AS TO THE ADMISSIBILITY OF
by Vitaliy Nikolayevich SUCHKOV
The European Court of Human Rights (Fifth Section), sitting on 8 December 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 5 June 2002,
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 applicant, Mr. Vitaliy Nikolayevich Suchkov, is a Russian national who was born in 1945 and lives in Barnaul. 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.
1. Judgment debt
The applicant set up a deal with a certain S. (“the debtor”): 9,600 United States dollars (USD) for a Mitsubishi car. The debtor took the applicant’s money but never handed the car over to the applicant.
The applicant lodged a civil action against S. On 15 September 1999 the Industrialny District Court of Barnaul (“the District Court”) ordered that S. pay the applicant 233,184 Russian roubles (RUB). The judgment became binding on 28 September 1999.
2. Enforcement proceedings
On 22 November 1999 a bailiff of the Industrialny District of Barnaul (“the bailiff”) opened enforcement proceedings.
The parties disagree as to the subsequent events between November 1999 and June 2000.
According to the applicant, the bailiff was inactive throughout this period and later forged enquiries to a bank and the Road Inspectorate backdated to 23 November 1999.
According to the Government, the bailiff took certain steps aimed at enforcing the judgment. On 9 December 1999 the bailiff issued a charging order in respect of the debtor’s cars, then had it transferred to the Road Inspectorate six days later. On 15 December 1999 the debtor’s garage was attached. On 21 December 1999 the bailiff checked the state of the debtor’s possessions. On 7 February 2000 the bailiff drew up an inventory of the debtor’s movable assets. Between 15 March and 16 June 2000 the enforcement proceedings were transferred to the Leninskiy District of Barnaul bailiffs’ service. The latter found that none of the debtor’s property remained in Leninskiy District, so the enforcement proceedings were transferred back to Industrialny District.
Further events are not disputed by the parties.
In June 2000 the bailiff attached part of a flat jointly owned by the debtor and his former wife, instructed the Road Inspectorate to impound the debtor’s Mitsubishi car, if it could be located, made enquiries about the debtor’s place of work and issued an order to retain half of the debtor’s salary every month for the benefit of the applicant, and suggested that the applicant accept the spare parts of a disassembled Toyota car discovered in the debtor’s attached garage as part satisfaction of the debt.
In June 2000 the debtor was asked by the bailiff to bring his Mitsubishi and Moskvich cars to the bailiffs’ office, but failed to do so. In July 2000 the debtor, twice fined by the bailiff for failure to hand over his property, told the bailiff that he had sold the Mitsubishi in June 1999 to Sh., and that the Moskvich had been sold long ago, in 1994. By a judgment of 18 January 2001, which became binding on 30 January 2001, the District Court confirmed that the debtor was still the legal owner of the Mitsubishi and that therefore the attachment of the vehicle was legal. As the Mitsubishi could not be located, the bailiffs conducted a search for it. Having yielded no results, the search was discontinued in March 2003.
Some of the debtor’s assets were not liable to seizure because the property was jointly owned by the debtor and his ex-wife, so the applicant brought a court action seeking division of their common assets. By a judgment of 17 April 2001, which became binding on 30 May 2001, the District Court determined how the property in question was to be divided. According to the judgment, the debtor received in property a part of the flat and the garage, whereas the Moskvich and the disassembled Toyota acquired in the course of the marriage and registered at the Road Inspectorate in the debtor’s name were given to the debtor’s ex-wife.
By a decision of 27 February 2002 the Altay Regional Court confirmed in the final instance that the debtor’s part of the flat was not liable to seizure because it was the only home he had.
On 28 February 2003 the debtor’s garage, for which no bids had been made at auction, was given to the applicant.
On 30 May 2003 the bailiff closed the enforcement proceedings. The applicant continued to receive monthly payments held back from the debtor’s salary.
3. Civil action against the bailiffs
In the meantime, the applicant sued the Ministry of Finance for inflationary losses supposedly caused by the bailiffs’ inactivity during the enforcement of the judgment.
On 26 July 2001 the Tsentralny District Court granted the applicant’s claim, but on 3 October 2001 that decision was quashed on appeal and the matter was remitted for fresh examination before a first-instance court.
On 15 November 2001 the Tsentralny District Court of Barnaul dismissed the applicant’s claim in full. It held, inter alia, that, although the bailiffs had failed on several occasions to respect the procedural time-limits, there was no causal link between the bailiffs’ conduct and the alleged losses. On 26 December 2001 the Altay Regional Court upheld the above decision on appeal.
