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FIRST
SECTION
CASE OF KARDASHIN AND OTHERS v. RUSSIA
(Application
no. 29063/05)
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 Kardashin and Others 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 application (no. 29063/05) 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 three Russian nationals, Mr Aleksandr
Sergeyevich Kardashin, Ms Svetlana Vladimirovna Kardashina, and Ms
Lyudmila Martselinovna Banshchikova (“the applicants”),
on 25 June 2005.
- The
applicants were represented by Mr A. Koss, a lawyer practising in
Kaliningrad. 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
5 April 2007 the President of the First Section decided to
communicate the complaint concerning non-enforcement of a judgment to
the Government. It was also decided to examine the merits of the
applications at the same time as their admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are a family. They were born in 1985, 1964, and 1944
respectively and live in Baltiysk, a town in the Kaliningrad Region.
- The
applicants’ house became decrepit because of a construction
undertaken nearby by Military Unit 53110. On 19 September 2001 the
Baltiysk Town Court ordered the Military Unit to provide the
applicants with decent dwellings. This judgment became binding on 1
October 2001.
- On
30 January 2002 the Town Court forwarded enforcement papers to
bailiffs, but on 18 February 2002 the bailiffs returned the papers
because of their formal defects.
- From
25 March to 30 May 2002 the enforcement proceedings were stayed
because the Military Unit contested its liability for the judgment
debt.
- On
31 July 2002 the bailiffs returned the enforcement papers to the
applicants because the judgment had been unclear.
- On
13 August 2004 the applicants applied to clarify the judgment, and on
26 August 2004 the Town Court issued a clarification. The applicants
disagreed with it and appealed. After a rehearing, on 26 November
2004 the Town Court ordered the Military Unit to
“provide [the applicants] before 1 February 2005
with a decent (in terms of Baltiysk) flat in Baltiysk, measuring at
least 47.2 m² and meeting sanitary and technical requirements.”
The
applicants appealed, but on 12 January 2005 the Kaliningrad Regional
Court rejected the appeal.
- On
28 February 2006 the first and second applicants received a flat of
52.8 m² and the third applicant received a flat of 34.1 m².
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained under Articles 6 and 8 of the Convention about
the 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 this complaint was inadmissible.
The
State had been responsible only for one year’s delay, but any
harm caused by this delay had been made good, because in the end the
applicants had received flats of a better quality than awarded.
The
rest of the delay had had to be imputed to the applicants. The
enforcement papers issued by the court had had formal defects that
had had to be rectified. The enforcement proceedings had been
adjourned for two months, because the Military Unit had contested its
liability for the judgment debt. The judgment had been unclear and
had had to be clarified. The applicants had applied for the
clarification too late and delayed the process by appeals.
Furthermore,
the applicants had failed to exhaust domestic remedies, as Article 35
§ 1 of the Convention required. They could have sued the
bailiffs for negligence and non-pecuniary damage.
- The
applicants argued that their complaint was admissible.
It
had been the bailiffs’ responsibility to have the judgment
clarified and to have the correct debtor determined. The applicants
did exhaust domestic remedies. The applicants had received their
flats only owing to their complaint to the Court, and not in the
framework of ordinary enforcement proceedings.
- As
to domestic remedies, the Court cannot accept that the applicants had
at their disposal remedies satisfying the requirements of Article 35
§ 1 of the Convention. A complaint about the bailiffs’
negligence would have been ineffective (see Jasiūnienė
v. Lithuania (dec.), no. 41510/98, 24 October 2000;
Plotnikovy v. Russia, no. 43883/02, §
16, 24 February 2005). A claim for non-pecuniary damages has not been
shown to be sufficiently certain in practice so as to offer the
applicants reasonable prospects of success as required by the
Convention. It follows that this complaint cannot be rejected for
non-exhaustion of domestic remedies.
- As
to the other arguments, the Court notes that this complaint 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
Court reiterates that an unreasonably long delay in the enforcement
of a binding judgment may breach the Convention (see Burdov
v. Russia,
no. 59498/00, ECHR 2002 III). To decide if the delay was
reasonable, the Court will look at how complex the enforcement
proceedings were, how the applicant and the authorities behaved, and
what the nature of the award was (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
- In
the present case the enforcement lasted four years and four months.
Of this period, the Government have admitted their responsibility for
one year. While this delay is in itself incompatible with the
requirements of the Convention, the Government’s responsibility
extends even further. The Government attribute the bulk of the delay
to the applicants’ failure to apply promptly for clarification
of the judgment. However, the quality of the flats that the
applicants received in the end exceeded the clarified award. If the
defendant enjoyed such leeway, the Court cannot, in the circumstances
of this case, accept that the clarification had been a necessary
condition for the enforcement.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained under Article 13 of the Convention that they
had had no effective domestic remedy against the delayed enforcement
of the judgment.
- The
Court notes that this complaint is linked to the one examined above
and must therefore be also declared admissible.
- Nevertheless,
having regard to the finding relating to Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, 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
- 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
- Each
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that this claim was excessive.
- The
Court accepts that the applicants must have been distressed by the
delayed enforcement of the judgment. Making its assessment on an
equitable basis the Court awards each applicant EUR 3,500 under
this head.
B. Costs and expenses
- The
applicants also claimed an unspecified amount for the costs and
expenses incurred before the Court.
- The
Government argued that the applicants had not substantiated this
claim with evidence.
- 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 each applicant the sum of EUR 100
for the proceedings before the Court.
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 applications admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds
(a) that the respondent State is to
pay each 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 3,500 (three thousand five
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 100 (one hundred euros),
plus any tax that may be chargeable to the applicants, 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 applicants’
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
