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FIRST
SECTION
CASE OF TULSKAYA v. RUSSIA
(Application
no. 43715/05)
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 Tulskaya v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni, 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. 43715/05) 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 Yelena Aleksandrovna
Tulskaya (“the applicant”), on 27 October 2005.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation
at the European Court of Human Rights.
- On
16 January 2007 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 1965 and lives in Borisoglebsk, a town in the
Voronezh Region.
- On
8 December 1999 the Borisoglebsk District Court awarded the applicant
1,563.08 Russian roubles (RUB) in arrears of child benefits against
the Regional Authority. This judgment became binding on 18 December
1999 but was not enforced immediately.
- On
25 November 2005 bailiffs credited the judgment debt to the
applicant’s account. Unaware of this, on 19 March 2007 the
Regional Authority mistakenly paid to the applicant another RUB 3,126
(the judgment debt adjusted for the cost of living).
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 13 of the Convention about the
delayed enforcement of the judgment. The Court will consider 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 admitted that there had been a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1. Nevertheless, they
argued that the application was abusive, because the applicant had
failed to tell the Court that the judgment had been enforced. They
also asked to strike the case out of the Court’s list of cases,
because the applicant had refused to settle. They considered that the
applicant had lost her status as a victim.
- The
applicant maintained her complaint.
- As
to abuse of the right of application, the Court
reiterates that an application may be rejected as abusive if, among
other things, it was knowingly based on untrue facts (see Varbanov
v Bulgaria, no. 31365/96, § 36,
ECHR 2000-X). However, in the circumstances of the present
case, the Court cannot discern any deceit on the applicant’s
part.
- As
to striking out, the Court has earlier refused to strike out cases
where applicants refused settlement. The Court will do so in this
case too (see, with further references, Svitich v. Russia, no.
39013/05, § 21, 31 July 2007).
- As
to victim status, the Court reiterates that to deprive an applicant
of this status, the State must acknowledge a breach of her rights and
afford adequate redress (see Amuur v.
France, judgment of 25 June 1995,
Reports of Judgments and Decisions
1996-III, § 36). In the case
at hand, the Government did acknowledge a breach of the rights, but
provided no redress. The payment of 19 March 2007 cannot be
considered as redress, because it was unintentional.
- 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
- The
Government have admitted that there had been a violation of Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1.
- In
the circumstances of the previous case, the Court finds no reason to
hold otherwise. There has, accordingly, been a violation of these
Articles.
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
- In
respect of pecuniary damage, the applicant claimed 1,500 euros (EUR).
This amount included EUR 1,000 of allegedly underpaid child benefits
and EUR 500 of default interest.
- The
Government objected to this claim, because the applicant had received
the judicial award twice. They also argued that no default interest
could have been awarded, because the authorities had not retained the
applicant’s money deliberately, and because in any event
domestic courts had been better placed to determine the amount to be
awarded.
- The
Court rejects this claim. The applicant has received the judgment
debt. In addition, on 19 March 2007 she received a sum equivalent to
two judgment debts. Even though the last payment was inadvertent, the
Court estimates that it has covered the applicant’s pecuniary
loss.
- In
respect of non-pecuniary damage, the applicant claimed EUR 5,000.
- The
Government argued that this claim was excessive and unsubstantiated.
- 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 3,000 under this
head.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government argued that this claim was excessive and mostly
unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 the sum of EUR 7 covering costs
under all heads.
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 according to Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 7 (seven euros), plus any
tax that may be chargeable to the applicant, in respect of costs and
expenses;
(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 23 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
