FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15021/02 by Kim WASSERMAN against Russia

The European Court of Human Rights ( First Section) , sitting on 25 March 2004 as a Chamber composed of

Mr C.L. Rozakis , President , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. H ajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application introduced on 27 May 2001,

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, Mr Kim Wasserman, is a Russian and Israeli national, who was born in 1926 and lives in Ashdod, Israel. He is represented before the Court by Ms M. Zhenina, a lawyer practising in Moscow. 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.

On 9 January 1998 the applicant came to Russia to tend to a grave of his close relative. He had on him 1,600 US dollars which he failed to note on his customs' declaration.

On the same day the Sochi Customs Office ( Сочинская таможня ) found the applicant guilty of smuggling foreign currency and imposed on him a fine of the amount equal to the amount smuggled. The money that the applicant had on him were forfeited as the fine. The applicant appealed to a higher customs office and also lodged a civil action with a court.

On 30 July 1999 the Khostinskiy District Court of Sochi gave its judgment. The court quashed the order of the customs office of 9 January 1998 and ordered the treasury of the Russian Federation to repay the applicant 1,600 US dollars “in the form of their equivalent in Russian roubles, i.e. RUR 38,752”. The court dismissed the applicant's claim for compensation for non-pecuniary damage as having no grounds in the domestic law.

On 9 September 1999 the Krasnodar Regional Court upheld, on the customs office's appeal, the judgment of 30 July 1999.

On 29 December 1999 and 14 January 2000 the applicant wrote to the Prime-Minister of the Russian Federation and the Minister of Foreign Affairs of the Russian Federation with a request to have the award in his favour enforced in US dollars and not in Russian roubles. He argued that he was an Israeli national and he could not receive any Russian roubles on his bank account in Israel.

On 13 March 2000 the Sochi Town Branch of the Federal Treasury ( Отделение федерального казначейства по г. Сочи ) advised the applicant that it had received the full amount of the award, but, having been unable to transfer it to the applicant's bank in Israel, it deposited it in the applicant's name with the Central office of the Savings Bank of the Russian Federation in Sochi.

In response to the applicant's letter addressed to President Putin, on 26 April 2000 the Ministry of Finance of the Russian Federation informed the applicant that on 31 March 2000 it had granted permission to the Sochi Branch of the Federal Treasury to convert the amount of the award into US dollars.

On an unspecified date the applicant asked the court to clarify the operative part of the judgment of 30 July 1999 and amend the method and form of enforcement. He requested the court to order the Federal Treasury to wire 1,600 US dollars to his account in Israel.

On 23 November 2000 the Khostinskiy District Court of Sochi refused the applicant's request because the Russian rouble was the only legal tender in the Russian Federation. This decision was quashed on the applicant's appeal by the Krasnodar Regional Court.

On 15 February 2001 the Khostinskiy District Court of Sochi granted the applicant's request. The court amended the operative part of the judgment of 30 July 1999 and ordered the Federal Treasury of the Russian Federation to transfer 1,600 US dollars to the applicant's bank account in Israel.

The decision of 15 February 2001 was not appealed against and became final ten days later.

On 10 April 2001 the Khostinskiy District Court of Sochi issued a writ of execution and sent it to the bailiffs' service in Moscow.

On 19 June 2001 the writ of execution was received by the 2 nd Interdistrict office of court bailiffs of the Central Administrative District of Moscow ( 2й межрайонный отдел службы судебных приставов по ЦАО г. Москвы ) , having territorial jurisdiction over the seat of the federal treasury. The applicant was advised of the receipt by phone.

On 14 and 20 January and 20 February 2002 the applicant complained to the Chief Court Bailiff of the Russian Federation ( Главный судебный пристав РФ ) about non-enforcement of the judgment.

On 28 February 2002 one of the applicant's complaints was forwarded to the Main Directorate of the Ministry of Justice of the Russian Federation for “taking measures to enforce the court judgment”.

On 7 February 2003 the applicant complained to President of the Zamoskvoretskiy District Court of Moscow ( Замоскворецкий районный суд г. Москвы ) about non-enforcement of the judgment of 30 July 1999.

On 31 July 2003 a deputy head of the 2 nd Interdistrict office of court bailiffs of Moscow submitted his observations on the applicant's complaint. He denied that his service had received any documents from the applicant between 2000 and 2003.

To date, the judgment of 30 July 1999 has not been enforced.

B. Relevant domestic law and practice

General provisions on execution of court judgments

The Russian Law on Enforcement Proceedings (no. 119-FZ of 21 July 1997) designates the court bailiffs' service as the authority charged with enforcement of court decisions (Section 3 § 1). Court judgments can also be executed by tax authorities, banks, financial institutions, other organisations, State officials and individuals – all of them are not considered to be the enforcement authorities (Section 5).

