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FIRST SECTION
CASE OF KHARITICH v. RUSSIA
(Application no. 21268/04)
JUDGMENT
STRASBOURG
6 December 2007
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 Kharitich v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 15 November 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 21268/04)
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
Aleksey Nikolayevich Kharitich, (“the applicant”), on 13
May 2004.
- The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- On 4 November 2005 the Court decided to give notice of
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
THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1962 and lives in St
Petersburg.
- He brought a court action against the Finance and
Control Committee of the Omsk Regional administration to recover the
monetary value of the promissory notes issued by the Omsk Region.
- By a judgment of 24 July 2000 the Kuybyshevskiy
District Court of St Petersburg granted the applicant's claim and
awarded him 32,613.33 Russian roubles (RUB). The sum included
the main debt of RUB 23,200, the interest in the amount of RUB
9,357.33 and legal costs of RUB 56. The judgment was not appealed
against and entered into force on 4 August 2000.
- On 9 August 2000 the applicant sent the writ of
execution to the bailiffs' service of the Omsk Region and on 4
October 2000 the bailiffs initiated the enforcement proceedings.
- On 23 November 2000 the applicant received the main
debt under the judgment of 24 July 2000 in the amount of RUB 23, 200.
- By a judgment of 3 February 2004 the Kuybyshevskiy
District Court of St Petersburg awarded the applicant RUB 7,407 as a
penalty for the lengthy non-enforcement of the judgment of 24 July
2000. No appeal was lodged against the judgment and it acquired legal
force on 16 February 2004. On 18 February 2004 the Kuybyshevskiy
District Court of St Petersburg issued a writ of execution.
- On 24 February 2004 the Finance and Control Committee
was reorganized into the Ministry of Finance of the Omsk Region and
its accounts in the credit institutions were closed.
- On 16 March 2004 the applicant forwarded the writ of
execution for the judgment of 3 February 2004 to the bailiffs'
service.
- The enforcement proceedings in respect of both
judgments were discontinued on 21 April 2004 and the writs of
execution were returned to the applicant who had been advised to
apply to a court in order to define the debtor's legal successor and
to resubmit the writs of executions to the bailiffs. According to the
Government, the applicant failed to do so.
- On 12 May 2005 the Ministry of Finance of the Omsk
Region transferred to the applicant the remainder of the court award
of 24 July 2000. The judgment of 3 February 2004 was fully enforced
on 21 February 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained about the non-enforcement of the judgments of
the Kuybyshevskiy District Court of St Petersburg of 24 July 2000 and
of 3 February 2004. The Court considers that this complaint falls to
be examined under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 (see Burdov v. Russia, no. 59498/00, § 26,
ECHR 2002 III). The relevant parts of these provisions 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
- 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
1. Concerning the enforcement of the judgment of 24
July 2000
- The
Government submitted that the judgment of 24 July 2000 had been fully
enforced on 12 May 2005. They conceded that the delay in the
enforcement of that judgment was not compatible with Article 6 of the
Convention. At the same time they considered that as far as the
judgment of 24 July 2000 had been enforced fully, its continuing
non-enforcement was compatible with the applicant's right to
“peaceful enjoyment of his possessions” within the
meaning of Article 1 of Protocol No. 1. They further pointed out that
the main debt due to the judgment of 24 July 2000 had been paid to
the applicant within a reasonable time, on 23 November 2000, and that
the sum of RUB 9,357 was the payment of the interest, it was not the
applicant's main income and therefore, the delay in payment of that
amount caused no considerable damage to the applicant.
- The
applicant did not dispute that the judgment of 24 July 2000 had been
fully enforced. However, he considered that the length of the
enforcement proceedings had been excessive.
- The
Court observes that on 24 July 2000 the applicant obtained a judgment
by which the Finance and Control Committee of the Omsk regional
administration, a State body, was to pay him a substantial amount of
money. The judgment acquired legal force on 4 August 2000. It was
fully enforced on 12 May 2005. It
thus remained unenforced for approximately four years and nine
months.
- The
Court cannot accept the Government's argument that the lengthy
non-enforcement of the judgment of 24 July 2000 was compatible with
the applicant's right to “peaceful enjoyment of his
possessions” within the meaning of Article 1 of Protocol No. 1
as far as the judgment has been enforced in full. It recalls that
authorities' failure to comply with a final judgment in favour of an
applicant for a long period of time constitutes an interference with
his right to peaceful enjoyment of his possessions. The authorities
have not provided any justification for such interference in the
present case.
- The
Court further notes that both awards made by the judgment of 24 July
2000 were monetary awards. These amounts constituted a judgment debt
and the authorities were under obligation to enforce it in full,
without dividing them in two separate payments.
- 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 Burdov v. Russia,
cited above, and Reynbakh v. Russia, no. 23405/03, 29
September 2005).
- Having
examined the materials submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
justifying the delay in enforcement of the judgment of 24 July 2000.
The Court finds that by failing for years to comply with the
enforceable judgment in the applicant's favour the domestic
authorities impaired the essence of his right to a court and
prevented him from receiving the money he had legitimately expected
to receive.
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1 on account of the lengthy non enforcement
of the judgment of 24 July 2000.
2. Concerning the enforcement of the judgment of 3
February 2004
- The
Government submitted that the judgment of 3 February 2004 had been
fully enforced on 21 February 2006. They believed that the delay in
the enforcement of the judgment was compatible with Article 6 of the
Convention and Article 1 of Protocol No. 1, as far as the debtor had
been reorganised and the applicant had failed to apply to a court in
order to define the debtor's legal successor.
- The
applicant did not dispute that the judgment of 3 February 2004 had
been fully enforced. However, he considered that the length of the
enforcement proceedings had been excessive.
