FIRST SECTION

FINAL 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 16 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mr V. Zagrebelsky, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 20 May 2002 ,

Having regard to the partial decision of 13 November 2003 ,

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 Galina Petrovna Gerasimova, is a Russian national, who was born in 1953 and lives in Chapayevsk , Samara Region . The respondent Government are represented by Mr Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows .

On 4 September 1995 the Commercial Court of the Samara Region ( Арбитражный суд Самарской области ) granted a claim by the applicant ’ s employer – a private company – for recovery of damages against the Chapayevsk Social Security Service ( Управление социальной защиты населения администрации г. Чапаевска ) .

On 15 August 1997 the applicant ’ s employer assigned her a part of the judgment debt in the amount of RUR 114,000,000 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 according to the sums allocated from 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 . The outstanding amount of the debt remained RUR 87,445 .

B. Relevant domestic law

Under Article 132 § 1 of the Constitution and Article 31 of the Budget Code the organs of local self- government are independent in management of their budget.

Article 132 § 2 of the Constitution provides that organs of local self-government may be vested by law with certain State powers, implementation of which is controlled by the State.

COMPLAINT

The applicant complain s 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 judgment of the Commercial Court of the Samara Region of 4 September 1995.

THE LAW

1. The applicant complain s under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the State ha s failed to execute fully and in due time the judgment of the Commercial Court of the Samara Region of 4 September 1995.

Article 6 of the Convention, 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 to the Convention 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 Government submit that the Chapayevsk Social Security Service is a municipal institution of the Administration of Chapayevsk . The latter is an organ of local self- government which, according to Article 132 of the Constitution and Ar ticle 31 of the Budget Code, enjoys independence in management of its budget. The Government argue that the principles established in the judgment of Burdov v. Russia ( no. 59498/00, ECHR 2002-III ) are inapplicable to the present case since the Russian Federation may not be responsible for non-execution against such an organ unless it is found attributable to malpractice on the part of the bailiffs. The Government submit that the applicant failed to exhaust domestic remedies because it appears that she did not apply to the bailiffs ’ service in order to institute enforcement proceedings. The Government further assert that even if the applicant did institute enforcement proceedings, she still failed to comply with the exhaustion requirement as she did not challenge the actions or omissions of the bailiffs before a court.

The applicant generally contests the Government ’ s submissions. She contends also that on 29 May 1998 she applied to the bailiffs for institut ion of enforcement proceedings .

The Court will examine the two arguments separately.

A. Whether the State is the debtor

The Court recalls that, according to the established case-law of the Convention organs, the agencies of local self- government are clearly State organisations in the sense that they are governed by public law and exercise public functions vested in them by the Constitution and the law s (see, mutatis mutandis , Rothenthu r m Commune v. Switzerland , no. 13252/87, Commission decision of 14 December 1988; Ayuntamiento de X. v. Spain , no. 15090/89, Commission decision of 7 January 1991, Decisions and Reports (DR) 59 , p. 251 ) . The Court reiterates that under the international law the term “ State organisation” is not limited only to organs of the central Government. In cases where State power is decentralised it extends to any national authority which exercises public functions (see Ayuntamiento de X. v. Spain , cited above). The Court considers that the Chapayevsk Social Security Service of the Administration of Chapayevsk is clearly a State organisation as confirmed by Article 132 § 2 of the Constitution of Russia . Accordingly, the Court finds that the State is the debtor under the judgment of the Commercial Court of the Samara Region of 4 September 1995 .

B. Exhaustion of domestic remedies

The Court notes that the application of 29 May 1998 was addressed to the Chapayevsk Town Court . There is no evidence that it was subsequently transmitted to the bailiffs ’ service.

T he Court has first to decide whether the applicant was required to exhaust the remedies invoked by the Government. T he Court reiterates that Article 35 § 1 of the Convention, which sets out the rule o n exhaustion of domestic remedies, provides for a distribution of the burden of proof. 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, it was accessible, 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 ; Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further recalls that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see Kudła v . Poland [GC], no. 30210/96, § 158, ECHR-XI).

T he Court observes that the Government ’ s argument concerning non-exhaustion of domestic remedies is confined to a n assertion that the applicant must have had recourse to th e remedies invoked . No further information as to any domestic practice showing the effectiveness of those remed ies has been provided. In the absence of such evidence and having regard to the above-mentioned principle s , the Court finds that the Government have failed to substantiate their contention that the remed ies at issue were effective one s (see , e.g. , Kranz v. Poland , no . 6214/02 , § 23 , 17 February 2004 ; Skawinska v . Poland (dec . ), no. 42096/98, 4 March 2003).

Furthermore, t he Court notes that in Burdov v. Russia , cited above, and Timofeyev v. Russia ( no. 58263/00, 23 October 2003 ) , where a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 was found in respect of the State ’ s failure to comply with final judicial decisions, the enforcement proceedings were instituted by the bailiffs ’ service. The Court recalls that i n the Burdov case the enforcement of the judgments was prevented by the failure to make adequate budgetary provisions by appropriate legislative measures, over which the bailiffs ’ could possibly have no control (see, mutatis mutandis , Romashov v. Ukraine , no. 67534/01 , 6 July 2004 ).

Turning to the fact s of the present case, the Court notes that the judgment in question remains une xecut ed precisely because of the failure to m ake appropriate budgetary arrangements , which obviously f a ll s outside the bailiffs ’ competence. The Court concludes that the remedies invoked by the Government would have been ineffective .

For the above reasons, the Court finds that the application cannot be rejected for non-exhaustion of domestic remedies. It considers, in the light of the parties ’ submissions, that the complaint raise s serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that th is complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

Søren Nielsen Christos Rozakis Registrar President

[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 .