THIRD SECTION

CASE OF FALIMONOV v. RUSSIA

(Application no. 11549/02)

JUDGMENT

STRASBOURG

25 March 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 Falimonov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	
and Santiago Quesada, Section Registrar,
Having deliberated in private on 4 March 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 11549/02) 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 Nikolay Semenovich Falimonov (“the applicant”), on 6 August 2001.
2.  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 Mrs V. Milinchuk.
3.  The applicant complained, in particular, about the allegedly excessive length of civil proceedings.
4.  On 12 September 2006 the Court decided to communicate the complaint concerning the allegedly excessive length of proceedings to the Government. It also decided, of its own motion, to put a question about the delay in enforcement of two judgments in the applicant’s favour. 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.
5.  The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismissed it.
THE FACTS
6.  The applicant was born in 1933 and lives in Voronezh.
A.  Proceedings concerning a road accident
1.  First examination of the case
7.  On 24 May 1998 the applicant’s wife was injured in a road accident. She is incapacitated and the applicant is her guardian.
8.  On 13 October 1998 the Kominternovskiy District Court of Voronezh convicted the driver of reckless driving and infliction of serious bodily injuries. The court found that the applicant was entitled to compensation.
9.  On 27 October 1998 the applicant sued the driver on his own behalf and on behalf of his wife for compensation in respect of pecuniary and non-pecuniary damage.
10.  On 19 March 1999 the Kominternovskiy District Court of Voronezh disallowed his claims because he had not paid the court fee and had not submitted documents showing that he could act on behalf of his wife.
11.  On an unspecified date the applicant resubmitted his claims.
12.  On 22 June 1999 the Kominternovskiy District Court for a second time disallowed his claims because the applicant had not paid the court fee and had not submitted supporting documents.
13.  On 13 August 1999 the applicant for a third time resubmitted his claims.
14.  On 27 September 1999 the Presidium of the Voronezh Regional Court decided that the applicant should be exempted from the court fee.
15.  On 28 September 1999 the Kominternovskiy District Court accepted the applicant’s claims and scheduled the first hearing for 18 January 2000.
16.  On 18 January 2000 the court adjourned the hearing until 6 April 2000, following the applicant’s request that his case be examined with the participation of lay judges.
17.  The hearing of 6 April 2000 was adjourned because counsel for the respondent did not appear.
18.  On 13 April 2000 the hearing did not take place because the representative of the guardianship and wardship authority who had been invited to give an expert opinion on the merits of the case failed to appear.
19.  On 3 May 2000 the court again adjourned the hearing.
20.  On 15 September 2000 the court held a hearing.
21.  On 18 September 2000 the Kominternovskiy District Court delivered its judgment, awarded the applicant 5,000 Russian roubles (RUB) for non-pecuniary damage, and severed the claim for pecuniary damage. The applicant did not appeal. The judgment became enforceable on 28 September 2000.
 2.  Supervisory review and second examination of the case
22.  On an unspecified date the applicant lodged an application for supervisory review of the judgment of 18 September 2000.
23.  On 7 May 2001 the Presidium of the Voronezh Regional Court granted the applicant’s request for supervisory review, quashed the judgment on the ground that the District Court had omitted to examine the claim for pecuniary damage, and remitted the case for a fresh examination to the District Court.
24.  The Kominternovskiy District Court scheduled the first hearing for 27 July 2001.
25.  The hearings of 27 July, 10 September, and 15 November 2001, 10 and 23 April, 20 and 31 May 2002 were adjourned because counsel for the respondent or the representative of the guardianship and wardship authority failed to appear, or because the parties asked for an adjournment for the preparation of additional evidence or obtaining the attendance of additional witnesses.
26.  On 7 June 2002 the Kominternovskiy District Court held a hearing and delivered judgment. It awarded the applicant RUB 24,059 in respect of pecuniary and non-pecuniary damage.
27.  On 23 June 2002 the Voronezh Regional Court quashed the judgment on appeal and remitted the case.
28.  The Kominternovskiy District Court adjourned the hearings on 23 September, 11 October and 15 November 2002 because the respondent or his counsel did not appear.
29.  On 22 November 2002 the Kominternovskiy District Court awarded the applicant RUB 32,048 in respect of pecuniary and non-pecuniary damage.
30.  On 4 February 2003 the Voronezh Regional Court upheld the judgment on appeal. The judgment became enforceable.
 3.  Supervisory review and third examination of the case
31.  On 31 March 2003 the applicant requested supervisory review of the judgments of 22 November 2002 and 4 November 2003.
32.  On 9 July 2003 the Presidium of the Voronezh Regional Court granted the applicant’s request, quashed the judgments on the ground that the District Court had omitted to examine a part of the applicant’s claim and remitted the case for a fresh examination to the District Court.
33.  The first hearing was scheduled for 27 October 2003.
34.  On 27 October, 19 November, and 11 December 2003 the hearings were adjourned at the request of the prosecutor who participated in the proceedings.
35.  On 9 January 2004 the Kominternovskiy District Court awarded the applicant RUB 37,845.44 in respect of pecuniary and non-pecuniary damage.
36.  On 25 March 2004 the Voronezh Regional Court upheld the judgment on appeal.
B.  Proceedings concerning the applicant’s pension
1.  First set of proceedings
37.  On 17 May 2001 the Kominternovskiy District Court ordered that the local welfare office (Комитет социальной защиты населения Коминтерновского района г. Воронежа) recalculate the applicant’s pension and pay him RUB 15,804.52 in pension arrears. The judgment became enforceable on 28 May 2001.
38.  The applicant submitted the writ of execution to the bailiffs, who opened enforcement proceedings.
39.  On 17 December 2003 the applicant received the amount due.
40.  The applicant sued the local welfare office for compensation in respect of the pecuniary damage caused by the delay in enforcement of the judgment of 17 May 2001.
41.  On 7 April 2005 the Kominternovskiy District Court acknowledged that the delay in enforcement had violated the applicant’s rights and awarded him RUB 5,913.05 against the local welfare office in respect of inflation losses sustained through belated enforcement of the judgment of 17 May 2001.
42.  On an unspecified date the amount awarded was paid to the applicant.
2.  Second set of proceedings
43.  On 3 June 2004 the Kominternovskiy District Court increased the applicant’s pension to RUB 6,100.14 and awarded him RUB 54,495.94 in pension arrears against the local welfare office. The judgment became enforceable on 21 June 2004.
44.  On 19 August 2004 the applicant submitted the writ of execution to the bailiffs, who opened enforcement proceedings.
45.  On 15 December 2004 the bailiffs discontinued the enforcement proceedings because the debtor had no available funds.
46.  The applicant received the award on 17 June 2005.

THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF AN EXCESSIVE LENGTH OF THE PROCEEDINGS
47.  The applicant complained under Article 6 § 1 of the Convention that the proceedings concerning the road accident had been too long. Article 6 reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
48.  The Court notes that the proceedings began on 27 October 1998 when the applicant lodged his civil action, and ended on 25 March 2004 when the Voronezh Regional Court gave the final judgment in the case. The periods from 28 September 2000 to 7 May 2001 and from 4 February to 9 July 2003, when no proceedings were pending, should be deducted from the overall duration of the proceedings (compare  (dec.), no. 59502/00, 16 September 2004). The proceedings therefore lasted slightly more than four years and four months.
A.  Admissibility
49.  The Government submitted that the applicant had not complained about the excessive length of the proceedings to the judicial qualifications board or to the higher judicial authorities. He had not therefore exhausted domestic remedies.
50.  The Court observes that it has already found that an application to the higher judicial authorities or to the judicial qualifications board is not an effective remedy against the excessive length of the proceedings (see Kormacheva v. Russia, no. 53084/99, §§ 61 and 62, 29 January 2004). It therefore dismisses the Government’s objection.
51.  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
52.  The Government argued that the applicant’s case had been complex. It had been examined four times on the merits, the hearings had been scheduled at regular intervals and had been adjourned in accordance with the Code of Civil Procedure. The delays had been caused by the conduct of the parties and had not been attributable to the authorities.
53.  The applicant maintained his claims.
54.  The Court recalls that the reasonableness of the length of proceedings coming within the scope of Article 6 § 1 must be assessed in each case according to the particular circumstances. The Court has to have regard, , to the complexity of the factual or legal issues raised by the case, to the conduct of the applicant and the competent authorities and to what was at stake for the former (see  [GC], no. 30979/96, § 43, ECHR 2000-VII). In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see , no. 49017/99, § 44, 19 June 2003).
55.  The case concerned payment of compensation to the victim of a road accident. Only two parties were involved in the proceedings. As the driver’s responsibility and the applicant’s entitlement to compensation had already been established in the previous criminal proceedings (see paragraph 8 above), the courts were only called upon to calculate the amount of compensation on the basis of the documents submitted by the applicant. Accordingly, the Court considers that the case was not complex.
56.  As to the applicant’s conduct, the Court notes that a certain delay at the initial stage of the proceedings was caused by the applicant’s failure to submit documents and to pay the court fee. He is therefore responsible for the delay from 19 March 1999, when the District Court pointed out those defects to him, to 13 August 1999 when he remedied the defects and re-submitted his claim. It does not appear that he contributed to the prolongation of the proceedings at the later stages. Although two hearings were adjourned following his requests that the case be examined with the participation of lay judges and that additional witnesses be examined by the court, the applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interests (see, among others, , no. 3734/02, § 38, 22 September 2005).
57.  The Court further observes that substantial periods of inactivity, for which the Government have not submitted any satisfactory explanation, are attributable to the domestic authorities. For example, the Government failed to provide any justification for the delay from 27 October 1998, when the applicant lodged his statement of claim, to 19 March 1999 when the court returned it to the applicant for corrections on formal grounds. Further delays in the proceedings were due to infrequent hearings scheduled with significant intervals of sometimes several months. The Government did not explain why no hearings had been scheduled between 28 September 1999 and 18 January 2000, 3 May and 15 September 2000, 27 July and 10 September 2001, 15 November 2001 and 10 April 2002, 23 June and 23 September 2002, or 9 July and 27 October 2003.
58.  Furthermore, the Court does not share the Government’s view that the repeated quashing of lower courts’ judgments by the supervisory-review instance attested to the complexity of the case. It observes that one judgment was set aside because of the first-instance court’s failure to examine some of the applicant’s claims; the Presidium of the Regional Court identified procedural defects that rendered the judgment unlawful and instructed the lower court to remedy these breaches during a new examination (see paragraph 23 above). However, it appears that the first instance court failed to implement these instructions and a subsequent judgment was set aside because of the same procedural defects that had been previously identified (see paragraph 32 above). The resulting delay of more than two years is entirely attributable to the conduct of the domestic authorities (compare Uglanova v. Russia, no. 3852/02, § 34, 21 September 2006). The Court reiterates in this connection that in principle the involvement of numerous instances does not absolve the judicial authorities from complying with the reasonable time requirement of Article 6 § 1 (see ,no 62771/00, § 32, 5 February 2004). Moreover, with regard to the repeated quashing of the lower courts’ decisions, the Court recalls that since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower authorities, the repetition of such orders within one set of proceedings discloses a deficiency in the operation of the legal system (see, , , no. 41431/98, § 46, 25 November 2003). 
59.  Finally, the Court reiterates that the dispute in the present case concerned  for health damage. The Court is of the opinion that the nature of the dispute called for particular diligence on the part of the domestic courts (compare , no. 29510/04, § 40, 5 October 2006).
60.  In the light of above considerations, the Court holds that the applicant’s case was not heard within a “reasonable time”. There has accordingly been a violation of Article 6 § 1 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF NON-ENFORCEMENT OF JUDGMENTS
61.  The Court decided, of its own motion, to examine whether the delay in enforcement of the judgments of 17 May 2001 and 3 June 2004 violated the applicant’s right of access to a court enshrined in Article 6 of the Convention and his right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1. The relevant part of Article 6 § 1 was cited above. The relevant part of Article 1 of Protocol No. 1 reads as follows:

