ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 17.11.2005<ДЕЛО МИХАЙЛОВА И ДРУГИЕ (mikhaylova and others) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF MIKHAYLOVA
AND OTHERS v. RUSSIA
(Application No. 22534/02)
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
Mikhaylova and Others v. Russia,
The European Court of Human Rights
(First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis,
Mr L. Loucaides,
Mr P. Lorenzen,
<*> Здесь и
далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены
Mrs S. Botoucharova,
Mr K. Hajiyev, judges,
and Mr S. Quesada, Deputy Section
Having deliberated in private on 25 October 2005,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (No. 22534/02) 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 four Russian nationals, Ms Larisa Ivanovna Mikhaylova, Ms Galina Viktorovna
Bukhonova, Ms Tatyana Viktorovna Kaptenok and Ms Tatyana Mikhaylovna Mikhaylova,
on 22 January 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 7 October 2003 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.
circumstances of the case
4. The applicants were born in 1960, 1964, 1972
and 1954 respectively and live in Voronezh.
5. The applicants are in
receipt of welfare payments for their children. In 1999 - 2001 they brought
separate sets of civil proceedings against a local welfare authority, claiming
arrears in those payments.
1. The first applicant
6. On 5 October 2000
the Sovetskiy District Court of Voronezh awarded the first applicant 4,295.89
Russian roubles (RUR) against the welfare authority. This judgment entered into
force on 16 October 2000.
7. On 9 November 2000 a writ of execution was
issued and sent to the bailiffs. It appears that some time later the bailiffs
discontinued the enforcement proceedings in respect of the above judgment and
returned the writ of execution to the first applicant, as the debtor had
8. In January - February 2004 the first applicant
was paid the amount due pursuant to the writ of execution.
2. The second
9. On 27 December 1999 the Sovetskiy District Court of Voronezh
awarded the second applicant RUR 2,221.45 against the welfare authority. This
judgment entered into force on 7 January 2000 and a writ of execution was sent
to the bailiffs.
10. On 26 July 2001 the bailiffs discontinued the
enforcement proceedings in respect of the judgment of 27 December 1999 and
returned the writ of execution to the second applicant, referring to the lack of
the debtor"s funds.
11. In January - February 2004 the second applicant
was paid the amount due pursuant to the writ of execution.
3. The third
12. On 30 January and 29 May 2001 the Zheleznodorozhny District
Court of Voronezh awarded the third applicant RUR 3,939.15 and 2,550.07
respectively. The judgments entered into force on 12 February and 11 June
13. On 12 February and 14 June 2001 writs of execution were issued
and sent to the bailiffs. It appears that some time later the bailiffs
discontinued the enforcement proceedings in respect of the above judgments and
returned the writs of execution to her, referring to the lack of the debtor"s
14. On 3 September 2001, in reply to the third applicant"s
complaint about the bailiffs" failure to enforce the judgments in her favour,
the Department of Justice of the Voronezh Region informed the applicant that her
award would be enforced in the order of priority set out by the Federal Law on
15. In January - February 2004 the third
applicant was paid the amounts due pursuant to the writs of execution.
The fourth applicant
16. On 27 October 2000 the Levoberezhny District Court
of Voronezh awarded the fourth applicant RUR 5,024.98. The judgment entered into
force on 8 November 2000.
17. On 14 November 2000 a writ of execution
was issued and sent to the bailiffs. It appears that some time later the
bailiffs discontinued the enforcement proceedings in respect of the above
judgment and returned the writ of execution to the fourth applicant, as the
debtor had insufficient funds.
18. In January - February 2004 the fourth
applicant was paid the amount due pursuant to the writ of execution.
Relevant domestic law
19. 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.
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.
I. Alleged violation of Article 6 § 1 of the Convention
Article 1 of Protocl No. 1 to the Convention
21. The applicants complained
about the prolonged non-enforcement of the judgments in their favour. The court
will examine this complaint under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 to the Convention. These Articles, in so far as relevant, read
Article 6 § 1
"In the determination of his civil
rights and obligations..., everyone is entitled to a fair... hearing... by
Article 1 of Protocol No. 1
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
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."
22. The Government informed the Court that the authorities of
the Voronezh Region had attempted to secure a friendly settlement of the case
and that the applicants had refused to accept the friendly settlement on the
terms proposed by the authorities. By reference to this refusal and to the fact
that, in any event, the judgments in the applicants" favour had been enforced,
the Government invited the Court to strike out the application, in accordance
with Article 37 of the Convention.
23. The applicants disagreed with the
Government and maintained their complaints. As regards the friendly settlement
proposal, the applicants claimed that the calculations presented by the
authorities of the Voronezh Region had been incorrect since they had contained
no adjustment to the inflation rate and also noted that the respective offer had
not covered all their complaints.
24. The Court firstly observes that
the parties were unable to agree on the terms of a friendly settlement of the
case. The Court recalls that under certain circumstances an application may
indeed be struck out of its list of cases under Article 37 § 1 (c) of the
Convention on the basis of a unilateral declaration by the respondent Government
even if the applicant wishes the examination of the case to be continued (see
Tahsin Acar v. Turkey [GC], No. 26307/95, § 76, ECHR 2003-...).
the facts, the Court observes that the Government failed to submit with the
Court any formal statement capable of falling into that category and offering a
sufficient basis for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of the case
(see, by contrast, to Akman v. Turkey (striking out), No. 37453/97, §§ 23 -
24, ECHR 2001-VI).
26. As regards the Government"s argument that the
judgments in question have already been enforced, the Court considers that the
mere fact that the authorities complied with the judgments after a substantial
delay cannot be viewed in this case as automatically depriving the applicants of
their victim status under the Convention. (see, e.g., Petrushko v. Russia, No.
36494/02, § 16, 24 February 2005).
