CASE OF BEZBORODOV v. RUSSIA

FIFTH SECTION

CASE OF BEZBORODOV v. RUSSIA

(Application no. 36765/03)

JUDGMENT

STRASBOURG 

20 November 2008

FINAL

20/02/2009

This judgment may be subject to editorial revision.

In the case of Bezborodov v. Russia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Anatoly Kovler,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 21 October 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 36765/03) 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 Aleksandr Anatolyevich Bezborodov (“the applicant”), on 29 October 2003.

2. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.

3. On 9 July 2007 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

4. The applicant was born in 1960 and lives in Moscow. He is a military officer.

A. Background of the case

5. At some point the applicant sued his military unit for wage arrears. By judgments of 1 June 2000 and 10 August 2000 the Mozdokskiy District Court of the Republic of North Ossetia (Alaniya) (“the District Court”) awarded him 242,293 Russian Roubles (RUB). This amount was not paid to him within the statutory time-limit.

B. Judgment of 5 November 2001 and subsequent enforcement proceedings

6. At some point the applicant brought a claim against the military unit for inflation losses arising out of protracted enforcement of the judgments of 1 June 2000 and 10 August 2000.

7. On 5 November 2001 the District Court allowed his claim and ordered military unit no. 3737 to pay him RUB 122,975.28 of damages resulting from delayed enforcement of two judgments in his favour.

8. It appears that the judgment was not appealed against and entered into force ten days later.

9. On 19 November 2001 the District Court issued the applicant with a writ of execution in respect of the judgment.

10. On 13 February 2002 the applicant submitted the writ to the Ministry of Finance.

11. By letter of 20 September 2002 the Ministry informed the applicant that the writ of execution had been forwarded to the Ministry of the Interior. The judgment remained unenforced, since no budget funds had been allocated from the federal budget for these purposes until 2004.

12. According to the Government, on 29 October 2004 the amount of RUB 122,975.28 was paid to the applicant. The Government submitted a copy of the payment order dated 29 October 2004 confirming that the entire sum had been transferred to the applicant’s account.

13. According to the applicant, on 1 November 2004 he received the amount of RUB 122,900 credited into his bank account. He submitted a copy of the same payment order of 29 October 2004 (see paragraph 12 above) confirming transfer of 122,975.28 to his account.

C. Proceedings concerning the applicant’s claim for inflation losses

14. On 14 November 2005 the applicant brought court proceedings claiming compensation for depreciation of the judgment debt due to inflation for a period between 14 February 2002, the date when the Ministry of Finance received the writ of execution, and 29 October 2004, the date when the judgment had been enforced.

15. On 20 December 2005 the District Court granted the applicant’s claim and awarded him RUB 46,238.68 against his military unit.

16. On 17 March 2006 the command of the respondent unit applied for reopening of the case in view of the newly established circumstances.

17. On 27 March 2006 the District Court granted the application, annulled the judgment of 20 December 2005 and scheduled a new examination of the case.

18. On 18 August 2006 the District Court examined the applicant’s action, found in his favour and ordered the military unit to pay him RUB 125,557.76. The respondent unit appealed.

19. On 16 May 2007 the Supreme Court of the Republic of North Ossetia (Alaniya) quashed the judgment of 18 August 2006 on appeal and remitted the case for a new consideration by the first instance court.

20. On 3 October 2007 the District Court examined the case afresh and allowed the applicant’s action. The court found that the military unit was to pay the applicant RUB 41,528.75 of compensation for inflation losses resulting from the delayed enforcement of the judgment of 5 November 2001.

21. It appears that at some point the command of the respondent military unit applied for the reopening of the proceedings due to newly established circumstances.

22. On 26 December 2007 the District Court granted the request and reversed the judgment of 3 October 2007 on account of newly established circumstances.

23. On 29 January 2008 the District Court again examined and granted the applicant’s claim for upgrading of the judgment debt of 5 November 2001 and made a pecuniary award in the amount of RUB 40,950 in his favour.

24. In letter of 15 March 2008 the applicant informed the Court that at some point the judgment of 29 January 2008 had been appealed against by one of the parties. A new hearing had been scheduled for 19 March 2008. No further information has been provided by the parties. It appears that the proceedings are still pending.

