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
FIRST SECTION
CASE OF MIKHAYLOVA AND
OTHERS v. RUSSIA
(Application No. 22534/02)
JUDGMENT
<*>
(Strasbourg, 17.XI.2005)
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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.
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, President,
Mr L. Loucaides,
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,
Mr K. Hajiyev, judges,
and
Mr S. Quesada, Deputy Section Registrar,
Having deliberated in private on
25 October 2005,
Delivers the following judgment, which was adopted on
that date:
PROCEDURE
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.
THE
FACTS
I. The 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 insufficient funds.
8. In January - February 2004 the first
applicant was paid the amount due pursuant to the writ of execution.
2. The
second applicant
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 applicant
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 2001.
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 funds.
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 Enforcement Procedure.
15. In January - February 2004
the third applicant was paid the amounts due pursuant to the writs of
execution.
4. 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.
II. 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.
20. 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.
THE LAW
I. Alleged violation of Article 6 § 1 of the
Convention
and 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 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
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-...).
25. On 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.
B. Merits
29. 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.
32. 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, 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 No. 1.
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 Article 13.
III. Application of
Article 41 of the Convention
37. 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
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 damage.
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
