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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 17.11.2005 ДЕЛО ТОЛОКОННИКОВА (TOLOKONNIKOVA) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

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                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                             FIRST SECTION
                                   
                    CASE OF TOLOKONNIKOVA v. RUSSIA
                      (Application No. 24651/03)
                                   
                             JUDGMENT <*>
                                   
                       (Strasbourg, 17.XI.2005)
   
   --------------------------------
       <*>  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.
   
       In the case of Tolokonnikova v. Russia,
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mr P. Lorenzen,
       Mrs {N. Vajic} <*>,
   --------------------------------
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
   
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mrs E. Steiner,
       Mr K. Hajiyev, judges
       and Mr S. Quesada, Deputy Section Registrar,
       Having deliberated in private on 25 October 2005,
       Delivers  the  following judgment, which was  adopted  on  that
   date:
                                   
                               PROCEDURE
                                   
       1. The case originated in an application (No. 24651/03) 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 a  Russian  national,  Ms  Galina
   Ivanovna Tolokonnikova, on 24 April 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  7  October  2003 the Court decided to  communicate  the
   application to the Government. Under the provisions of  Article  29
   з  3  of  the Convention, it decided to examine the merits  of  the
   application at the same time as its admissibility.
                                   
                               THE FACTS
                                   
                   I. The circumstances of the case
                                   
       4. The applicant was born in 1966 and lives in Voronezh.
       5.  The  applicant receives welfare payments for her child.  In
   2000   she  brought  civil  proceedings  against  a  local  welfare
   authority, claiming arrears in those payments for 1998 - 1999.
       6.  On  25 February 2000 the Kominternovskiy District Court  of
   Voronezh  awarded  the  applicant 3,952.66 Russian  roubles  (RUR).
   This judgment entered into force on 6 March 2000.
       7.  On 19 April 2000 a writ of execution was issued and sent to
   the bailiffs.
       8.  On  26  July 2001 the bailiffs discontinued the enforcement
   proceedings  in  respect of the judgment of 25  February  2000  and
   returned the writ of execution to the applicant, as the debtor  had
   insufficient funds.
       9. In January - February 2004 the applicant was paid the amount
   due pursuant to the writ of execution.
                                   
                       II. Relevant domestic law
                                   
       10. Section 9 of the Federal Law on Enforcement Proceedings  of
   21  July 1997 provides that a bailiff's order on the institution of
   enforcement  proceedings must fix a time-limit for the  defendant's
   voluntary  compliance with a writ of execution. The time-limit  may
   not  exceed  five  days. The bailiff must also warn  the  defendant
   that  coercive  action will follow, should the  defendant  fail  to
   comply with the time-limit.
       11.  Under  Section 13 of the Law, the enforcement  proceedings
   should  be completed within two months of the receipt of  the  writ
   of enforcement by the bailiff.
                                   
                                THE LAW
                                   
          I. Alleged violation of Article 6 of the Convention
           and Article 1 of Protocol No. 1 to the Convention
                                   
       12.  The applicant complained about the lengthy non-enforcement
   of  the  judgment  in  her  favour. The  Court  will  examine  this
   complaint  under Article 6 з 1 of the Convention and Article  1  of
   Protocol  No.  1 to the Convention. These Articles, in  so  far  as
   relevant, read as follows:
       Article 6 з 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 informed the Court that the authorities  of
   the  Voronezh Region had attempted to secure a friendly  settlement
   of  the  case  and  that the applicant had refused  to  accept  the
   friendly  settlement on the terms proposed by the  authorities.  By
   reference  to this refusal and to the fact that, in any event,  the
   judgment   in  the  applicant's  favour  had  been  enforced,   the
   Government  invited  the Court to strike out  the  application,  in
   accordance with Article 37 of the Convention.
       14. The applicant disagreed with the Government's arguments and
   maintained  her  complaints.  As regards  the  friendly  settlement
   proposal,  the  applicant  claimed  that  the  authorities  of  the
   Voronezh Region had made an offer to her, but did not allow her  to
   acquaint  herself  with the terms of that offer and  that,  in  any
   event,  the amount of the judgment debt transferred to her  account
   in 2004 had lost its purchasing power due to inflation.
       15. The Court firstly observes that the parties were unable  to
   agree  on the terms of a friendly settlement of the case. The Court
   recalls that under certain circumstances an application may  indeed
   be  struck out of its list of cases under Article 37 з 1 (c) of the
   Convention  on  the  basis  of  a  unilateral  declaration  by  the
   respondent  Government even if the applicant wishes the examination
   of  the  case to be continued (see Tahsin Acar v. Turkey [GC],  No.
   26307/95, з 76, ECHR 2003-...).
       16. On the facts, the Court observes that the Government failed
   to  submit  with the Court any formal statement capable of  falling
   into  the  latter  category and offering  a  sufficient  basis  for
   finding  that respect for human rights as defined in the Convention
   does  not require the Court to continue its examination of the case
   (see,  by  contrast,  to  Akman  v.  Turkey  (striking  out),   No.
   37453/97, зз 23 - 24, ECHR 2001-VI).
       17.  As regards the Government's argument that the judgment  in
   question  has already been enforced, the Court considers  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 her victim status under the  Convention
   (see,  e.g.,  Petrushko v. Russia, No. 36494/02, з 16, 24  February
   2005).
       18. In the light of the above considerations, the Court rejects
   the  Government's  request  to strike  the  application  out  under
   Article 37 of the Convention.
       19. The Court notes that the application is not manifestly ill-
   founded within the meaning of Article 35 з 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 advanced no arguments on the merits of  the
   application.
       21. The applicant maintained her complaint.
       22.  The  Court observes that the judgment of 25 February  2000
   remained  inoperative  for about four years. No  justification  was
   advanced by the Government for this delay.
       23. The Court has frequently found violations of Article 6 з  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, Petrushko, cited above, or Poznakhirina v.  Russia,
   No. 25964/02, 24 February 2005).
       24.  Having  examined the material submitted to it,  the  Court
   notes  that the Government did not put forward any fact or argument
   capable  of  persuading it to reach a different conclusion  in  the
   present  case.  Having regard to its case-law on the  subject,  the
   Court  finds  that  by  failing  for  years  to  comply  with   the
   enforceable  judgment  in  the  applicant's  favour  the   domestic
   authorities  prevented  her  from receiving  the  money  she  could
   reasonably have expected to receive.
       25. There has accordingly been a violation of Article 6 з 1  of
   the Convention and Article 1 of Protocol No. 1.
                                   
