EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF WASSERMAN v. RUSSIA
(Application No. 15021/02)
JUDGMENT <*>
(Strasbourg, 18.XI.2004)
In the case of Wasserman v. Russia,
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<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs {N. Vajic} <**>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
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<**> Здесь и далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 28 October 2004,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 15021/02) 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 a Russian and Israeli national, Mr
Kim Wasserman.
2. The Russian Government ("the Government") were represented
by their Agent, Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant alleged a violation of Article 6 з 1 and
Article 1 of Protocol No. 1 in that the respondent State failed to
enforce a final judicial decision in his favour.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 25 March 2004 the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1).
THE FACTS
I. The circumstances of the case
7. The applicant was born in 1926 and lives in Ashdod, Israel.
8. 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 omitted to note on his customs' declaration.
9. 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 an amount equal to the amount smuggled.
The money that the applicant had on him was forfeited as the fine.
The applicant appealed to a higher customs office and also lodged
a civil action with a court.
10. 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.
11. On 9 September 1999 the Krasnodar Regional Court upheld, on
the customs office's appeal, the judgment of 30 July 1999.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. The decision of 15 February 2001 was not appealed against
and became final on 1 March 2001.
19. On 10 April 2001 the Khostinskiy District Court of Sochi
issued a writ of execution and sent it to the bailiffs' service in
Moscow.
20. On 19 June 2001 the writ of execution was received by the
2nd Interdistrict office of court bailiffs of the Central
Administrative District of Moscow (2-й 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.
21. 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.
22. 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".
23. On 7 February 2003 the applicant complained to the
president of the Zamoskvoretskiy District Court of Moscow about
non-enforcement of the judgment of 30 July 1999.
24. On 12 May 2003 the applicant lodged a civil action against
the 2nd Interdistrict office of court bailiffs of Moscow, seeking
enforcement of the judgment, interest and damages.
25. On 31 July 2003 a deputy head of the 2nd 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.
26. By a letter of 6 January 2004, a deputy Chief Court Bailiff
of Moscow informed the court that the Moscow bailiffs had received
the writ of execution on 19 June 2001 and immediately forwarded it
to the 2nd interdistrict office. On 30 October 2001 the 2nd
interdistrict office had sent it to the court bailiffs of Sochi
and since that time the Moscow bailiffs had no information about
the whereabouts of the document.
27. On 26 April 2004 the hearing was adjourned until 31 May
2004 because the applicant's lawyer failed to appear.
28. On 1 June 2004 the court granted the applicant's request to
join the Ministry of Finance as a co-defendant and adjourned the
hearing until 10 June 2004.
29. On 10 June 2004 the court received a letter from Ms
Zhenina, the applicant's lawyer, informing it that the applicant
had revoked her power of attorney. The court adjourned the hearing
until 12 July 2004 and requested the applicant to confirm the
revocation.
30. On 12 July 2004 the proceedings were adjourned until 25
August 2004 because the parties did not appear.
31. It appears that the proceedings are now pending and the
judgment of 30 July 1999, as amended on 15 February 2001, is not
yet enforced.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
32. The applicant complained that the continuing non-
enforcement of the judgment of 30 July 1999 violated his "right to
a court" enshrined in Article 6 of the Convention which provides
as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal..."
33. The Government submit that the writ of execution issued on
the basis of the decision of 15 February 2001 was lost while being
transmitted from one court bailiffs' office to another. At present
those responsible for its disappearance are "no longer in the
civil service". On 17 February 2004 the court bailiffs' office of
the Krasnodar region obtained a duplicate of the writ of execution
and forwarded it to the Ministry of Finance in Moscow. On 21 June
2004 the legal department of the Ministry of Finance approved a
transfer of 1,600 US dollars to the applicant's account specified
in the decision of 15 February 2001. The Government claim that the
judgment will be enforced "in the nearest future". They also note
that the proceedings concerning interest and costs and expenses
are now pending before the Zamoskvoretskiy District Court of
Moscow and the applicant may still obtain satisfaction at the
domestic level.
34. The applicant takes note of the Government's admissions as
regards the loss of the writ of execution through a fault of
Russian civil servants. He submits that he has little hope in the
success of the proceedings before the domestic courts because the
judge had only fixed the first hearing after he had apprised her
of the admissibility decision by this Court. Furthermore, despite
the Government's claim of forthcoming transfer of money, the
judgment is still not enforced.
35. The Court reiterates that Article 6 з 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 з
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, з 34, ECHR 2002-III; Hornsby v. Greece, judgment of 19
March 1997, Reports of Judgments and Decisions 1997-II, p. 510, з
40).
