Lexploria

FIRST SECTION

CASE OF PLOTNIKOVY v. RUSSIA

(Application no. 43883/02)

FINAL

JUDGMENT

This version was rectified on 30 June 2005

under Rule 81 of the Rules of the Court

STRASBOURG

24 February 2005

In the case of Plotnikovy 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. 43883/02) 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 Ms Lyubov Aleksandrovna Plotnikova , the first applicant, and Mr Petr Vasilyevich Plotnikov , the second applicant, Russian nationals, on 26 November 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 . 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

THE CIRCUMSTANCES OF THE CASE

4 . The applicant s were born in 1948 and 1944 respectively and live in Voronezh .

5 . In 2000 the applicants each brought a set of proceedings against the welfare office of the Levoberezhnyi District of V oronezh to claim a raise of their pensions by a statutory index ratio.

6 . On 10 October 2000 the Levoberezhnyi District Court of Voronezh granted both applicants ' claims. It awarded them arrears of 1,123 . 07 roubles (RUR) and RUR 1, 089 . 51 respectively. Both judgments entered into force on 2 1 October 2000 . [i]

7 . On 19 December 2000 the bailiff service instituted enforcement proceedings in respect of the judgments of 10 October 2000 .

8 . On 27 April 2001 the bailiff service terminated execution proceedings in respect of both judgments of 10 October 2000 , which had not been enforced because of the lack of funds on the debtor ' s accounts .

9 . On 30 May 2002 , following the applicant ' s request, the bailiff service instituted new enforcement proceedings in respect of the judgments of 10 October 2000 .

10 . On 27 June 2002 the bailiff service terminated execution proceedings, again because of the lack of funds on the debtor ' s accounts .

11 . The judgments of 10 October 2000 have not been enforced to date.

THE LAW

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

12 . The applicant complained that the prolonged non-enforcement of the ir respective awards provided for in the judgment s of 10 October 2000 violated their “right to a court” under Article 6 § 1 of the Convention and their 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 fol lows :

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

13 . The Government contested the admissibility of the application on the ground that the applicants had fail ed to exhaust domestic remedies. They claimed that the applicant s should have brought an action against the Administration of the Voronezh Region, which was liable for outstanding debts of the welfare office . They also alleged that the applicants should have brought an action against the bailiff service which was in charge of the execution proceedings.

14 . The applicants contested the Government ' s objection and maintained their application.

15 . 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 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 KudÅ‚a v. Poland [GC], no. 30210/96, § 158, ECHR 2000 ‑ XI).

16 . The Court notes that the val idity of the judgments held against the welfare office on 10 October 2000 is undisputed. The Court considers that having obtained a judgment and an execution order against a particular State authority the applicant s should not be required to institute, on t he i r own initiative , other proceedings against different State agency to meet their claims. Moreover, even a ssuming that the applicant s brought an action against the Administration of the Voronezh Region, the underlying problem of non-enforcement of the judgments at issue would remain. The Court concludes that such an action would not have been an effective remedy within the meaning of Article 35 § 1 of the Convention.

17 . In so far as the Government suggest an action against the bailiff service, no reasons were put forward why it should be considered an effective remedy. Neither party suggested that it was any inefficiency of the bailiff service which prevented the enforcement of the judgments at issue; it was apparently the lack of funds. The Court therefore finds that an action against the bailiff office would not have enhanced the applicants ' prospects of receiving their awards. The Court considers that in the present case it could not be said to have constituted an effective remedy against non ‑ enforcement.

18 . The Court therefore does not accept that the applicant was required to exhaust domestic remedies through a further court action against the Administration of the Voronezh Region or the bailiff service .

19 . The Court notes that the application complaint 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

20 . The Government did not dispute the validity of the judgments in question and admitted that the authorities were under obligation to enforce them . They did not present any justification for the failure to do so .

21 . The applicant s maintained their complaint s .

Article 6 § 1 of the Convention

22 . 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 of Judgments and Decisions 1997-II, p. 510, § 40).

23 . The Court further reiterates that it is not open to a State authority to cite the lack of funds or other resources as an excuse for not honouring a court award. Admittedly, 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 . Turning to the instant case, the Court notes that the judgment s of 10 October 2000 have until now remained unenforced for more than four years .

25 . By failing for such a substantial period of time to take the necessary measures to comply with the final judicial decisions in the present case, the Russian authorities deprived the provisions of Article 6 § 1 of their useful effect.

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 10 October 2000 provided th eir respective beneficiaries with enforceable claim s and not simply a general right to receive support from the State. The judgment s 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 s to have the judgment s enforced for a substantial period of time cons titutes an interference with their right to peaceful enjoyment of their possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

28 . By failing to comply with above judgment s , the national authorities have prevented the applicant s from receiving t he i r award s . The Government have not advanced any other justification but the lack of financial resources for this interference . However, the Court considers that the lack of funds cannot justify such an omission (see Burdov v. Russia , cited above, § 41).

29 . There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention .

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

30 . 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

31 . The applicant s claimed 5,000 euros (EUR) each in respect of pecuniary and non-pecuniary damage.

32 . The Government consider that the amount s claimed are unreasonable and unsubstantiated. They believe that, in any event, the ir award s should be proportionate to the amount s due under the judgments which have not been enforced.

33 . The Court notes that the applicants did not quantify the amount claimed in respect of pecuniary damage. In so far as their claims can be understood as referring to the amounts due under the judgments, the Court notes that the State ' s outstanding obligation to enforce the judgments at issue is not in dispute. Accordingly, the applicants are still entitled to recover the principal amount of the debt in the course of domestic proceedings . The Court recalls that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984 , Series A no. 85, p. 16 , § 12, and, mutatis mutandis , Gençel v. Turkey , no. 53431/99, § 27, 23 October 2003) . The Court finds that in the present case this principle applies as well, having regard to the violations found. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the awards made by the domestic courts. For this reason the Court does not find it necessary to make an award for pecuniary damage in so far as it relates to the principal amount.

34 . As for non-pecuniary damage, t he Court accepts that the applicants suffered distress because of the State authorities ' failure to enforce the judgment s . However, the amounts claimed in respect of non-pecuniary damage appear excessive. The Court takes into account the award made in the Burdov v. Russia case (cited above, § 47), such factors as the applicants ' age, personal income, the nature of the awards in the present case, i.e. arrears in respect of the increase of retirement pension, the length of the enforcement proceedings and other relevant aspects. Making its assessment on an equitable basis, it awards each of the applicants EUR 1,500 in respect of non-pecuniary damage , plus any tax that may be chargeable on that amount.

B. Costs and expenses

35 . The applicant s made no claim under this head .

C. Default interest

36 . 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 in respect of each applicant ;

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

4 . Holds

(a) that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the awards made by the domestic courts, and in addition pay to each applicant EUR 1,500 ( one 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 these amounts ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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

[i] Paragraphs 5 and 6 were rectified on 30 June 2005 . The former version read as follows:

“5. In 2000 the applicants each brought a set of proceedings against the welfare office of Novov oronezh to claim a raise of their pensions by a statutory index ratio.

6. On 10 October 2000 the Novovoronezh Town Court of the Voronezh Region granted both applicants ’ claims. It awarded them arrears of 1,123 . 07 roubles (RUR) and RUR 1, 089 . 51 respectively. Both judgments entered into force on 2 1 October 2000 . ”