D. Another set of compensation proceedings

25. At some point the applicant sued the Ministry of Finance, the Ministry of Interior and the Chief Command of the Interior troops of the Ministry of Interior for damages resulting from the delayed enforcement of the judgment of 5 November 2001. On 27 February 2008 the Zamoskvoretskiy District Court of Moscow rejected his claims. The court found no evidence that the damage claimed had been caused to the applicant by the respondent authorities, or that the latter had unlawfully withheld the applicant’s monetary assets. The applicant appealed. It appears that the appeal proceedings are still pending.

II. RELEVANT DOMESTIC LAW

26. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment in two months.

27. Article 208 of the Code of Civil Procedure empowers a court to upgrade the amount of a judgment debt, if a creditor so asks.

28. Chapter 59 § 4 of the Civil Code obliges the State to compensate a person’s non-pecuniary damage caused by a breach of his property rights. In particular, a court may hold the tortfeasor liable for non-pecuniary damage caused to an individual by actions impairing his or her personal non-property rights or affecting other intangible assets belonging to him or her (Articles 151 and 1099 § 1 of the Civil Code). Compensation for non-pecuniary damage sustained through an impairment of an individual’s property rights is only recoverable in cases provided for by law (Article 1099 § 2 of the Civil Code). Compensation for non-pecuniary damage is payable irrespective of the tortfeasor’s fault if damages were caused to an individual’s life or limb, sustained through unlawful criminal prosecution, dissemination of untrue information and in other cases provided for by law (Article 1100 of the Civil Code). Harm caused in the course of the administration of justice by the courts shall be compensated in cases where the fault of a judge has been established by a court judgment that has entered into legal force (Article 1070 § 2 of the Civil Code).

29. By Ruling no. 1-P of 25 January 2001, the Constitutional Court found that Article 1070 § 2 of the Civil Code was compatible with the Constitution in so far as it provided for special conditions on the State liability for the damage caused by administration of justice. State liability for the damage caused by such procedural acts or failures to act, such as a breach of the reasonable time of court proceedings, could arise even in the absence of a final criminal conviction of a judge if the fault of the judge has been established in civil proceedings. The Constitutional Court emphasised, however, that the constitutional right to compensation by the State for the damage should not be tied in with the individual fault of a judge. An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds and procedure for compensation by the State for the damage caused by unlawful acts or failures to act of a court or a judge and determine territorial and subject-matter jurisdiction over such claims.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION

30. The applicant complained about delayed enforcement of the judgment of 5 November 2001. The Court will examine this complaint under Article 6 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

1. The parties’ submissions

31. The Government argued that the applicant’s complaint was inadmissible for several reasons.

32. They submitted with reference to the recent Vilho Eskelinen case (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §62, 19 April 2007) that the civil head of Article 6 did not apply to the litigation in the instant case. The domestic proceedings concerned military service and the applicant was an active military officer entitled to a number of specific allowances. The disputes concerning military servicemen are examined by special military courts. Thus, the military personnel have a limited access to a court under national law, which is justified on objective grounds in the State’s interest.

33. They also contested the admissibility of the application on the ground that the judgment of 5 November 2001 had been enforced in full and accordingly the applicant was no longer a victim.

