FIRST SECTION

CASE OF TOKAZOV v. RUSSIA

(Application no. 19440/05)

JUDGMENT

STRASBOURG

13 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Tokazov v. Russia,
The European Court of Human Rights (First Section), sitting as a committee composed of:
	Elisabeth Steiner, President,
	Anatoly Kovler,
	George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 9 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 19440/05) 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, Mr Yuriy Mikhaylovich Tokazov (“the applicant”), on 21 April 2005.
2.  The applicant was represented by Ms Y.V. Akhmineyeva, a lawyer practising in Maykop, the Republic of Adygeya. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  On 7 October 2008 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1954 and lives in the Krasnodar Region.
5.  In August 1995 tax authorities carried out an inspection of the enterprise owned by the applicant and found some breaches of tax law. In September 1995 criminal proceedings were initiated against him on suspicion of tax offence. The applicant successfully challenged the results of the inspection in a commercial court. In June 1998 the criminal proceedings against him were discontinued for lack of corpus delicti.

A.  Proceedings for compensation for unlawful criminal prosecution
1.  First examination of the case
6.  On 15 March 2001 the applicant lodged an action with the Maykop Town Court of the Republic of Adygeya (“the Town Court”) against the local branch of the Federal Tax Police Department of Russia (Управление федеральной налоговой полиции Российской Федерации по Республике Адыгея) seeking compensation for unlawful criminal proceedings against him and reimbursement of legal costs incurred before the commercial courts and during the criminal proceedings.
7.  At the first hearing that took place on 16 April 2001 the applicant motioned for obtainment of the documents contained in his criminal and commercial case-files. The respondent requested that the hearing be adjourned due to its representative’s unavailability.
8.  The hearings scheduled for 24 May and 4 October 2001 were postponed at the applicant’s request, first due to the delay in arrival of the commercial case-file and then pending the outcome of another dispute at a commercial court.
9.  On 20 December 2001 the court granted the applicant’s request for adjournment as he needed to re-calculate the amount of his claims.
10.  On 7 March 2002 the court granted the applicant’s motion for an audit expert examination. The examination was completed on 14 August 2002, following which the court scheduled the next hearing for 4 December 2002.
11.  On 18 February 2003 the Town Court granted the claims in part. The applicant appealed and requested that the appeal hearing be postponed due to his illness. On 22 April 2003 the Supreme Court of the Republic of Adygeya (“the appeal court”) overturned the judgment on appeal for erroneous application of the substantive law, suggested that the Town Court replace the incompetent respondent and remitted the case for fresh examination.
2.  Second examination of the case
12.  The Town Court joined the local branch of the Federal Treasury of Russia to the proceedings. On 30 June 2003 it again granted the applicant’s claims in part. The applicant appealed and again requested that the appeal hearing be postponed due to his illness.
13.  On 5 September 2003 the appeal court held that the first-instance court had failed to implement its previous instructions and had erroneously applied substantive law. The judgment was set aside, and a new hearing was required.
3.  Third examination of the case
14.  On 3 November 2003 the Town Court granted the applicant’s claims in part.
15.  On 5 December 2003 the appeal court ruled that the first-instance court had failed to adequately establish the facts of the case, reversed the judgment and ordered new examination of the case.
4.  Fourth examination of the case and the judgment of 31 March 2004
16.  On 10 February 2004 the Town Court terminated the proceedings in the part concerning reimbursement of legal costs incurred before the commercial courts and during the criminal proceedings on the ground that those claims could not be examined in civil proceedings. The applicant did not challenge that decision.
17.  On 31 March 2004 the Town Court awarded the applicant 1,982 Russian roubles (RUB) in respect of pecuniary damage and RUB 50,000 in respect of non-pecuniary damage, to be paid by the Ministry of Finance. It dismissed the remainder of the applicant’s claims.
18.  On 14 May 2004 the appeal court held that the first-instance court had breached substantive and procedural law. It quashed the judgment of 31 March 2004 in the part concerning compensation for pecuniary damage and remitted that part for fresh examination to the first‑instance court. It upheld the judgment in the part awarding compensation for non-pecuniary damage.
5.  Fifth examination of the case and the judgment of 20 October 2004
19.  On 19 July 2004 the applicant motioned for postponement of the hearing due to his involvement in different proceedings.
20.  On 20 October 2004 the Town Court awarded the applicant RUB 373,578 in respect of pecuniary damage and legal costs, to be paid by the Ministry of Finance. It dismissed the remainder of his claims.