36. Turning to the instant case, the Court notes that the
judgment of 30 July 1999, by which the applicant was to be
reimbursed in Russian roubles for unlawfully seized US dollars,
became final and enforceable on 9 September 1999. On 13 March 2000
the amount awarded in Russian roubles was transferred in its
entirety to a deposit account in Sochi. The Court finds that the
deposit can be considered as the appropriate enforcement of the
judgment of 30 July 1999 inasmuch as it had only required a
payment in roubles and it had not specified that the applicant was
to receive it in Israel and not in Russia. Furthermore, the delay
of six months and four days was not such as to impair the essence
of the right protected under Article 6 з 1 (see Burdov v. Russia,
cited above, з 35; Grishchenko v. Russia (dec.), No. 75907/01, 8
July 2004).
37. The Court further notes that, as a result of successful
litigation, on 15 February 2001 the applicant obtained a decision
amending the judgment of 30 July 1999. It had the effect of
changing the method and currency of enforcement of the judgment of
30 July 1999, without affecting, however, the amount of the award.
On 1 March 2001 the decision became final and binding; it required
that the award should be transferred in US dollars to the
applicant's bank account in Israel specified in the text of the
decision. The applicant was issued with a writ of execution which
he submitted, along with other required documents, to a court
bailiffs office in Moscow.
38. The Court notes the Government's admission that the writ of
execution was lost in the process of its transfer from the Moscow
bailiffs to the Sochi office. However, the logistical difficulties
experienced by the State enforcement services cannot serve as an
excuse for not honouring a judgment debt. The respondent
Government did not provide any explanation as to why the
applicant's complaints about non-enforcement of the judgment had
not prompted the competent authorities to investigate the matter
and to ensure that the enforcement proceedings were brought to
successful completion.
39. By failing for years to take the necessary measures to
comply with the final judicial decision in the present case, the
Russian authorities deprived the provisions of Article 6 з 1 of
all useful effect.
40. There has accordingly been a violation of Article 6 з 1 of
the Convention.
II. Alleged violation of Article 1 of Protocol No. 1
41. The applicant complained that the failure to honour a
judgment debt interfered with his property rights under Article 1
of Protocol No. 1 which reads 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."
42. 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, з 40; Stran Greek Refineries and Stratis
Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301-
B, p. 84, з 59).
43. The Court reiterates that, in so far as the judgment of 30
July 1999 in its original wording is concerned, the State did
discharge its duty to enforce it in a sufficiently prompt and
adequate manner (see з 36 above).
The Court finds that the decision of 15 February 2001 provided
the applicant with a different enforceable claim, and notably that
to have the amount of 1,600 US dollars credited to his bank
account in Israel. But the applicant did not receive from the
State the judgment debt as soon as it became enforceable or even
within the time-limit set in the domestic law. Enforcement
proceedings had been instituted and subsequently abandoned due to
the loss of the writ of execution within the machinery of the
court bailiffs' service. The Court considers that the
impossibility for the applicant to have this judgment enforced,
constituted an interference with his right to peaceful enjoyment
of his possessions, as set out in the first sentence of the first
paragraph of Article 1 of Protocol No. 1.
44. By failing to comply with the decision of 15 February 2001,
the national authorities prevented the applicant from receiving
the reimbursement of the unlawfully seized amount in accordance
with the method and form of enforcement mandated by that decision.
The Government have not advanced any plausible justification for
this interference and the Court considers that the lack of co-
ordination between two offices of court bailiffs cannot justify
such an omission.
45. It follows that there has also been a violation of Article
1 of Protocol No. 1.
III. Application of Article 41 of the Convention
46. 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
47. The applicant claimed 2,362.70 US dollars ("USD") in
respect of pecuniary damage, of which USD 1,600 represented the
principal amount awarded and unpaid to the applicant and the
remainder represented the compound interest payable at the default
Israeli interest rate of 6% for the period between 7 January 1998
and 7 July 2004. The applicant claimed USD 100,000 in respect of
non-pecuniary damage which he had sustained as a result of the
authorities' failure to enforce the judgment.
48. The Government consider that the interest accrued has to be
calculated from the date when the judgment of the Khostinskiy
District Court of Sochi of 30 July 1999 entered into force. They
indicate that the applicant did not provide any documents in
support of his statement that the default Israeli interest rate
was equal to 6%. As regards non-pecuniary damage, they submit that
the finding of a violation constitutes in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the
applicant.
