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FIRST
SECTION
CASE OF AKASHEV v. RUSSIA
(Application
no. 30616/05)
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 Akashev 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 22 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30616/05) 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 Nikolay Nikolayevich
Akashev (“the applicant”), on 16 July 2005.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, the Representative of the Russian Federation
at the European Court of Human Rights.
- On
18 June 2007 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
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 1956 and lives in Aykhal, a town in Yakutia.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1991 the applicant subscribed to a State savings scheme for buying a
car. The State failed to provide the car, and the applicant had to
apply to a court.
- On
19 August 2003 the Mirninskiy District Court of Yakutia awarded the
applicant 138,967 Russian roubles (“RUB”) against the
Ministry of Finance. On 6 October 2003 the judgment became binding,
but was not enforced immediately.
- On
23 October 2003 the district court mailed the writ of enforcement to
the bailiff's service. The bailiff's service considered that the
judgment should be enforced by the Ministry of Finance, and on 27
November 2003 returned the writ to the court. On 5 April 2004 the
applicant collected the writ from the court and mailed it to the
Ministry of Finance.
- On
12 August 2004 the Ministry of Finance applied for a supervisory
review of the judgment.
- On
28 October 2004 the Presidium of the Supreme Court of Yakutia allowed
the Ministry's application and quashed the judgment. According tothe
applicant, he received a copy of this decision on 19 March 2005.
- On
7 September 2005 the Ministry paid to the applicant RUB 50,247.98
under the State program of redemption of in-kind debentures.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment in two months. Under
section 242.2.6 of the Budget Code of 31 July 1998, the Ministry
of Finance must enforce a judgment in three months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF
NON-ENFORCEMENT
- The
applicant complained that the non-enforcement of the judgment
breached Articles 6 and 13 of the Convention, and Article 1 of
Protocol No. 1. The Court will examine this complaint under Article 6
§ 1 and Article 1 of Protocol No. 1. As far 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
1. Six months
- The
Government argued that the applicant had missed the six-month
time-limit for applying to the Court laid down in Article 35 § 1
of the Convention. More than 11 months had passed from the date of
the last domestic decision (28 October 2004) to the date of
introduction (16 July 2005). Contrary to the applicant's statement,
the Supreme Court had duly notified the applicant of the
upcoming supervisory-review hearing. It had mailed a notice to the
applicant's last known address, and in any event the State was not
responsible for a possibly faulty postal service (see Zagorodnikov
v. Russia, no.
66941/01, § 31, 7 June 2007).
- The
applicant insisted that he did respect the six-month time-limit. He
presented a copy of the envelope that showed that the Supreme Court
had mailed the notice to the wrong town, and that it was only on 19
March 2005 that the notice reached the correct town. The Supreme
Court did know the applicant's correct address because the applicant
had many times indicated it in his pleadings.
- The
Court rejects the Government's argument, because it follows from the
evidence submitted by the applicant that the Supreme Court had indeed
made a mistake in the applicant's address.
2. Other grounds
- The
Government later submitted that the applicant had failed to exhaust
domestic remedies as required by Article 35 § 1 of the
Convention. The Court, however, dismisses this argument because it is
inconsistent with the Government's previous argument. Indeed, if the
applicant had had at his disposal further domestic remedies, the
Government would not have suggested earlier that six months ran from
the date of the Presidium's decision.
- The
Court notes that the 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
Government argued that of the whole period of non-enforcement, one
year and 22 days, the State was responsible only for eight months and
12 days, and that this delay was reasonable. In particular,
instead of mailing the writ of enforcement to the Ministry of
Finance, the district court mailed it to the bailiff's service, and
it then took the applicant four months and eight days to collect the
writ of enforcement from the court and mail it to the Ministry.
- The
applicant retorted that he had caused no delay in the enforcement.
The district court mailed the writ of enforcement to the bailiff's
service only 17 days after the judgment had become binding,
which proved that the applicant had acted promptly. It was not the
applicant's fault that the district court had mistakenly mailed the
writ to the bailiff's service instead of the Ministry.
