ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 06.10.2005<ДЕЛО ШИЛЯЕВ (shilyayev) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHILYAYEV v.
RUSSIA
(Application No. 9647/02)
JUDGMENT <*>
(Strasbourg,
6.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
Shilyayev 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. Quesada, Deputy Section
Registrar,
Having deliberated in private on 15 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 9647/02)
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 Aleksandr Anatolyevich Shilyayev ("the
applicant"), on 7 February 2002.
2. 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 16 March 2004 the
Court decided to communicate the complaint about the delays in enforcement of
the decisions 20 July and 11 September 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. In this
respect, the Court decided to reject the Government"s request to discontinue the
application of Article 29 § 3 of the Convention.
THE FACTS
I. The
circumstances of the case
4. The applicant is a Russian national, born in
1959 and living in the Perm Region.
1. The applicant"s conviction and its
subsequent reversal
5. By a first instance judgment of 24 October 1997 the
Perm Regional Court sentenced the applicant to nineteen years" imprisonment for
murder and rape. On 19 February 1998 the judgment was upheld by the Supreme
Court and came into force.
6. On 20 January 1999 the Regional Court
reversed the conviction by reference to newly discovered circumstances and
remitted the case for a fresh investigation to a prosecutor. On 8 February 1999
the prosecutor took a decision fully to acquit the applicant.
2. Proceedings
for damages against the State
7. Thereafter the applicant brought court
proceedings against the State, claiming damages for the wrongful conviction and
unlawful detention for twenty months.
8. On 20 July 2001 the Lysva Town
Court of the Perm Region examined and granted his action. The court took account
of the circumstances of the criminal proceedings against the applicant and his
conviction, including total length of his remand in custody which was of one
year, eight months and twenty one days, and related after-effects, such as
personal anxiety, anguish and feeling of isolation. The applicant was awarded
RUR 70,000 (~2,740 euros) in damages to be paid by the Ministry of Finance.
9. On 11 September 2001 the decision was upheld by the Perm Regional Court and
came into force.
3. Enforcement proceedings
10. On an unspecified date
the applicant obtained an execution writ and forwarded it, together with
supporting documents, to the bailiffs" service. By two letters of 30 March and
21 May 2001 the bailiffs refused to institute enforcement proceedings and
returned the writ and documents to the applicant. They stated, in particular,
that under the legislation in force execution writs issued against the State
should be submitted directly to the Ministry of Finance (see the relevant
domestic law section below).
11. The applicant followed the instruction
and applied to the said Ministry. Upon receipt of the documents on 13 November
2001, the Ministry discovered that the address and details of the debtor in the
writ had been mistaken. By a letter of 2 June 2002 the Ministry returned the
documents to the applicant.
12. Having obtained an amended writ from the
court, on 3 October 2002 the applicant re-submitted the documents. They reached
the Ministry on 11 October 2002. By a letter of 4 June 2003 the Ministry
informed the applicant that the new writ was invalid in that it did not contain
a submission period and again returned him the documents.
13. On 20 June
2003 the applicant sent off the documents and 15 October 2003 the Ministry of
Finance transferred him the money due pursuant to the decisions of 20 July and
11 September 2001.
II. Relevant domestic law
1. Compensation for
unlawful conviction
14. Under Sections 151 and 1070 of the Civil Code the
State is liable for damage inflicted as a result of unlawful conviction,
prosecution, detention on remand, imposition of an undertaking not to leave a
place of residence and administrative penalties such as arrest and correctional
works irrespective of whether any such measure was imposed as a result of
relevant officials" misconduct.
2. Enforcement proceedings
15. 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.
16. 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.
17. Under Sections 1 to 4 of the 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
should apply to a relevant branch of the Federal Treasury holding debtor"s
accounts.
18. Within the next five days the branch examines the
application as well as the supporting documents. It either accepts the
application in which case it notifies the debtor of the writ, compelling the
latter to abide by the respective court decisions (Sections 7 to 12) or rejects
it as inadmissible on formal grounds (see Section 5). In the latter case the
branch returns the documents to the creditor within the said time-limit. 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 5 of the Convention
and Article 3 of Protocol No. 7 to the
Convention
19. The applicant complained that the court award of 20 July 2001
was insufficient. He relied on Article 5 of the Convention and Article 3 of
Protocol No. 7 which insofar as relevant provide as follows:
Article 5 §
5
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an enforceable right
to compensation."
