ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 22.09.2005<ДЕЛО ДЕНИСЕНКОВ (denisenkov) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF DENISENKOV v.
RUSSIA
(Application No. 40642/02)
JUDGMENT <*>
(Strasbourg,
22.IX.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
Denisenkov v. Russia,
The European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs
F. Tulkens,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having deliberated in private on 30 August
2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 40642/02)
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, Mr Vladimir Nikolayevich Denisenkov ("the
applicant"), on 28 October 2002.
2. The applicant was represented by Mr
K. Krakovskiy, a lawyer practising in Rostov-on-Don. The Russian Government
("the Government") were represented by Mr P. Laptev, Representative of the
Russian Federation at the European Court of Human Rights.
3. On 4
February 2002 the Court decided to communicate the complaint about the alleged
non-execution of the judgment of 18 October 1999 and decision of 22 October 2001
to the Government. 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
I. The circumstances of the case
4. The
applicant was born in 1953 and lives in Rostov-on-Don.
5. In 1987 he took
part in emergency operations at the site of the Chernobyl nuclear plant
disaster. As a result the applicant suffered from extensive exposure to
radioactive emissions.
6. On an unspecified date the applicant underwent
medical examinations which established the link between the applicant"s poor
health and his involvement in the Chernobyl events. In 1994 the applicant was
awarded compensation, to be paid monthly.
1. First set of proceedings
7.
In 1999 the applicant sued a local pension authority (Муниципальное
учреждение социальной защиты населения
Первомайского района г. Ростова-на-Дону - "the
defendant") requesting to increase his monthly compensation, backdate the
increase and recover the unpaid amount. The applicant considered that the amount
of compensation had been determined incorrectly.
8. On 18 October 1999
the Pervomayskiy District Court of Rostov-on-Don ("the District Court") granted
the applicant"s claim and ruled that since 1 January 1999 his monthly
compensation had been wrongly calculated. The court awarded the applicant the
arrears of RUR 15,829.25 for the period between 1 January and 1 November 1999
and decided that as of 1 November 1999 the applicant was entitled to a monthly
compensation of RUR 2,440.70, to be index-linked in line with changes of the
minimum monthly wage.
9. The judgment of 18 October 1999 was not appealed
against by the parties and came into force on 29 October 1999.
2.
Enforcement proceedings in
respect of the judgment of 18 October
1999
10. On 6 December 1999 the bailiffs instituted enforcement proceedings
in respect of the judgment of 18 October 1999.
11. Some time later the
enforcement proceedings were terminated by reference to the lack of funding. On
22 March 2001 the bailiffs returned the writ and documents to the applicant.
They referred to Decree No. 143 dated 22 February 2001 (see the relevant
domestic law section below) and invited him to submit the documents to a local
department of the Ministry of Finance (ОФК по Первомайскому
району г. Ростова-на-Дону).
12. The applicant
followed this invitation and on the same day applied to the local department of
the Ministry which four days later rejected the application. It appears that the
applicant was invited to fetch a renewed writ of execution from the District
Court.
13. Having received the renewed writ from the court, the applicant
re-submitted the documents to the Ministry which on 11 April 2001 rejected them,
this time by reference to the absence of the defendant"s account at the
Ministry.
14. On 30 May and 1 July 2002 respectively the authorities
transferred a total amount of RUR 38.661,22 in the applicant"s favour and
informed him that the enforcement of the judgment of 18 October 1999 was thus
finalised.
15. It appears that the applicant disagreed. He informed the
authority that they had failed to index-link his monthly compensation in line
with the minimum monthly wage, as it was ordered by the judgment of 18 October
1999, and used a less favourable scheme of indexation.
16. On unspecified
date the authority requested the District Court to interpret the judgment of 18
October 1999 and uphold its scheme of indexation.
17. By a decision of 6
March 2003 the District Court examined and granted the authority"s request. The
decision was upheld on appeal by the Regional Court on 16 April 2003.
18.
On 3 June 2003 the bailiffs ruled that the defendant authority had duly enforced
the judgment of 18 October 1999 and terminated the enforcement proceedings
accordingly.
19. Thereafter the applicant challenged both decisions by
way of supervisory review.
20. On 3 June 2004 the Regional Court, acting
as a supervisory review instance, quashed the decision of 6 March 2003 as
unlawful and remitted the request for interpretation for a fresh examination at
the first instance. The court noted, in particular, that by accepting the
authority"s interpretation of the judgment of 18 October 1999 the District Court
had in fact varied its content and thus had acted unlawfully.
21. On 5
July 2004 the District Court rejected the authority"s request for interpretation
as unfounded.
22. By first instance decision of 2 September 2004 which
was upheld on appeal on 13 October 2004 the applicant was issued with a renewed
writ of execution.
23. On 28 November 2004 the bailiffs re-instituted
enforcement proceedings in respect of the judgment of 18 October 1999 and
requested the authority to enforce it insofar as the judgment had ordered
indexation of the applicant"s monthly compensation.
3. Second set of
proceedings
24. On an unspecified date the applicant brought proceedings
against the pension authority claiming indexation for the delay of execution of
the judgment of 18 October 1999.
25. On 11 May 2001 the Justice of the
Peace of the Pervomayskiy District examined and granted his claim. It ordered
the authority to pay the applicant RUR 3,562.13 in damages for the period
between 1 November 1999 and 1 February 2001 and the arrears of RUR
18,556.24.
26. The judgment of 11 May 2001 was varied on appeal by the
District Court on 22 October 2001. In particular, the court ordered the
authority to pay the applicant RUR 6,341.73 in damages for the period between 1
November 1999 and 1 September 2001 as well as the arrears for the period from 1
November 1999 and 1 September 2001 of RUR 8,505.47. The decision of 22 October
2001 came into force on the same day.