27. In the light of the above
considerations, the Court rejects the Government"s request to strike the
application out under Article 37 of the Convention.
28. The Court notes
that the 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.
The Government advanced no arguments on the merits of the application.
30. The applicants maintained their complaint.
31. The Court observes
that the judgments of 27 December 1999, 5 and 27 October 2000, 30 January and 29
May 2001 remained inoperative for about four years and one month, three years
and four months, three years and two years and eight months respectively. No
justification was advanced by the Government for these delays.
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, among other authorities, Burdov v. Russia, No. 59498/00, ECHR
2002-III and, more recently, Petrushko, cited above, or Poznakhirina v. Russia,
No. 25964/02, 24 February 2005).
33. Having examined the material
submitted to it, the Court notes that the Government did 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 judgments in the applicants"
favour the domestic authorities prevented them from receiving the money they
could reasonably have expected to receive.
34. There has accordingly
been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol
II. Other alleged violations of the Convention
35. The third
applicant also complained that the lengthy non-enforcement of the judgments in
her favour violated her rights to effective domestic remedies under Article 13
of the Convention.
36. The Court considers that this complaint is linked
to the above issues of non-enforcement to such an extent that it should be
declared admissible as well. However, having regard to the finding relating to
Article 6 § 1 (see paragraph 34 above), the Court considers that it is not
necessary to examine whether, in this case, there has been a violation of
III. Application of Article 41 of the Convention
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."
38. The first applicant claimed RUR
129,314.79 in respect of pecuniary damage, of which RUR 75,091.79 was the
judgment debt for 2000 - 2004 index-linked to a monthly inflation rate of 30%
and RUR 54,223 was penalty payments at a rate of 1% per day, and RUR 387,944.37
in respect of non-pecuniary damage. The second applicant claimed RUR 74,751.66
in respect of pecuniary damage, of which RUR 40,541.46 was the judgment debt for
1999 - 2004 index-linked to the monthly inflation rate of 30% and RUR 34,210.20
was penalty payments at the rate 1% per day, and RUR 224,254.98 in respect of
non-pecuniary damage. The third applicant claimed RUR 177,186.44 in respect of
pecuniary damage, of which RUR 105,973.04 was the judgment debt for 2001 - 2004
index-linked to the monthly inflation rate of 30% and RUR 71,213.40 was penalty
payments at the rate 1% per day, and RUR 531,559.32 in respect of non-pecuniary
damage. The fourth applicant claimed RUR 140,691.43 in respect of pecuniary
damage, of which RUR 78,741.43 was the judgment debt for 2000 - 2004
index-linked to the monthly inflation rate of 30% and RUR 61,950 was penalty
payments at the rate 1% per day, and RUR 422,074.29 in respect of non-pecuniary
39. The Government contended that the applicants" claims were
wholly excessive and unjustified. They pointed out that, according to the
information provided by the Department of Statistics of the Voronezh Region, the
average monthly rate of inflation during the reference period was equal to 1.59%
in respect of the first applicant, 1.87% in respect of the second applicant,
1.51% in respect of the third applicant and 1.56% in respect of the fourth
applicant. As to the non-pecuniary damage, the Government considered that should
the Court find a violation in this case that would in itself constitute
sufficient just satisfaction.
40. The Court finds that some pecuniary
loss must have been occasioned by reason of the period that elapsed from the
time between the entry into force of the judgments in question and their
subsequent enforcement (see, e.g., Poznakhirina, cited above, § 34 and Makarova
and others v. Russia, No. 7023/03, 24 February 2005, § 38). Having regard to
the materials in its possession and the Government"s arguments, the Court awards
the first applicant EUR 80, the second applicant EUR 60, the third applicant EUR
100 and the fourth applicant EUR 95 in respect of pecuniary damage, plus any tax
that may be chargeable.
41. As regards the compensation of non-pecuniary
damage, the Court would not exclude that the applicants might have suffered
distress and frustration resulting from the State authorities" failure to
enforce the judgments in their favour. However, having regard to the nature of
the breach in this case and making its assessment on an equitable basis, the
Court considers that the finding of a violation constitutes in itself sufficient
just satisfaction for any non-pecuniary damage sustained by the applicants (see,
in a similar context, Poznakhirina, cited above, § 35).
B. Costs and
42. The applicants also claimed each RUR 2,000 for the costs and
expenses incurred before the domestic courts and the Court.
Government considered that the documents submitted by the applicants lacked
evidence that the applicants had incurred any costs.
44. According to
the Court"s case-law, an applicant is entitled to reimbursement of his costs and
expenses only in so far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above criteria,
the Court considers it reasonable to award each applicant the sum of EUR 20 in
respect of costs and expenses, plus any tax that may be chargeable.
45. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS,
THE COURT UNANIMOUSLY
1. Declares the application admissible;
Holds that there has been a violation of Article 6 of the Convention and Article
1 of Protocol No. 1 to the Convention;
3. Holds that there is no need to
examine the third applicant"s complaint under Article 13 of the Convention;
(a) that the respondent State is to pay, within three
months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 80
(eighty euros) to the first applicant, EUR 60 (sixty euros) to the second
applicant, EUR 100 (one hundred euros) to the third applicant and EUR 95
(ninety-five euros) to the fourth applicant in respect of pecuniary damage, to
be converted into the national currency of the respondent State at the rate
applicable at the date of settlement;
(ii) EUR 20 (twenty euros) to each
of the applicants in respect of costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at the date of
(iii) any tax that may be chargeable on the above
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
5. Holds that the finding
of a violation constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicants;
6. Dismisses the
remainder of the applicants" claim for just satisfaction.
Done in English,
and notified in writing on 17 November 2005, pursuant to Rule 77 §§ 2 and 3 of
the Rules of Court.