Execution of judgments against budget-funded organisations

Section 110 of the Law on Federal Budget for the Year 2001 (no. 150-FZ of 27 December 2000) provided that writs of execution issued against the treasury of the Russian Federation were to be sent for execution to the Ministry of Finance of the Russian Federation and were to be executed in accordance with the procedure established by the Russian Government. A similar provision was included in Section 128 of the Law on Federal Budget for the Year 2002. However, Section 122 of the Law on Federal Budget for the Year 2003 (no. 176-FZ of 24 December 2002) established, in addition to the similar requirement that writs of execution were to be submitted to the Ministry of Finance, that the court bailiffs could not enforce judgments against the Russian Federation.

On 22 February 2001 the Russian Government approved the “Rules on recovery of funds due on the basis of court-issued writs of execution under a monetary obligation of a recipient of federal budget funds” (the “Rules”). Sections 2 and 3 of the Rules provide that the creditor must submit the writ of execution and a copy of the judgment to the office of the federal treasury where the debtor has its current account. The federal treasury office must grant the recovery within three working days in the part not exceeding the balance of the account (Section 5). Should the balance of the account be insufficient for a full recovery, the writ of execution must be returned to the creditor who can then apply to the Ministry of Finance to recover the outstanding amount from the debtor's funding entity (Section 6).

Case-law of the Supreme Court of the Russian Federation

On 19 July 2001 the Supreme Court of the Russian Federation delivered judgment no. GKPI 2001-864 concerning the lawfulness of certain provisions of the Rules. In particular, the court held that the Rules did not govern the enforcement of court judgments because the federal treasury was not an enforcement body, pursuant to Section 5 of the Law on Enforcement Proceedings. In subsequent judgment no. GKPI 2001-1345 of 22 October 2001 the court clarified this position as follows:

“The contents of the contested Rules indicate that they do not govern the procedure for enforcement of court decisions, rather they establish the procedure for voluntary execution of court decisions and for recovery of funds under monetary obligations of recipients of the federal budget funds...

The court also has regard to the fact that the contested Rules do not prevent the creditor from resorting to the enforcement proceedings in respect of a court decision...”

In judgment nos. GKPI 2001-1790 and 2002-139 of 27 February 2002 the Supreme Court of the Russian Federation confirmed that neither the Rules, nor the Laws on Federal Budgets for 2001 and 2002 prevented the creditor from seeking enforcement of a court judgment in accordance with the procedure set out in the Law on Enforcement Proceedings, the Law on Court Bailiffs and the Code of Civil Procedure. Finally, the Supreme Court again upheld this position in judgment no. GKPI 2001-1482 of 28 March 2002.

COMPLAINT

The applicant complains under Article 3 of the Convention that the confiscation of his money on 9 January 1998 doomed him to a miserable life during his stay in Russia and thus amounted to torture.

The applicant complains under Article 6 of the Convention about the refusal of domestic courts to award him compensation for non-pecuniary damage. He also invokes in this connection Article 17 of the Convention.

The applicant complains under Article 1 of Protocol No. 1 and Article 3 of Protocol No. 6 to the Convention that the judgment in his favour has remained unenforced to date.

THE LAW

1. The applicant complains under Articles 3, 6 and 17 of the Convention that he was humiliated by the decision of the customs office to confiscate his money and that the domestic courts refused him compensation for non-pecuniary damage. Article 3 provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 6 reads, in the relevant part, as follows:

“In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing ... by [a]... tribunal established by law...”

Article 17 provides:

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The Court notes that the applicant's complaints relate to his stay in Russia in 1998 and that his claim for non-pecuniary damage was determined in the final instance by the Krasnodar Regional Court on 9 September 1999. However, the applicant only lodged his application on 27 May 2001.

It follows that these complaints are introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant complains under Article 1 of Protocol No. 1 and Article 3 of Protocol No. 6 that the judgment of the Khostinskiy District Court of Sochi of 30 July 1999, with the amendments introduced on 15 February 2001, has remained without enforcement to date. The Court considers that the complaint under Article 3 of Protocol No. 6 is, in fact, a complaint under Article 6 of the Convention, cited above. Article 1 of Protocol No. 1 provides 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 claim that the judgment has not been enforced because of the applicant's failure to submit appropriate documents to the Ministry of Finance of the Russian Federation, as provided in the Laws on Federal Budget for the Years 2001, 2002 and 2003.

The applicant submits that the writ of execution was received by the court bailiffs' service of Moscow on 19 June 2001, directly from the Khostinskiy District Court of Sochi, and it was incumbent on that service to forward the writ, if necessary, to the Ministry of Finance. The applicant also contends that the provisions of the laws on the federal budget, to which the Government refer, only established the procedure for voluntary execution of a court judgment and they did not prevent him from resorting to the enforcement proceedings, as it was confirmed in the judgments of the Supreme Court of the Russian Federation (see the “Domestic law and practice” section above), which he had done.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this 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 admissible, without prejudging the merits, the applicant's complaint about non-enforcement of the judgment of the Khostinskiy District Court of Sochi of 30 July 1999, with the amendments introduced on 15 February 2001;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis Registrar President