[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF SHEVCHENKO v. RUSSIA
(Application
no. 42383/02)
JUDGMENT
STRASBOURG
10 April 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 Shevchenko 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,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren Nielsen, Section
Registrar,
Having
deliberated in private on 20 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42383/02) 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, Ms Raisa Ilyinichna
Shevchenko (“the applicant”), on 10 October 2002.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights, and
subsequently by Mrs V. Milinchuk.
- On
29 August 2006 the Court decided to communicate 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
applicant was born in 1947 and lives in the town of Kamyshin in the
Volgograd Region.
- On
23 April 2002 the Tsentralny District Court of Volgograd allowed the
applicant's claim for housing aid and awarded her
209,550 Russian roubles (RUB)
against the Ministry of Finance. The District Court found that the
applicant was entitled to thirty-three square metres (sq. m), and
that the average price per sq. m in the region at the relevant time
was RUB 6,350.
- The
parties did not appeal against the judgment and it became final on 4
May 2002.
- On
28 May 2002 the applicant submitted a writ of execution to the local
office of the Ministry of Finance.
8. By
letter of 24 October 2002, in response to the applicant's query about
the state of enforcement proceedings, the Ministry advised her that
an application for supervisory review of the above judgment had been
lodged.
- On
15 November 2002 the applicant submitted the writ to the bailiffs'
service.
- On
6 December 2002 the bailiff returned the writ to the District Court
because it had failed to set out its period of validity.
On 17 January 2003 the District Court sent the
corrected writ to the bailiff.
- On
28 February 2003 the bailiff opened enforcement proceedings. He
discontinued them on 12 May 2003 because the bailiffs' service was
not competent to enforce judgments against the State. He advised the
applicant to submit her writ of execution to the Ministry.
- On
26 June 2003 the applicant requested the District Court to rectify an
error in the writ. On 1 July 2003 the District Court forwarded the
rectified writ to the applicant. It was marked “duplicate”.
- On
22 July 2003 the applicant submitted it to the Ministry.
- On
9 September 2004 the District Court sent the Ministry a new version
of the writ, without the note “duplicate”. It explained
that the court secretary had marked the previous writ as “duplicate”
by mistake. On 15 September 2004 the
applicant also submitted to the Ministry the rectified writ, without
the “duplicate” mark. She referred to the District
Court's explanations of 9 September 2004. The Ministry received the
applicant's writ on 22 September 2004.
- By
letter of 8 October 2004, the Ministry requested the applicant to
explain why she had submitted a duplicate of the writ.
- On
30 December 2004 the applicant received the sum of money awarded to
her under the judgment of 23 April 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- Referring
to Articles 3, 6 of the Convention and Article 1 of Protocol No. 1,
the applicant complained about the delay in enforcement of the
judgment of 23 April 2002. The Court considers that the applicant's
complaint should be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, the relevant parts
of which read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time 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...”
A. Admissibility
- 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
Government argued that the judgment in the applicant's favour had
been enforced in due time. The Ministry of Finance had received the
original writ of execution on 22 September 2004. On 24 December 2004
the money had been transferred to the applicant's bank account.
- The
applicant responded that she had promptly submitted the writ of
execution to the Ministry. After six months' inactivity the Ministry
had advised her that it would not enforce the judgment because it had
applied for supervisory review. The applicant had to fetch the writ
from the Ministry and to submit it to the bailiffs but they had also
refused to enforce the judgment. The applicant finally referred to
the District Court's repeated errors in issuing the writ and
concluded that the delay in the enforcement of the judgment had been
fully attributable to the authorities.
- The
Court observes that the judgment of 23 April 2002 became enforceable
on 4 May 2002 but was enforced on 30 December 2004. It thus took the
authorities more than two years and seven months to execute it.
