EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHVEDOV v. RUSSIA
(Application No. 69306/01)
JUDGMENT <*>
(Strasbourg, 20.X.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 Shvedov 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. Nielsen, Section Registrar,
Having deliberated in private on 29 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 69306/01) 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, Aleksey
Yefimovich Shvedov ("the applicant"), on 14 March 2001.
2. The initial complaint by the applicant concerned alleged non-
enforcement of a judgment in his favour. On 27 March 2002 the
first applicant died. It appears that the applicant's son,
Aleksandr Shvedov and his brother Aleksey Shvedov were the only
two heirs of the deceased. By letter of 4 December 2002 Aleksandr
Alekseyevich Shvedov informed the Court about his father's decease
and expressed the wish to continue proceedings in the capacity of
his heir. His brother, the other son of the applicant, has never
contacted the Court.
3. In 2002 - 2004 the applicant's son presented a number of new
complaints on his own behalf. Thus, by letter of 4 December 2002
he complained of his forced immigration to the Soviet Union in
1957. By letter of 27 January 2004 he complained of the outcome of
a housing dispute concerning his father's flat (see the "Facts"
below).
4. The applicant was represented by Ms V. I. Vorontsova. His
heir, Aleksandr Alekseyevich Shvedov (hereinafter referred to as
"the second applicant"), was represented by Mr K. P. Krakovskiy, a
lawyer practising in Rostov-on-Don. The Russian Government ("the
Government") were represented by Mr P.A. Laptev, the
Representative of the Russian Federation at the European Court of
Human Rights.
5. On 8 March 2004 the Court decided to communicate the
application to the Government in so far it concerned the complaint
of the alleged non-enforcement of a judgment in the applicant's
favour. 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
6. The applicant, a Russian national, was born in 1927 and died
in 2003. At the relevant time he lived in Rostov-on-Don.
7. The second applicant is a Russian national and was born in
1949. He is the applicant's son and lives in Rostov-on-Don.
A. Civil proceedings arising from wrongful conviction
8. In 1995 the applicant was arrested on suspicion of theft and
placed in police custody. In 1996 the court acquitted him.
9. In September 1996 the applicant brought proceedings against
the State claiming damages for his unlawful detention. On 29
December 1997 the Proletarskiy District Court satisfied his claim
ordering the State to pay the applicant damages in the amount of
RUR 34,000. This decision entered into force. However on 25 may
1998 the decision in the first applicant's favour was quashed by
way of supervisory review. The case was remitted to the first
instance court.
10. On 15 March 1999 the Rostov-on-Don Proletarskiy District
Court satisfied the applicant's claims in part awarding him 24,917
Russian Roubles (~970 Euros), to be recovered from the regional
branch of the Federal Treasure. The decision was not appealed
against and, as follows from a copy of this decision provided by
the applicant, became final on 17 March 1999.
B. Enforcement proceedings
11. On 12 May 1999 the local bailiffs' service initiated the
enforcement proceedings against the regional branch of the
Treasury. The applicant and the bailiff repeatedly contacted the
defendant in order to recover the amount awarded by the District
Court. However, the payment orders were returned to the bailiff
unexecuted. The regional branch of the Treasury explained that
since no budget funds had been allocated from the federal budget
for these purposes, the judgment debt could not be paid.
12. In the following months the bailiffs addressed the Federal
Treasury in Moscow and the Ministry of Finance with request to
make necessary budget appropriations to execute the judgment of 15
March 1999. As follows from the letter of the Legal Department of
the Ministry of Finance of 25 August 1999, the information on the
judgment debt was included in a special data-base which listed all
claims against the Federal Treasury.
13. In April 2000 the case-file concerning the enforcement
proceedings was transmitted to the bailiffs in Moscow. The
applicant was informed that henceforth the enforcement proceedings
would be carried out by the bailiffs in Moscow, at the address of
the central office of the Federal Treasury.
14. In the meantime the applicant asked the District Court to
clarify which State institution was responsible for payment of the
judgment debt. On 13 September 2000 the District Court ruled that
the debt should be recovered from the central office of the
Federal Treasury in Moscow. The court accordingly delivered a new
writ of execution which was forwarded to the bailiffs' service in
Moscow.