34. The Government further argued that the applicant had not exhausted domestic remedies in respect of his complaint. The first remedy to exhaust was a claim for compensation for depreciation of the judgment debt due to inflation. The Government pointed out that in certain earlier cases the Court had found that the exhaustion of this remedy had deprived the applicants of their victim status (see Nemakina v. Russia (dec.), no. 14217/04, 10 July 2007; Derkach v. Russia (dec.), no. 3352/05, 3 May 2007; Yakimenko v. Russia (dec.), no. 23500/04, 15 May 2007; and Sarmina and Sarmin v. Russia (dec.), no. 58830/00, 22 November 2005). When domestic courts had upgraded a judgment debt in those cases, they had closely followed the official rate of inflation and compensated any loss caused by inflation. In the instant case the applicant had lodged such claim, although he had only done so on 14 November 2005, after his application to the Court. By judgments of 20 December 2005 and 18 August 2006 in the proceedings concerning compensation for inflation losses the domestic courts had recognised the applicant’s right to obtain compensation for delayed enforcement and made pecuniary awards. Although those judgments had subsequently been quashed, the main reason for that had been a necessity to determine an exact amount to be paid, whereas the applicant’s right to compensation had been recognised in principle by the domestic courts. The Government thus asserted that the remedy was effective and capable of providing redress at the national level. However, the domestic proceedings in respect of the claim had been pending and no final judgment had been adopted. Accordingly, the remedy had not been exhausted. The second remedy suggested by the Government was a claim for non-pecuniary damage for delayed enforcement of the judgment. According to the Government, this remedy had proven to be effective in practice. For example, a family from Tatarstan had received 1,800 euros (EUR) for delayed enforcement of a judgment in their favour (judgment of the Novo-Savinovskiy District Court of Kazan, no. 2-1962/2006, 23 October 2006).

35. The applicant insisted that his complaint was admissible.

2. The Court’s assessment

36. The Court finds for the applicant.

37. With regard to the applicability of Article 6, the Court reiterates that this Article does not apply to cases where domestic law expressly excludes access to a court for the category of staff in question, and where this exclusion is justified by the State’s objective interest (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007‑...) In the case at hand, however, the applicant did have access to a court under domestic law. He used this right and sued his employer. The proceedings concerned, in essence, index-linking of an unpaid judgment debt. The District Court accepted, examined and granted the applicant’s claims following the rules of civil procedure. Nothing suggests that domestic law barred the applicant’s access to a court. Accordingly, Article 6 is applicable to the present case (compare with Dovguchits v. Russia, no. 2999/03, § 24, 7 June 2007). The Government’s objection ratione materiae must therefore be dismissed.

38. As to the argument of the Government that the judgment in question had already been enforced and the applicant had accordingly lost his victim status, the Court considers that the mere fact that the authorities complied with the judgment after substantial delays cannot be viewed in this case as automatically depriving the applicant of his status as a “victim” under the Convention (see, among others, Petrushko v. Russia, no. 36494/02, § 16, 24 February 2005). Accordingly, the Court dismisses the Government’s objection that the applicant is no longer a “victim” of the alleged violation.

39. As regards the argument about non-exhaustion of the domestic remedies, the Court reiterates that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible and capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).

40. As regards a request for upgrading of the judgment debt, the Court had indeed noted in certain cases cited by the Government that the upgrading of judicial awards had effectively compensated the applicants for inflation losses. The Court held in those cases that the payment without undue delay of such compensation together with the acknowledgement of the violations by the authorities had deprived the applicants of their victim status (see Derkach, Yakimenko, Nemakhina, cited above). However, these decisions do not establish a general principle that mere compensation for inflation losses is sufficient to afford redress required by the Convention for late enforcement of a judgment. In all aforementioned cases the Court reached its conclusions in the specific circumstances where the applicants’ claims for compensation were limited to pecuniary losses resulting from the inflation or the applicants’ position in the domestic proceedings was considered as an implicit waiver to claim compensation for further pecuniary or non-pecuniary damage. The Court considers that the mere upgrading of judicial awards pursuant to Article 208 of the Code of Civil Procedure does not suffice to satisfy the Convention requirement of effectiveness as it would only compensate for possible inflation losses and not for further damages, either pecuniary or non-pecuniary.

41. Turning to the facts of the present case, the Court notes that in any event the suggested remedy was used by the applicant, but has not proved to be effective in the present case. The applicant lodged an action for upgrading in November 2005. On four occasions the District Court examined and granted his claims and made pecuniary awards in his favour, and each time those awards were quashed pursuant to respondent authority’s requests. No final judgment was adopted by the domestic courts until at least 28 March 2008, and it appears that the proceedings are pending to date. Accordingly, it cannot be said that as a result of more than two years of the proceedings the domestic courts have either recognised the violation of the applicant’s rights on account of non-enforcement of the judgment in his favour or granted him adequate compensation. The Court notes in this respect that a failure to hear an action for compensation within reasonable time constitutes a factor which, inter alia, may affect the effectiveness, adequacy or accessibility of a remedy (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 195, ECHR 2006-...).