            II. Other alleged violations of the Convention
                                   
       26.  The  applicant  also  complained  that  the  lengthy  non-
   enforcement  of the judgment in her favour violated her  rights  to
   effective domestic remedies under Article 13 of the Convention.
       27.  The Court considers that this complaint is linked  to  the
   above  issues of non-enforcement to such an extent that  it  should
   be  declared  admissible as well. However,  having  regard  to  the
   finding  relating to Article 6 з 1 (see paragraph  25  above),  the
   Court  considers  that it is not necessary to examine  whether,  in
   this case, there has been a violation of Article 13.
                                   
           III. Application of Article 41 of the Convention
                                   
       28. 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
                                   
       29. As regards compensation for pecuniary damage, the applicant
   claimed  RUR 17,968.79 as the interest payable at a statutory  rate
   of  60%  for the default period as well as 31,000 US dollars (USD),
   of  which  USD 10,000 represented the amount she could have  earned
   during the period when, instead, she had sought the enforcement  of
   the  judgment in her favour and USD 20,000 was the compensation for
   the  losses  her  child had sustained as a result of  the  untimely
   enforcement of the judgment of 25 February 2000. The applicant  did
   not  clarify  her  claims as to the remaining USD 1,000.  She  also
   claimed USD 45,000 in respect of non-pecuniary damage.
       30.  The Government contested the applicant's claims as  wholly
   excessive  and unjustified. As regards the pecuniary  damage,  they
   pointed  out  that under national law it was open to the  applicant
   to  file a court claim, seeking interest for the delayed payment of
   her  judgment  debt, and that the domestic courts  would  calculate
   such  interest on the basis of a statutory rate which was currently
   equal  to  14%. Therefore, in the Government's view,  the  interest
   accrued  by the applicants should amount to RUR 2,767.  As  to  the
   non-pecuniary  damage, the Government considered  that  should  the
   Court   find  a  violation  in  this  case  that  would  in  itself
   constitute sufficient just satisfaction.
       31. Having regard to the materials in its possession, the Court
   accepts  the  Government's argument and awards  the  applicant  RUR
   2,767,  plus  any  tax  that  may  be  chargeable,  in  respect  of
   pecuniary damage.
       32.  As regards the compensation for non-pecuniary damage,  the
   Court  would  not  exclude that the applicant might  have  suffered
   distress  and  frustration resulting from  the  State  authorities'
   failure  to  enforce  the judgment in her favour.  However,  having
   regard  to  the  nature of the breach in this case and  making  its
   assessment  on  an  equitable basis, the Court considers  that  the
   finding  of  a  violation  constitutes in  itself  sufficient  just
   satisfaction  for  any  non-pecuniary  damage  sustained   by   the
   applicant (see, in a similar context, Poznakhirina, cited above,  з
   35).
                                   
                         B. Costs and expenses
                                   
       33.  The  applicant also claimed RUR 10,000 for the  costs  and
   expenses incurred before the domestic courts and the Court.
       34.  The  Government considered the applicant's  claims  to  be
   unfounded  and  manifestly excessive and noted that  the  documents
   submitted  by  the applicant lacked evidence that she had  incurred
   such costs.
       35. According to the Court's case-law, an applicant is entitled
   to  reimbursement of his 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. In the present  case,
   regard  being  had  to the information in its  possession  and  the
   above   criteria,  the  Court  considers  it  reasonable  to  award
   applicant the sum of EUR 20 in respect of costs and expenses,  plus
   any tax that may be chargeable on that amount.
                                   
                          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  of  the
   Convention and Article 1 of Protocol No. 1 to the Convention;
       3.  Holds that there is no need to examine the complaint  under
   Article 13 of 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  in
   accordance  with  Article 44 з 2 of the Convention,  the  following
   amounts:
       (i)  RUR 2,767 (two thousand seven hundred sixty-seven roubles)
   in respect of pecuniary damage;
       (ii) EUR 20 (twenty euros) in respect of costs and expenses, to
   be  converted into the national currency of the respondent State at
   the rate applicable at the date of settlement;
       (iii) 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;
       5.  Holds that the finding of a violation constitutes in itself
   sufficient   just   satisfaction  for  any   non-pecuniary   damage
   sustained by the applicant;
       6.  Dismisses the remainder of the applicant's claim  for  just
   satisfaction.
   
       Done  in English, and notified in writing on 17 November  2005,
   pursuant to Rule 77 з 2 and 3 of the Rules of Court.
   
                                                      Christos ROZAKIS
                                                             President
                                                                      
                                                      Santiago QUESADA
                                                      Deputy Registrar
   
   

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