15. On 26 March 2001 the writ of execution was returned to the
applicant. The Moscow-based bailiffs' service explained to the
applicant that due to changes in the legislation, and, in
particular, pursuant to the Law on the Federal Budget for 2001
(see the "Relevant domestic law" below), they ceased to be
responsible for the forced execution of the court judgment against
the State authorities. The bailiff proposed the applicant to
forward the writ of execution together with some additional
documents directly to the Ministry of Finance in Moscow.
16. According to the respondent Government, at present the writ
of execution is with the Ministry of Finance. The second applicant
indicated that in December 2004 all documents required pursuant to
Decree No. 666 had been submitted to the Ministry of Finance.
However, it appears that to date the judgment has not been
enforced.
C. Other facts referred to by the second applicant
17. The second applicant was born in 1949 in Germany. Since
1950 his family lived in Australia. According to the applicant, in
1957, when they were visiting relatives in the Soviet Union, the
Soviet authorities prohibited them from returning to Australia.
18. The second applicant was also involved in a civil dispute
with a private person regarding his father's flat. This dispute
ended with the decisions taken by the Rostov Regional Court on 4
December 2002 and by the Proletarskiy District Court on 13 March
2003, which was not appealed against and became final on 25 March
2003.
D. Relevant domestic law and practice
General provisions on execution of court judgments
19. The Russian Law on Enforcement Proceedings (No. 119-ФЗ of
21 July 1997) designates the court bailiffs' service as the
authority charged with enforcement of court decisions (Section 3 з
1). Court judgments can also be executed by tax authorities,
banks, financial institutions, other organisations, State
officials and individuals - all of them are not considered to be
the enforcement authorities (Section 5).
Execution of judgments against budget-funded organisations
20. Section 110 of the Law on Federal Budget for the Year 2001
(No. 150-ФЗ of 27 December 2000) provided that writs of execution
issued against the treasury of the Russian Federation were to be
sent for execution to the Ministry of Finance of the Russian
Federation and were to be executed in accordance with the
procedure established by the Russian Government. A similar
provision was included in Section 128 of the Law on Federal Budget
for the Year 2002. However, Section 122 of the Law on Federal
Budget for the Year 2003 (No. 176-ФЗ of 24 December 2002)
established, in addition to the similar requirement that writs of
execution were to be submitted to the Ministry of Finance, that
the court bailiffs could not enforce judgments against the Russian
Federation.
21. On 22 February 2001 the Russian Government approved the
"Rules on recovery of funds due on the basis of court-issued writs
of execution under a monetary obligation of a recipient of federal
budget funds" (the "Rules"). Sections 2 and 3 of the Rules provide
that the creditor must submit the writ of execution and a copy of
the judgment to the office of the federal treasury where the
debtor has its current account. The federal treasury office must
grant the recovery within three working days in the part not
exceeding the balance of the account (Section 5). Should the
balance of the account be insufficient for a full recovery, the
writ of execution must be returned to the creditor who can then
apply to the Ministry of Finance to recover the outstanding amount
from the debtor's funding entity (Section 6).
22. On 9 September 2002 the Russian Government adopted Decree
No. 666 which enacted the "Rules of Execution by the Ministry of
Finance of court judgments against the Treasury of the Russian
Federation arising from the claims for damages caused by unlawful
acts or omissions of the State authorities or State officials".
The procedure of execution of such judgments provided by the Rules
of 2002 was essentially the same as provided by the Rules of 22
February 2001 cited above.
Case-law of the Supreme Court of the Russian Federation
23. On 19 July 2001 the Supreme Court of the Russian Federation
delivered judgment No. ГКПИ 2001-864 concerning the lawfulness of
certain provisions of the Rules. In particular, the court held
that the Rules did not govern the enforcement of court judgments
because the federal treasury was not an enforcement body, pursuant
to Section 5 of the Law on Enforcement Proceedings. In subsequent
judgment No. ГКПИ 2001-1345 of 22 October 2001 the court clarified
this position as follows:
"The contents of the contested Rules indicate that they do not
govern the procedure for enforcement of court decisions, rather
they establish the procedure for voluntary execution of court
decisions and for recovery of funds under monetary obligations of
recipients of the federal budget funds...
The court also has regard to the fact that the contested Rules
do not prevent the creditor from resorting to the enforcement
proceedings in respect of a court decision..."
