TIKHOV A OSTATNÍ proti Rusku

FIRST SECTION

CASE OF TIKHOV AND OTHERS v. RUSSIA

(Application no. 14296/03)

JUDGMENT

STRASBOURG

27 March 2008

FINAL

27/06/2008

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 Tikhov and Others v. Russia,

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

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 6 March 2008,

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

PROCEDURE

1. The case originated in an application (no. 14296/03) 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 twenty-six Russian nationals listed in appendix no. 1 on 18 April 2003.

2. The applicants were represented by Mr R.A. Zarbeyev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.

3. On 25 November 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 applications at the same time as their admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants live in various towns of Leningrad and Pskov Regions of Russia.

A. Court awards and enforcement proceedings

5. The applicants, all former or active military servicepersons, were entitled to certain service-related benefits, to be paid by the Ministry of Defence of the Russian Federation. In 2002 they sued the military authorities claiming the arrears related to those benefits.

6. On the dates set out in appendixes nos. 2, 3 and 4 the domestic courts granted the applicants' claims and ordered the military authorities to pay them the respective amounts. Some of the awards were denominated in Russian roubles (RUB), whereas others were denominated in United States dollars (USD).

7. On various dates the courts issued writs of execution. The applicants forwarded them with accompanying documents to the treasury office. However, the writs were returned to the applicants unexecuted. The treasury office explained to some of the applicants that the Ministry of Defence (the debtor) had no funds available. The applicants then addressed the writs of execution to the Ministry of Finance. However, the judgments remained unexecuted.

8. In March-April 2003 some of the applicants wrote letters to the Ministry of Finance and other State bodies seeking the enforcement of the judgments. The Ministry of Finance replied that they had no power to execute the judgments and transfer the money from the accounts of the Ministry of Defence without the consent of the latter. The Ministry of Defence informed the applicants that the judgments could not be executed since no funds had been allocated for that purpose.

B. Enforcement of the judgments in favour of the applicants listed in appendix no. 2

9. On the dates set out in appendix no. 2 the applicants listed therein received the amounts due pursuant to the execution writs. They submitted copies of banking receipts as evidence in that respect.

C. Enforcement of the judgments in favour of the applicants listed in appendix no. 3

10. The applicants listed in appendix no. 3 were awarded various sums of money denominated in USD, to be converted into RUB at a rate applicable on the date of the judgment. However, the payments were made to them at a rate applicable on the date of the execution, which was lower. As a result, they received lesser amounts in RUB than they had expected. The applicants claimed that the judgments in their favour were thus not executed in full. They submitted copies of banking receipts and information on the official exchange rates (those of the Central Bank) on the relevant dates.

D. Enforcement of the judgments in favour of Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov

11. Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov were also awarded various amounts denominated in USD (see appendix no. 4). Mr Sedykh was awarded a sum in USD at a rate applicable on the date of execution. The judgments in favour of Mr Kositsyn and Mr Oleg Zakirov did not indicate the exchange rate applicable for the payment. The applicants claimed that the judgments in their favour were not executed in full referring to the same arguments as the applicants listed in appendix no. 3 (see paragraph 10 above). According to the Government the judgments in favour of the applicants listed in appendix no. 3 and in favour of Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov were fully executed.

E. Enforcement of the judgments in favour of Mr Nikolaychuk and Ms Bobrova

12. On 21 January 2003 the lawyer of the above two applicants addressed the writs of execution to the Ministry of Finance. According to the official stamp of the Ministry, they were received on the same day.

13. On 27 August 2003 the Ministry of Finance returned the documents along with the writ of execution to Mr Nikolaychuk on the ground that his lawyer had not submitted all the necessary supporting documents. According to the applicants all the necessary documents were submitted. In October 2003 the applicants' lawyer re-submitted the documents of Mr Nikolaychuk to the Ministry of Finance.

14. According to Ms Bobrova, her documents were apparently returned to her address indicated on the writ of execution. Since Ms Bobrova did not live at that address at the time, the post office sent the documents back to the Ministry of Finance. According to the Government, the Ministry of Finance have never received Ms Bobrova's documents.

15. The judgments in favour of Mr Nikolaychuk and Ms Bobrova (see appendix no. 4) are not executed to date.

THE LAW

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

16. The applicants complained that the lengthy non-enforcement of the court judgments in their favour constituted a breach of their right to a court and their right to peaceful enjoyment of their possessions. Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, relied on by the applicants, insofar as relevant, read as follows:

Article 6

“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. Parties' submissions

17. The Government indicated that the judgments in favour of the applicants, except for Mr Nikolaychuk and Ms Bobrova, were enforced in full. The non-enforcement of the judgments in favour of Mr Nikolaychuk and Ms Bobrova was imputable to them and not to the authorities as the applicants' lawyer had failed to submit all the relevant documents to the Ministry of Finance. On these grounds the Government contended that the applicants' rights under the Convention had not been violated.

