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FIRST
SECTION
CASE OF IVCHENKO v. RUSSIA
(Application
no. 29411/05)
JUDGMENT
STRASBOURG
2 October
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 Ivchenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
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 11 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29411/05) 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, Ms Natalya Vladimirovna
Ivchenko (“the applicant”), on 8 July 2005.
- The
applicant was represented by Mr A. Rashevskiy, a lawyer practising in
Voronezh. The Russian Government (“the Government”) were
represented by Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
14 November 2006 the President of the First Section decided to give
notice of the application to the Government. It was 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 1961 and lives in Voronezh, a town in the
Voronezh Region.
- On
25 September 2000 the Sovetskiy District Court of Voronezh awarded
the applicant 4,322.91 Russian roubles (RUB) in arrears of child
benefits against the Regional Authority. This judgment became binding
on 5 October 2000 but was not enforced immediately.
- On
28 May 2002 the Justice of the Peace of Judicial District 3 of
Voronezh awarded the applicant RUB 2,064.16 in further arrears of
child benefits. This judgment became binding on 10 June 2002 but was
not enforced immediately.
- On
15 February 2007 the authorities paid to the applicant RUB 12,302.12.
This sum included the judgment debts adjusted for the increasing cost
of living.
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 Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about the delayed enforcement of the
judgments. 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 admitted that there had been a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1. Nevertheless, they
asked the Court to strike the case out of its list of cases, because
they had paid the judgment debts and in addition adjusted them for
the cost of living. They argued that the applicant had had no right
to non-pecuniary damages, because the child benefits had been fringe
benefits, and because their lack had not undermined the applicant's
well-being (see Poznakhirina v. Russia, no. 25964/02, §
35, 24 February 2005).
- The
applicant maintained her complaint. She argued that the Government
had not explained the method of the adjustment. Furthermore, unlike
in Poznakhirina, in her case the child benefits had been
crucial for the family budget. In several subsequent cases concerning
child benefits in Voronezh, the Court did award non-pecuniary damages
(see Bragina v. Russia, no. 20260/04, § 31, 1 February
2007; Nartova v. Russia, no. 33685/05, § 30, 1 February
2007; Deykina v. Russia, no. 33689/05, § 30, 1 February
2007; Voloskova v. Russia, no. 33707/05, § 30, 1 February
2007; Zaichenko v. Russia, no. 33720/05, § 25, 1
February 2007; Voronina v. Russia, no. 33728/05, §
31, 1 February 2007).
- The
Court considers that even though the Government phrase their
objection as a strike-out request, in substance it relates to the
applicant's status as a victim and should be examined under the head
of admissibility.
- The
Court reiterates that to deprive an applicant of her status as a
victim, the State must acknowledge a breach of her rights and afford
adequate redress (see Amuur v. France,
judgment of 25 June 1995, Reports of
Judgments and Decisions 1996-III, §
36). In the case at hand, the Government have acknowledged the
breach, but the redress they afforded – the adjustment for the
cost of living – was not adequate because it did not
compensate pecuniary and non-pecuniary damage. It follows that
the applicant retains her status as a victim, and that the
application is compatible ratione personae with the provisions
of the Convention within the meaning of Article 35 § 3
and cannot be rejected in accordance with Article 35 § 4.
- 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
Government have admitted that there had been a violation of Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1.
- In
the circumstances of the present case, the Court finds no reason to
hold otherwise. There has, accordingly, been a violation of these
Articles.
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 3,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that this claim was excessive since the authorities
had paid the judgment debts adjustment for the cost of living.
- The
Court accepts that the applicant must have been distressed by the
delayed enforcement of the judgments. Making its assessment on an
equitable basis, the Court awards EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 20 for postal expenses incurred before the
Court.
- The
Government argued that this claim was unsubstantiated.
- 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 20 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 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 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 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR 20 (twenty 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 amount at a rate equal to the marginal
lending rate of the European Central Bank during the default period
plus three percentage points;
Done in English, and notified in writing on 2 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