B. Relevant domestic law
Article 28 § 2 of the Russian federal law “On Enforcement Procedure” (Law no. 119-FZ of 21 July 1997) provides that a search for a debtor’s missing property must be conducted by a bailiff if paid for in advance by a creditor. The creditor shall have the right to recover the incurred expenses from the debtor.
Article 87 of the same law provides for certain measures which a bailiff may take when private persons or public officials fail to comply with lawful orders, provide false information about a debtor’s income and financial status, do not inform a bailiff about the debtor’s dismissal from work, a change of the debtor’s places of work or residence or when they do not respond to the bailiff’s summonses. These measures include a fine of up to 100 minimum wages, escorting a defaulting party by force to a place where enforcement actions are performed and institution of criminal proceedings.
The applicant complained under Articles 6 and 13 of the Convention about the bailiffs’ conduct, which in his view had been strongly deficient and had been the reason for the non-enforcement of the judgment of 15 September 1999.
The Court will examine the complaint raised by the applicant from the standpoint of Article 6 and Article 1 of Protocol No. 1, which read in their relevant parts as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“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. The parties’ submissions
The Government contended that the bailiffs had provided necessary assistance to the applicant.
The applicant maintained his complaint. He asserted that, with the State authorities’ help, the debtor had managed to conceal three cars and other assets. He also alleged, inter alia, that the enquiries of 23 November 1999 had been forged by the bailiff.
B. The Court’s assessment
The Court reiterates that, where there is a private debtor, there is a positive obligation incumbent on the State to act diligently when assisting a creditor to enforce a judgment (see Anokhin v. Russia (dec.), no. 25867/02, 31 May 2007). The Court’s task in such cases is to ascertain whether the measures applied by the State were adequate and sufficient (see Cubanit v. Romania (dec.), no. 31510/02, 4 January 2007, and Perevozchikova v. Russia (dec.), no. 7105/02, 3 June 2008).
Turning to the case at hand, the Court, having taken cognisance of the relevant documents submitted by the parties, gives credence to the Government’s version of the disputed events.
The Court further notes that, as a result of enforcement of the judgment, the applicant received the debtor’s garage and continues to benefit from monthly payments retained from the debtor’s salary. The Court is of the opinion that the search for the debtor’s Mitsubishi was adequately conducted by the bailiffs and that ultimately the impossibility of locating the vehicle cannot be ascribed to the State. Nor can the State be blamed for the fact that the two other cars, Toyota and Moskvich, were given to the debtor’s ex-wife as a result of the division of property validated by the judgment of 17 April 2001.
The Court notes that the applicant alleged that owing to the bailiffs’ negligence the debtor had concealed or sold the bulk of his movable property and other assets. However, the Court does not accept this allegation as a valid argument owing to lack of substantiation.
The Court takes note of the fact that the domestic courts conceded that the bailiffs had on several occasions failed to respect time-limits prescribed by domestic law. However, the mere fact that time-limits set in domestic law were not respected does not automatically entail a violation of the Convention. To give rise to a violation of the Convention, the omission must have entailed detrimental consequences for the enforcement proceedings as a whole (see Krivonogova v. Russia (dec.), no. 74694/01, 1 April 2004). The Court takes the view that in the present case it was not convincingly shown that the impugned delays in performance of enforcement acts caused irreparable consequences to the prospects of recovery of the debt.
The Court takes note of the applicant’s allegation concerning forgery of some documents related to the enforcement proceedings. Nevertheless, the Court does not deem it necessary to establish whether the documents in question were actually forged or not. It was open to the applicant to challenge their credibility before the domestic courts, the latter being in a better position to decide upon this matter. In any event, had the applicant’s allegation proved to be well founded, the impugned omission does not by itself appear to be the crucial element against which the adequacy of the enforcement proceedings as a whole should be assessed.
The Court is of the opinion that the global effect of the measures employed by the bailiffs in the present case was compatible with the requirements imposed on the State by both Article 6 and Article 1 of Protocol No. 1. No evidence has been adduced that the bailiff’s conduct had a decisive impact on the debtor’s realisable assets. In the circumstances the Court cannot establish that the bailiffs acted in breach of Article 6 or Article 1 of Protocol No. 1.
It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen