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FIRST
SECTION
CASE OF KOSTENKO v. RUSSIA
(Application
no. 23490/03)
JUDGMENT
STRASBOURG
7 February
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 Kostenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Loukis
Loucaides,
Nina
Vajić,
Anatoli
Kovler,
Elisabeth
Steiner,
Sverre
Erik Jebens,
Giorgio
Malinverni, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 17 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23490/03) 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 Liliya Petrovna Kostenko
(“the applicant”), on 14 July 2003.
- The
applicant was represented before the Court by Mr A.N. Gaposhkin,
a lawyer practising in Magadan. The Russian Government (“the
Government”) were initially represented by Mr P. Laptev,
the former Representative of the Russian Federation at the European
Court of Human Rights, and subsequently by their new Representative,
Mrs V. Milinchuk.
- On
15 March 2006 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 1930 and lives in Magadan, the Magadan Region.
- In
2000 she was run over by a car of the Fire Service of the Magadan
Region. As a result she became disabled.
- On
11 September 2001 the Magadan Town Court (“the Town Court”)
granted the applicant's claim against the Fire Service and awarded
her 100,000 Russian roubles (RUB) in compensation for non-pecuniary
damage. The judgment entered into force on 26 September 2001. On the
same date the Town Court issued a writ of execution.
- On
4 October 2001 the Bailiffs' Office of Magadan initiated the
enforcement proceedings.
- On
an unspecified date the defendant informed the bailiff that an appeal
had been lodged against the judgment of 11 September 2001. The
bailiff requested the Town Court to postpone the execution of the
judgment pending the proceedings before the appeal court. On 21
December 2001 the Town Court rejected the bailiff's request, as in
the meantime the Magadan Regional Court (“the Regional Court”)
upheld the judgment of 11 September 2001. On 8 January 2002 the
decision of 21 December 2001 became final.
- On
11 February 2002 the bailiff submitted the writ of execution to the
Federal Treasury for enforcement. However, on 4 March 2002 the
Federal Treasury returned the enforcement materials to the bailiff on
the ground that the debt had to be recovered from the administration
of Magadan.
- On
17 June 2002 the Fire Service informed the applicant that the
judgment would be enforced by monthly payments. According to the
schedule, the final payment was to take place in December 2006. The
applicant rejected the proposal and requested to enforce the judgment
in full.
- On
21 June 2002 the bailiff terminated the enforcement proceedings on
the ground that the writ of execution had been forwarded to the Fire
Service and that the latter would make monthly payments to the
applicant.
- On
11 July 2002 the Prosecutor of Magadan contested the decision to
terminate the enforcement proceedings.
- On
19 July 2002, the bailiff quashed the decision of 21 June 2002, upon
the Prosecutor's request, and reopened the enforcement proceedings.
- On
16 April 2003 the Town Court found that the debtor had no sufficient
funds to honour the judgment debt and granted the Bailiff's request
to postpone the enforcement of the judgment until 31 December 2003.
On 27 May 2003 the Regional Court upheld the decision of 16 April
2003.
- Between
18 November 2002 and 23 June 2003 the applicant received RUB 17,500.
- On
7 June 2004 the bailiff terminated the enforcement proceedings on the
ground that the debtor had no sufficient funds.
- On
13 August 2004 the Town Court quashed the decision of 7 June 2004,
upon the applicant's appeal. The court found that the bailiff had
failed to take necessary measures for the enforcement of the judgment
of 11 September 2001. The decision entered into force on 31
August 2004.
- On
13 September 2004 the Town Court resubmitted the writ of execution to
the bailiffs.
- On
16 October 2004 the bailiff discontinued the enforcement proceedings
on the ground that the debtor had no sufficient funds. The applicant
was advised to submit the writ of execution to the Federal Treasury.
- On
10 December 2004 the applicant forwarded the writ of execution to the
Federal Treasury.
- On
31 December 2004 she received the outstanding debt of RUB 82,500
due to her under the judgment of 11 September 2001.
- On
15 August 2005 the Town Court awarded the applicant RUB 536.07
in penalties for the delayed enforcement of the judgment of
11 September 2001. The decision entered into force on 31 August
2005. It appears that it has not been enforced.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 to the Convention about the lengthy non enforcement
of the final judgment in her favour. 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
- The
Government submitted that on 15 August 2005 the applicant had been
awarded the compensation for the delay in the enforcement of the
judgment of 11 September 2001. The decision of 15 August 2005 had not
been enforced because the applicant had not submitted the writ of
execution neither to the defendant nor to the bailiffs.
- The
applicant did not comment.
