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FIRST
SECTION
CASE OF SHAROV v. RUSSIA
(Application
no. 38918/02)
JUDGMENT
STRASBOURG
12 June
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 Sharov 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 22 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38918/02) 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 Vyacheslav Georgiyevich
Sharov (“the applicant”), on 8 October 2002.
- The
applicant was represented by Mr I. Telyatyev, a lawyer practising in
Аrkhangelsk. The Russian Government (“the Government”)
were represented by Mr P. Laptev and Mrs V. Milinchuk, the
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
3 July 2006 the Court decided to give notice of the application to
the Government. It 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 Arkhangelsk.
- The
applicant lived in a council house under the threat of collapse. As
the local authority had failed to resettle the applicant, he brought
a civil action.
- On
18 December 2001 the Lomonosovskiy District Court of Arkhangelsk held
for the applicant and ordered the authority to:
“provide [the applicant’s] family of four
with a well-equipped at of at least 48 m² meeting
sanitary and technical standards.”
This
judgment became binding on 21 January 2002.
- On
the applicant’s request, on 21 June 2002 the district court
changed the mode of execution, and ordered the authority to pay to
the applicant the price of a new at. This decision was
quashed on appeal, and after a rehearing, the award was increased. On
17 April 2003 the funds were credited to the bailiff’s account.
- On
28 April 2003 the authority provided the applicant with a at
of 43.1 m², and the applicant agreed to move in. The
authority asked the court to order it to pay to the applicant the
price of the 4.9 m² shortfall in order to settle the judgment
debt, but the applicant objected, and the court dismissed this
request.
- On
the bailiff’s request, on 28 April 2005 the district court
reverted the mode of execution from monetary to in-kind, and since
the applicant had already received the at, the bailiff closed
the enforcement proceedings. On 6 February 2006 the Arkhangelsk
Regional Court ordered the enforcement proceedings to resume because
the at received by the applicant was smaller than originally
awarded.
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 that under Articles 2, 3, and 6 of the
Convention, and under Article 1 of Protocol No. 1, about the
non-enforcement of the judgment. The Court will examine this
complaint only under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1. As far as relevant, these
Articles read as follows:
Article 6
“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 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 acknowledged that the judgment had not been enforced in
full. Nevertheless, they put the blame for the non-enforcement on the
applicant: he had refused to receive the price of the 4.9 m²
shortfall, and had not agreed that he would move out of the currently
occupied at if the local authority offered him an appropriate
at.
- The
applicant insisted on his complaint. The authority had made no
attempt to provide him with a at conforming to the award and
had not been willing to enforce the judgment. The applicant had had
to accept the smaller at because the old house risked
collapse. The applicant had had to reject the price for the 4.9 m²
shortfall because it was underestimated.
- 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 (Raylyan v. Russia,
no. 22000/03, § 31, 15 February 2007).
- The
Court notes that the judgment remains unenforced, insofar as the
applicant still has not received a at of 48 m². The
non-enforcement has lasted more than six years, which is prima
facie incompatible with the Convention. The Government have not
shown that the applicant has ever been offered a at that
would conform to the award.
- There
has, accordingly been a violation of Article 6 § 1 of the
Convention and of 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 36,027 euros (EUR) in respect of pecuniary damage
and EUR 20,000 in respect of non-pecuniary damage.
- The
Government contested these claims as excessive and ill-founded.
- As
to pecuniary damage, the Court reiterates that the violations found
are best redressed by putting the applicant in the position he would
have been if the Convention had been respected. The Government shall
therefore secure, by appropriate means, the enforcement of the
domestic courts’ award (see,
with further references, Poznakhirina v. Russia,
no. 25964/02, § 33, 24 February 2005).
- As
to non-pecuniary damage, the Court admits that the non-enforcement of
the judgment has distressed the applicant. On an equitable basis, the
Court awards EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 1,326 for the costs and expenses incurred
before the Court.
- The
Government submitted that the applicant is entitled only to costs
necessarily incurred and reasonable as to quantum.
- 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 900 for the
proceedings before the Court.
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 of 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 award 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
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
900 (nine hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 12 June 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