24. In judgment Nos. ГКПИ 2001-1790 and 2002-139 of 27 February
2002 the Supreme Court of the Russian Federation confirmed that
neither the Rules, nor the Laws on Federal Budgets for 2001 and
2002 prevented the creditor from seeking enforcement of a court
judgment in accordance with the procedure set out in the Law on
Enforcement Proceedings, the Law on Court Bailiffs and the Code of
Civil Procedure. Finally, the Supreme Court again upheld this
position in judgment No. ГКПИ 2001-1482 of 28 March 2002.
25. On 20 May 2003 the Supreme Court of the Russian Federation
in its decision No. KAC 03-205 ruled that the Rules, adopted by
Decree No. 666 of 9 September 2002, concerned the voluntary
execution of court decisions against the Federal treasury and did
not prevent the creditor from seeking enforcement through the
court bailiffs.
THE LAW
I. Alleged violation of Article 6 з 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention
26. The applicant complained about the non-enforcement of the
court judgment in his favour of 15 March 1999. Although the
applicant in his initial application referred to Article 5 з 5 of
the Convention, the Court, in line with its well-established case-
law in similar cases (see, among many other authorities, Burdov v.
Russia, No. 59498/00, ECHR 2002-III) considers that this complaint
falls to be examined more appropriately under Article 6 з 1 and
Article 1 of Protocol No. 1 to the Convention, which, 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."
27. The Government contested the applicant's arguments. They
indicate that he failed to follow the procedures provided for the
enforcement of court decisions against the State. In particular,
the applicant failed to send to the competent authority - the
Ministry of Finance of the Russian Federation - certain documents,
required by Decree No. 666 of 9 September 2002 (see the "Relevant
domestic law" above). Therefore, the delay in execution of a
judgment was the applicant's fault. The Government further alleged
that "taking into account that Mr. A. E. Shvedov [the applicant]
has not received the money due to him, in connection with his
death,... the heirs of the departed, in particular, Mr. A. A.
Shvedov [the second applicant] can address for execution of the
judicial decision by way of submitting the relevant documents to
the Ministry of Finance of the Russian Federation". The Government
concluded that the complaint about the non-enforcement of the
court decision was manifestly ill-founded.
A. Admissibility
28. The Court notes that the sole objection raised by the
Government in this respect is that the applicant's own behaviour
had been the principal cause for the delay in the execution of the
Proletarskiy District Court's judgment of 15 March 1999. In the
Court's view, this question raises serious issues of fact and law
under the Convention, the determination of which requires an
examination of the merits. Therefore, the complaint 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 and must be therefore declared admissible.
B. Merits
1. Alleged breach of Article 6 з 1 of the Convention
29. The Government claim that the judgment has not been
enforced because of the applicant's failure to submit appropriate
documents to the Ministry of Finance of the Russian Federation, as
provided by Decree No. 666 of 9 September 2002.
30. The second applicant submits that by the moment of adoption
of the regulations referred to by the Government the court
decision in the applicant's favour of 15 March 1999 had remained
unexecuted for a considerable period of time and that, moreover,
the adoption of special rules on the enforcement of judgments
against the State authorities did not preclude the creditors from
seeking enforcement in an ordinary way, that is through the
bailiffs. The second applicant referred to the Russian Supreme
Court decisions cited above (see the "Relevant Domestic Law"
above).
31. The Court notes that the parties are in dispute as to
whether the applicant's behaviour or the conduct of the State
authorities (the debtor) were the principal cause for the delay in
the execution of the judgment of 15 March 1999.
32. In this respect the Court recalls, at the outset, that the
"right to a court", derived from Article 6, comprises a duty of
the State to implement final judicial decisions (see Hornsby v.
Greece, judgment of 19 March 1997, Reports of Judgments and
Decisions 1997-II, з 40; Burdov v. Russia, No. 59498/00, з 34,
ECHR 2002-III). However, this duty is not absolute and may be
subject to certain limitations permitted by implication: a
successful litigant may be required to undertake certain
procedural steps in order to recover the judgment debt (see Treial
v. Estonia, (dec.) No. 48129/99, 28 November 2000). At the same
time the formalities required from the creditor may not restrict
or reduce his access to the enforcement proceedings in such a way
or to such an extent that the very essence of the "right to a
court" is impaired (see, mutatis mutandis, Kreuz v. Poland, No.
28249/95, з 53, ECHR 2001-VI).