18. The applicants maintained their complaints. The applicants listed in appendix no. 2 argued that the judgments in their favour were enforced with substantial delays. The applicants listed in appendix no. 3, as well as Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov alleged that the judgments in their favour had not been enforced in full due to the use of the incorrect exchange rate to convert USD to RUB. Mr Nikolaychuk and Ms Bobrova submitted that the judgments in their favour were not enforced to date notwithstanding that their lawyer had submitted all the necessary documents to the Ministry of Finance.

B. Admissibility

19. The Court notes that the Government did not put forward any formal objection concerning the admissibility of the present application. The Court considers, in the light of the parties' submissions, that the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about delays in the enforcement of the court judgments in the applicants' favour raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore 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.

C. Merits

1. As regards the applicants listed in appendix no. 2

20. The Court observes that the judgments in the applicants' favour remained inoperative for the periods set out in appendix no. 2, all being more than a year. The parties' submissions as to the exact dates of execution of the judgments differ substantially. The Government asserted that the judgments had been fully enforced on the dates of allocation of the amounts due to the applicants from the State budget. The applicants insisted that the judgments had been enforced when the money had been credited to their bank accounts.

21. According to the Court's case-law, the very fact of allocation of the budgetary funds in the applicants' names did not provide them with an opportunity to freely dispose of the amounts due to them. The applicants could profit from the judicial awards only when the money was transferred to their respective bank accounts (see Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, § 53, 21 June 2007). Accordingly, the Court accepts the applicants' calculation of the delays in the enforcement of the judgments.

22. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, among other authorities, Burdov v. Russia, no. 59498/00, ECHR 2002-III and, more recently, Pridatchenko and Others, cited above). The Court observes that the Government have not advanced a plausible justification for the delays occurred in the cases of the above applicants. Considering the length of the periods of non-enforcement of court judgments in cases of the applicants listed in appendix no. 2, and having examined all relevant circumstances, the Court does not see any reason to depart from its previous case-law and concludes that the delayed execution of the judgments in favour of the above applicants constituted a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

2. As regards the applicants listed in appendix no. 3

23. The Court notes that the awards to the applicants listed in appendix no. 3 were made in USD at a rate applicable on the date of the delivery of the judgment. On the dates listed in appendix no. 3 the applicants received various amounts, which were, however, less than the respective judgments debts. It appears that the judgment debts were paid on the basis of the exchange rates applicable on the dates of the payments, and not on the respective dates of the delivery of the judgments. The Government did not provide any justification for that, simply stating that the judgments in favour of the applicants were enforced in full.

24. The Court therefore considers that the judgments in favour of the applicants listed in appendix no. 3 are not fully enforced to date. The delay in the enforcement of the judgments constitutes over five years. Accordingly, there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

3. As regards Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov

25. The Court observes that the judgment in favour of Mr Sedykh awarded him an amount in USD at a rate applicable on the day of execution. The judgment in favour of Mr Kositsyn and Mr Oleg Zakirov awarded them amounts in USD without indicating, however, what exchange rate should be applied for its conversion into the RUB (see appendix no. 4). In December 2003 the applicants received RUB 205,516.48, RUB 453,867.42 and RUB 204,289.14 respectively. The applicants contended that the calculation should have been based on the rate on the day of the delivery of the judgment. Thus, they believed that the judgments were not enforced in full to date. The Government, in their turn, claimed that the judgments were fully enforced. The Court assumes, in the absence of any clear indication to the contrary in the materials of the case, that the amounts actually received by the applicants were calculated correctly. The judgments must therefore be considered as enforced in full on the date of the receipt of the above amounts by the applicants.

26. However, the Court observes that the judgments remained inoperative for more than a year. The Government did not advance any argument justifying the delay. Having regard to its well-established case‑law on the subject the Court concludes that the prolonged non‑enforcement of the judgment in favour of Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov constituted a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

4. As regards Mr Nikolaychuk and Ms Bobrova

27. The Government claimed that the judgment in favour of Mr Nikolaychuk and Ms Bobrova was not enforced because they had failed to follow a proper enforcement procedure, whereas the applicants claimed that all the relevant documents had been submitted to the State authorities.