- The
Court observes that on 3 February 2004 a judgment in the applicant's
favour ordered the Finance and Control Committee of the Omsk regional
administration, a State body, to pay the applicant the penalties for
the lengthy non-enforcement of the judgment 24 July 2000. The
judgment entered into force on 16 February 2004. It was enforced in
full on 21 February 2006. It thus remained
unenforced for approximately two years.
- As
regards the Government's argument that the applicant had failed to
apply for the substitution of a debtor, the Court recalls that no
such action was to be required from the applicant. The fact
that the Finance and Control Committee was reorganised into a
different state body, did not lift its obligation under the judgment
in the applicant's favour. It was incumbent on the bailiffs to follow
the procedure prescribed by law for cases when the debtor was
undergoing reorganisation and to recover the debt (see,
for example, Furman v. Russia, no. 5945/04, § 18,
5 April 2007).
- 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 Burdov and
Reynbakh, both cited above).
- Having
examined the materials submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
justifying the delay in enforcement of the judgment of 3 February
2004. The Court finds that by failing for years to comply with
the enforceable judgment in the applicant's favour the domestic
authorities impaired the essence of his right to a court and
prevented him from receiving the money he had legitimately expected
to receive.
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1 on account of the lengthy
non enforcement of the judgment of 3 February 2004.
II. 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.”
A. Damage
- The applicant claimed 21,344 Russian roubles (RUB) in
respect of pecuniary damage for the lengthy non-enforcement of the
judgment of 24 July 2000 referring to the refinancing rate of
23% established by the Central Bank of Russia. He claimed RUB 1,930
in respect of pecuniary damage for the delayed enforcement of the
judgment of 3 February 2004 referring to the refinancing rate of 13%.
The applicant also claimed RUB 115,000 in respect of indirect
pecuniary damage caused by the delayed enforcement of the final
judgments in his favour referring to the inflation. He claimed RUB
300,000 in respect of non-pecuniary damage.
- The
Government submitted that the applicant's claims for pecuniary and
non-pecuniary damage as regards the lengthy non-enforcement of the
judgment of 24 July 2000 were excessive and unsubstantiated. They
considered that the sum of RUB 5,645 would be an adequate
compensation for non-pecuniary damage caused by the lengthy
non-enforcement of the judgment of 24 July 2000. They further
submitted that the applicant's claim for compensation for indirect
pecuniary damage was unsubstantiated and had no connection with the
case. According to the Government, it was still open to the applicant
to apply to domestic courts in order to receive compensation for
pecuniary damage.
- As
regards the lengthy non-enforcement of the judgment of 3 February
2004, the Government submitted that no compensation should be awarded
to the applicant as they did not see any violation of the applicant's
rights. If the Court was to find any violation of Article 6 of the
Convention or Article 1 of Protocol No. 1 in respect of the lengthy
non enforcement of that judgment, the finding of a violation
would be an adequate just satisfaction.
- The
Court reiterates, firstly, that an applicant cannot be required to
exhaust domestic remedies to obtain compensation for pecuniary loss
since this would prolong the procedure before the Court in a manner
incompatible with the effective protection of human rights (see
Papamichalopoulos and Others v. Greece (Article 50), judgment
of 31 October 1995, Series A no. 330-B, § 40, and
Gridin v. Russia, no. 4171/04, § 20, 1 June 2006).
Nor is there a requirement that an applicant furnish any proof of the
non pecuniary damage he or she sustained.
- As
regards any possible material losses sustained by the applicant as
result of the lengthy non-enforcement of the judgments in his favour,
the Court points out that under Rule 60 of the Rules of the Court,
any claim for just satisfaction must be itemised and submitted in
writing together with the relevant supporting documents or vouchers,
failing which the Court may reject in whole or in part.
- In so far as the applicant's claim relates to the to
the inflation losses in the amount of RUB 115,000, the Court notes
that the applicant has not indicated the inflation rate on which he
based his calculations and has not explained why he had failed to do
so. Therefore, the Court rejects his claim in this part. As regards
the remaining claims in respect of pecuniary damage, the Court
observes that in the present case it has found a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 in that
the awards in the applicant's favour had not been paid to him in good
time. It recalls that the adequacy of the compensation would be
diminished if it were to be paid without reference to various
circumstances liable to reduce the value of the award, such as an
extended delay in enforcement (see Gizzatova v. Russia, no.
5124/03, § 28, 13 January 2005). Having regard to the materials
in its possession and the fact that the Government did not furnish
any objection to the applicant's method of calculation of
compensation, the Court awards the applicant 650 euros (EUR) in
respect of pecuniary damage, plus any tax that maybe chargeable.
- The Court further considers that the applicant must
have suffered certain distress and frustration resulting from the
State's authorities' failure to enforce the final judgments in his
favour in good time. However, the amount claimed appears to be
excessive. Making its assessment on an equitable basis, it awards the
applicant EUR 3,500 in respect of non pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant claimed reimbursement of postal expenses
in the amount of RUB 300. He did not submit any receipts to the
Court.
- The Government considered that no compensation should
be awarded as the applicant did not substantiate his claim by any
evidence.
- 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 the
applicant did not submit any materials to substantiate his claims.
Therefore the Court rejects his claims for costs and expenses.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
lengthy non-enforcement of the judgments of 24 July 2000 and
3 February 2004;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 650 (six
hundred and fifty euros) in respect of pecuniary damage and EUR 3,500
(three thousand five hundred euros) in respect of non-pecuniary
damage, to be converted into Russian roubles at the rate applicable
at the date of settlement, plus any tax that may be chargeable on the
above amounts;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
