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FIRST
SECTION
CASE OF KHOLODENKO v. RUSSIA
(Application
no. 33617/04)
JUDGMENT
STRASBOURG
18
September 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 Kholodenko 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 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33617/04) 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 Nikolay Ivanovich
Kholodenko (“the applicant”), on 30 July 2004.
- The
Russian Government (“the Government”) were represented
first by Mr P. Laptev and subsequently by Mrs V. Milinchuk,
the former Representatives of the Russian Federation at the European
Court of Human Rights.
- On
29 August 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 1956 and lives in Volzhskiy, a town in the
Volgograd Region.
- The
applicant sued the Volgograd Regional Department of the Judiciary,
the Ministry of Justice, and the Treasury for damages caused by a
negligent enforcement of a civil judgment. On 27 February 2003 the
Voroshilovskiy District Court of Volgograd awarded the applicant
661,593.17 Russian roubles (RUB). This judgment became binding
on 23 July 2003 and was enforced on 25 April 2006.
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 under Articles 6 and 13 of the Convention, and
Article 1 of Protocol No. 1 about the delayed enforcement of the
judgment. The Court examined this complaint under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1. Insofar 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 made no comment on the admissibility of the application.
- The
applicant submitted that the delayed enforcement had been caused by
administrative disorganisation.
- 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
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).
- In
the case at hand the enforcement lasted two years and nine months.
This period is prima facie incompatible with the requirements
of the Convention, and the Government have not put forward any
plausible justification for the delay.
- There
had, accordingly, been a violation of Article 6 § 1 of the
Convention and 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 RUB 668,770 in respect of pecuniary damage. He
submitted that he had planned to spend the judgment money on a flat,
and that the above sum would compensate his loss caused by rising
real estate prices.
- The
Government argued that this claim had been excessive and
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
- The
applicant also claimed RUB 35,000 in respect of non-pecuniary damage.
- The
Government argued that this claim had also been excessive and
unsubstantiated.
- The
Court accepts that the applicant must have been distressed by the
delayed enforcement of the judgment. Making its assessment on an
equitable basis, the Court awards EUR 1,500 under this head.
B. Costs and expenses
- The
applicant also claimed RUB 9,068.80 for the costs and expenses
incurred before the domestic courts and the Court.
- The
Government argued that this claim had been partly unsupported by
evidence, and that the expenses incurred had been partly irrelevant.
- 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
rejects this claim.
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 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 1,500 (one
thousand five hundred 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 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
