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FIRST
SECTION
CASE OF AZARYEV v. RUSSIA
(Application
no. 18338/05)
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 Azaryev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, 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. 18338/05) 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, Mr Vadim Vadimovich Azaryev
(“the applicant”), on 12 April 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
3 September 2007 the President of the First Section decided to
communicate the complaints concerning non-enforcement and supervisory
review of binding 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Pskov, a town in the Pskov
Region.
- The
applicant sued his employer, a regional department of the Federal
Debt Recovery Centre, for salary arrears.
- On
18 May 2004 the Pskov Town Court awarded him against the Government
342,578 Russian roubles (RUB) in respect of the arrears and
RUB 20,000 in respect of non-pecuniary damages. This judgment
became binding on 7 June 2004.
In
July and December 2004 the applicant sent enforcement papers to the
Ministry of Finance, but in September 2005 the Ministry returned the
papers, because they did not indicate the Ministry as the defendant
and did not specify the financial source to be charged. The applicant
asked the Town Court to clarify the judgment, but on 23 November 2005
the court refused this request, because the judgment was clear as it
stood. The judgment has not been enforced to date.
- In
the meantime, on the Government's request, on 12 November 2004 the
Presidium of the Pskov Regional Court quashed the judgment in the
part concerning the damages, and rejected this claim. The Presidium
found that the courts below had misinterpreted material law.
- On
17 April 2006 the Town Court gave two other judgments in the
applicant's favour. In the first judgment it adjusted the outstanding
award of 18 May 2004 for the cost of living and awarded RUB
87,357. This judgment became binding on 28 April 2006. In the second
judgment the court awarded the applicant RUB 206,672 in respect of
salary arrears. This judgment became binding on 3 May 2006.
In
May 2006 the applicant sent enforcement papers to the Ministry of
Finance, but later the same month the Ministry returned the papers,
because they did not specify the financial source to be charged. The
applicant sent the enforcement papers to the bailiff's service, but
in December 2006 the service returned the papers, because it was not
authorised to enforce debts against the treasury.
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 Articles 6 and 13 of the Convention, and
Article 1 of Protocol No. 1 about the delayed enforcement and
supervisory review of the judgments. 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 applicant
had failed to exhaust domestic remedies, because he could have sued
the Ministry of Finance for negligence.
As to
the non-enforcement of the judgment of 18 May 2004, the judgment
could not have been enforced because the judgment had been unclear,
and because the applicant had retained the enforcement papers since
September 2005. The judgments of 17 April 2006 could not have been
enforced because they were unclear, and because the applicant had
retained the enforcement papers since December 2006.
The
supervisory review of the judgment of 18 May 2004 had not breached
the Convention. It had been initiated by a party to the proceedings
within two months of the judgment's entry into force and had been
meant to correct a misapplication of material law. Civil procedure of
other countries, for example Germany, had also allowed for the
annulment of binding judgments. Besides, the Council of Europe had
been satisfied with reforms of the supervisory-review procedure.
- The
applicant maintained his complaint. He did exhaust domestic remedies.
The Ministry of Finance had delayed the enforcement for no valid
reason. The Town Court had confirmed that the judgment of 18 May 2004
had been clear and could have been enforced. He had not retained the
enforcement papers without need.
- The
Court considers that a claim for negligence would be ineffective,
because it would yield a declaratory judgment reiterating what was in
any event evident from the original judgments: the State was to
honour its debt. This new judgment would not bring the applicant
closer to his desired goal, that is the actual enforcement (see
Jasiūnienė v. Lithuania (dec.), no. 41510/98,
24 October 2000; Plotnikovy v. Russia, no. 43883/02,
§ 16, 24 February 2005).
- 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 Article 6 of the Convention includes the “right
to a court” (see Golder v. the United Kingdom, judgment
of 21 February 1975, Series A no. 18, § 36). To
honour this right, the State must obey a binding judgment (see Burdov
v. Russia, no. 59498/00, ECHR 2002 III) and avoid
quashing it, save in circumstances where the principle of legal
certainty would not be breached (see Protsenko v. Russia, no.
13151/04, §§ 25–34, 31 July 2008).
Besides, an enforceable judgment constitutes a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court considers that in the case at hand the State has breached the
applicant's “right to a court” and prevented him from
peacefully enjoying his possessions in two ways.
- First,
the State avoided paying the three judgment debts for over four and
two years. The Government justify this delay by the applicant's
failure to follow the correct enforcement procedure, but the Court
reiterates that where a judgment is against the
State, the State must take the initiative to enforce it. This
especially applies where, in view of the complexities and possible
overlapping of the execution and enforcement procedures, an applicant
may have reasonable doubts about which authority is responsible for
the enforcement (see Akashev
v. Russia, no. 30616/05, § 21–23,
12 June 2008). The Government further justify the delay with the
vagueness of the judgments, but as the domestic court has found on 23
November 2005, the award needed no clarification.
- Second,
the State quashed in part the judgment of 18 May 2004 because it had
been based on an alleged misinterpretation of material law. However,
this ground does not justify supervisory review (see Kot
v. Russia, no. 20887/03, § 29, 18 January
2007).
- 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 4 OF THE CONVENTION
- The
applicant complained under Article 4 that his unpaid work amounted to
forced or compulsory labour.
- 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
- In
respect of pecuniary damage the applicant claimed 17,722 euros (EUR)
and EUR 400 per month since March 2006. These sums represented
respectively his estimate of the unpaid judgment debts and his
monthly salary.
- The
Government argued that this claim should have been rejected, because
the applicant had been himself responsible for the non-enforcement,
and because the non-pecuniary damages awarded by the judgment of 18
May 2004 had been quashed.
- The
Court reiterates that violations of Article 6 are best redressed by
putting an applicant in the position he would have been if Article 6
had been respected. The Government shall therefore secure, by
appropriate means, the enforcement of the domestic court's awards
(see, with further references,
Poznakhirina v. Russia, no. 25964/02, § 33,
24 February 2005). In addition, the Government shall pay the
applicant EUR 570 which represents the equivalent of RUB 20,000 that
was taken away from the applicant as a result of the supervisory
review.
- In
respect of non-pecuniary damage the applicant claimed EUR 15,000.
- The
Government argued that this claim was unfounded and excessive.
- The
Court accepts that the applicant must have been distressed by the
non-enforcement and supervisory review of the judgments. Making its
assessment on an equitable basis, the Court awards EUR 4,100 under
this head.
B. Costs and expenses
- The
applicant made no claim in respect of costs and expenses.
Accordingly, the Court makes no award.
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 and supervisory review 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, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, shall secure, by appropriate means, the
enforcement of the awards made by the domestic court,
and in addition pay the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 570 (five hundred seventy
euros), plus any tax that may be chargeable, in respect of pecuniary
damage;
(ii) EUR 4,100 (four thousand one
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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 14 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
