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FIRST
SECTION
CASE OF BELOTSERKOVETS v. RUSSIA
(Application
no. 34679/03)
JUDGMENT
STRASBOURG
3
July 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 Belotserkovets 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 12 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34679/03) 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 Sergey Ivanovich
Belotserkovets (“the applicant”), on 25 September 2003.
- 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
21 November 2006 the Court decided to communicate the complaint
concerning non-enforcement of binding judgments 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 1953 and lives in Astrakhan.
- As
a victim of Chernobyl, the applicant is entitled to social benefits.
As the authorities had failed to provide the benefits in full,
the applicant brought four civil actions.
- On
3 June 2003 the Kirovskiy District Court of Astrakhan awarded the
applicant arrears, fixed a new amount of periodic payments, and
ordered that in future this amount should be adjusted for the cost of
living. This judgment became binding on 1 August 2003, and was
enforced in September–October 2003.
- On
3 June 2004 the district court awarded the applicant arrears. This
judgment became binding on 20 August 2004, and was enforced in
January–July 2005.
- On
30 August 2004 the district court ordered a local authority to
provide the applicant with a decent at. This judgment became
binding on 28 September 2004. From November 2004 to May 2005 the
enforcement proceedings were stayed pending supervisory-review
proceedings requested by the local authority. In October 2005 the
local authority offered the applicant a at, but he refused it
considering it too small to house his family. On a bailiff’s
request, on 7 February 2006 the district court specified that
the at was not meant for the applicant’s family
members. In July 2006 the local authority offered the applicant
another at, and on 28 September 2006 he accepted it.
- On
24 October 2005 the district court awarded the applicant arrears and
upgraded periodic payments. This judgment became binding on
7 November 2005, and was partly enforced in December 2005.
In March–April 2006 the bailiff twice returned the writ of
enforcement to the applicant, because the judgment had to be executed
by the social authority directly. On the applicant’s request,
on 6 February 2007 the Presidium of the Astrakhan Regional Court
quashed the judgment on supervisory review and ordered a rehearing.
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 about the lengthy non-enforcement of the
judgments. The Court will examine this complaint 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 § 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
- The
Government argued that this complaint was manifestly ill-founded. The
judgments had been enforced reasonably promptly, and the authorities
had not idled. Any delays had been caused by the applicant’s
failure to submit necessary papers, by his refusal from settlement
offers, and by the intervention of the supervisory-review
authorities.
- The
applicant argued that his complaint was well-founded. The authorities
continued to underpay him. There had been no fault on his part for
the long non-enforcement of the second judgment. The State should
take the blame for the intervention of the supervisory-review
authorities. The at offered by the local authority had been
unacceptable. The fourth judgment could have been enforced without
the applicant presenting the writ of enforcement.
- The
Court notes that this 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
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
enforcement of the four judgments lasted respectively two months, ten
months, two years, and one year and two months.
The
first two periods are compatible with the requirements of the
Convention (see, for example, Grishchenko v. Russia (dec.),
no. 75907/01, 8 July 2004). There has, accordingly, been no
violation of Article 6 § 1 or Article 1 of Protocol No. 1 in
this regard.
- On
the other hand, the last two periods are prima facie
incompatible with the Convention. It appears that the delay was to a
significant extent caused by an intervention of the
supervisory-review authorities and the uncertainty as to which
authority was responsible for the enforcement. The Court considers
that the applicant cannot be blamed for these circumstances (see
Timofeyev v. Russia, no. 58263/00, § 42, 23 October
2003; Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004).
- 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 in regard to these
judgments.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 3, 6, and 13 of the
Convention, and Article 1 of Protocol No. 1 about the miscalculation
of his benefits and about the domestic courts’ findings
and conduct of the proceedings.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 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 32,030,442 Russian roubles in respect of pecuniary
damage and 58,300 euros (EUR) in respect of non-pecuniary damage.
- The
Government argued that a mere finding of a violation would be
sufficient just satisfaction.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant on an equitable basis EUR
1,600 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 2,100 for the costs and expenses incurred
before the Court.
- The
Government rejected this claim.
- 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 100 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 complaint concerning the
non-enforcement of the judgments admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1of the Convention and of Article 1 of Protocol No. 1 in
respect of two judgments and no violation in respect of the
remainder;
- Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 1,600 (one thousand six
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 100 (one 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 3 July 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