33. Turning to the present case the Court notes that the
enforcement proceedings started in May 1999. On 26 March 2001 the
bailiffs returned the writ of execution to the applicant. They
advised him to submit it directly to the Ministry of Finance,
referring to the new regulations on enforcement of judgments
against the State, introduced by the Law on the Federal Budget for
2001. However, by this time the writ of execution had been with
the bailiffs for more than two years. During this period the
enforcement made no progress at all and the Government do not
present any justification why this delay occurred. The only reason
referred to by the domestic authorities was the absence of funds.
However, in the eyes of the Court, "it is not open to a State
authority to cite lack of funds as an excuse for not honouring a
judgment" (Romashov v. Ukraine, No. 67534, 27 July 2004, з 43).
Therefore, this delay in executing the judgment in the applicant's
favour is imputable to the State.
34. As to the period after 26 March 2001, the Court notes the
following. The new regulations on enforcement, enacted in 2000 did
not preclude the applicant from seeking the enforcement in a
normal way, i.e. through the bailiffs (see the "Relevant domestic
law", з 23). Moreover, the Ministry of Finance had all necessary
information about the applicant's claim already in 1999 (see з
12), that is prior to enactment of the new regulations.
35. Therefore, after more than two years of inactivity the
authorities de facto required the applicant to re-start the
enforcement proceedings. It was not necessary from the standpoint
of the national law and, moreover, excessive from the standpoint
of the Convention. Consequently, the applicant could not be blamed
for delaying the enforcement of the judgment by not making use of
an alternative procedure indicated by the respondent Government.
36. The Court concludes that the non-execution of the judgment
of 15 March 1999 is attributable solely to the authorities. The
Government did not advance any plausible justification for the
delay in paying off the judgment debt. Therefore, the delayed
enforcement of the judgment impaired the applicant's right to the
court.
37. It follows that there has been a violation of Article 6 з 1
of the Convention.
2. Alleged breach of Article 1 of Protocol No. 1
to the Convention
38. 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 Stran Greek
Refineries and Stratis Andreadis v. Greece, judgment of 9 December
1994, Series A No. 301-B, p. 84, з 59). By failing to comply with
the final judgment of 15 March 1999 the national authorities
prevented the applicant from receiving the money he could
reasonably have expected to receive (see Burdov v. Russia, No.
59498/00, ECHR 2002-III).
39. The Court refers to its finding (see зз 31 - 37) that there
was no fault on behalf of the applicant in delaying the
enforcement of the judgment of 15 March 1999. It follows that the
impossibility for the applicant to have the 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.
40. In the absence of any justification for such an
interference (see з 36 above), the Court concludes that there has
been a violation of Article 1 of Protocol No. 1 to the Convention.
II. Other alleged violations of the Convention
41. The second applicant complained of the refusal of the
Soviet authorities to let his family return to Australia in 1957.
However, the events complained of took place before the date of
the Convention's entry into force in respect of the Russian
Federation. Therefore, this complaint is incompatible with the
provisions of the Convention ratione temporis, and must be
rejected pursuant to Article 35 зз 3 and 4 thereof.
42. The second applicant also complained about a civil dispute
concerning his father's flat. The Court notes that this dispute
ended with two final decisions (see з 18), delivered more than six
months before the date on which the application in this respect
was lodged with the Court (see з 3). It follows that this part of
the application has been introduced out of time and must be
rejected pursuant to Article 35 зз 1 and 4 of the Convention.
III. Application of Article 41 of the Convention
43. 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
44. In his initial application to the Court the applicant
claimed for both pecuniary and non-pecuniary damage sustained by
him 3,000,000 US Dollars. The second applicant, in his application
of 27 January 2004, repeated this claim. After the communication
the second applicant was invited by the Registry to submit his
claims for just satisfaction, which he did on 18 October 2004. He
claimed two amounts: EUR 5,000 for wrongful conviction of his
father, and EUR 3,000 for non-enforcement of the court judgment of
15 March 1999. It appears that the amounts sought by the applicant
comprised both pecuniary and non-pecuniary damage allegedly
sustained by him and his father in the course of the domestic
proceedings.
45. The Government maintained that the applicant did not suffer
any pecuniary or non-pecuniary damage. They suggested that a
finding of a violation would of itself constitute sufficient just
satisfaction. Alternatively, they suggested that a compensation
similar to one awarded in the case Burdov v. Russia (cited above,
з 47) would suffice.
