ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 13.10.2005<ДЕЛО ГЕРАСИМОВА (gerasimova) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF GERASIMOVA v.
RUSSIA
(Application No. 24669/02)
JUDGMENT <*>
(Strasbourg,
13.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
Gerasimova v. Russia,
The European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
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,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section
Registrar,
Having deliberated in private on 22 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 24669/02)
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 Galina Petrovna Gerasimova ("the
applicant"), on 20 May 2002.
2. The Russian Government ("the Government")
were represented by their Agent, Mr Pavel Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant
alleged that the judgment of the Commercial Court of the Samara Region of 4
September 1995 had not been executed by the State.
4. The application was
allocated to the First Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a partial decision of 13 November 2003, the Court declared the application
partly inadmissible and communicated the complaint concerning the failure to
execute the judgment of the Commercial Court of the Samara Region of 4 September
1995 to the respondent Government. By a decision of 16 September 2004, the Court
declared the remainder of the application admissible.
6. On 1 November
2004 the Court changed the composition of its Sections (Rule 25 § 1). This case
was assigned to the newly composed First Section (Rule 52 § 1).
7. The
applicant and the Government each filed observations on the merits (Rule 59 §
1). The Chamber having decided, after consulting the parties, that no hearing on
the merits was required (Rule 59 § 3 in fine), the parties replied in writing
to each other"s observations.
THE FACTS
I. The circumstances of the
case
8. The applicant was born in 1953 and lives in Chapayevsk, Samara
Region.
9. On 4 September 1995 the Commercial Court of the Samara Region
(Арбитражный суд Самарской области) granted a
claim by the applicant"s employer - a private company - for recovery of damages
against the Chapayevsk Social Security Service (Управление
социальной защиты населения администрации
г. Чапаевска).
10. On 15 August 1997 the applicant"s employer
assigned her a part of the judgment debt in the amount of RUR 114,000,000
towards salary due <*>. The applicant applied to the Chapayevsk Town Court
of the Samara Region for execution of the judgment on 29 May 1998.
-------------------------------
<*> The amount is indicated without
regard to the revaluation of 1998. In accordance with the Presidential Decree
"On the Modification of the Face Value of Russian Currency and Standards of
Value" of 4 August 1997, 1,000 "old" roubles became 1 "new" rouble as of 1
January 1998.
11. It appears that by 2001 only the amount of RUR 16,000
<*> has been paid to the applicant. As the judgment had not been executed
in full, in 2001 she filed a claim with the Chapayevsk Town Court of the Samara
Region against the Chapayevsk Social Security Service for recovery of the sum
with interest.
-------------------------------
<*> The
amount is indicated with regard to the revaluation of 1998. It thus corresponded
to 16,000,000 "old" roubles.
12. The Chapayevsk Town Court of the Samara
Region dismissed the claim on 5 April 2001 on the ground that the applicant had
failed to substantiate her calculation of the amount of the interest. On 19
September 2001 the Presidium of the Samara Regional Court, following an
application for supervisory review lodged by the President of the Samara
Regional Court, quashed the judgment of 5 April 2001 and remitted the case for a
fresh examination.
13. On 21 June 2002 the Chapayevsk Town Court of the
Samara Region dismissed the claim and indicated that the execution of judgment
by the Chapayevsk Social Security Service had been carried out according to the
sums allocated from the budget. Thus, in 2000 the budget estimate provided for
RUR 16,000 to be paid in instalments during that year. The estimate for 2001
provided for RUR 5,000 to be paid to the applicant, and the estimate for 2002
provided for RUR 12,000, out of which RUR 5,000 was paid to the applicant as of
1 June 2002. The outstanding debt remained at RUR 87,445.
It is not clear
whether any further payments have been made.
THE LAW
I. Alleged
violation of Article 6 of the Convention
and Article 1 of Protocol No.
1
14. The applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 that the State had failed to execute fully and in
due time the judgment of the Commercial Court of the Samara Region of 4
September 1995.
Article 6 of the Convention, in so far as relevant, reads
as follows:
"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 to the Convention reads as follows:
"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."
15. The Government, in their additional observations of 12 January 2005
following the Court"s decision on admissibility of 16 September 2004, insisted
that the Russian Federation could not be held responsible for non-execution of
the judgment against the Chapayevsk Social Security Service as this was a
municipal institution and not a State organisation. They further reiterated that
the applicant had failed to exhaust domestic remedies as she had not applied to
the bailiffs" service for enforcement of the judgment. The Government furnished
statistical data concerning the efficiency of the bailiffs" service in the
Russian Federation and, in particular, in Chapayevsk in 1998 and 1999. In this
respect they also submitted that the present case was substantially different
from the case of Burdov v. Russia (No. 59498/00, ECHR 2002-III), since the
judgment in question did not concern payment of social benefits. The Government
made no submissions on the merits of the case.
16. The applicant
contended that she had applied to the bailiffs" service in due course and that
the Russian Federation was responsible for non-execution of the judgment.
17. The Court observes that it has examined and rejected the Government"s
objections in its decision on admissibility of 16 September 2004. The Government
did not make any new submissions that would warrant a fresh examination of the
same issues. In particular, the general statistics concerning the efficiency of
the bailiffs" service in 1998 and 1999 is not relevant for the case at hand
since in the aforementioned decision the Court found that the execution of the
judgment was prevented by the failure to make adequate budgetary provisions by
appropriate legislative measures, over which the bailiffs could not possibly
have any control. The Court further observes that nothing in the Burdov case
suggests that the application of principles concerning the execution of a final
judgment established in the Court"s case-law (see, among others, Hornsby v.
Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II,
p. 510, § 40, and Immobiliare Saffi v. Italy [GC], No. 22774/93, § 74, ECHR
1999-V) is limited to instances related to payment of social benefits. In any
event, the Court reiterates that, according to Rule 55 of the Rules of Court,
any plea of inadmissibility must be raised by the respondent Contracting Party
in its written or oral observations on the admissibility of the application
rather than during the procedure on the merits (see K. and T. v. Finland [GC],
No. 25702/94, § 145, ECHR 2001-VII, and N.C. v. Italy [GC], No. 24952/94, §
44, ECHR 2002-X). The Government"s objection must therefore be dismissed.
18. Turning to the merits of the case, the Court notes that on 15 August 1997,
pursuant to the assignment of claims, the applicant became a creditor in the
amount of RUR 114,000,000 under the final judgment of 4 September 1995 of the
Commercial Court of Samara Region against the Chapayevsk Social Security
Service. On 21 June 2002, when the Chapayevsk Town Court of the Samara Region
dismissed the applicant"s claim for recovery of the sum under the judgment with
interest due to the failure to execute it, the outstanding amount came to RUR
87,445. The judgment has not to date been fully executed, which is not in
dispute by the parties.
19. The Court further observes that, as is
apparent from the judgment of the Chapayevsk Town Court of the Samara Region of
21 June 2002, the judgment has not been executed because the Chapayevsk Social
Security Service had no cash funds since the sums allocated to it from the town
budget were insufficient. The applicant was thus precluded from receiving the
judgment debt until the local authority had made appropriate budgetary
provisions. It does not appear, however, that the local authority has taken
adequate measures to comply with the judgment. In fact, the judgment has not
been fully executed to date, that is more than ten years since it became
enforceable and more than eights years since the applicant acquired rights under
the judgment. The Government did not offer any justification for that
omission.
20. The Court has frequently found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in cases raising issues
similar to the ones in the present case (see Burdov, cited above, § 34 et seq.;
Wasserman v. Russia, No. 15021/02, § 35 et seq., 18 November 2004; and
Poznakhirina v. Russia, No. 25964/02, § 22 et seq., 24 February 2005).
21. Having examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of persuading it to
reach a different conclusion in the present case. Having regard to its case-law
on the subject, the Court finds that by failing for years to comply with the
enforceable judgment in the applicant"s favour the domestic authorities
prevented her from receiving the money she could reasonably have expected to
receive.
22. There has accordingly been a violation of Article 6 of the
Convention and Article 1 of Protocol No. 1.
II. Application of Article 41 of
the Convention
23. 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
24. The applicant claimed
USD 638,000 in respect of pecuniary damage, of which USD 40,000 was for the
principal amounts awarded by the judgment of the Commercial Court of the Samara
Region of 4 September 1995 and also by a judgment of 2 October 1996. The
outstanding part of the amount claimed related to alleged damage to the
applicant"s property caused by State authorities, the poor state of the
environment the applicant had to live in, a fine allegedly imposed on her in
1994 - 1995 and items allegedly seized in the course of searches of the
applicant"s flat conducted in 1999 - 2001. The applicant further submitted that
she had suffered non-pecuniary damage as a result of the authorities" failure to
execute the judgment of 4 September 1995 and also a failure to execute the
judgment of 2 October 1996 in full in due time, but did not specify her claims
in that respect.
25. The Government submitted that the applicant"s claims
relating to the failure to execute the judgment of the Commercial Court of the
Samara Region of 4 September 1995 were excessive and unsubstantiated. They
considered the rest of the claims, including those relating to the complaints
that the Court declared inadmissible by the partial decision on admissibility of
13 November 2003, to be irrelevant. In the Government"s view, the finding of a
violation would constitute sufficient compensation in the present case.
26. The Court notes that the State"s outstanding obligation to enforce the
judgment of the Commercial Court of the Samara Region of 4 September 1995 is not
in dispute. Accordingly, the applicant is still entitled to recover the
principal amount of the debt in the course of domestic proceedings. The Court
recalls that the most appropriate form of redress in respect of a violation of
Article 6 is to ensure that the applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not been
disregarded (see Makarova and Others v. Russia, No. 7023/03, § 47, 24 February
2005 and Poznakhirina v. Russia, No. 25964/02, § 33, 24 February 2005). The
Court finds that in the present case the same principle applies, having regard
to the violations found. It therefore considers that the Government should
secure, by appropriate means, the enforcement of the award made by the domestic
courts. For this reason the Court does not find it necessary to make an award
for pecuniary damage in so far as it relates to the principal amount.
27.
As regards the remainder of the applicant"s claims for pecuniary damage, the
Court notes, firstly, that by the partial decision on admissibility of 13
November 2003 it declared the applicant"s complaints concerning the alleged
failure to execute the judgment of the Commercial Court of the Samara Region of
2 October 1996