“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...”
A.   Admissibility
1.  The Government’s allegation of an abuse of the right of application 
62.  The Government submitted that the judgments of 17 May 2001 and 3 June 2004 had been enforced before the case had been communicated. The applicant had not informed the Court about that fact, which had amounted to a breach of Rule 47 § 6 of the Rules of Court. The failure to inform the Court about a circumstance relevant to the application constituted an abuse of the right of application within the meaning of Article 35 § 3.
63.  The Court reiterates that according to Rule 47 § 6 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. It further recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts. Incomplete and therefore misleading information may also amount to  of the  of , especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007, with further references).
64.  The applicant in the present case did not complain about non-enforcement in his application form. He was not therefore under an obligation to inform the Court about the progress of the enforcement proceedings. After the non-enforcement issue had been communicated by the Court of its own motion, the applicant informed the Court that the judgments had been enforced and submitted a copy of the judgment of 7 April 2005 awarding him compensation for the delay in enforcement. In view of the above, the Court does not consider that the applicant’s conduct amounted to an abuse of the right of petition. Accordingly, the Government’s objection is dismissed.
2.  The Government’s request to strike the application out 
65.  Referring to the Court’s decision in the case of (nos. 75025/01 et seq., 4 September 2003), the Government invited the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention on account of the applicant’s refusal to accept a friendly settlement.