46. As regards the first amount sought by the applicant, the
Court notes the following. The complaint to the Court concerned
only the non-enforcement of the judgment of 15 March 1999, and not
its alleged unfairness or inadequacy. Consequently, the sole
matter to be taken into consideration for the purposes of Article
41 is the prejudice supposedly entailed by the lengthy non-
enforcement of the judgment in the applicant's favour.
A. Pecuniary damage
47. As regards any possible material losses sustained by the
applicant as a result of the lengthy non-enforcement of the
judgment at issue, the Court points out that under Rule 60 of the
Rules of the Court, any claim for just satisfaction must be
itemised and submitted in writing together with the relevant
supporting documents or vouchers, "failing which the [Court] may
reject the claim in whole or in part".
48. Insofar as the second applicant's claim relate to the
outstanding principal amount due to his father under the judgment
of 15 March 1999 (RUR 24,917), the Court notes that the
Government's obligation to enforce the judgment at issue is not
yet extinguished in the domestic terms and the second applicant,
as the applicant's heir, is still entitled to recover this amount
in the course of enforcement 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, з 12,
and, mutatis mutandis, {Gencel} v. Turkey, No. 53431/99, з 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 award made by the
domestic court. 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 (see Poznakhirina v. Russia, No.
25964/02, з 33, 24 February 2005).
49. As regards other possible material losses arising from the
non-enforcement of the judgment, the Court makes no award in this
respect as the applicant has not substantiated any such loss.
B. Non-pecuniary damage
50. The applicant, referring to an award made by the Court in
the case Burdov v. Russia cited above, sought compensation for non-
pecuniary damage in the amount of EUR 3,000.
51. The Court recalls that in Burdov the judgment at issue
concerned the Chernobyl-victim's pension payable as compensation
for health damage leading to disability, which represented the
applicant's main source of income. In the present case the court
award was of a different nature. Nevertheless, the Court is ready
to accept that the prolonged non-payment of the judgment debt
caused certain mental distress to the applicant (see Wasserman v.
Russia, No. 15021/02, 18 November 2004, з 50). Making an
assessment on an equitable basis in accordance with Article 41,
the Court awards the applicant EUR 3,000 (three thousand euros)
under this head, to be converted into Russian roubles at the rate
applicable at the date of settlement, plus any tax that may be
chargeable on the above amount. This sum should be paid to his
heir, the second applicant, who continued the proceedings in the
applicant's stead.
B. Costs and expenses
52. The applicant also claimed reimbursement of the costs and
expenses incurred before the Court. He left the determination of
the exact amount of these expenses at the Court's discretion.
53. The Government considered that the applicant's claim for
reimbursement of his legal costs was unsubstantiated.
54. The Court notes that in the present case the applicant was
represented by a lawyer and was involved in a correspondence with
the Court, which necessarily put him to expenses. At the same time
the applicant presented no supporting documents, which would allow
the Court to make a precise calculation of his legal costs.
Consequently, according to the estimate of standard legal expenses
which might have incurred by a successful applicant in a
comparable situation, the Court awards the applicant EUR 300
(three hundred euros) under this head, to be converted into
Russian roubles at the rate applicable at the date of settlement,
plus any tax that may be chargeable on that amount. This sum is to
be paid to his heir, the second applicant, in the applicant's
stead.
C. Default interest
55. 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 complaint concerning the prolonged non-
enforcement of the judgment of 15 March 1999 in the applicant's
favour admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 6 з 1 of
the Convention and Article 1 of Protocol No. 1 to the Convention;
3. Holds:
(a) that the respondent State, within three months from the
date on which the judgment becomes final according to Article 44 з
2 of the Convention, shall secure, by appropriate means, the
enforcement of the award made by the domestic court on 15 March
1999, and in addition pay the second applicant EUR 3,000 (three
thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(b) that the respondent State is to pay the second applicant,
within three months from the date on which the judgment becomes
final according to Article 44 з 2 of the Convention, EUR 300
(three hundred euros) in respect of costs and expenses, to be
converted into Russian roubles at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(c) 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;
4. Dismisses the remainder of the applicants' claims for just
satisfaction.
Done in English, and notified in writing on 20 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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