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FIRST
SECTION
CASE OF KABANOV v. RUSSIA
(Application
no. 37758/03)
JUDGMENT
STRASBOURG
14
November 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 Kabanov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37758/03) 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, Mr Vladimir Grigoryevich
Kabanov (“the applicant”), on 10 November 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
- On
1 March 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 1947 and lives in Vladikavkaz, a town in North
Ossetia.
- On
28 February 2002 the Leninskiy District Court of Vladikavkaz granted
the applicant's claim against the Regional Department of the Interior
and awarded him RUB 690,393.80 in wage arrears. This judgment became
binding on 11 March 2002 and was enforced on 27 October 2004.
- Because
the enforcement of the judgment had been delayed, on 27 December
2004 the District Court adjusted the award for the cost of living and
awarded the applicant RUB 221,319.22. This judgment became binding on
11 January 2005 and was enforced on 28 October 2005.
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 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about the non-enforcement of the
judgments. 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. They agreed
that the length of the enforcement of the judgment of 28 February
2004 had been incompatible with the Convention. Nevertheless, the
applicant's pecuniary damage caused by the delay had been made good
by the judgment of 27 December 2004, and the authorities had been
considering ways to make good non-pecuniary damage.
- The
applicant maintained his complaint. He argued that the enforcement of
the second judgment had also lasted too long.
- With
regard to the Government's argument that the applicant's damage has
been made good, the Court reiterates that to deprive an applicant of
his status as a victim, the State must acknowledge a breach of his
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 have acknowledged the breach, but the redress
they afforded – the adjustment for the cost of living –
was not adequate because it did not compensate non-pecuniary damage.
It follows that the applicant retains his status as a victim, and
that the application is compatible ratione personae with the
provisions of the Convention within the meaning of Article 35
§ 3 and cannot be rejected in accordance with Article
35 § 4.
- 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
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 of the judgments of 28 February 2002
and 27 December 2004 lasted two years and seven months, and nine
months respectively. Whilst the second period cannot be considered
unreasonable, the first one can. The Government have admitted this
too.
- In
these circumstances, the Court holds that 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 RUB 18,812.13 in respect of pecuniary damage. This
sum represented his inflationary loss caused by the delayed
enforcement of the judgment of 27 December 2004.
- The
Government contested this claim because the enforcement period had
been reasonable, and because it remained open to the applicant to
receive compensation of his inflationary loss inside Russia.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged, because the period of enforcement
of the judgment of 27 December 2004 was reasonable. The Court
therefore rejects this claim.
- The
applicant made no claim in respect of non-pecuniary damage.
Accordingly, the Court makes no award under this head.
B. Costs and expenses
- The
applicant also claimed RUB 3,374.30 for the costs and expenses
incurred before the domestic courts.
- The
Government argued that these expenses had no relation to the case.
- 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 100 for costs and
expenses in the domestic proceedings.
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 100 (one
hundred euros), plus any tax that may be chargeable, in respect of
costs and expenses, 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 14 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
