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FIRST
SECTION
CASE OF KAZANTSEVA v. RUSSIA
(Application
no. 26365/05)
JUDGMENT
STRASBOURG
23 October
2008
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 Kazantseva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 2 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26365/05) 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, Ms Yekaterina Aleksandrovna
Kazantseva (“the applicant”), on 29 June 2005.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former Representatives of
the Russian Federation at the European Court of Human Rights.
- On
14 November 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Yakutsk, a town in Yakutia.
- On
5 December 2002 the Yakutsk Town Court ordered the local council to
provide the applicant with a decent flat for a family of three. This
judgment became binding on 15 December 2002.
- On
18 November 2004 the court redirected the debt from the local council
to the Mayor’s Office.
- On
21 December 2005 the judgment was enforced.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months. Under
section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of
Finance must enforce a judgment within three months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 1 of Protocol No. 1 about
non-enforcement of the judgment. The Court will examine this
complaint under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1. Insofar as relevant, these Articles 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
Government argued that the application was inadmissible. The
applicant had missed six months because the final domestic decision
had been given on 18 November 2004. Besides, the applicant had failed
to exhaust domestic remedies because she could have sued the bailiffs
for negligence.
- The
applicant maintained her application.
- The
Court considers that the six-month rule does not apply to the present
case because on the date of introduction the judgment was outstanding
(see Nazarchuk v. Ukraine, no. 9670/02, § 20, 19
April 2005). The Court also reiterates that a
complaint against the bailiffs would not have been an effective
remedy (see Jasiūnienė v.
Lithuania (dec.), no. 41510/98,
24 October 2000;
Plotnikovy v. Russia, no.
43883/02, § 16, 24 February 2005).
- 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
- In
their initial observations the Government admitted that they had been
responsible for a three years’ delay in the enforcement, and
that this delay had violated the applicant’s rights. In their
subsequent observations the Government argued that they had been
responsible for only two months’ delay, and that this delay had
not violated the applicant’s rights.
- The
Court notes that the Government’s observations are
self-contradictory, and that they have provided no plausible
explanation for this contradiction.
- The
Court thus considers that the Government have failed to rebut the
applicant’s complaint. Accordingly, there has been a violation
of Article 6 § 1 of the Convention and Article 1 of Protocol No.
1.
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 200,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that this claim had been excessive and unfounded.
- The
Court accepts that the applicant must have been distressed by the
delayed enforcement of the judgment. Making its assessment on an
equitable basis, the Court awards EUR 2,300 under this
head.
B. Costs and expenses
- The
applicant made no claim for the costs and expenses. Accordingly, the
Court makes no award under this head.
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 § 1 of the Convention and Article 1 of Protocol No. 1;
- 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 2,300 (two
thousand three hundred euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, to be converted into Russian
roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 23 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
