FIRST SECTION

CASE OF PETRUSHKO v. RUSSIA

( Application no. 36494/02 )

JUDGMENT

STRASBOURG

24 February 2005

FINAL

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Petrushko v. Russia ,

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

Mr C.L. Rozakis , President , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , judges and Mr S. Nielsen , Section Registrar ,

Having deliberated in private on 1 February 2005 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 36494/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Petrushko Valentina Vasilyevna , a Russian national , on 6 September 2002 .

2 . The Russian Government (“the Government”) were represented by Mr P. Laptev , Representative of the Russian Federation at the European Court of Human Rights.

3 . On 13 May 2003 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

4 . The applicant was born in 1965 and lives in Novocherkassk , Rostov Region .

5 . In 2001 the applicant brought an action for damages against the Ministry of Internal Affairs following the death of her husband during his military service in Chechnya .

6 . On 7 June 2001 the Leninskiy District Court of Rostov granted the applicant ' s claim. Her award consisted of a lump-sum compensation of 71,851.5 0 roubles ( RUR ) and monthly payment s of RUR 1,710.75, subject to future adjustment to a statutory rat e . The monthly payments were not paid to the applicant.

7 . In 2002 the applicant brought new proceedings to obtain the adjustment of the outstanding monthly payments.

8 . On 27 September 2002 the Leninskiy District Court of Rostov granted the applicant ' s claim. It made a n adjustment of the monthly payment s increasing them retrospectively to RUR 3,849 . It award ed the applicant arrears of RUR 88,916 .16 in respect of the period from 1 January 2002 to 1 October 2002 .

9 . On 9 October 2002 the applicant obtained an execution order, which she submitted to the Ministry of Finance of the Russian Federation for payment.

10 . On 17 June 2003 , after the case had been communicated to the Government, the applicant was paid RUR 30,793.44, and on 19 June 2003 she was paid RUR 88,916.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

11 . The applicant complained that the prolonged non-enforcement of the judgment s of 7 June 2001 and of 27 September 2002 violated her “right to a court” under Article 6 § 1 of the Convention and her right to the peaceful enjoyment of possessions as guaranteed in Article 1 of Protocol No. 1 to the Convention. These Articles in so far as relevant provide 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.”

A. Admissibility

12 . The Government conte st ed the admissibility of the application on the ground that the applicant was no longer a victim. They submit ted that the judgments in questi on had been enforced. They asserted that the applicant had thus been afforded redress at the national level and that her application should be declared inadmissible. In the alternative, they argued that the applicant had not exhausted domestic remedies. They claim ed that she should have requested an enforcement of her award by the court bailiff service following the failure of the Ministry of Finance to pay under the execution order.

13 . The applicant did not accept that she had lost victim status because her award had finally been enforced. She observed that her monthly payments had not been made to her for two years owing to the non ‑ enforcement of the judgment by the authorities, in respect of which delay they had neither acknowledged the violation nor afforded r edress to her. She also contested the objection concerning non-exhaustion of domestic remedies alleged by the Government , claiming that she had acted in accordance with law by having submitted the execution order to the Ministry of Finance.

15 . In the instant case, after a year of the authorities ' failure to make regular payments the applicant brought new successful proceedings seeking a retrospective increase of the arrears. This decision, had it been duly enforced, could arguably have constituted a remedy against the State ' s previous failure to comply with the judgment. However, the new judgment was not enforced for another 10 months, until the notice of this application was given to the Government by the Court. The Court observes that neither the Government nor other domestic authorities have acknowledge d that the applicant ' s Convention rights were unjustifiably restricted by the non-enforcement of these judgments. Furthermore, no redress has been offered to the applicant for the delay, as required by the Court ' s case-law.

17 . As to the alleged non-exhaustion of the domestic remedies by the applicant, 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 , and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further observes 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 KudÅ‚a v. Poland [GC], no. 30210/96, § 158, ECHR 2000 ‑ XI).

19 . The Court therefore does not accept that the applicant was required to apply to the bailiff service in order to exhaust domestic remedies.

20 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

21 . The Government submitted that in view of the fact t hat the judgment in question had been enforced there has been no violation of the applicant ' s Convention rights .

22 . The applicant maintained her complaints.

Article 6 § 1 of the Convention

24 . The Court further observes that a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1. The applicant should not be prevented from benefiting from the success of the litigation on the ground of alleged financial difficulties experienced by the State (see Burdov v. Russia , cited above, § 35).

26 . There has accordingly been a violation of Article 6 § 1 of the Convention.

Article 1 of Protocol No. 1 to the Convention

27 . The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Burdov v. Russia , cited above, § 40 , and Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). The judgment s of 7 June 2001 and 27 September 2002 provided the applicant with an enforceable claim and not simply a general right to receive support from the State. The judgments had become final as no ordinary appeal was made against them, and enforcement proceedings had been instituted. It follows that the impossibility for the applicant t o have either judgment enforced for a substantial period of time constitute d an interference with her right to peaceful enjoyment of her possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

28 . Not h aving found any justification for such an interference (see para graph 25 above), the Court concludes that th ere has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

29 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

30 . The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

31 . The Government considered that should the Court find a violation in this case tha t would in itself constitute sufficient just satisfaction. They also contend ed that in an y event the applicant ' s claims we re ex cessive and if the Court decided to make an award it should not exceed the amount awarded by the Court in the Burdov v . Russi a case.

32 . The Court considers that the applicant must have suffered distress and frustration resulting from the State authorities ' failure to enforce judgments in her favour, which cannot sufficiently be compensated by the finding of a violation. However, the amount claimed appears excessive . The Court takes into account the award it made in the case of Burdov v. Russia (cited above, § 47) , the nature of th e award whose non ‑ enforcement was at issue in the present case , the delay before the enforcement proceedings and other relevant aspects . Making its assessment on an equitable basis, it awards the applicant EUR 3 ,0 00 in respect of non-pecuniary damage , plus any tax that may be chargeable on that amount .

B. Costs and expenses

33 . The applicant sought reimbursement of her costs and expenses incurred before the domestic authorities and the Court . H owever, she has neither quantified the amount nor submitted any receipts or other vouchers on the basis of which such amount could be established . Accordingly, the Court does not make any award under this head.

C. Default interest

34 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3 , 0 00 ( t hree thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall b e payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 24 February 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President