21.  On 7 December 2004 the appeal court reduced the award to RUB 284,289.
B.  Indexation of court awards
22.  On 2 June 2006 the Town Court index-linked the courts’ awards of 31 March and 20 October 2004 and awarded the applicant RUB 69,729. On 7 July 2006 the Supreme Court upheld this decision.
23.  On 19 June 2007 the Town Court index-linked the awards of 31 March 2004, 20 October 2004 and 2 June 2006 and awarded the applicant RUB 98,570. On 31 July 2007 the Supreme Court corrected an arithmetical error in the decision of 19 June 2007 and held that the applicant was to be paid RUB 39,357.
24.  On 10 April 2008 the Town Court index-linked the awards of 20 October 2004 and 19 June 2007 and awarded the applicant RUB 25,837. On 13 May 2008 the Supreme Court upheld this decision.
C.  Enforcement of the judgments
25.  The judgment of 31 March 2004 was enforced on 26 December 2006.
26.  The writ of execution for the judgment of 20 October 2004, as upheld on 7 December 2004, was submitted to the Ministry of Finance on 14 February 2005. The executing authority returned the documents on 1 February 2007 to the applicant for correction of certain defects. After the applicant failed to collect the documents from the post office, they were remitted to the trial court on 6 June 2007. Following the court’s failure to remedy the defects, the documents were again sent back to it on 19 July 2007 and 7 May 2008. On 26 September 2008 the appeal court corrected an arithmetical error and reduced the award to RUB 284,288. It was enforced on 5 February 2009.
27.  The writ of execution for the decision of 2 June 2006 was returned to the applicant by the Ministry of Finance on 19 April 2007. After correction of defects, the decision was enforced on 10 July 2007.
28.  The decision of 19 June 2007, as upheld on 31 July 2007, was enforced on 3 March 2008.
29.  The writ of execution for the decision of 10 April 2008, as upheld on 13 May 2008, was returned to the applicant on 11 June 2009. After correction of defects, the decision was enforced on 31 August 2009.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
30.  The applicant complained under Article 6 § 1 of the Convention that the domestic courts had taken too long to examine his claims. The relevant part of the provision reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
A.  Admissibility
31.  The Government submitted that the complaint was manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
32.  The Court notes that this complaint does not appear to be 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
33.  The Government argued that the case had been complex in view of the ongoing liquidation of the initial respondent and its subsequent replacement, as well as involvement of a number of third parties. They further contended that the applicant had borne principal responsibility for the length of the proceedings following his alterations of claims, request for an expert examination and motions for adjournment of the hearings.
34.  The applicant maintained his complaint.
35.  The Court observes that the proceedings in the applicant’s case commenced on 15 March 2001 and ended on 7 December 2004. They thus lasted approximately three years and nine months, during which period the courts examined the claims five times at two levels of jurisdiction.
36.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
37.  The Court considers that the applicant’s case had not been complex, having involved a straightforward claim for damages.
38.  As to the applicant’s conduct, the Court observes that indeed during the proceedings he asked to postpone or adjourn three hearings at the first instance and motioned for adjournment of two appeal hearings due to his illness, which thwarted the progress of the case to a certain extent. As to the alterations of the claims, the Court is not convinced that the applicant abused his procedural rights and reiterates that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319‑A).
39.  Turning to the conduct of the authorities, the Court recalls that they examined the case in five rounds of proceedings. While it does not detect any obvious procrastination on the part of the courts in scheduling the hearings and resolving the parties’ motions, it takes cognisance of the fact that the first-instance judgments were set aside on appeal four times for breaches of the law, with the appeal court specifically pointing out that the trial court had repeatedly made the same errors. In this respect the Court reiterates that the Convention and its Protocols must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory. The right to have one’s claim examined within a reasonable time would be devoid of all sense if domestic courts examined a case endlessly, even if at the end the length of proceedings per instance did not appear particularly excessive (see, mutatis mutandis, Svetlana Orlova v. Russia, no. 4487/04, § 47, 30 July 2009).
