ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 20.10.2005<ДЕЛО ШВЕДОВ (shvedov) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHVEDOV v. RUSSIA
(Application No. 69306/01)
JUDGMENT <*>
(Strasbourg, 20.X.2005)
--------------------------------
<*> 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 Shvedov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 29 September 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (No. 69306/01) 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, Aleksey Yefimovich Shvedov ("the applicant"), on 14 March 2001.
2. The initial complaint by the applicant concerned alleged non-enforcement of a judgment in his favour. On 27 March 2002 the first applicant died. It appears that the applicant"s son, Aleksandr Shvedov and his brother Aleksey Shvedov were the only two heirs of the deceased. By letter of 4 December 2002 Aleksandr Alekseyevich Shvedov informed the Court about his father"s decease and expressed the wish to continue proceedings in the capacity of his heir. His brother, the other son of the applicant, has never contacted the Court.
3. In 2002 - 2004 the applicant"s son presented a number of new complaints on his own behalf. Thus, by letter of 4 December 2002 he complained of his forced immigration to the Soviet Union in 1957. By letter of 27 January 2004 he complained of the outcome of a housing dispute concerning his father"s flat (see the "Facts" below).
4. The applicant was represented by Ms V. I. Vorontsova. His heir, Aleksandr Alekseyevich Shvedov (hereinafter referred to as "the second applicant"), was represented by Mr K. P. Krakovskiy, a lawyer practising in Rostov-on-Don. The Russian Government ("the Government") were represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
5. On 8 March 2004 the Court decided to communicate the application to the Government in so far it concerned the complaint of the alleged non-enforcement of a judgment in the applicant"s favour. 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
6. The applicant, a Russian national, was born in 1927 and died in 2003. At the relevant time he lived in Rostov-on-Don.
7. The second applicant is a Russian national and was born in 1949. He is the applicant"s son and lives in Rostov-on-Don.
A. Civil proceedings arising from wrongful conviction
8. In 1995 the applicant was arrested on suspicion of theft and placed in police custody. In 1996 the court acquitted him.
9. In September 1996 the applicant brought proceedings against the State claiming damages for his unlawful detention. On 29 December 1997 the Proletarskiy District Court satisfied his claim ordering the State to pay the applicant damages in the amount of RUR 34,000. This decision entered into force. However on 25 may 1998 the decision in the first applicant"s favour was quashed by way of supervisory review. The case was remitted to the first instance court.
10. On 15 March 1999 the Rostov-on-Don Proletarskiy District Court satisfied the applicant"s claims in part awarding him 24,917 Russian Roubles (~970 Euros), to be recovered from the regional branch of the Federal Treasure. The decision was not appealed against and, as follows from a copy of this decision provided by the applicant, became final on 17 March 1999.
B. Enforcement proceedings
11. On 12 May 1999 the local bailiffs" service initiated the enforcement proceedings against the regional branch of the Treasury. The applicant and the bailiff repeatedly contacted the defendant in order to recover the amount awarded by the District Court. However, the payment orders were returned to the bailiff unexecuted. The regional branch of the Treasury explained that since no budget funds had been allocated from the federal budget for these purposes, the judgment debt could not be paid.
12. In the following months the bailiffs addressed the Federal Treasury in Moscow and the Ministry of Finance with request to make necessary budget appropriations to execute the judgment of 15 March 1999. As follows from the letter of the Legal Department of the Ministry of Finance of 25 August 1999, the information on the judgment debt was included in a special data-base which listed all claims against the Federal Treasury.
13. In April 2000 the case-file concerning the enforcement proceedings was transmitted to the bailiffs in Moscow. The applicant was informed that henceforth the enforcement proceedings would be carried out by the bailiffs in Moscow, at the address of the central office of the Federal Treasury.
14. In the meantime the applicant asked the District Court to clarify which State institution was responsible for payment of the judgment debt. On 13 September 2000 the District Court ruled that the debt should be recovered from the central office of the Federal Treasury in Moscow. The court accordingly delivered a new writ of execution which was forwarded to the bailiffs" service in Moscow.
15. On 26 March 2001 the writ of execution was returned to the applicant. The Moscow-based bailiffs" service explained to the applicant that due to changes in the legislation, and, in particular, pursuant to the Law on the Federal Budget for 2001 (see the "Relevant domestic law" below), they ceased to be responsible for the forced execution of the court judgment against the State authorities. The bailiff proposed the applicant to forward the writ of execution together with some additional documents directly to the Ministry of Finance in Moscow.
16. According to the respondent Government, at present the writ of execution is with the Ministry of Finance. The second applicant indicated that in December 2004 all documents required pursuant to Decree No. 666 had been submitted to the Ministry of Finance. However, it appears that to date the judgment has not been enforced.
C. Other facts referred to by the second applicant
17. The second applicant was born in 1949 in Germany. Since 1950 his family lived in Australia. According to the applicant, in 1957, when they were visiting relatives in the Soviet Union, the Soviet authorities prohibited them from returning to Australia.
18. The second applicant was also involved in a civil dispute with a private person regarding his father"s flat. This dispute ended with the decisions taken by the Rostov Regional Court on 4 December 2002 and by the Proletarskiy District Court on 13 March 2003, which was not appealed against and became final on 25 March 2003.
D. Relevant domestic law and practice
General provisions on execution of court judgments
19. The Russian Law on Enforcement Proceedings (No. 119-ФЗ of 21 July 1997) designates the court bailiffs" service as the authority charged with enforcement of court decisions (Section 3 § 1). Court judgments can also be executed by tax authorities, banks, financial institutions, other organisations, State officials and individuals - all of them are not considered to be the enforcement authorities (Section 5).
