FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 14217/04
by Nina Semenovna NEMAKINA
against Russia
The European Court of Human Rights (First Section), sitting on 10 July 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 27 February 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Nina Semenovna Nemakina, is a Russian national who was born in 1945 and lives in Penza, the Penza Region. She was represented before the Court by Mr I.A. Zhulimov, a lawyer practising in Penza. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant brought civil proceedings against the Ministry of Finance of the Russian Federation seeking indexation of her unemployment allowance.
On 31 May 2002 the Leninskiy District Court of Penza found for the applicant and awarded her 5,598.45 Russian roubles (RUR) for indexation of allowance, RUR 378.53 for damages and RUR 1,500 for legal costs. The judgment was upheld on appeal by the Penza Regional Court on 30 July 2002.
On 12 August 2002 the Leninskiy District Court issued a writ of execution. On 14 August 2002 the applicant forwarded the writ of execution to the Ministry of Finance, but the judgment has not been enforced.
On an unspecified date the applicant complained to the Basmannyy District Court of Moscow about the defendant’s failure to enforce the judgment in her favour. By a decision of 28 April 2003 the Basmannyy District Court of Moscow terminated the proceedings for the lack of subject matter jurisdiction. The court held that the applicant’s claim could not be examined in the framework of civil proceedings and that the applicant had to apply for enforcement proceedings in order to oblige the defendant to enforce the judgment. On 28 November 2003 the Moscow City Court upheld the decision.
On 29 March 2006 the judgment of 31 May 2002 was fully enforced.
By a decision of 5 May 2006 the Leninskiy District Court of Penza granted the applicant’s action for compensation of inflation losses sustained as a result of the delayed enforcement of the judgment of 31 May 2002. The court acknowledged that the judgment of 31 May 2002 had been enforced with a substantial delay and awarded the applicant RUR 4,486.19 for indexation and RUR 556.2 for legal costs. No appeal was lodged against the decision and it acquired legal force on 16 May 2006.
On 19 December 2006 the applicant received the amounts awarded by the decision of 5 May 2006.
COMPLAINTS
1. The applicant complained about the non-enforcement of the judgment of 31 May 2002.
2. She complained under Articles 6 and 13 of the Convention that the domestic courts refused to examine in substance her complaint against the Ministry of Finance for the failure to enforce the judgment in her favour.
THE LAW
1. The applicant complained that the judgment of 31 May 2002 had not been enforced in good time. She did not refer to any particular Article of the Convention or its Protocols. The Court will examine this complaint under Article 6 and Article 1 of Protocol No. 1. These Articles, in so 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.”
The Government submitted that the judgment of 31 May 2002 had been enforced in full. They further noted that the domestic court had acknowledged that the judgment in the applicant’s favour had been enforced with a delay and awarded her compensation for depreciation of the judgment debt. The compensation had been paid in due time. The Government further pointed out that the applicant had not challenged the amount of the award. They concluded that the applicant could no longer claim to be a victim of a violation of the Convention provisions within the meaning of Article 34 of the Convention.
The applicant maintained her complaint.
The Court recalls that for an applicant to be able to claim to be the “victim” of a violation, within the meaning of Article 34 of the Convention, not only must he have the status of victim at the time the application is introduced, but such status must continue to exist at all stages of the proceedings. It reiterates that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996‑III, p. 846, § 36).
Turning to the facts of the present case, the Court observes that the judgment of 31 May 2002 was fully enforced on 29 March 2006. On 5 May 2006 the domestic court acknowledged that the judgment in the applicant’s favour had not been enforced in good time and awarded her compensation of RUR 4,486.19 for the depreciation of the judgment debt. The sum was paid to the applicant on 19 December 2006.
The Court further observes that the applicant’s claim before the domestic court was limited to pecuniary loss sustained due to the lengthy non‑enforcement of the judgment. The Court also notes that the applicant did not appeal against the decision of 5 May 2006. Thus it appears that she did not object to the amount of compensation awarded by the domestic court.
Having regard to the fact that the judgment of 31 May 2002 had been enforced in full, that the domestic authorities acknowledged the violation of Article 1 of Protocol No. 1, that the compensation award had been made, that the applicant did not challenge the amount of the award, and, finally, that the compensation was paid within a reasonable time, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention.
It follows that the applicant can no longer claim to be a “victim” of a violation of the Convention within the meaning of Article 34 of the Convention and that the complaint is to be declared inadmissible, pursuant to Articles 34 and 35 §§ 3 and 4.
2. The applicant complained under Articles 6 and 13 of the Convention that her complaint against the defendant’s failure to enforce the judgment had not been examined by domestic courts. However, having regard to all the material in its possession, and in so far as the complaint falls within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy