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FIRST
SECTION
CASE OF KUZMINSKIY v. RUSSIA
(Application
no. 40081/03)
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 Kuzminskiy 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. 40081/03) 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 Vitaliy Vladimirovich
Kuzminskiy (“the applicant”), on 8 December 2003.
- 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
17 September 2007 the President of the First Section decided to
communicate the complaint concerning non-enforcement of judgments 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 Government objected to the joint examination of the
admissibility and merits, but the Court rejected this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Rostov-on-Don, a town in the
Rostov Region.
- In
2002–03 the applicant stood trial for bribery but was
acquitted. The applicant spent this time in pretrial custody.
- On
30 December 2003 the Rostov Regional Court awarded the applicant
against the Ministry of Finance 48,245.12 Russian roubles (RUB) in
respect of pecuniary damage inflicted by the trial. This judgment
became binding on 11 March 2004 and was enforced on 29 April
2005.
- On
28 April 2005 the Presidium of the Regional Court awarded the
applicant against the Ministry of Finance RUB 10,000 in respect of
non-pecuniary damage sustained in pretrial custody. This judgment
became binding on 28 April 2005 and was enforced on 21 March 2006.
- On
4 April 2004 the Sovetskiy District Court of Rostov-on-Don adjusted
the award of 30 December 2003 for the cost of living and awarded a
further RUB 7,034.68.
II. RELEVANT DOMESTIC LAW
- 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 lengthy non-enforcement of the
judgments of 30 December 2003 and 28 April 2005. 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 applicant
had failed to exhaust domestic remedies because he had not complained
to courts about the Ministry of Finance's negligence. Besides, the
damage caused by the delayed enforcement had been made good inside
the State because the award had been adjusted for the cost of living.
The judgments had been enforced within a reasonable time upon receipt
from the applicant of due enforcement papers.
- The
applicant maintained this complaint. He had had no effective remedy
to exhaust. He had retained his victim status, because the adjustment
for the cost of living had included no acknowledgment of a violation
of the Convention and had been insignificant. The judgments had been
enforced too late. The applicant should not have had to initiate
special procedure to obtain the awards.
- With
regard to domestic remedies, the Court reiterates that
an appeal against the Ministry's negligence would yield a declaratory
judgment that would reiterate what was in any event evident from the
original judgment: the State was to honour its debt. This new
judgment would not bring the applicant closer to his desired goal,
that is the actual payment of the judicial award or, if appropriate,
compensation for late payment (see Jasiūnienė v.
Lithuania (dec.), no. 41510/98, 24
October 2000;
Plotnikovy v. Russia,
no. 43883/02, § 16, 24 February 2005).
14. With
regard to victim status, the Court reiterates
that to deprive an applicant of this status, 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 redress afforded by the Government –
the adjustment for the cost of living – was not adequate
because it did not compensate non-pecuniary damag
caused by the delayed enforcement.
- 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).
17. In
the case at hand the enforcement of the judgments of 30 December 2003
and 28 April 2005 lasted one year and one month, and ten months
respectively. To define these periods, the Court has taken the
date of the judgments' entry into force as the starting date, because
a person who has obtained a judgment against
the State may not be expected to bring separate enforcement
proceedings (see Metaxas
v. Greece,
no. 8415/02, § 19, 27 May 2004).
This means that where a judgment is against the State, it is the
State, not the creditor, who must take the initiative of enforcing
it.
- Of
these two periods, the first one – one year and one month –
cannot be considered as compatible with the requirements of the
Convention. The judgment was easy to enforce because it required a
simple bank transfer, and the applicant did not disrupt the
enforcement.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 3, 5, and 6 of the
Convention about bad conditions in pretrial custody, about
unlawfulness of his pretrial detention, and about not having been
informed in time about the charges against him.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
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
- The
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim, and suggested that a finding of a
violation would in itself be sufficient.
- The
Court accepts that the applicant must have been distressed by the
delayed enforcement of the judgment of 30 December 2003. Making its
assessment on an equitable basis the Court awards EUR 600 under this
head.
B. Costs and expenses
- The
applicant made no claim for 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 complaint concerning
non-enforcement admissible and the remainder of the application
inadmissible;
- 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 600 (six
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 14 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