4. Enforcement proceedings in
respect
of the decision of 22 October 2001
27. On 11 November 2001
the bailiffs instituted enforcement proceedings in relation to the decision of
22 October 2001. It appears that the defendant refused to comply with it by
reference to the lack of funds and its disagreement with the amount of
award.
28. The decision of 22 October 2001 was enforced by the
authorities by a bank transfer of 1 July 2002.
5. Third set of
proceedings
29. On an unspecified date the applicant brought a fresh claim
against the pension authority for an increase of his monthly compensation.
30. By judgment of 25 December 2002 the District Court rejected the claim as
unsubstantiated. On 26 March 2003 the judgment was upheld on appeal by the
Rostov Regional Court.
6. Fourth set of proceedings
31. On an
unspecified date the applicant brought a fresh claim against the authority in
which he requested additional damages for non-enforcement of the judgment of 18
October 1999 and the decision of 22 October 2001. The applicant also referred to
the authority"s failure to index-link the award of 18 October 1999 in line with
changes of the minimum monthly wage and requested compensation in this respect
as well.
32. By decision of 25 April 2003 the District Court granted the
application in part. By reference to the decision of 6 March 2003 (see § 17
above) the court rejected his claim for an increase of the award of 18 October
1999 in line with changes of the minimum monthly wage. In respect of the delay
in enforcement of the judgment of 18 October 1999, the court ordered the
authority to pay the applicant RUR 3,065.95 in damages for the period between
September 2001 and 1 June 2002. As regards the decision of 22 October 2002, the
court ordered RUR 2,722.88 in damages in the applicant"s favour for the period
from November 2001 to July 2002.
33. On 23 July 2003 the Regional Court
upheld the decision of 25 April 2003 on appeal.
34. It appears that the
decision of 25 April 2003 was enforced in full on 26 April 2004.
7. Fifth
set of proceedings
35. On an unspecified date the applicant applied to a
court referring to the authority"s failure to abide by the judgment of 18
October 1999 insofar as the latter had ordered to index-link the applicant"s
compensation in line with the minimum monthly wage.
36. Having adopted a
different scheme of indexation from the one suggested by the applicant and set
out in the judgment of 18 October 1999, on 18 December 2003 the District Court
partly granted his claim and ordered the authority to pay the arrears of RUR
28,947.24.
37. The judgment of 18 December 2003 was upheld on appeal in
full on 10 March 2004. The amount due to the applicant in this connection was
paid on 13 September 2004.
II. Relevant domestic law
38. Section 9 of
the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a
bailiff"s order on the institution of enforcement proceedings must fix a
time-limit for the defendant"s voluntary compliance with a writ of execution.
The time-limit may not exceed five days. The bailiff must also warn the
defendant that coercive action will follow, should the defendant fail to comply
with the time-limit.
39. Under Section 13 of the Law, the enforcement
proceedings should be completed within two months of the receipt of the writ of
enforcement by the bailiff.
40. Under special rules governing enforcement
of execution writs against the recipients of allocations from the federal
budget, adopted by the Federal Government on 22 February 2001 (Decree No. 143,
as in force at the relevant time), a creditor is to apply to a relevant branch
of the Federal Treasury holding debtor"s accounts (Sections 1 to 4).
41.
Within the next five days the branch examines the application and notifies the
debtor of the writ, compelling the latter to abide by the respective court
decisions (Sections 7 to 12). In case of the debtor"s failure to comply within
two months, the branch may temporarily freeze the debtor"s accounts (Section
13).
THE LAW
I. Alleged violation of Article 6 § 1 of the Convention
and
Article 1 of Protocol No. 1 to the Convention
42. The applicant
complained that the prolonged non-enforcement of the judgment of 18 October 1999
and the decision of 22 October 2001 violated his "right to a court" under
Article 6 § 1 of the Convention and his right to the peaceful enjoyment of
possessions as guaranteed in Article 1 of Protocol No. 1 to the Convention.
These Articles in so far as relevant provide 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
43. The Government submitted that the
decisions in question had been enforced. They asserted that the applicant was no
longer a victim of the violations alleged as he had been afforded redress at the
national level and that his application should be declared inadmissible.
44. The applicant disagreed with the Government"s arguments and maintained his
complaints. As regards the loss of the victim status, he submitted that the
judgment of 18 October 1999 remained non-enforced in part relating to indexation
of the applicant"s monthly compensation in line with the minimum monthly
wage.
45. The Court, firstly, reiterates that "a decision or measure
favourable to the applicant is not in principle sufficient to deprive him of his
status as a "victim" unless the national authorities have acknowledged, either
expressly or in substance, and then afforded redress for, the breach of the
Convention" (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments
and Decisions 1996-III, p. 846, § 36, Dalban v. Romania [GC], No. 28114/95, §
44, ECHR 1999-VI, and Rotaru v. Romania [GC], No. 28341/95, § 35, ECHR 2000-V).
Only when these conditions are satisfied does the subsidiary nature of the
protective mechanism of the Convention preclude examination of an application
(see, for example, Jensen and Rasmussen v. Denmark (dec.), No. 52620/99, 20
March 2003).
46. In the instant case, after a few years of the
authorities" failure to make regular payments the applicant brought two new
successful sets of proceedings seeking a retrospective increase of the arrears.
Had the judgment of 18 October 1999 been duly and fully enforced, these
decisions, dated 22 October 2001 and 25 April 2003 respectively, could arguably
have deprived the applicant of his victim status in respect of the State"s
previous failure to comply with the judgment.
47. However, as it follows
from the information available to the Court on the developments of the case the
enforcement proceedings