49. The Court rejects the claim for pecuniary damage in so far
as it relates to the principal amount because the Government's
obligation to enforce the judgment at issue has not been yet
extinguished and the applicant is still entitled to recover this
amount in the domestic enforcement proceedings. Having regard to
its conclusions in paras. 36 and 43 above, the Court considers
that the interest is payable from the day the decision of 15
February 2001 amending the judgment of 30 July 1999 became
enforceable, i.e. from 1 March 2001. As the Government did not
suggest a different interest rate, the rate indicated by the
applicant will be used for calculations. It follows that the
compound interest for the period between 1 March 2001 and 7 July
2004 equals USD 356.57. Accordingly, the Court awards the
applicant EUR 300 in respect of pecuniary damage, plus any tax
that may be chargeable.
50. The Court also accepts that the applicant has suffered
distress because of the State authorities' failure to enforce a
judgment in his favour. However, the amount claimed in respect of
non-pecuniary damage appears excessive. The Court takes into
account the award made in the Burdov v. Russia case (cited above,
з 47), the nature of the award, i.e. reimbursement of the
unlawfully seized money, the amount due in the present case, the
period of the authorities' inactivity and the fact that the
judgment has not yet been enforced. Making its assessment on an
equitable basis, it awards the applicant EUR 3,600 in respect of
non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
51. The applicant also claimed USD 29,807 for costs and
expenses. Those include USD 1,142 for travel expenses incurred in
connection with the proceedings before the domestic courts, USD
465 for accommodation in Russia during the court proceedings, USD
593 for telephone calls to various law enforcement authorities,
USD 3,000 in respect of the legal fees paid to Mr Dubinin for the
drafting of statements of claim and other legal documents, USD
1,455 for the purchase and maintenance of a computer, printer, fax
and calculator, USD 585 for office supplies, USD 440 for postal
expenses, USD 4,588 for legal training and computer classes, USD
17,550 for the his wife's assistance (legal and otherwise) and her
presumed loss of income in the past six years, and, finally, USD
29 for the certification of a power of attorney for Ms Zhenina,
his former representative before the Court.
52. The Government contest the applicant's claims concerning
reimbursement of the value of office equipment and payment for the
assistance provided by the applicant's wife as unrelated to the
substance of the application. They note that the applicant's wife
was not his representative either before the domestic courts or in
Strasbourg and the cost of her training is not to be reimbursed.
They concede, however, that the Court may take into account the
depreciation cost of the office equipment for the period while the
domestic and Strasbourg proceedings were pending. The Government
indicate that many documents in support of the applicant's claim
are submitted in Hebrew, without translation into either official
language of the Court, and therefore they "cannot be taken into
consideration". They finally submit that the applicant's claims
for costs and expenses are, in any event, manifestly ill-founded,
excessive and unreasonable.
53. According to the Court's case-law, an applicant is entitled
to reimbursement of the costs and expenses only in so far as it
has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. The Court further
notes that it can only take into account the above claims in so
far as they relate to the applicant's attempts to secure the
enforcement of the decision of 15 February 2001 which was the
subject-matter of his application to the Court. It observes that
the claimed travel and accommodation expenses, as well as the fees
paid to Mr Dubinin for legal advice, were incurred in connection
with the domestic proceedings for the return of unlawfully seized
money and it was open to the applicant to raise the claims in
question in those proceedings.
The Court rejects the applicant's claims insofar as they relate
to his wife because it has not been shown that he had actually
incurred these expenses himself and, in any event, there appears
to be no causal link between the violation found and the
applicant's wife's loss of earnings. It further rejects his claim
related to Ms Zhenina because he had voluntarily refused her
services for his representation before this Court.
Finally, as regards the remainder of the applicant's claims,
the Court accepts that the applicant incurred some expenses in
order to obtain enforcement of the decision of 15 February 2001
both in the domestic legal order and at the European level. It
however considers the amounts claimed to be excessive. In this
respect, the Court observes that at the admissibility stage some
of the applicant's complaints were declared inadmissible. It is
therefore appropriate to reimburse the costs and expenses alleged
by the applicant only in the part related to his attempts to
secure the enforcement of the judgment after 15 February 2001.
Having regard to the elements at its disposal, the Court awards
the applicant 300 EUR for the costs incurred before the Russian
authorities and 300 EUR for the costs related to the European
proceedings, and therefore the global sum of 600 EUR, plus any tax
that may be chargeable.
C. Default interest
54. 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. Holds that there has been a violation of Article 6 з 1 of
the Convention;
2. Holds that there has been a violation of Article 1 of
Protocol No. 1;
3. 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 з 2 of the Convention, the following
amounts:
(i) EUR 300 (three hundred euros) in respect of pecuniary
damage;
(ii) EUR 3,600 (three thousand six hundred euros) in
respect of non-pecuniary damage;
(iii) EUR 600 (six hundred euros) in respect of costs and
expenses;
(iv) any tax that may be chargeable on the above 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;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 18 November 2004,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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