ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 17.03.2005<ДЕЛО ГОРОХОВ И РУСЯЕВ (gorokhov and rusyayev) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF GOROKHOV AND RUSYAYEV v. RUSSIA
(Application No. 38305/02)
JUDGMENT <*>
(Strasbourg, 17.III.2005)
In the case of Gorokhov and Rusyayev v. Russia,
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<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs {N. Vajic} <*>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 24 February 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (No. 38305/02) 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 two Russian nationals, Mr Dmitriy Ivanovich Gorokhov and Mr Rostislav Vladimirovich Rusyayev ("the applicants"), on 12 September 2002.
2. The applicants were represented by Mmes K.A. Moskalenko and E.L. Liptser, lawyers practising in Moscow. 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.
3. The applicants alleged a violation of Article 6 § 1 and Article 1 of Protocol No. 1 in that the respondent State failed to enforce final judicial decisions in their favour.
4. On 8 January 2004 the Court decided to communicate the application 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.
5. The applicants and the Government each filed observations on the admissibility and merits (Rule 54A § 1).
THE FACTS
I. The circumstances of the case
6. The applicants were born in 1952 and 1961 respectively and both live in Moscow.
7. The applicants took part in the liquidation of the consequences of the nuclear accident at the Chernobyl nuclear plant. They were recognised as handicapped, becoming entitled to a special disability pension.
1. Court judgments in the applicants" favour
8. In 2000 the applicants brought a civil action against the social security authorities, claiming that the amounts of their disability pensions had not been properly calculated. They maintained that the social security authorities should have increased their pensions in line with the increase of the minimal wage in Russia, but failed to do so.
9. On 29 January 2001 the Nikulinskiy District Court of Moscow satisfied their claims awarding the first applicant 11,568.98 Russian roubles (RUR), and the second applicant RUR 14,862.5. The arrears awarded to the applicants by the District Court constituted more than 58 per cent of the amounts received by the applicants from the social security authorities within the contested period. On 18 April 2001 this decision was upheld by the Moscow City Court.
10. Later this year the applicants brought a new action claiming the outstanding amounts of the disability pensions due to them for the period starting from January 2001. They also claimed penalties for the delayed payment of their pensions during this period.
11. On 21 June 2001 the Nikulinskiy District Court awarded the first applicant RUR 10,351 and the second applicant RUR 13,274 as the outstanding amount of their pensions for the period January - June 2001. The sums awarded by the District Court as arrears constituted approximately 50 per cent of the amount paid to the applicants by the social security authorities during this period. Both applicants were also entitled to penalties, to be recovered from the social security authorities. The penalties were calculated on the basis of the amounts due to the applicants for the period between January and June 2001. On 28 November 2001 this decision was upheld in the main by the Moscow City Court, which only reduced the amount of penalties to RUR 1,000 for each applicant.
2. Enforcement proceedings
12. On an unspecified date between May and September 2001 the applicants obtained writs of execution in respect of the first judgments of the Nikulinskiy District Court of January 2001. In December 2001 the applicants obtained execution writs in respect of the decisions rendered by the District Court in June 2001. These execution writs were forwarded to the bailiffs. However, for a certain period of time the judgments of the Nikulinskiy District Court remained unexecuted.
13. In December 2001 the Ministry of Justice of the Russian Federation, which was in charge of the bailiffs, informed the applicants that the execution of the above judgments was conditional upon the availability of budgetary funds allocated for these purposes by the federal legislature and could not be carried out through the bailiffs. The applicants were advised to send their writs of execution directly to the Ministry of Finance, a State body in charge of distributing budgetary funds.
14. However, as follows from the letter of 5 March 2002, the Ministry of Finance was no longer responsible for distributing the pension funds. Consequently, in 2002 the execution writs were forwarded to the Ministry of Labour and Social Security.
15. In April 2002 the bailiffs discontinued the enforcement proceedings. The applicants challenged the discontinuation, and on 1 November 2002 the Nikulinskiy District Court of Moscow ordered the resumption the enforcement proceedings.
16. On 1 November 2002 the above judgments were enforced. The authorities paid RUR 22,919.32 to Gorokhov and RUR 29,136.40 to Rusyayev. On 5 November 2002 the money were received by the applicants. On 20 February 2004 the authorities offered the applicants additional compensation on certain conditions. However, the applicants rejected this offer.
II. Relevant domestic law and practice
17. The Russian Law on Enforcement Proceedings (No. 119-FZ of 21 July 1997) designates the court bailiffs" service as the authority charged with enforcement of court decisions (Section 3 § 1). Pursuant to this Law, any decision of the bailiff can be challenged in court within 10 days from the moment when the concerned person learned about this decision (Article 90 § 1). Articles 19 and 90 § 2 of this law stipulate that the damage caused by the bailiffs should be compensated under general rules of civil responsibility.
18. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor.
19. Under Article 1069 of the Civil Code a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failures to act. Such damage is to be compensated at the expense of the federal or regional treasury.
THE LAW
I. Alleged violation of Article 6 § 1 of the Convention
20. The applicants complained that the lengthy non-enforcement of the court judgments in their favour rendered by the Nikulinskiy District Court on 29 January and 21 June 2001 constituted a breach of their right to a court and the right to peaceful enjoyment of their possessions. They referred to Article 6 § 1 of the Convention 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 to the Convention
"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."