66.  The Court observes that it has already examined the same argument by the Russian Government and rejected it (see , no. 32786/03, §§ 33-37, 28 September 2006; , no. 26410/02, §§ 11-15, 2 November 2006, etc.). The Court does not find any reason to depart from that approach in the present case. In any event, the Court decided to restore the case of  (dec.) nos. 75025/01 et seq., 23 March 2006). The Court therefore dismisses the Government’s request to strike the application out under Article 37 of the Convention.
3.  The Government’s objection as to the applicant’s victim status
67.  The Government further argued that the applicant had received compensation in respect of the pecuniary damage sustained as a result of the belated enforcement of the judgment of 17 May 2001. He could also have applied for compensation in respect of the non-pecuniary damage, but had not done so. Therefore, he can no longer claim to be a victim.
68.  The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, , judgment of 25 June 1996,  1996-III, p. 846, § 36, and  [GC], no. 28114/95, § 44, ECHR 1999-VI). The Court observes that the judgment of 17 May 2001 was enforced in full on 17 December 2003. Subsequently, the applicant sued the debtor for compensation in respect of pecuniary damage caused by the delay in enforcement of that judgment. By the judgment of 7 April 2005, the courts granted his claims, acknowledging that the delay in enforcement had violated his rights and ordering the debtor to pay him compensation in respect of pecuniary damage. The applicant did not allege that there had been any delays in the payment of the compensation awarded. Nor did he claim compensation in respect of non-pecuniary damage. The Court is satisfied that the domestic authorities acknowledged the breach of the Convention and paid compensation to the applicant amounting to redress. It therefore concludes that the applicant can no longer claim to be a victim, within the meaning of Article 34 of the Convention, of the belated enforcement of the judgment of 17 May 2001. This complaint is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
4.  Conclusion
69.  As regards the delay in enforcement of the judgment of 3 June 2004, 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
70.  The applicant complained that the judgment of 3 June 2004 had been enforced after a substantial delay.
71.  The Government argued that the applicant had not submitted the writ of execution to the Ministry of Finance. Therefore, the delay in enforcement had been attributable to him.
72.  The Court notes that on 3 June 2004 the applicant obtained a judgment in his favour against the local welfare office. However, it remained unenforced until 17 June 2005, that is for more than a year.
73.  The applicant was awarded pension arrears. From the materials of the case it appears that the pension was the applicant’s main source of income. It follows that the domestic authorities should have treated the applicant’s case with special diligence (compare Gorokhov and Rusyayev v. Russia, no. 38305/02, § 34, 17 March 2005).
74. The Government claimed that the delay in enforcement had been caused by the applicant’s failure to submit by the applicant himself the writ of execution to the Ministry of Finance. However, the fact that the judgment debt was ultimately paid to the applicant demonstrates that submission of the writ of execution to the Ministry of Finance was not a necessary element of the enforcement proceedings. Therefore the Court is not persuaded that the delay was attributable to the applicant.
 75.  The Court further observes that the applicant promptly submitted the writ of execution to the bailiffs’ service which was, at the relevant time, competent to institute enforcement proceedings against the State. It therefore finds that the applicant took reasonable steps to obtain execution of the judgment in his favour. In any event, 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 Koltsov v. Russia, no. 41304/02, § 16, 24 February 2005; Petrushko v. Russia, no. 36494/02, § 18, 24 February 2005; and Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). The State authorities were aware of the applicant’s claims, and, as soon as the judgments in his favour became enforceable, it was incumbent on the State to comply with them.
76.  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 Reynbakh v. Russia, no. 23405/03, § 23 et seq., 29 September 2005; Gizzatova v. Russia, no. 5124/03, § 19 et seq., 13 January 2005; Petrushko v. Russia, no. 36494/02, §23 et seq., 24 February 2005; Gorokhov and Rusyayev v. Russia, no. 38305/02, § 30 et seq., 17 March 2005; Wasserman v. Russia, no. 15021/02, § 35 et seq., 18 November 2004; Burdov v. Russia, no. 59498/00, § 34 et seq., ECHR 2002‑III).
77.  Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject and the circumstances of the case, the Court finds that by failing for months to comply with the enforceable judgment in the applicant’s favour the domestic authorities violated his right to a court and prevented him from receiving the money he could reasonably have expected to receive.
78. There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
79.  Lastly, the applicant complained about the excessively lenient sentence for the perpetrator of the road accident.
80.  The Court observes that the perpetrator was convicted by the judgment of 13 October 1998, whereas the present application was lodged on 6 August 2001. It follows that this complaint has been introduced out of time. In any event, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, e.g., Čekić and Others v. Croatia (dec.), no. 15085/02, 9 October 2003). Having regard to the facts, as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention. 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.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
81.  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
82.  The applicant claimed 1,000,000 euros (EUR) in respect of pecuniary and non-pecuniary damage he had incurred while taking care of his injured wife. 
83.  The Government submitted that the claims were not substantiated by documents. 
84.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this part of the claim. On the other hand, it considers that the applicant suffered distress and frustration resulting from the excessive length of the proceedings and the delay in enforcement of the judgment of 3 June 2004. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 
B.  Costs and expenses
85.  The applicant did not make any claims for the costs and expenses incurred before the domestic courts and the Court.
86.  Accordingly, the Court does not award anything under this head.
C.  Default interest
87.  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
1.  Declares the complaints concerning the excessive length of the proceedings concerning the road accident and the delay in enforcement of the judgment of 3 June 2004 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings concerning the road accident;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the delay in enforcement of the judgment of 3 June 2004;

4.  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 3,500 (three thousand five 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 on that amount;
(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago QuesadaJosep Casadevall
	Registrar	President