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FIRST
SECTION
CASE OF KRASEV v. RUSSIA
(Application
no. 731/04)
JUDGMENT
STRASBOURG
26 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 Krasev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 5 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 731/04) 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 Aleksandr Mikhailovich
Krasev (“the applicant”), on 7 November 2003.
- 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
29 May 2007 the Court decided to give notice of 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Sochi. Before his discharge
from service in 1999, the applicant used to serve at the
North-Caucasian Military Academy of Internal Troops. In 2001–03
he several times sued his command for outstanding emoluments.
- On
18 May 2001, 10 October 2001, 19 November 2002, and 4 April 2003 the
Military Court of the Vladikavkaz Garrison held for the applicant.
Each judgment became binding ten days after its delivery, but was not
enforced immediately.
- The
judgment of 18 May 2001 was enforced on 26 December 2001.
- According
to the Government, the authorities tried to enforce the other three
judgments on 16 July 2007. The money was sent to the applicant by
mail order, but the applicant failed to collect the money in time,
and it returned to the sender. According to the applicant, he did not
receive the mail order. Later, on 25 December 2007 the authorities
credited the money to the applicant’s bank account.
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 ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about the non-enforcement of the judgments. The
Court examined this complaint under 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. The Government
- The
Government argued that this complaint was inadmissible for several
reasons.
- First,
the applicant had missed the six-month time-limit laid down in
Article 35 § 1 of the Convention, because the final
domestic decision had been taken on 4 April 2003, while the applicant
had applied to the Court only on 7 November 2003.
- Second,
the civil head of Article 6 did not apply to the litigation because
it concerned military service.
- Third,
the applicant had failed to exhaust domestic remedies, because he had
not applied to the authorities responsible for the enforcement of
judgments, and failed to claim compensation for the delay in the
courts.
- Fourth,
the complaint was manifestly ill-founded. All the judgments had been
enforced. The applicant was himself responsible for the delay. He had
failed to ask the court to send the writs of enforcement to a
competent authority, and had failed to collect the writs for sending
them himself. Even though in 2001–03 the authorities had
explained to the applicant the correct enforcement procedure, he
failed to pursue it.
2. The applicant
- The
applicant insisted that his complaint was admissible.
- First,
the judgment of 18 May 2001 had been enforced only partly.
- Second,
he had applied to the authorities competent to speed up the
enforcement.
3. The Court
- With
regard to the judgment of 18 May 2001, the Court reiterates that in
cases about non-enforcement the six-month time-limit begins on the
date of enforcement (see Gorokhov and Rusyayev v. Russia, no.
38305/02, § 27, 17 March 2005). Even though the applicant
stated that this judgment has been enforced only partly, he has not
substantiated this claim. The Court therefore considers, as pointed
out by the Government, that this judgment was enforced on 26 December
2001. The Court notes that the application was introduced on 7
November 2003. It follows that this part of the application has been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
- With
regard to the other three judgments, the Court finds that the
six-month rule did not apply, because on the date of introduction
these judgments were outstanding (see Nazarchuk v. Ukraine,
no. 9670/02, § 20, 19 April 2005).
- With
regard to the applicability of Article 6, the Court reiterates that
this Article does not apply only to cases where domestic law
expressly excludes access to a court for the category of staff in
question, and where this exclusion is justified by the State’s
objective interest (see Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, § 62, ECHR 2007 ...) In the case
at hand, however, the applicant did have access to a court under
domestic law. He used this right and sued his former employer. The
Military Court examined and granted the applicant’s claim.
Nothing suggests that domestic law barred the applicant’s
access to a court. Accordingly, Article 6 is applicable (compare with
Dovguchits v. Russia, no. 2999/03, § 24, 7 June 2007),
and the Government’s objection must be dismissed.
- Lastly,
as regards the Government’s objection to the exhaustion of
domestic remedies (see § 13 above), the Government have not
shown that the suggested domestic remedies would be effective.
- The Court finds that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court will first determine how long the enforcement lasted. The
enforcement of the judgment of 10 October 2001 lasted five years and
eight months. The enforcement of the judgment of 19 November 2002
lasted four years and seven months. The enforcement of the judgment
of 4 April 2003 lasted four years and three months.
- To
calculate these periods the Court took 16 July 2007 as the date of
the enforcement, because it was on that date that the authorities
first transferred the money to the applicant.
- 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 (see Raylyan v.
Russia, no. 22000/03, § 31, 15 February
2007).
- The judgments were not particularly difficult to
enforce, because they required only a transfer of money.
- As to the parties’ behaviour, the Court notes
that the Government accused the applicant of not pursuing the correct
enforcement procedure. However, 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). This means that where a judgment is
against the State, it is the State, not the creditor, who must take
the initiative of enforcing it. In 2007 the State did manage to pay
the money to the applicant despite his alleged failure to follow the
correct procedure. There is no indication as to why this payment
could not have been made years earlier, when the judgments became
binding.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that this amount was excessive, and that the finding
of a violation would be sufficient.
- The
Court finds that the applicant suffered distress as a result of
the violation at issue and therefore awards him EUR 3,000 in respect
of non-pecuniary damage.
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 complaint concerning the
non-enforcement of the judgments of 10 October 2001, 19 November
2002, and 4 April 2003 admissible and the remainder of the
application inadmissible;
- 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 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 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of 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 26 June 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
