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FIRST
SECTION
CASE OF
KOCHALIDZE v. RUSSIA
(Application
no. 44038/05)
JUDGMENT
STRASBOURG
10
April 2012
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 Kochalidze v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44038/05)
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 Rezo Akhmedovich Kochalidze (“the
applicant”), on 9 November 2005.
2. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
2 April 2009 the President of the
First Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
4. In
accordance with the pilot judgment Burdov v. Russia (no. 2)
(no. 33509/04, ECHR 2009), the applications were adjourned
pending their resolution at the domestic level.
- The
Government informed the Court that the authorities could not enforce
the judgments in the applicant’s favour and requested to
consider the application on the merits. The Court therefore decided
to resume examination of the present case.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in
Rostov-on-Don.
- The
applicant served in the military. By a judgment of 18 October
2002 the Military Court of the Vladikavkaz Garrison declared unlawful
the refusal of the commander of military unit 66156 to pay the
applicant additional monthly combat allowance, obliged the head of
the finance department of the North Caucasus Military Circuit to
allocate funds for such payment and recovered in the applicant’s
favour the allowance arrears in the amount of 58,900 Russian roubles
(RUB). By another judgment of 17 December 2002 the same court
delivered a similar judgment and recovered additionally RUB 121,600
in favour of the applicant.
- On
18 August 2005 the regional office of the Federal Treasury returned
the writs of execution to the applicant on the ground that the
military unit did not have an account there. The writs of execution
were also returned by the main office of the Federal Treasury on 28
September 2005. In their letter of the same date the Federal Treasury
suggested that the applicant submit the writs of execution to the
bailiff service. It is not clear from the parties’ submissions
whether the applicant has done so.
- The
judgments remain unenforced to date.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 about non-enforcement
of the above judgments. These provisions, as far as relevant, 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
Court notes that the application is not manifestly ill founded
within the meaning of Article 35 § 3 (a) 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 acknowledged that the judgments in the applicant’s
favour had not been enforced. They further argued that it was
impossible to enforce the judgments because the applicant had not
submitted the writs of execution to the bailiff service and requested
that the Court consider the case on the 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). It further reiterates that
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). Where a
judgment is against the State, the defendant State authority must be
duly notified thereof and is thus well placed to take all
necessary initiatives to comply with it or to transmit it to another
competent State authority responsible for compliance (see Akashev
v. Russia, no. 30616/05, § 21, 12 June 2008). The
complexity of the domestic enforcement procedure or of the State
budgetary system cannot relieve the State of its obligation under the
Convention to guarantee to everyone the right to have a binding and
enforceable judicial decision enforced within a reasonable time
(Burdov (no. 2), cited above, § 70).
- The
Court observes that in the instant case enforcement of the two
judgments in the applicant’s favour has been pending for over
nine years, which is prima facie incompatible with the
Convention requirements (see, among others, Kozodoyev and Others
v. Russia, nos. 2701/04 et al., § 11, 15 January
2009). It further observes that the applicant enabled the enforcement
of the judgment debt by submitting the writ of enforcement to two
State bodies and cannot be blamed for the State’s subsequent
failure to act. Indeed, once the authorities were in possession of
the writ of enforcement, it was open to them to adopt a more
practical approach and to forward the document to the responsible
body. Consequently, despite the applicant’s failure to submit
the documents to the bailiff service after their return by the
regional office of the Federal Treasury, the full responsibility for
enforcement of the court judgment rests with the State (see, mutatis
mutandis, Rozhnyatovskaya v. Russia, no. 35002/05,
§ 19-20, 13 December 2011).
- Regard
being had to the Government’s acknowledgment of the facts as
they stand and to its own well-established practice, the Court
considers that there has 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 the debt under the two
judgments in his favour, the sum total of which amounts approximately
to 4,300 euros (EUR) in respect of pecuniary damage, and EUR 16,000
in respect of non pecuniary damage.
- The
Government agreed that the applicant should be paid the sum total of
the amounts awarded to him by the domestic judgments. It further
argued that in the case of finding a violation by the Court, the
award for non-pecuniary damage should not exceed EUR 3,000.
- The
Court reiterates that the most appropriate form of redress in respect
of the violations found would be to put the applicants as far as
possible in the position they would have been if the Convention
requirements had not been disregarded (see Piersack v. Belgium
(Article 50), 26 October 1984, § 12, Series A no. 85, and,
mutatis mutandis, Gençel v. Turkey, no. 53431/99,
§ 27, 23 October 2003).
- As
to the claim for pecuniary damage, the Court notes the Government’s
submission that they could not enforce the judgments in the
applicant’s favour (see paragraph 5 above). The Court therefore
awards the applicant EUR 4,300 under this head.
- Furthermore,
the Court accepts that the applicant suffered distress and
frustration due to the authorities’ lengthy failure to honour
the State’s debt to him. Deciding on an equitable basis and
having regard to all relevant factors (see Burdov (no. 2),
cited above, §§ 154-157), the Court awards the applicant
EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim for costs and
expenses. The Court will therefore make no award under this head.
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, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR
4,300 (four thousand three hundred euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