Execution of judgments against budget-funded organisations
20. Section 110 of the Law on Federal Budget for the Year 2001 (No. 150-ФЗ of 27 December 2000) provided that writs of execution issued against the treasury of the Russian Federation were to be sent for execution to the Ministry of Finance of the Russian Federation and were to be executed in accordance with the procedure established by the Russian Government. A similar provision was included in Section 128 of the Law on Federal Budget for the Year 2002. However, Section 122 of the Law on Federal Budget for the Year 2003 (No. 176-ФЗ of 24 December 2002) established, in addition to the similar requirement that writs of execution were to be submitted to the Ministry of Finance, that the court bailiffs could not enforce judgments against the Russian Federation.
21. On 22 February 2001 the Russian Government approved the "Rules on recovery of funds due on the basis of court-issued writs of execution under a monetary obligation of a recipient of federal budget funds" (the "Rules"). Sections 2 and 3 of the Rules provide that the creditor must submit the writ of execution and a copy of the judgment to the office of the federal treasury where the debtor has its current account. The federal treasury office must grant the recovery within three working days in the part not exceeding the balance of the account (Section 5). Should the balance of the account be insufficient for a full recovery, the writ of execution must be returned to the creditor who can then apply to the Ministry of Finance to recover the outstanding amount from the debtor"s funding entity (Section 6).
22. On 9 September 2002 the Russian Government adopted Decree No. 666 which enacted the "Rules of Execution by the Ministry of Finance of court judgments against the Treasury of the Russian Federation arising from the claims for damages caused by unlawful acts or omissions of the State authorities or State officials". The procedure of execution of such judgments provided by the Rules of 2002 was essentially the same as provided by the Rules of 22 February 2001 cited above.
Case-law of the Supreme Court of the Russian Federation
23. On 19 July 2001 the Supreme Court of the Russian Federation delivered judgment No. ГКПИ 2001-864 concerning the lawfulness of certain provisions of the Rules. In particular, the court held that the Rules did not govern the enforcement of court judgments because the federal treasury was not an enforcement body, pursuant to Section 5 of the Law on Enforcement Proceedings. In subsequent judgment No. ГКПИ 2001-1345 of 22 October 2001 the court clarified this position as follows:
"The contents of the contested Rules indicate that they do not govern the procedure for enforcement of court decisions, rather they establish the procedure for voluntary execution of court decisions and for recovery of funds under monetary obligations of recipients of the federal budget funds...
The court also has regard to the fact that the contested Rules do not prevent the creditor from resorting to the enforcement proceedings in respect of a court decision..."
24. In judgment Nos. ГКПИ 2001-1790 and 2002-139 of 27 February 2002 the Supreme Court of the Russian Federation confirmed that neither the Rules, nor the Laws on Federal Budgets for 2001 and 2002 prevented the creditor from seeking enforcement of a court judgment in accordance with the procedure set out in the Law on Enforcement Proceedings, the Law on Court Bailiffs and the Code of Civil Procedure. Finally, the Supreme Court again upheld this position in judgment No. ГКПИ 2001-1482 of 28 March 2002.
25. On 20 May 2003 the Supreme Court of the Russian Federation in its decision No. KAC 03-205 ruled that the Rules, adopted by Decree No. 666 of 9 September 2002, concerned the voluntary execution of court decisions against the Federal treasury and did not prevent the creditor from seeking enforcement through the court bailiffs.
THE LAW
I. Alleged violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention
26. The applicant complained about the non-enforcement of the court judgment in his favour of 15 March 1999. Although the applicant in his initial application referred to Article 5 § 5 of the Convention, the Court, in line with its well-established case-law in similar cases (see, among many other authorities, Burdov v. Russia, No. 59498/00, ECHR 2002-III) considers that this complaint falls to be examined more appropriately under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, which, insofar as relevant, 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."
27. The Government contested the applicant"s arguments. They indicate that he failed to follow the procedures provided for the enforcement of court decisions against the State. In particular, the applicant failed to send to the competent authority - the Ministry of Finance of the Russian Federation - certain documents, required by Decree No. 666 of 9 September 2002 (see the "Relevant domestic law" above). Therefore, the delay in execution of a judgment was the applicant"s fault. The Government further alleged that "taking into account that Mr. A. E. Shvedov [the applicant] has not received the money due to him, in connection with his death,... the heirs of the departed, in particular, Mr. A. A. Shvedov [the second applicant] can address for execution of the judicial decision by way of submitting the relevant documents to the Ministry of Finance of the Russian Federation". The Government concluded that the complaint about the non-enforcement of the court decision was manifestly ill-founded.
A. Admissibility
28. The Court notes that the sole objection raised by the Government in this respect is that the applicant"s own behaviour had been the principal cause for the delay in the execution of the Proletarskiy District Court"s judgment of 15 March 1999. In the Court"s view, this question raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Therefore, the complaint is not manifestly ill-founded within

РЕШЕНИЕ Совета министров иностранных дел государств-членов СНГ"О ХОДЕ ВЫПОЛНЕНИЯ РЕШЕНИЯ СОВЕТА МИНИСТРОВ ИНОСТРАННЫХ ДЕЛ СНГ ОТ 26 МАРТА 2004 ГОДА "О ДАЛЬНЕЙШЕМ ПОВЫШЕНИИ ЭФФЕКТИВНОСТИ ДЕЯТЕЛЬНОСТИ ОРГАНОВ СОДРУЖЕСТВА НЕЗАВИСИМЫХ ГОСУДАРСТВ"(Вместе с "ИНФОРМАЦИЕЙ...", "ПРЕДЛОЖЕНИЯМИ...")(Принято в г. Астане 15.09.2004)  »
Международное законодательство »
Читайте также