42. Finally, the Court does not lose sight of the fact that the judgment of 5 November 2001 itself compensated the applicant’s losses resulting from non-enforcement of two earlier domestic judgments. However, this award, in its turn, had remained without execution until 29 October 2004. The Court observes that such action had only produced repetitive results, namely a writ of execution which had not been enforceable for a considerable period of time, and had not brought the applicant closer to the liquidation of his debt. In these circumstances the Court is unable to conclude that the remedy suggested has proved to be effective in practice in the present case.

43. As regards a claim for non-pecuniary damage, the Court notes that Russian law does not specifically provide for compensation of non-pecuniary damage resulting from non-enforcement or late enforcement of domestic judgments. While accepting the Government’s view that the possibility of such compensation is not, in principle, excluded under the existing general provisions of the Civil Code, the Court is not satisfied that this possibility is sufficiently certain in practice so as to offer the applicant reasonable prospects of success as required by the Convention. The Court notes at the outset that Russian law does not have a special compensatory remedy for complaints stemming from an excessive length of enforcement proceedings. Although the Constitutional Court – already in 2001 – called on the legislature to determine the procedural rules governing actions for compensation for a violation of the right to a fair trial within the meaning of Article 6 of the Convention (see paragraph 29 above), the state of the Russian law has not evolved since. The doubts about the effectiveness of this remedy are corroborated by the Government’s failure to demonstrate before the Court the existence of sufficiently established and consistent case-law proving that this remedy is effective both in theory and in practice. The domestic judgment cited by the Government as awarding non-pecuniary damage on the basis of the existing provisions does not allow the Court to depart from its conclusion. Accordingly, a claim for non-pecuniary damage cannot be said to constitute an effective remedy either. The Court therefore rejects the Government’s argument about the non-exhaustion of domestic remedies.

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 Court observes that on 5 November 2001 the applicant obtained a judgment in his favour which became enforceable ten days later. With reference to the copy of the pay order dated 29 October 2004 the Government submitted that on the latter date the judgment had been enforced in full. The applicant mentioned, without providing further details, that the award had not been paid to him in its entirety.

46. The Court notes that the applicant did not furnish any evidence proving that the judgment in his favour had not been fully enforced. At the same time, he submitted a copy of the pay order of 29 October 2004 confirming the transfer of the entire award to his bank account. It further appears that in his submissions before the domestic courts in the proceedings concerning index-linking of the award the applicant referred to 29 October 2004 as the date of enforcement of the judgment in his favour (see paragraph 14 above). Having regard to the documents in its possession, the Court accepts that the judgment of 5 November 2001 was enforced in full on 29 October 2004. It had thus remained without enforcement for two years, eleven months and fourteen days.

47. With reference to the Inozemtsev case (see Inozemtsev v Russia (dec.), no. 874/03, 31 August 2006) the Government argued that the delay of enforcement had been justified, since at the time of processing of the applicant’s writ of execution the Ministry of Interior had been in transition from an old system of administration of its finances to a new one. During that phase the Ministry had faced considerable difficulties in managing payments in respect of over 7,500 writs from all over the country which had lead to certain delays. The applicant maintained his claims.

48. As regards the Government’s argument that the Ministry of Interior had experienced objective difficulties with the enforcement of court awards, the Court reiterates that a delay in the execution of a judgment may be justified in particular circumstances. However, that delay may not be such as to impair the essence of the right protected under Article 6 § 1 (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III). The Court notes that, by contrast to the case of Inozemtsev v. Russia (cited above), in which the domestic judgment had been enforced within approximately one year, in the present case the award in the applicant’s favour remained without execution for two years and eleven months. The Court further recalls that the applicant should not be prevented from benefiting from the success of the litigation on the ground of alleged difficulties experienced by the State enforcement services and the complexity of the budgetary arrangement (see Lykov v. Russia, no. 18557/06, § 20, 12 July 2007). Finally, the Court reiterates that it is incumbent on the State to organise its legal system in such a way that ensures co-ordination between various enforcement agencies and secures honouring of the State’s judgment debts in good time (see, insofar as relevant, Reynbakh v. Russia, no. 23405/03, § 23, 29 September 2005). The Court accordingly finds that the arguments advanced by the Government do not justify such a delay in execution of the judgment of 5 November 2001.

49. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising similar issues to the ones in the present case (see Petrushko v. Russia, no. 36494/02, § 23 et seq., 24 February 2005; Gorokhov and Rusyayev v. Russia, no. 38305/02, § 30 et seq., 17 March 2005).

50. Having examined the material submitted to it, the Court sees no reason for reaching a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for two years, eleven months and fourteen days to comply with the enforceable judgment in the applicant’s favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving the money he had reasonably expected to receive.

51. There has 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

52. 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

53. The applicant claimed in respect of pecuniary damage RUB 71,358.83 as statutory interest for the period of non-enforcement. He submitted a detailed calculation of his claims which was based on the refinancing rate of the Central Bank of Russia. He also claimed EUR 3,000 in respect of non-pecuniary damage.

54. The Government considered that, should the Court find a violation in this case, that would in itself constitute sufficient just satisfaction. They argued in respect of the applicant’s claim for pecuniary damage that no award should be made by the Court, since the applicant had not exhausted domestic remedies: his claim for compensation of inflation losses had been pending before the domestic courts, and no final judgment had been delivered in the proceedings. Furthermore, the applicant had failed to lodge an action for non-pecuniary damage with the domestic courts. Accordingly, he had not exhausted the domestic remedies in respect of his claim under Article 41. However, should the Court find it necessary to award damages, the amount of pecuniary damage should not exceed RUB 41,528.75. The Government argued that the applicant had claimed the latter amount in the domestic proceedings, and on 3 October 2007 such claim had been allowed by the Mozdokskiy District Court, and there would be no reason to award him a bigger sum. As regards the claims for non-pecuniary damage, they submitted that these claims were excessive and unsubstantiated. Finally, the Government noted that the award made on 5 November 2001 had not constituted an essential asset for the applicant.

55. The Court reiterates, firstly, that an applicant cannot be required to exhaust domestic remedies to obtain compensation for his loss since this would prolong the procedure before the Court in a manner incompatible with the effective protection of human rights (see Pshevecherskiy v. Russia, no. 28957/02, § 80, 24 May 2007 and, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, § 40). Therefore, this argument of the Government should be dismissed.

56. As regards the Government’s suggestion that the pecuniary damage, if awarded, should be calculated in accordance with the applicant’s submissions made at a certain stage of the domestic proceedings, the Court notes that the Government had not submitted either the calculation allegedly used by the applicant at that stage of the proceedings or a copy of the judgment of 3 October 2007 (in any event, annulled on 26 December 2007 upon the respondent authority’s request). Nor did they indicate what particular method of calculation had been used by the applicant at that stage of the domestic proceedings. The Court further notes that the Government did not object to the method of calculation of pecuniary damage used by the applicant in his submissions to the Court and failed to explain what specific aspect of the applicant’s calculation had been erroneous.

57. The Court further observes that in the present case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of delayed enforcement of the award in the applicant’s favour. The Court considers that there is a causal link between the violation found and the pecuniary damage alleged. Having regard to the materials in its possession and to the fact that the Government did not raise any specific objection to the applicant’s method of calculation of the pecuniary damage, the Court accepts the applicant’s claim and awards him EUR 2,020 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

58. The Court further considers that the applicant must have suffered distress and frustration resulting from the State authorities’ failure to enforce the judgment in his favour. The Court takes into account the relevant aspects, such as the length of the enforcement proceedings and the nature of the award, and making its assessment on an equitable basis, awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

59. The applicant did not make any claim in respect of the costs and expenses incurred before the domestic courts and before the Court within the time-limits set by the Court. Accordingly, the Court makes no award under this head.

C. Default interest

60. 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 application admissible;

2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1;

3. Holds

(a) that the respondent State, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, shall pay the applicant EUR 2,020 (two thousand and twenty euros) in respect of pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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.

Done in English, and notified in writing on 20 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia WesterdiekRait Maruste
RegistrarPresident

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