice.
The
Court notes that 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
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).
The
Court considers that the period to be considered was over two years
and eight months: from the date the judgment became binding to an
unspecified date in 2005 (the year in the course of which the
applicant moved into his flat), even though his title to the flat was
recorded later.
This
period is incompatible with the Convention. The Government admitted
that the first fully adequate offer had been made only in
December 2004, and the Court finds in the circumstances of the
case no justification for the preceding delay.
There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. 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 30,000 euros (EUR) in respect of pecuniary damage.
This amount represented the applicant’s estimate of lost
profit. He considered that if the flat had been provided in time, his
command would have been able to discharge him earlier, and he would
have been able to find a civilian job yielding EUR 500 a month.
The
Government argued that this claim was speculative and unsupported by
evidence, and that domestic courts were better placed to determine
such claims.
The
Court does not discern any factually solid causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim.
The
applicant further claimed EUR 5,000 in respect of non-pecuniary
damage.
The
Government argued that this claim was unjustified, and that a mere
finding of a violation would suffice.
The
Court accepts that the applicant has suffered distress that cannot be
made good by a mere finding of a violation. Making its assessment on
an equitable basis, the Court awards EUR 2,100 under this head.
B. Costs and expenses
The
applicant made no claim for the costs and expenses. Accordingly, the
Court makes no 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 application admissible;
Holds that there has been a violation of Article
6 § 1 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 2,100 (two
thousand one 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President