40.  Although the Court is not in a position to analyse the juridical quality of the domestic courts’ decisions, it considers that multiple repetition of re-examination orders within one set of proceedings may disclose a deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003; Matica v. Romania, no. 19567/02, § 24, 2 November 2006; and Falimonov v. Russia, no. 11549/02, § 58, 25 March 2008). The fact that the domestic courts heard the case several times did not absolve them from complying with the reasonable time requirement of Article 6 § 1 (see Litoselitis v. Greece, no. 62771/00, § 32, 5 February 2004; and Svetlana Orlova, cited above, § 50). The Court therefore arrives at the conclusion that the repeated referrals of the case to the first instance significantly contributed to the length at hand.
41.  While the Court acknowledges that the total length of the proceedings was not particularly grave and that the applicant contributed to it to a certain extent, the Court considers that the defects in the authorities’ conduct in the case at hand were serious enough to lead to a breach of the “reasonable time” requirement.
42.  There has accordingly been a violation of Article 6 § 1 of the Convention on account of unreasonable length of proceedings.
II.  ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT
43.  The applicant also complained that the final judgments in his favour handed down by the courts on 31 March and 20 October 2004, 2 June 2006, 19 June 2007 and 10 April 2008 had not been enforced within a reasonable time. He relied on Articles 6 and 13 of the Convention. The Court considers that this complaint should be examined under Article 6 § 1, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A.  Admissibility
44.  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
45.  The Government asserted that the impugned judgments had been enforced without undue delays after the authorities had received the duly drafted documents either from the applicant or from the court.
46.  The applicant maintained his complaint.
47.  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, it will look at how complex the enforcement proceedings were, how the applicants and the authorities behaved, and what was the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).
48.  The Court observes that the awards were of merely monetary nature and did not require any complex enforcement proceedings.
49.  It further observes that the judgments in the applicant’s favour were enforced with the following delays from the date when they became final: the judgment of 31 March 2004 was enforced in two years and nine months, the judgment of 20 October 2004 in four years and two months, the judgment of 2 June 2006 in one year and one month, and the judgment of 10 April 2008 in one year and three months. The Court notes that the delays in the enforcement of the three latter judgments had been caused by the court’s errors in drafting of the documents and in calculations, and considers that these cannot in any way be put down as the applicant’s responsibility.
50.  Having regard to its established case-law, the Court considers that the authorities’ failure to comply with the above judgments within a reasonable time breached the requirements of Article 6. There has, accordingly, been a violation of Article 6 § 1 on this account.
51.  As to the judgment of 19 June 2007, the Court observes that it was enforced in seven months, which did not breach the standards laid down in its case-law (see Presnyakov v. Russia (dec.), no. 41145/02, 10 November 2005). Accordingly, it does not discern a violation of the Convention in this part of the complaint.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
52.  Lastly, the applicant complained that the amount of compensation awarded by the judgments of 31 March and 20 October 2004 for unlawful criminal proceedings against him had not been sufficient to cover his pecuniary damage and to remedy the distress suffered by him.
53.  Having regard to all the materials in its possession, and in so far as this complaint falls within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
54.  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
55.  The applicant claimed 30,000 euros (EUR) in respect of pecuniary damage and an equal amount in respect of non-pecuniary damage.
56.  The Government disputed the claimed amounts as unfounded and excessive.
57.  The Court observes that the applicant did not provide any explanation in respect of the claimed amount for pecuniary damage. Taking into additional consideration the fact that the amounts awarded originally had been index-linked at the domestic level, it rejects this claim.
58.  On the other hand, the Court accepts that the applicant suffered considerable distress and frustration both on account of the excessive length of the proceedings and the delayed enforcement of the judgments in his favour. Deciding on an equitable basis, it awards the applicant EUR 6,200 in respect of non-pecuniary damage.
B.  Default interest
59.  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

1.  Declares the complaints concerning undue length of the proceedings and delayed enforcement of the judgments of 31 March 2004, 20 October 2004, 2 June 2006 and 10 April 2008 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of excessive length of the proceedings;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of delayed enforcement of domestic judgments;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 6,200 (six thousand two 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Elisabeth Steiner
	Deputy Registrar	President