FIRST SECTION
CASE OF KHOLODENKO v. RUSSIA
(Application no. 33617/04)
JUDGMENT
STRASBOURG
18 September 2008
FINAL
18/12/2008
This judgment 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
1. 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.
2. 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.
3. 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
4. The applicant was born in 1956 and lives in Volzhskiy, a town in the Volgograd Region.
5. 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
6. 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
7. 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
8. The Government made no comment on the admissibility of the application.
9. The applicant submitted that the delayed enforcement had been caused by administrative disorganisation.
10. 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
11. 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).
12. 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.
13. 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
14. 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
15. 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.
16. The Government argued that this claim had been excessive and unsubstantiated.
17. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim.
18. The applicant also claimed RUB 35,000 in respect of non-pecuniary damage.
19. The Government argued that this claim had also been excessive and unsubstantiated.
20. 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
21. The applicant also claimed RUB 9,068.80 for the costs and expenses incurred before the domestic courts and the Court.
22. The Government argued that this claim had been partly unsupported by evidence, and that the expenses incurred had been partly irrelevant.
23. 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
24. 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 § 1 of the Convention and Article 1 of Protocol No. 1;
3. 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;
4. 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 NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy