FIRST SECTION

CASE OF KOLTSOV v. RUSSIA

( Application no. 41304/02 )

JUDGMENT

STRASBOURG

24 February 2004

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 Koltsov 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. 41304/02) 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 Mikhail Yu r ievich Koltsov, a Russian national , on 13 October 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 1970 and lives in Rostov-on-Don .

5 . In 2001 the applicant brought an action against the Ministry of Internal Affairs to claim damages in respect of an injury he had sustained during his military service in Chechnya .

6 . On 24 December 2001 the Sovetsky District Court of Rostov granted the applicant ' s claim. His award consisted of a lump-sum compensation of 80,112.26 roubles (RUR) and monthly payment s of RUR 2,225.35, subject to future adjustment to a statutory rate . The judgment entered into force on 4 January 2002 .

7 . On 29 March 2002 the execution order was submitted to the Ministry of Finance of the Russian Federation for payment.

8 . On 4 July 2003 , after the case had been communicated to the Government, the applicant was paid the amounts due pursuant to the execution order.

THE LAW

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

9 . The applicant complained that the prolonged non-enforcement of the judgment of 2 4 December 2001 violated his “right to a court” under Article 6 § 1 of the Convention and his 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

10 . The Government conte st ed the admissibility of the application on the ground that the applicant was no longer a victim. They submit ted t hat the judgment in question had been enforced and that the applicant had thus been afforded redress at the national level. In the alternative, they argue d that the applicant had not exhausted domestic remedies. They argued that he should have requested an enforcement of his award by the court bailiff service following the failure of the Ministry of Finance and the Ministry of Internal Affairs to pay under the execution order.

11 . The applicant did n ot accept that he had lost victim status owing to the fact that his award had been enforced. He claimed that it had taken the authorities about one year and a half to execute the judgment, in respe ct of which the authorities had neither acknowledged the violation nor afforded redress to him. He also contested the objection concerning non-exhaustion of domestic remedies , claiming that he had acted in accordance with the law , having submitted the execution order to the Ministry of Finance.

12 . The Court , firstly, re iterates that “a decision or measure favourable to the 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, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examina tion of an application (see, for example, Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003 ).

14 . The Court therefore agrees with the applicant that the mere fact that the authorities complied with the judgment after a substantial delay cannot be viewed in this case as automatically depriving the applicant of his victim status under the Convention. It rejects the Government ' s objection as to the loss of victim status.

15 . As to the alleged non-exhaustion of 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).

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

18 . 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

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

20 . The applicant maintained h is complaints.

Article 6 § 1 of the Convention

21 . The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State ' s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail the procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov v. Russia , no . 59498/00, § 34, ECHR 2002-III , and Hornsby v. Greece , judgment of 19 March 1997, Reports 1997-II, p. 510, § 40).

22 . 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).

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

Article 1 of Protocol No. 1 to the Convention

25 . 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 of 2 4 December 2001 provided the applicant with an enforceable claim and not simply a general right to receive support from the State. The judgment had become final as no ordinary appeal was made against it, and enforcement proceedings had been instituted. It follows that the impossibility for the applicant to have this judgment enforced for a substantial period of time constituted an interference with his right to peaceful enjoyment of his possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

26 . Not h aving found any justification for such an interference (see para graph 23 above), the Court concludes that t here has been a violation of Article 1 of Protocol No. 1 to the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

27 . 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

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

29 . The Government considered that should the Court find a violation in this case t hat would in itself constitute sufficient just satisfaction. They also contend that in any 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.

30 . The Court considers that the applicant must have suffered certain distress and frustration resulting from the State authorities ' failure to enforce a judgment in his 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 and the amount of the award whose non-enforcement was at stake in the present case , the delay before the enforcement and other relevant aspects . Making its assessment on an equitable basis, it awards the applicant EUR 2,5 00 in respect of non-pecuniary damage , plus any tax that may be chargeable on that amount .

B. Costs and expenses

31 . The applicant sought reimbursement of his costs and expenses incurred before the domestic authorities and the Court . However, he 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

32 . 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 2 , 5 00 ( two thousand five hundred 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 be 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