EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF POZNAKHIRINA v. RUSSIA
(Application No. 25964/02)
JUDGMENT <*>
(Strasbourg, 24.II.2005)
In the case of Poznakhirina 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 S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 1 February 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 25964/02) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by Ms Svetlana Anatolyevna
Poznakhirina, a Russian national, on 6 May 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 19 May 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
4. The applicant was born in 1951 and lives in Novovoronezh,
Voronezh Region.
5. In 1999 the applicant brought proceedings against the Chief
Department of Finance of the Voronezh Region to claim welfare
payments to which she was entitled in respect of her child.
6. On 5 January 2000 the Novovoronezh Town Court of the
Voronezh Region awarded the applicant 3,387.87 roubles (RUR). This
judgment entered into force on 15 January 2000.
7. On 10 February 2000 the enforcement order was issued and
sent to the bailiff service of the Tsentralnyy District of
Voronezh.
8. On 10 April 2000 the applicant complained to the Department
of Justice of the Voronezh Region about the bailiffs' failure to
execute the judgment in her favour.
9. On 20 April 2000 the Department of Justice of the Voronezh
Region informed the applicant that her award would be enforced in
accordance with the order of priority set out by the Federal Law
on Enforcement Procedure.
10. On 26 June 2001 the bailiff terminated execution
proceedings in respect of the judgment of 5 January 2000, as the
debtor had no sufficient funds. The applicant was suggested to
bring an action against the Administration of the Voronezh Region.
11. On 13 February 2002 the Tsentralnyy District Court of
Voronezh granted the applicant's request to resume enforcement
proceedings. In this decision the court dismissed the bailiff's
argument that an action against the Administration of the Voronezh
Region was necessary to secure execution of the judgment against
the Chief Department of Finance. The court found that the judgment
of 5 January 2000 could be enforced as it stood.
12. The sum awarded has not been paid to the applicant.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention
13. The applicant complained that the prolonged non-enforcement
of the judgment of 5 January 2000 violated her "right to a court"
under Article 6 з 1 of the Convention and her right to the
peaceful enjoyment of possessions as guaranteed in Article 1 of
Protocol No. 1 to the Convention. These Articles in so far as
relevant provide as 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
14. The Government contested the admissibility of the
application on the ground that the applicant had failed to exhaust
domestic remedies. They submitted that the applicant's original
claim for the benefits at issue should have been brought against
the Administration of the Voronezh Region, and not only against
the Chief Department of Finance. They asserted that such claim
would have yielded a judgment with better chances of enforcement.
15. In reply to the Government's objection, the applicant
referred to the decision of the Tsentralnyy District Court of
Voronezh dated 13 February 2002, in which it was established that
no further action was necessary to secure the enforcement of the
judgment.
16. The Court reiterates that Article 35 з 1 of the Convention,
which sets out the rule on exhaustion of domestic remedies,
provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and
in practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see Selmouni v. France [GC], No. 25803/94, з
76, ECHR 1999-V, and Mifsud v. France (dec.), No. 57220/00, з 15,
ECHR 2002-VIII). The Court further recalls that the domestic
remedies must be "effective" in the sense either of preventing the
alleged violation or its continuation, or of providing adequate
redress for any violation that had already occurred (see {Kudla}
<**> v. Poland [GC], No. 30210/96, з 158, ECHR 2000-XI).
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<**> Здесь и далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены фигурными скобками.
17. The Court notes that the validity of the judgment of 5
January 2000 against the Chief Department of Finance is
undisputed. Moreover, a separate court decision of 13 February
2002 confirmed that it could be enforced. The Court considers that
having obtained a judgment and an execution order against a
particular State authority the applicant should not be required to
institute, on her own initiative, other proceedings against
different State agency to meet her claims. Moreover, even assuming
that the applicant brought an action against the Administration of
the Voronezh Region, the underlying problem of the non-enforcement
of the judgment of 5 January 2000 would remain. The Court
concludes that such an action would not have been an effective
remedy within the meaning of Article 35 з 1 of the Convention.
18. The Court therefore does not accept that the applicant was
required to exhaust domestic remedies through a further court
action against another defendant.
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 acknowledged that the applicant was entitled
to the sum awarded to her under the judgment of 5 January 2000.
They explained that this amount had not been paid to her due to
the budget deficit of 2000 - 2002. They contended, however, that
all outstanding benefits from this period were to be paid by the
end of 2003.
