British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
ROZHNYATOVSKAYA v. RUSSIA - 35002/05 [2011] ECHR 2105 (13 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2105.html
Cite as:
[2011] ECHR 2105
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF ROZHNYATOVSKAYA v. RUSSIA
(Application
no. 35002/05)
JUDGMENT
STRASBOURG
13
December 2011
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 Rozhnyatovskaya v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35002/05)
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, Ms Irina Vasilyevna Rozhnyatovskaya (“the
applicant”), on 4 July 2005.
2. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
On
9 January 2009 the President of
the First Section decided to give notice of the application to
the Government.
4. In
accordance with the pilot judgment Burdov v. Russia (no. 2)
(no. 33509/04, ECHR 2009 ...), this application was
adjourned pending its resolution at the domestic level.
The
Government later informed the Court that enforcement of the judgment
in the applicant’s favour was impossible as the applicant had
failed to submit the documents to the correct enforcement body and
that the debtor had been dissolved. The Court therefore decided to
resume examination of the present case.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1970 and lives in
Kuzmolovskiy, Leningrad Region.
The
applicant served as a military officer.
On
25 July 2003 the Military Court of the Sertolovo Garrison issued a
default judgment recovering 34,277.10 Russian roubles (RUB) in the
applicant’s favour from military unit 93921 as an allowance for
direct participation in combat action.
The
judgment was not appealed and became final on 5 August 2003.
Following
the applicant’s inquiry with the Ministry of Defence concerning
the enforcement proceedings on 24 February 2004, she was apprised of
the procedure.
On
8 February 2005 the bailiff service terminated the enforcement
proceedings, returning the writ of execution to the applicant for
submission to the Federal Treasury where the debtor’s account
was opened.
However,
the applicant has never submitted the documents to the Federal
Treasury and the judgment remains unenforced to date.
According
to the Government, on an unspecified date military unit 93921 was
dissolved.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained that the authorities had
failed to enforce the judgment of 25 July 2003 against the State. She
relied on Article 6 of the Convention and Article 1 of Protocol No.
1, which in the relevant part read 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. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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 submitted that the applicant herself bore
responsibility for the non-enforcement, having never re-submitted the
enforcement documents to the Federal Treasury, as she had been
advised. They added that they had no possibility to enforce the
judgment on their own intiative in the absence of the pertinent
documents at the enforcement body coupled with the fact that the
military unit had been dissolved.
17. 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, it will look at how complex the enforcement
proceedings were, how the applicants and the authorities behaved, and
what was the nature of the award (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
The
Court further reiterates that a person who has obtained a judgment
against the State may not be expected to bring separate enforcement
proceedings (see Metaxas v. Greece, no. 8415/02, § 19,
27 May 2004). Where a judgment is against the State, the
defendant State authority must be duly notified thereof and is
thus well placed to take all necessary initiatives to comply with it
or to transmit it to another competent State authority responsible
for compliance (see Akashev v. Russia, no. 30616/05, §
21, 12 June 2008). Where the creditor’s cooperation is
required, it must not go beyond what is strictly necessary and in any
case does not relieve the authorities of their obligation under the
Convention to take timely and ex officio action, on the
basis of the information available to them, with a view to honouring
the judgment against the State (ibid, § 22).
The
Court observes that in the instant case the judgment of 25 July 2003
has been pending enforcement for over eight years. It notes that the
enforcement proceedings were not particularly complex given the
nature of the award and that no significant delays can be attributed
to the applicant. Indeed, once the judgment became final, she
submitted the relevant documents to the bailiffs but the latter
closed the enforcement proceedings eighteen months later without any
conclusive result. The applicant’s alleged failure to re-submit
the enforcement documents to the right enforcement body cannot
relieve the authorities of their obligation in accordance with the
principles stated above. Nor can do so the fact of the dissolution of
the debtor military unit, as the State at large remains responsible
for the payment of the judicial award.
In
view of the above, the Court considers that the authorities failed to
comply with their obligation under the Convention and that there has
accordingly been a violation of Article 6 § 1 of the Convention
and of 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 34,277.10 Russian roubles
(RUB) (approximately 865 euros (EUR)), equal to the amount of the
judicial award due to her, in respect of pecuniary damage and EUR
10,000 in respect of non-pecuniary damage.
The
Government contested the claims as excessive. They added that in the
case of finding of a violation, the just satisfaction award covering
non-pecuniary damage should not exceed EUR 4,500.
The
Court reiterates that the most appropriate form of redress in respect
of the violations found would be to put the applicants as far as
possible in the position they would have been if the Convention
requirements had not been disregarded (see Piersack v. Belgium
(Article 50), 26 October 1984, § 12, Series A no. 85 and,
mutatis mutandis, Gençel v. Turkey, no. 53431/99,
§ 27, 23 October 2003). It thus considers it appropriate to
award the applicant the amount due to her under the domestic judgment
as pecuniary damage.
Furthermore,
the Court accepts that the applicant suffered distress and
frustration due to the authorities’ lengthy failure to honour
the State’s debt to her. It also notes that the award
represented the applicant’s remuneration for employment and was
likely her only means of subsistence. Deciding on an equitable basis
and having regard to all relevant factors (see Burdov (no. 2),
cited above, §§ 154-157), the Court awards the applicant
EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not submit any claim for costs and
expenses. The Court therefore does not consider it necessary to 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 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, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR
865 (eight hundred and sixty-five euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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 13 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
