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FIRST
SECTION
CASE OF MOROKO v. RUSSIA
(Application
no. 20937/07)
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 Moroko 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. 20937/07) 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 Andrey Vladimirovich
Moroko (“the applicant”), on 27 March 2007.
- The
applicant was represented by Ms G. Shakhmatova, a lawyer practising
in Krasnoyarsk. 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
3 September 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 dismissed this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Krasnoyarsk.
- In
2001–02 he stood trial for a drugs offence and was acquitted.
He sued the State for compensation for the unfounded prosecution and
pre-trial detention.
- The
case came before the Leninskiy District Court of Krasnoyarsk. By its
judgments of 5 December 2003 and 21 September 2006 the court ordered
the Ministry of Finance to compensate the applicant's non-pecuniary
and pecuniary damage. The judgments became binding on 2 February 2004
and 16 November 2006, but were not enforced immediately.
- The
judgment of 5 December 2003 was enforced on 21 October 2005 when the
Ministry credited the judgment debt to the applicant's bank account.
- The
judgment of 21 September 2006 which was enforceable as of 16 November
2006 was not enforced immediately. The writ of enforcement was sent
by the court to the bailiff service two months and seven days after
the judgment had become final. On the same date the bailiff service
returned the writ to the court as it lacked competence to enforce
this judgment under the relevant provisions of the Budgetary Code.
Two months later, i.e. on 27 March 2007, the applicant sent the
relevant documents to the Federal Treasury, and on 15 August 2007 the
judgment debt was credited to the applicant's bank account.
II. RELEVANT DOMESTIC LAW
A. Time-limits for enforcement
- 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 honour a judgment in three months.
B. Purported remedies against non-enforcement
- Chapter
25 of the Code of Civil Procedure allows a person to appeal in court
against an authority whose actions breach his rights (Article 254).
If the appeal is well-founded, the court will order the authority to
make good the breach (Article 258).
- Article
208 of the Code of Civil Procedure empowers a court to upgrade the
amount of a judgment debt, if a creditor so asks.
- Chapter
59 § 4 of the Civil Code obliges the State to compensate a
person's non-pecuniary damage caused by a breach of his property
rights.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the lengthy non-enforcement of the
judgments breached Article 6 of the Convention 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. Exhaustion of domestic remedies
(a) The Government
- The
Government argued that the applicant had failed to exhaust domestic
remedies in breach of Article 35 § 1 of the Convention. He had
had at his disposal three remedies, but used none of them.
- The
first remedy had been a court complaint about the Ministry's
negligence under Chapter 25 of the Code of Civil Procedure. This
remedy had been effective, because it would have condemned the
Ministry's negligence.
- The
second remedy had been a request to upgrade the judgment debt under
section 208 of the Code of Civil Procedure. In certain earlier cases,
the Court had found that the exhaustion of this remedy deprived the
applicants of their victim status (see Nemakina v. Russia
(dec.), no. 14217/04, 10 July 2007; Derkach v. Russia (dec.),
no. 3352/05, 3 May 2007; Yakimenko v. Russia (dec.), no.
23500/04, 15 May 2007; and Sarmina and Sarmin v. Russia
(dec.), no. 58830/00, 22 November 2005.).
When domestic courts had upgraded a judgment debt, they had closely
followed the official rate of inflation and compensated any loss
caused by inflation.
- The
third remedy had been a claim for non-pecuniary damage under Chapter
59 § 4 of the Civil Code. In accordance with this Chapter,
non-pecuniary damage may be awarded for non-enforcement of domestic
judgments if the fact of moral suffering, the debtor's fault and the
causal link between his acts and the negative consequences for the
applicant are established in judicial proceedings. In the
Government's view this remedy had proven its effectiveness in
practice. For example, a family from Tatarstan had received 1,800
euros for late enforcement of a judgment in their favour (judgment of
the Novo-Savinovskiy District Court of Kazan, no. 2-1962/2006, 23
October 2006).
(b) The applicant
- The
applicant retorted that he had no domestic remedies to exhaust.
- The
first remedy cited by the Government would have merely restated the
original payment obligation contained in the first judgment.
- As
regards the second remedy quoted by the Government, the mere
existence of the provision allowing to upgrade judicial awards was
not sufficient to meet the requirements of Articles 6 and 13. In
addition, the official rate of inflation applied by the courts lagged
behind the real inflation.
- The
third remedy had not really existed, because the Civil Code stated
that non-pecuniary damage could only be granted in the cases provided
for by the law (Article 1099). The law did not, however, specifically
provide for compensation of non-pecuniary damage in case of late
enforcement of a judgment.