-
The Court observes, and it is not contested by the parties, that the
applicant was awarded compensation for the delay in the enforcement
of the judgment of 11 September 2001 (see paragraph 23 above). The
Court does not exclude that such a compensation award could
constitute redress of the State's previous failure to comply with the
judgment within a reasonable time, provided that this award has been
paid in full without any delay. The Government argued that the
compensation award had not been paid to the applicant because she had
not submitted the writ of execution neither to the defendant nor to
the bailiffs. However, the Court reiterates that a person who has
obtained an enforceable judgment against the State as a result of
successful litigation cannot be required to resort to enforcement
proceedings in order to have it executed (see Metaxas v. Greece,
no. 8415/02, §19, 27 May 2004, and Reynbakh v. Russia,
no. 23405/03, § 24, 29 September 2005). The State authorities
were aware of the applicant's claims, and, as soon as the decision of
15 August 2005 became enforceable, it was incumbent on the State to
comply with it. However, the Government did not adduce any evidence
showing that this award had been paid to the applicant in full and in
good time. Accordingly, the Court considers that the applicant may
still claim to be a “victim” in respect of her complaint
about the delayed enforcement of the judgment of 11 September 2001.
- The
Court, therefore, concludes 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 submitted that the authorities took necessary measures to
enforce the judgment of 11 September 2001. They argued that the
enforcement proceedings were postponed by a court decision until
31 December 2003 and that the bailiff had acted in accordance
with law when he had discontinued them on 16 October 2004. The
Government further pointed out that the Federal Treasury had received
the writ of execution only on 10 December 2004. The outstanding debt
was paid to the applicant on 31 December 2004, i.e. in good time.
Therefore, the Government considered that they were responsible only
for two periods of delay in the enforcement of the judgment of 11
September 2001: from 26 September 2001 to 17 November 2002, and
from 1 January to 16 October 2004.
- The
applicant maintained her complaint.
- The
Court observes that on 11 September 2001 the applicant obtained a
judgment, by which the Fire Service of the Magadan Region, a state
body, was to pay her a substantial amount of money. The judgment
acquired legal force on 26 September 2001. It was fully enforced on
31 December 2004, i.e. in approximately three years and three
months after it became final.
- The
Court cannot accept the Government's argument that the authorities
had taken necessary measures to enforce the judgment of 11 September
2001 in good time. The enforcement proceedings were postponed and
subsequently terminated on several occasions on the ground that the
debtor had no sufficient funds. However, the Court reiterates that it
is not open to a State authority to cite the lack of funds or other
resources, as an excuse for not honouring a judgment debt (see
Plotnikovy v. Russia, no. 43883/02, § 23, 24
February 2005, and Malinovskiy v. Russia, no. 41302/02, §
35, 16 June 2005). Admittedly, a delay in the execution of a judgment
may be justified in particular circumstances, but the delay may not
be such as to impair the essence of the right protected under Article
6 § 1. The applicant should not be prevented from benefiting
from the success of the litigation on the ground of alleged financial
difficulties experienced by the State (see Burdov v. Russia,
no. 59498/00, § 35, ECHR 2002-III).
- The
Court rejects the Government's argument that the Federal Treasury
enforced the judgment of 11 September 2001 in good time after the
applicant had submitted the writ of execution. The Court observes,
and, it is not contested by the Government, that for the first time
the writ of execution was submitted to the Federal Treasury by the
bailiffs on 11 February 2002. However, the Treasury refused to
enforce the judgment.
- The
Court therefore considers that the state authorities are responsible
for the whole period of the non-enforcement of the judgment of 11
September 2001.
- 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, cited
above, and Baygayev v. Russia, no. 36398/04, 5 July
2007).
- 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 lengthy non-enforcement of the judgment in the
applicant's favour. The Court finds that by failing, for long period
of time, to comply with the enforceable judgment in the applicant's
favour the domestic authorities impaired the essence of her right to
a court and prevented her from receiving the money she had
legitimately expected to receive.
- There
has accordingly been a violation of Article 6 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 10,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that the applicant's claim was excessive and
unsubstantiated.
- The
Court considers that the applicant must have suffered certain
distress and frustration resulting from the authorities' failure to
enforce the final judgment in her favour in good time. However, the
amount claimed appears to be excessive. Taking into account the
length of the enforcement proceedings, the nature of the award and
making its assessment on an equitable basis, the Court awards the
applicant EUR 2,700 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not make any claim for costs and expenses incurred
before the domestic courts and before the Court. 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 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 2,700 (two thousand seven
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;
(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 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
