FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24669/02
by Galina Petrovna GERASIMOVA
against Russia
The European Court of Human Rights (First Section), sitting on 13 November 2003 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrsN. Vajić,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 20 May 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Galina Petrovna Gerasimova, is a Russian national, who was born in 1953 and lives in Chapayevsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Litigation concerning the first assignment of claims
On 4 September 1995 the Commercial Court of the Samara Region granted a claim by the applicant’s employer – a private company – for recovery of damages against the Chapayevsk Social Security Service.
On 15 August 1997 the applicant’s employer transferred to her a part of the judgment debt – 114,000,000 Russian Roubles (RUR) – towards salary due.[1]
On 29 May 1998 the applicant applied to the Chapayevsk Town Court of the Samara Region for execution of the judgment.
As the judgment had not been executed in full, in 2001 the applicant filed a claim with the Chapayevsk Town Court of the Samara Region against the Chapayevsk Social Security Service for recovery of the sum with interest.
On 5 April 2001 the Chapayevsk Town Court of the Samara Region dismissed the claim on the grounds that the applicant had failed to substantiate her calculation of the amount of the interest.
On 19 September 2001 the Presidium of the Samara Regional Court, following an application for supervisory review lodged by the President of the Samara Regional Court, quashed the judgment of 5 April 2001 and remitted the case for a fresh examination.
On 21 June 2002 the Chapayevsk Town Court of the Samara Region dismissed the claim on the grounds that the Chapayevsk Social Security Service was a non-commercial organisation financed from the town budget and therefore it was not established that it had unjustly used the applicant’s money. The Chapayevsk Town Court also indicated that the execution of judgment by the Chapayevsk Social Security Service had been carried out so far as it was able, given the sums allocated to it in the budget. Thus, in 2000 the estimate for financing provided for RUR 16,000 to be paid in instalments during that year. The estimate for 2001 provided for RUR 5,000 to be paid to the applicant, and the estimate for 2002 provided for RUR 12,000, out of which RUR 5,000 was paid to the applicant as of 1 June 2002.
By the date of lodging the application with the Court the applicant had received RUR 26,598 in execution of the judgment.
2. Litigation concerning the second assignment of claims
On 2 October 1996 the Commercial Court of the Samara Region granted another claim by the applicant’s employer for recovery of damages against the Chapayevsk Social Security Service.
On 15 August 1997 the applicant’s employer assigned her the judgment of 2 October 1996 in the sum of RUR 78,880,000 towards the salary due.
On 29 May 1998 the applicant applied to the Chapayevsk Town Court of the Samara Region for execution of the judgment.
From 29 May 1998 to 21 May 2001 the applicant received no amounts in execution of the judgment. On 21 May 2001 the bailiffs recovered the amount of RUR 67,500. In June 2001 the bailiffs terminated the execution proceedings on the grounds that the amount had been fully recovered.
3. Searches by the Tax Police
On 29 November 2000 the Tax Police searched the applicant’s office and seized a number of articles.
On 19 December 2000 the Tax Police searched the applicant’s home and seized money in the amount of USD 7,750.
On 15 January 2001 the Tax Police entered the applicant’s office and seized all the property located there, valued at RUR 180,000.
On 21 January 2001 the applicant instituted proceedings against the Tax Police with the Chapayevsk Town Court of the Samara Region.
On 29 March 2001 the Chapayevsk Town Court remitted the case to Oktyabrskiy District Court of Samara.
On an unspecified date in May 2001 the Samara Regional Court quashed the ruling of 29 March 2001 and remitted the case to Chapayevsk Town Court of the Samara Region.
Until March 2002 the hearings were postponed several times.
On 25 March 2002 in the court hearing the applicant filed an application to change the amount and the grounds of her claim against the Tax Police. At the same time she signed a waiver of her initial claim as suggested by the judge.
On 17 May 2002 the applicant filed a complaint against the ruling of the Chapayevsk Town Court of the Samara Region of 25 March 2002 stating that she had not waived her initial claim but had amended it.
B. Relevant domestic law
Article 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
Under Article 13 of the Law, enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the length of the execution proceedings and the failure of the State to execute fully the judgments of the Commercial Court of the Samara Region of 4 September 1995 and 2 October 1996.
2. The applicant further complains under Article 8 of the Convention and Article 1 of Protocol No. 1 about the allegedly unlawful searches and seizures carried out by the Tax Police on 29 November 2000, 19 December 2000 and 15 January 2001.
3. The applicant also complains under Article 6 § 1 and Article 13 of the Convention that judgments in respect of her complaints were not delivered by domestic courts.
THE LAW
1. The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the Convention about non-execution of the judgment of 4 September 1995.
Article 6 § 1, insofar as relevant, reads as follows:
“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 reads as follows:
“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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the Convention about non-execution of the judgment of 2 October 1996 alleging that the execution proceedings were terminated even though the amount due had not in fact been fully recovered.
The Court must first examine whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.
The applicant has not provided the Court with any documents to show that she appealed against the allegedly unlawful termination of the execution proceedings in June 2001 although such a possibility was open to her.
It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
3. Under Article 8 of the Convention and Article 1 of Protocol No. 1 the applicant complains about a number of searches and seizures carried out by the Tax Police.
However, the applicant has submitted no documentary evidence in support of this complaint.
Therefore, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
4. Under Article 6 § 1 and Article 13 of the Convention the applicant complains that no judgments were delivered concerning her claims.
However, the judgment concerning her claim for interest on the outstanding amount to be executed was delivered on 21 June 2002. As for her complaint regarding searches and seizures carried out by the Tax Police, the Court notes that the proceedings in domestic courts are still pending. The complaint is, therefore, premature.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning[Note1] non-execution of the judgment of 4 September 1995;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
[1] The amount is indicated without regard to the denomination of 1998. In accordance with the Presidential Decree “on the Modification of Face Value of Russian Currency and Standards of Value” of 4 August 1997, 1,000 “old” roubles became 1 “new” rouble as of 1 January 1998.
[Note1]Summarise the complaints without necessarily citing the invoked Convention Articles.
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