28. The Court recalls that a person who has obtained an enforceable judgment against the State as a result of successful litigation cannot be required to resort to enforcement proceedings in order to have it executed (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). The Court further recalls that it is incumbent on the State to organise its legal system in such a way that ensures co-ordination between various enforcement agencies and secures honouring of the State's judgment debts in good time (see Reynbakh v. Russia, no. 23405/03, § 23, 29 September 2005). The Court does not see any reason to depart from its findings in the Metaxas and Reynbach cases, and concludes that Mr Nikolaychuk and Ms Bobrova took reasonable steps to obtain execution of the judgments in his favour.

29. The Court finally observes that according to the information provided by the parties the judgments in favour of Mr Nikolaychuk and Ms Bobrova are not enforced to date; in other words, the delays in the enforcement amount to more than five years. In line with its well-established case-law on this subject (see above) the Court concludes that the prolonged non-enforcement of the judgment in favour of Mr Nikolaychuk and Ms Bobrova constituted a breach of Article 6 § 1 of the Convention and 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 applicants claimed various amounts on account of pecuniary damage, as set out in appendix no. 5. These amounts represented interests on the judgments awards at the interest rates of the Russian Central Bank. The applicants listed in appendixes nos. 3 and 4 additionally asked the Court to order the Government to pay the judgment debts. The applicants each claimed 10,000 euros in respect of non-pecuniary damage.

32. The Government argued that the applicants had failed to exhaust domestic remedies in respect of her claims for compensation of pecuniary damage. As to the claims in respect of non-pecuniary damage, the Government considered them unsubstantiated and unreasonable. They suggested that a finding of a violation would by itself constitute sufficient just satisfaction.

1. Pecuniary damage

33. The Court reiterates that an applicant cannot be required to exhaust domestic remedies to obtain compensation for pecuniary loss since this would prolong the procedure before the Court in a manner incompatible with the effective protection of human rights (see Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, § 40, and Gridin v. Russia, no. 4171/04, § 20, 1 June 2006). Therefore, this argument of the Government should be dismissed.

(a) Arrears

34. As regards the claims in respect of the outstanding amounts of the judgments debts the Court observes that in the present case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in that the award in favour of the applicants listed in appendix no. 3 had not been paid to them in full. It has also found that the judgments in favour of Mr Nikolaychuk and Ms Bobrova are not enforced to date in their entirety (see paragraph 29 above). The Court notes 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. The applicants listed in appendix no. 3, together with Mr Nikolaychuk and Ms Bobrova, did not receive money they had legitimately expected to receive under the judgments in their favour. The Court therefore considers that the Government shall pay the outstanding amounts of the judgments debts, as set out in appendix no. 5.

35. As regards Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov, the Court recalls its finding that the judgments in their favour were enforced in full. Therefore, there is no need to award them any amounts under this head.

(b) Interest

36. All the applicants claimed that the State should pay them interests for the delayed payment of the judgment debts. The Court observes that in the present case it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in that the awards in the applicants' favour had not been paid to them in good time. The applicants' claim and their calculations do not appear arbitrary. Having regard to the materials in its possession and the fact that the Government did not forward any objection to the applicants' method of calculation of the interests lost, the Court awards the applicants the amounts claimed, as set out in appendix no. 5 in respect of pecuniary damage, plus any tax that may be chargeable.

2. Non-pecuniary damage

37. The Court also finds that the applicants suffered non-pecuniary damage, which would not be adequately compensated by the finding of a violation alone. However, the amounts claimed by the applicants appear to be excessive. The Court takes into account the nature and the amounts of the awards, the delays before the enforcement and other relevant aspects. In particular, as regards the applicants listed in appendix no. 3, the Court takes into account the fact that these applicants had been paid a substantial part of their judgment debts within nineteen months. Making its assessment on an equitable basis, the Court awards the applicants the amounts indicated in appendix no. 5, plus any tax that may be chargeable on those amounts.

B. Costs and expenses

38. The applicant did not make any claims for the costs and expenses incurred before the domestic courts and before the Court. Accordingly, the Court does not award anything under this head.

C. Default interest

39. 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 of the Convention and Article 1 of Protocol No. 1 to the Convention;

3. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts set out in appendix no. 5 in respect of pecuniary and non-pecuniary damage, to be converted into Russian roubles (where applicable) at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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;

4. Dismisses the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

APPENDIX 1: LIST OF APPLICANTS

APPENDIX 2: JUDGMENTS EXECUTED IN FULL

APPENDIX 3: THE JUDGMENTS PARTIALLY EXECUTED

APPENDIX 4: OTHER APPLICANTS

APPENDIX 5: ARTICLE 41 AWARDS