- The
Court reiterates that 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). Where a judgment is against the
State, the defendant State authority must be duly notified
thereof and is thus well placed to take all necessary initiatives to
comply with it or to transmit it to another competent State authority
responsible for compliance. 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 execution or enforcement of
the judgment.
- The
Court already admitted in the past that a successful litigant may be
required to undertake certain procedural steps in order to recover
the judgment debt, be it during a voluntary execution of a judgment
by the State or during its enforcement by compulsory means (see
Shvedov v. Russia,
no. 69306/01, § 29–37, 20 October 2005).
Accordingly, it is not unreasonable that the authorities request the
applicant to produce additional documents, such as bank details, to
allow or speed up the execution of a judgment (see,
mutatis mutandis,
Kosmidis and Kosmidou v.
Greece, no. 32141/04, §
24, 8 November 2007). In the Court's view, the requirement of
the creditor's cooperation must not, however, go beyond what is
strictly necessary and, in any event, does not relieve the
authorities of their obligation under the Convention to take timely
and ex officio action, on the basis of the information
available to them, with a view to honouring the judgment against the
State.
- In
the present case, by taking no initiative to comply with the judgment
during one year and 22 days, the State has breached Article 6 of the
Convention and Article 1 of Protocol No. 1 (see Burdov
v. Russia,
no. 59498/00, § 33–42, ECHR 2002–III).
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF
SUPERVISORY REVIEW
- The
applicant complained that the supervisory review of his judgment also
breached Articles 6 and 13 of the Convention, and Article 1 of
Protocol No. 1. The Court will examine this complaint under
Article 6 § 1 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
- This
complaint must be declared admissible for the same reasons as the
previous one.
B. Merits
- The
Government argued that the supervisory review of the judgment did not
breach Article 6 and the principle of legal certainty contained
therein (see Ryabykh v. Russia, no. 52854/99, §
51–52, ECHR 2003 IX). First, the review had been initiated
by a litigant, not an external agent. Second, the time between the
judgment's entry into force and the supervisory review had been
short. Third, the supervisory review had been meant to cure the
district court's misapplication of material laws and hence sought to
reach a fair balance between the interests of the applicant and the
judicial system.
- The
applicant maintained his complaint.
- The
Court has earlier dismissed the Government's similar arguments and
found a breach of Article 6 of the Convention and of Article 1 of
Protocol No. 1 (see Kot v.
Russia, no. 20887/03,
§§ 21–33, 18 January 2007). Accordingly, in
the present case there has also been a violation of these Articles.
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.”
- The
applicant claimed 160,000 euros (EUR) in respect of pecuniary damage
and EUR 5,000 in respect of non-pecuniary damage.
- The
Government objected to these claims, stating that the applicant had
shown no causal link between the alleged violation of the Convention
and the damage, and that the applicant's calculations were arbitrary.
- As
to pecuniary damage, the Court reiterates that the best redress of a
violation of Article 6 is to put the applicant as far as possible in
the position he would have been if Article 6 had been respected (see
Piersack v. Belgium
(Article 50), judgment of 26 October 1984, Series A no. 85, §
12). Applied to the case at hand, this principle would mean
that the State must pay to the applicant RUB 138,967 that he
should have received under the judgment of 19 August 2003 less
RUB 50,247.98 that he has received in 2005. Accordingly, the Court
awards EUR 2,400 under this head.
- As
to non-pecuniary damage, the Court considers that the applicant must
have suffered distress from the non-enforcement and quashing of his
judgment. Making its assessment on an equitable basis, the Court
awards the applicant EUR 1,600 under this head.
B. 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 of Article 1 of Protocol No. 1 on account of
the non-enforcement of the domestic judgment;
- Holds that there has been a violation of Article
6 of the Convention and of Article 1 of Protocol No. 1 on account of
the supervisory review of the domestic judgment;
- 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 4,000 (four
thousand euros), plus any tax that may be chargeable, in respect of
pecuniary and 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 12 June 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