Article 3 of Protocol No. 7
"When a person has
by a final decision been convicted of a criminal offence and when subsequently
his conviction has been reversed, or he has been pardoned, on the ground that a
new or newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a result of
such conviction shall be compensated according to the law or the practice of the
State concerned, unless it is proved that the non-disclosure of the unknown fact
in time is wholly or partly attributable to him."
20. The Court recalls
that the above provisions provide for a right to compensation of those whose
detention was found in breach of one of the paragraphs of Article 5 of the
Convention (see Solduk v. Turkey, No. 31789/96, Commission decision of 16 April
1998) and a right to compensation for miscarriages of justice, when an applicant
has been convicted of a criminal offence by a final decision and suffered
consequential punishment (see, e.g., Nakov v. Macedonia (dec.), No. 68286/01,
24.10.2002). These Convention provisions do not however prohibit the Contracting
States from making the award of compensation dependent upon the ability of the
person concerned to show damage resulting from the breach, nor do they actually
refer to any specific amounts (see Wassink v. the Netherlands, judgment of 27
September 1990, Series A No. 185-A, § 38 and Cumber v. UK, No. 28779/95,
Commission decision of 27 November 1996.
21. On the facts, the Court
observes that the domestic authorities recognised the miscarriage of justice in
the applicant"s criminal case, quashed his conviction of 24 October 1997, as
upheld on appeal on 19 February 1998, as unlawful and granted him damages of RUR
70,000 (~2,740 euros) in this connection. This award does not appear arbitrary
or unreasonable as the courts at two instances carefully examined all relevant
circumstances of the applicant"s personal situation including the nature of the
criminal case against him, total length of his detention and personal
after-effects and reached reasoned conclusions as to the amount of the award.
The applicant was fully able to take part in this procedure and the amount of
the award does not appear disproportionate even in the domestic terms.
22. Having regard to the above, the Court considers this part of the application
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It must therefore be rejected pursuant to Article 35 § 4.
II. Alleged
violation of Article 6 § 1 of the Convention
and Article 1 of Protocol
No. 1 to the Convention
23. The applicant complained that the delayed
enforcement of the judgment of 20 July 2001 violated his Convention rights. The
Court will examine this complaint under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 which, 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
24. The
Government made two objections to the admissibility of the complaint. Firstly,
they alleged that under domestic law it was open to the applicant to claim
enforcement of the judgment in his favour from the relevant branch of the
Ministry of Finance and also apply to the bailiffs service in the same
connection. According to the Government, the former option provided for a
voluntary execution of the judgment whereas in the latter case the State would
have been compelled to comply with it. They submitted that the applicant had
only used the former option and had failed to avail himself of the latter one.
Accordingly, they invited to reject the case for the applicant"s failure to
exhaust. Secondly, the Government submitted that the judgment in question had
already been enforced and that the applicant was no longer a victim of the
violations alleged.
25. The applicant contested both objections and
maintained his complaints.
26. As regards the first objection, the Court
observes that even assuming that the applicant was required by Article 35 § 1
of the Convention to apply to the bailiffs" service for execution of the
judgment in his case, it is clear from the case-file that he did so and by two
letters dated 30 March and 21 May 2001 respectively was refused. The objection
should therefore be dismissed.
27. Insofar as the Government"s second
argument is concerned, the Court 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).
28. The mere fact that the authorities complied with the
judgment after substantial delay cannot be viewed in this case as automatically
depriving the applicant of his victim status under the Convention. The Court is
unable to conclude that the Government or other domestic authorities have
acknowledged the violations alleged by the applicant and provided redress for
them and thus deprived him of the victim status (see, e.g., Petrushko v. Russia,
No. 36494/02, § 16, 24 February 2005).
29. The Court concludes that this
part of application is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
30.
The Government did not dispute the validity of the judgment in question and
admitted that the authorities were under obligation to enforce it. They did not
present any justification for the failure to do so.
31. The applicant
maintained their complaints.
Article 6 § 1 of the Convention
32.
The Court reiterates that Article 6 § 1 secures to everyone the right to have
any claim relating to his civil rights and obligations brought before a court or
tribunal; in this way it embodies the "right to a court", of which the right of
access, that is the right to institute proceedings before courts in civil
matters, constitutes one aspect. However, that right would be illusory if a
Contracting State"s domestic legal system allowed a final, binding judicial
decision to remain inoperative to the detriment of