- 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 v. Russia,
no. 59498/00, § 34 et seq., ECHR 2002 III;
Gorokhov and Rusyayev v. Russia, no. 38305/02, § 30
et seq., 17 March 2005; Petrushko v. Russia, no. 36494/02,
§ 23 et seq., 24 February 2005; and Wasserman v. Russia,
no. 15021/02, § 35 et seq., 18 November 2004).
- 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, the Court finds that,
by failing, for a substantial period of time, to comply with the
enforceable judgment in the applicant's favour, the domestic
authorities violated her right to a court and prevented her from
receiving the money she could reasonably have expected to receive.
- There
has accordingly 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 12,940 euros (EUR) in respect of pecuniary damage,
of which EUR 3,653 represented the interest accrued on the judgment
debt at the marginal lending rate of the Russian Central Bank, and
EUR 9,287 compensation for depreciation of the judgment
calculated on the basis of increases in the average housing prices in
the Volgograd Region from 2002 to 2007. In particular, she submitted
that in December 2004 the average price had amounted to RUB 10,500
per sq. m and in March 2007 to RUB 16,200 per sq. m. She further
claimed EUR 3,000 in respect of non-pecuniary damage.
- The
Government submitted that the applicant had applied a wrong method of
calculation but failed to provide any further details. They
considered that the applicant had been entitled to no more than a
flat of thirty-three sq. m and that she could have managed to buy it
even with the money paid to her in 2004. If she had bought a smaller
apartment she would have had to return the remainder of the money to
the State because the award had been made for the sole purpose of
buying housing. Hence, the applicant was not entitled to the interest
on the judgment debt. Finally, the Government submitted that the
applicant's claim in respect of non-pecuniary damage was excessive.
- The
Court notes that on 23 April 2002 the District Court awarded the
applicant a sum of money for purchasing a flat. The applicant could
not use that award for any other purpose. The Court observes that the
applicant claimed EUR 3,653 representing the interest which
could have accrued if the money had been paid in good time and put in
a bank. Having regard to the special purpose of the award, the Court
agrees with the Government that the applicant had no right to profit
from it by investing it or depositing the money on a bank account
(see Glushakova v. Russia (no. 2), no. 23287/05, § 23,
10 May 2007). The Court therefore dismisses her claim under this
head.
- As
to the remainder of the pecuniary claim, the Court notes that in the
present case it found a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 on account of the delays
in the enforcement of the judgment in the applicant's favour. The
Court reiterates that the adequacy of the compensation would be
diminished if it were to be paid without reference to various
circumstances liable to reduce its value, such as an extended delay
in enforcement (see Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005; Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). The Court
observes that the amount of housing aid awarded to the applicant
under the judgment of 23 April 2002 was calculated by
multiplying the number of sq. m to which she was entitled by the
average price per sq. m in the region in 2002. The applicant received
the award in December 2004 and by that time the average price had
considerably increased (see paragraph 26 above). The Court accepts
that the judgment debt depreciated as a result of the delayed
enforcement of the judgment (compare Pylnov v. Russia,
no. 7111/05, § 31, 12 July 2007). The Court
further finds that the Government failed to explain what specific
aspect of the applicant's calculation had been erroneous. They did
not contest the reference prices supplied by the applicant. Having
regard to the materials in its possession and to the fact that the
judgment was fully enforced in 2004, the Court awards the applicant
EUR 4,000, plus any tax that may be chargeable on that amount, and
dismisses the remainder of the claim for pecuniary damage.
- Finally,
the Court considers that the applicant must have suffered distress
and frustration resulting from the State authorities' failure to
enforce the judgment in her favour. Taking into account the length of
the enforcement proceedings and making its assessment on an equitable
basis, the Court awards the applicant EUR 1,500 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not claim costs and expenses and, accordingly, there is
no call to make an 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, the following
amounts, to be converted into Russian roubles at the rate applicable
on the date of settlement:
(i) EUR
4,000 (four thousand euros) in respect of pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros) in respect of non-pecuniary
damage;
(iii) any
tax that may be chargeable on the above amounts;
(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 10 April 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