(c) The Court
- The
Court finds for the applicant.
- Under
Article 35 § 1 of the Convention, the Court may deal with an
application only after all domestic remedies have been exhausted.
This rule allows the State to put matters right domestically, without
recourse to international litigation (see Akdivar and Others v.
Turkey, judgment of 16 September 1996, Reports of
Judgments and Decisions 1996 IV, § 65). This rule
extends only to the normal use of remedies that are
effective, sufficient, and available (see Pine
Valley Developments Ltd and Others v. Ireland,
no. 12742/87, Commission decision of 3 May 1989, Decisions and
Reports (DR) 61, p. 206). The effective and available remedies
are those which are accessible, capable of providing redress in
respect of the applicant's complaints and offer reasonable prospects
of success (see Akdivar and Others v. Turkey cited above,
§ 68).
- The
three remedies suggested by the Government lack this quality.
- An
appeal against the Ministry's negligence would yield a declaratory
judgment that would reiterate what was in any event evident from the
original judgment: the State was to honour its debt. This new
judgment would not bring the applicant closer to his desired goal,
that is the actual payment of the judicial award or, if appropriate,
compensation for late payment (see Jasiūnienė v.
Lithuania (dec.), no. 41510/98, 24 October 2000;
Plotnikovy v. Russia, no. 43883/02, §
16, 24 February 2005).
- As
regards the possibility of upgrading the judgment debt, the Court had
indeed noted in certain cases cited by the Government that the
upgrading of judicial awards had effectively compensated the
applicants for inflation losses. The Court held in these cases that
the payment without undue delay of such compensation together with
the acknowledgement of the violations by the authorities had deprived
the applicants of their victim status (Derkach, Yakimenko,
Nemakhina, cited above). However these decisions do not establish
any general principle that mere compensation for inflation losses is
sufficient to afford redress required by the Convention for late
enforcement of a judgment. In all aforementioned cases the Court
reached its conclusions in the specific circumstances where the
applicants' claims for compensation were limited to pecuniary losses
resulting from the inflation or the applicants' position in the
domestic proceedings was considered as an implicit waiver to claim
compensation for further pecuniary or non-pecuniary damage.
- The
Court agrees in principle with the applicant that the mere upgrading
of judicial awards pursuant to Section 208 of the Code of Civil
Procedure does not suffice to satisfy the Convention requirement of
effectiveness as it would only compensate for possible inflation
losses and not for further damages, either pecuniary or
non-pecuniary. This upgrading remedy, however accessible and
effective in law and practice, is thus not capable in general of
affording adequate and full redress for non-enforcement or late
enforcement of a domestic judgment.
- As
regards the possibility to claim compensation for non-pecuniary
damage under Chapter 59 of the Civil Code, the Court notes, as
pointed out by the applicant, that Russian law does not specifically
provide for compensation of non-pecuniary damage resulting from
non-enforcement or late enforcement of domestic judgments. While
accepting the Government's view that the possibility of such
compensation is not, in principle, excluded under the existing
general provisions of the Civil Code, the Court is not satisfied that
this possibility is sufficiently certain in practice so as to offer
the applicant reasonable prospects of success as required by the
Convention.
- With
the exception of a limited number of cases listed in sections 1070
and 1100, compensation of non-pecuniary damage is subject to the
establishment of the authorities' fault. The Court notes that this
condition can hardly be systematically satisfied in non-enforcement
cases in view of the complexities of the enforcement proceedings and
of possible objective circumstances preventing enforcement, such as
the lack of funds on the debtor's account. The doubts about the
effectiveness of this remedy are corroborated by the Government's
failure to demonstrate before the Court the existence of sufficiently
established and consistent case-law proving that this remedy is
effective both in theory and in practice. The domestic judgment cited
by the Government as awarding non-pecuniary damage on the basis of
the existing provisions does not allow the Court to depart from its
conclusion (see also Wasserman v. Russia (no. 2), no.
21071/05, 10 April 2008).
- The
Court accordingly rejects the Government argument about the
non-exhaustion of domestic remedies.
2. Six months
- With
regard to the judgment of 5 December 2003, the Government also argued
that the applicant had missed the six-month period laid down in
Article 35 § 1 of the Convention. In particular, the date
of introduction was three years and four months after the date of the
judgment, and one year and five months after the date of the
enforcement.
- The
applicant replied that it had been only on 24 October 2007 that
Government officials preparing the memorandum to the Court had told
him that the judgment had been enforced.
- The
Court finds for the Government.
