FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34687/02 by Natalya YAVORIVSKAYA against Russia

The European Court of Human Rights ( First Section) , sitting on 13 May 2004 as a Chamber composed of:

Mr P. Lorenzen , President , Mr G. Bonello , Mrs F. Tulkens , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 18 August 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Natalya Alimpiyevna Yavorivskaya, is a Ukrainian national who was born in 1965 and lives in Ternopol, Ukraine. She is represented before the Court by Mr M. Karchevskiy, a lawyer practising in Ternopol. The respondent Government are represented by Mr P. 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.

Between 1996 and 2000 the applicant and her family lived and worked in the Chukotka Region in the Russian Federation.

In the winter of 1998 the applicant was taken to a hospital in the town of Bilibino. According to the applicant, local doctors failed to diagnose her correctly and provide adequate treatment; as a result her health was seriously damaged.

In August 1998 the applicant brought a civil action against the municipal health protection institution “Bilibino Central District Hospital” ( муниципальное учреждение здравоохранения « Билибинская центральная районная больница » ) for compensation for non-pecuniary damage resulting from medical malpractice.

On 21 February 2000 the Bilibinskiy District Court of the Chukotka Region allowed the applicant's action and awarded her RUR 60,000 (EUR 2,109). The judgment was not appealed against and on 1 March 2000 it became final and enforceable.

On an unspecified date the court issued a writ of execution.

After the hospital had failed to pay the judgment debt for over a year the applicant sent complaints to the President of the Russian Federation, the Minister of Health, the Court Bailiffs' Service and other authorities.

On 15 November 2001 the Chukotka Regional Department of the Ministry of Justice (in charge of the court bailiffs) advised the applicant as follows:

“...it was established that the debtor had no cash funds in its accounts. According to its founding documents, the debtor is an institution and, pursuant to Article 120 of the Civil Code, an institution is only liable to the extent of its cash funds. Article 298 § 1 of the Civil Code provides that an institution may not alienate or otherwise dispose of the property attached to it or of the property acquired at the expense [of its owner].

In accordance with Information Letter no. 45 of the Presidium of the Supreme Commercial Court of the Russian Federation of 14 July 1999 'On the recovery out of the property of an institution', if the debtor, who is an institution, lacks cash funds, then recovery is not possible out of other property assigned to the institution by its owner...”

It then informed the applicant that the enforcement proceedings had been closed on 30 November 2000 because the enforcement had been impossible, but it was open for the applicant to initiate the enforcement proceedings again.

On 29 November 2001 the Chukotka Regional Department of the Ministry of Justice forwarded a subsequent complaint by the applicant to the chief court bailiff for the Bilibino District for enforcement.

On 10 December 2001 the Chukotka Regional Department of the Ministry of Justice responded to the applicant and gave the same explanation as in the letter of 15 November 2001. It also added that in respect of the hospital there were several other enforcement proceedings having the first and second priority, while the applicant's claim was only of the fifth priority.

On 18 January 2002 a court bailiff confirmed again that the hospital had no cash funds and that the recovery could not be made out of its property.

On 28 January 2002 the bailiff required the Bilibino clearing centre to seize the cash funds of the hospital.

On 6 February 2002 the bailiff made a new determination to the effect that the enforcement was not possible due to the debtor's lack of funds. The enforcement proceedings were definitively closed and the writ of execution was returned to the applicant.

B. Relevant domestic law and practice

Civil Code of the Russian Federation

Article 120 § 1 defines an institution as an entity established by its owner for the performance of managerial, socio-cultural or other non-commercial functions and funded by its owner in whole or in part. Article 298 § 1 provides that an institution may not alienate or otherwise dispose of the property assigned to it by its owner.

Article 120 § 2 provides that an institution is liable under its obligations to the extent of its cash funds. If it lacks sufficient cash funds, its owner incurs vicarious liability.

Article 399 § 1 provides that, before claiming a debt from a person whose liability is vicarious as described above, a creditor shall first claim the debt from the principal debtor. If the principal debtor refuses to satisfy the claim or no reply is received within a reasonable time, the claim may be brought against the person vicariously liable.

COMPLAINTS

The applicant complains , without referring to specific provisions of the Convention, about non-enforcement of the judgment of 21 February 2000.

The applicant also complains under Article 13 of the Convention about the lack of effective remedies to secure the enforcement of the judgment of 21 February 2000.

THE LAW

1 . The applicant complains that the judgment of 21 February 2000 has not been enforced. The Court considers that these complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Burdov v. Russia , no. 59498/00, § 26, ECHR 2002 ‑ III). Article 6, in the relevant part, provides 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 Government submit that the court bailiffs found no available cash funds of the debtor hospital and that Article 120 of the Civil Code prevented them from obtaining recovery from the hospital's other assets. The applicant was told that she could lodge a claim against the hospital's owner, pursuant to Article 120 § 2 of the Civil Code, which she has not done. Nor did she challenge the actions of the court bailiffs before a court. The Government conclude that the applicant did not exhaust the domestic remedies available to her. They make no comments as to the merits of the case.

The applicant submits that the court bailiffs never informed her about the developments in the enforcement proceedings and the date of their termination is unclear. She contends that her right to lodge a claim against the hospital's owner was not sufficiently clarified to her. As regards her failure to challenge the actions of the court bailiffs before the court, she considers that this remedy would not be effective because she only received “standard-form” letters from all authorities that were presumed to be competent to remedy the situation, but failed to take any measures.

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 Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on 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, that it was accessible, was one which was 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).

As regards the applicant's alleged ability to sue the hospital's owner for the amounts outstanding, the Court observes that the Government's objection is confined to an assertion that a claim against the hospital owner was an effective remedy and the applicant must have been aware of its availability. No further information as to any case-law showing the effectiveness of that remedy has been provided. In the absence of such evidence and having regard to the above-mentioned principles, the Court finds that the Government have failed to substantiate their contention that the remedy at issue was an effective one (see, e.g. , Kranz v. Poland , no. 6214/02, § 23, 17 February 2004; Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003).

As regards an action against the court bailiffs, the Court notes that the Government failed to provide any explanation how such action could have put an end to the continuing violation or what kind of redress the applicant could have been provided with as a result of the action. In any event, the Court observes that the applicant does not complain about any unlawful act of a bailiff but rather about the fact that the judgment was not enforced. Even assuming that the applicant could have brought an action against the bailiffs and obtained a decision confirming that the non-enforcement had been unlawful in domestic terms, the outcome of such an action would only have produced repetitive results, namely a writ of execution enabling the bailiffs to proceed with the enforcement of the judgment of 21 February 2000 (cf., e.g. , Jasiūnienė v. Lithuania (dec.), no. 41510/98, 24 October 2000). The Court concludes that such an action 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 complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2 . The applicant also raises substantially identical complains under Article 13 of the Convention. The Court does not, however, consider it necessary to examine the same complaints under Article 13 of the Convention because Article 6 is lex specialis with respect to this part of the application (see Užkurėlienė and Others v. Lithuania (dec.), no. 62988/00, 8 January 2004). It follows that this part of the application should be declared inadmissible under Articles 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaint about non-enforcement of the judgment of 21 February 2000;

Declares inadmissible the remainder of the application.

Søren Nielsen Peer Lorenzen Registrar President