21. In their observations to the Court the respondent Government indicated that the judgments in the applicants" favour had been duly enforced and that an additional compensation calculated on the basis of the Court"s case-law in similar cases had been offered to the applicants. On this ground the Government submitted that the application was incompatible with the provisions of the Convention because the applicants were no longer victims of the alleged violation.
22. In reply to the Government"s observations the applicants accepted that the outstanding amounts of their pensions, awarded by the courts, had been paid to them. The applicants further recognised that the Government had offered them compensation, which, however, they did not accept.
23. In their additional observations the applicants also claimed that the social security authorities failed to comply with the decisions of the Nikulinskiy District Court of Moscow in that they did not increase the disability pensions in line with the raise of the minimum wage in Russia.
A. Admissibility
1. Non-enforcement of the judgments
in the applicants" favour
24. In their initial application the applicants complained about the non-payment of the outstanding amounts awarded to them in January and June 2001 by the Nikulinskiy District Court. The Court notes that these judgments entitled the applicants only to previous underpayments; no decision as to the future indexation of their pensions has ever been taken within these proceedings. Consequently, the complaint that the above decisions remain unexecuted because the pensions were not increased by the social security authorities is manifestly ill-founded.
25. As regards the payment of the arrears awarded by the Nikulinskiy District Court, the Court notes that, once the applicants had brought proceedings to Strasbourg in September 2002, the domestic authorities executed the judgments within less than two months. It is regrettable that the applicants did not inform the Court about this fact at the relevant time. The Court finds that, in so far the applicants complain about the non-enforcement as such, they could not any longer claim to be victims within the meaning of Article 34 of the Convention.
2. Length of enforcement proceedings
26. However, the Court notes that it took the domestic authorities from eleven to sixteen months to execute the judgments, which, without doubt, was the applicants" concern (see § 20 above). The Court recalls in this respect that the "right to a court", derived from Article 6, comprises a duty of the State to implement final judicial decisions (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II § 40). The interference with this right may shape into an absolute ban on execution. However, it may also take the form of a delayed execution of the court judgment (see Burdov v. Russia, No. 59498/00, ECHR 2002-III). When considering the applicants" grievances in this way, the Court accepts that the applicants may still claim to be victims within the meaning of Article 34 of the Convention and, thus, the Court has to examine whether the late execution of the judgments in the applicants" favour constituted a breach of their "right to a court" implied by Article 6 of the Convention.
27. Having regard to this aspect of the case the Court recalls that, under Article 35 § 1 of the Convention, the Court may only deal with applications introduced after all domestic remedies have been exhausted and within a period of six months after the final domestic decision. In the present case, the Government did not suggest that there was an effective remedy available to the applicants under Russian law to challenge the length of the execution of judgments. The Court therefore, for the purposes of the present case, considers that six months run from the end of the situation complained of (see, for example, Demirel v. Turkey (dec.), No. 30493/96, 9 March 1999).
28. As to the compliance with the six-month rule, the Court notes that the subject-matter of the present complaint is the length of the execution proceedings in respect of the judgments of 29 January and 21 June 2001, as upheld on 18 April and 28 November 2001 respectively. The applicants filed their grievances with the European Court on 12 September 2002, when the execution proceedings in respect these judgments were still pending. Accordingly, the application has been introduced and pursued in accordance with the six-month rule prescribed in Article 35 § 1.
29. The Court further notes that first judgment in the applicants" favour was executed with a delay of one year, six months, and eighteen days, and that the second judgment was executed within one year after it had become effective. These delays do not seem insignificant. Therefore, this complaint cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court concludes that the complaint about the length of enforcement proceedings raises complex issues of facts and law, the determination of which should depend on an examination of the merits. No other ground for declaring it inadmissible has been established.
B. Merits
1. General principles
30. The Court accepts that not every delay in the execution of a judgment constitutes a breach of Article 6 § 1 of the Convention (see, among recent authorities, Grishchenko v. Russia, (dec.), 8 July 2004, No. 75907/01). However, the delay may not be such as to impair the essence of the "right to a court" protected by this provision (see Immobiliare Saffi v. Italy [GC], No. 22774/93, § 74, ECHR 1999-V). The Court"s task will be to establish whether the delays in executing the judgments in the applicants" favour were justified in the particular circumstances of the present case.
31. The Court recalls that the execution proceedings are an integral part of the "trial" for the purposes of Article 6 of the Convention (see, Hornsby v. Greece and Burdov v. Russia mentioned above). Consequently, whether the length issue is raised in respect of a trial or enforcement proceedings, applicable principles are broadly similar. The limit of tolerance as regards

"СОГЛАШЕНИЕ МЕЖДУ ПРАВИТЕЛЬСТВОМ РОССИЙСКОЙ ФЕДЕРАЦИИ И ПРАВИТЕЛЬСТВОМ МОНГОЛИИ О ВОЗДУШНОМ СООБЩЕНИИ"(Заключено в г. Улан-Баторе 08.09.1997)  »
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