- Where
there is no effective remedy, the six-month period runs from the date
of the omission complained of, or from the date when the applicant
learned about the omission (see Hilton v. United Kingdom, no.
12015/86, Commission decision of 6 July 1988, DR 57, p. 108).
Applied to non-enforcement, this rule would mean that six months run
from the date of enforcement (see Gorokhov and Rusyayev v. Russia,
no. 38305/02, § 27, 17 March 2005).
- The
judgment of 5 December 2003 was enforced on 21 October 2005, that is
more than six months before the date of introduction. On the one
hand, the applicant asserts that he learned about the transfer only
in 2007. But on the other hand, he can be reasonably expected to have
learned about the transfer in 2005, because this operation was listed
in his bank statement.
- It
follows that this part of the complaint has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
3. Other grounds
- With
regard to the judgment of 21 September 2006, the Government argued
that the complaint was manifestly ill-founded. The enforcement had
lasted a short time. The applicant had sent the writ of enforcement
to the wrong authority. He had acted in bad faith, because instead of
sending the writ to the correct authority, he had applied to the
Court.
- The
applicant made no observations on this point.
- The
Court refers to its numerous findings of violations on account of
lengthy enforcement of domestic judgments in Russia and notes that
this part of 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
enforcement of the judgment of 21 September 2006 lasted from
16 November 2006 to 15 August 2007, that is nine months. The
Government submitted that this period was reasonable and that all
authorities involved in the execution of this judgment had displayed
the necessary diligence, thus avoiding unnecessary delays. The
applicant maintained his complaint.
- 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).
-
On the one hand, the judgment was easy to enforce, because it
required only a transfer of a sum of money, and it was the State, not
the applicant, who had to take the initiative of enforcing it (see
Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004).
- On
the other hand, the overall time taken by the authorities to enforce
the judgment does not appear prima facie unreasonable, and is
in any event less than the time found to be excessive in the other
similar cases concerning Russia where the Court found violations of
the Convention on account of non- enforcement or late enforcement.
- The
Court further notes that the authorities had acted with the necessary
diligence. The writ for enforcement was sent by the competent court
to the bailiff service two months and seven days after the judgment
had become final. On the same date the bailiff service returned the
writ to the court as it lacked competence to enforce this judgment
under the relevant provisions of the Budgetary Code. Two months
later, i.e. on 27 March 2007, the applicant sent the relevant
documents to the Federal Treasury and the judgment was complied with
five months after that date. While noting that the Ministry of
Finance did not comply with the three-month time-limit set by the
Budgetary Code for execution of a judgment, the Court does not
consider that the lapse of time which occurred has breached the
reasonable time requirement enshrined in the Convention.
- In
view of the above, and having regard to the fact that the award did
not relate to the applicant's main source of income but constituted
only a limited amount of damages for a past wrong, the Court finds
that there has been no violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that he had
no domestic remedy against the non-enforcement. Article 13 reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court recalls that Article 13 has been consistently interpreted by
the Court as requiring a remedy in domestic law only in respect of
grievances which can be regarded as “arguable” in terms
of the Convention (see, for example, Boyle and Rice v. the United
Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23-24,
§ 54). In the present case, it has not found violations of
Article 6 and of Article 1 of Protocol No.1, but the Court considers,
with reference to its own decision on the admissibility above that
the applicant's claim under these Articles was arguable. The
complaint under Article 13 must also be declared admissible and
considered on the merits.
- Having
considered the Government's preliminary objection, the Court has
found that the applicant had no remedy to exhaust as none of those
invoked by Government conformed to the Convention requirement of
effectiveness. Given various shortcomings of domestic remedies
identified above (§§ 25–29), the Court must conclude
that the applicant was deprived of an effective remedy in respect of
his arguable claim for compensation for late enforcement of the
domestic judgment in his favour. There has accordingly been a breach
of Article 13 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
- The
applicant claimed 3,507 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government argued that this claim was unjustified and
excessive.
- The
Court does not discern any causal link between the violation found
and the damage alleged and therefore rejects this claim. The Court
further considers that, having regard to the nature of the violation
found, the finding of a violation constitutes in itself sufficient
just satisfaction in respect of any non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 281 for the costs and expenses incurred.
- The
Government argued that this claim was unsubstantiated.
- The
Court finds that the applicant has not proven his expenses and
therefore rejects this claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
non-enforcement of the judgment of 21 September 2006 and the lack of
domestic remedies admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 of the Convention or Article 1 of Protocol No. 1;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the damage
sustained by the applicant;
- Dismisses the applicant's claim for further 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