21. The applicant maintained her complaint. She alleges that
the judgment in question has not been enforced to date.
Article 6 з 1 of the Convention
22. 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, and Hornsby v. Greece, judgment of
19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510,
з 40).
23. The Court further observes that it is not open to a State
authority to cite the lack of funds or other resources as an
excuse for not honouring a court award. Admittedly, a delay in the
execution of a judgment may be justified in particular
circumstances, but the delay may not be such as to impair the
essence of the right protected under Article 6 з 1. The applicant
should not be prevented from benefiting from the success of the
litigation on the ground of alleged financial difficulties
experienced by the State (see Burdov v. Russia, cited above, з
35).
24. Turning to the instant case, the Court notes that the
judgment of 5 January 2000 has until now remained unenforced in
its entirety for almost five years.
25. By failing for such a substantial period of time to take
the necessary measures to comply with the final judicial decisions
in the present case, the Russian authorities deprived the
provisions of Article 6 з 1 of their useful effect.
26. There has accordingly been a violation of Article 6 з 1 of
the Convention.
Article 1 of Protocol No. 1 to the Convention
27. The Court reiterates that a "claim" can constitute a
"possession" within the meaning of Article 1 of Protocol No. 1 if
it is sufficiently established to be enforceable (see Burdov v.
Russia, cited above, з 40, and Stran Greek Refineries and Stratis
Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301-
B, p. 84, з 59). The judgment of 5 January 2000 provided the
applicant with an enforceable claim and not simply a general right
to receive support from the State. The judgment had become final
as no ordinary appeal was made against it, and enforcement
proceedings had been instituted. It follows that the impossibility
for the applicant to have this judgment enforced for a substantial
period of time constitutes an interference with her right to
peaceful enjoyment of her possessions, as set forth in the first
sentence of the first paragraph of Article 1 of Protocol No. 1.
28. By failing to comply with the judgment of 5 January 2000,
the national authorities have prevented the applicant from
receiving her award. The Government have not advanced any
justification for this interference and the Court considers that
the lack of funds cannot justify such an omission (see Burdov v.
Russia, cited above, з 41).
29. There has accordingly been a violation of Article 1 of
Protocol No. 1 to the Convention.
II. Application of Article 41 of the Convention
30. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
31. The applicant claimed RUR 6,520 in respect of pecuniary
damage, of which RUR 3,388 was for the principal amount awarded
and unpaid to the applicant and RUR 3,132 was for the interest
payable at the statutory rate. The applicant claimed EUR 20,000 in
respect of non-pecuniary damage which she had sustained as a
result of the authorities' failure to enforce the judgment.
32. The Government did not contest the applicant's claim for
pecuniary damage. In respect of non-pecuniary damage, they
submitted that the amount claimed by the applicant was
unreasonable and unsubstantiated. They claim that, in any event,
the award should not exceed the amount awarded by the Court in the
Burdov v. Russia case. Alternatively, they submitted that the
finding of a violation would in itself constitute sufficient just
satisfaction for the non-pecuniary damage sustained by the
applicant.
33. The Court notes that the State's outstanding obligation to
enforce the judgment at issue is not in dispute. Accordingly, the
applicant is still entitled to recover the principal amount of the
debt in the course of domestic proceedings. The Court recalls that
the most appropriate form of redress in respect of a violation of
Article 6 is to ensure that the applicant as far as possible is
put in the position he would have been had the requirements of
Article 6 not been disregarded (see Piersack v. Belgium (Article
50), judgment of 26 October 1984, Series A No. 85, p. 16, 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 courts. For this reason the Court does not find it
necessary to make an award for pecuniary damage in so far as it
relates to the principal amount.
34. The Court accepts, however, the applicant's claim in
respect of pecuniary damage in so far as it relates to the
interest. It awards the applicant the sum of RUR 3,132 under this
head.
35. The Court notes that the applicant's loss as a result of
non-enforcement of the judgment in her favour was mostly of a
pecuniary nature, which is compensated for by the award in respect
of pecuniary damage. It observes that in the judgment Burdov v.
Russia (cited above, з 47) it made an award of EUR 3,000 for non-
pecuniary damage suffered as a result of non-enforcement of a
judgment in the applicant's favour. In that case the judgment at
issue concerned a Chernobyl-victim's pension payable as
compensation for health damage leading to disability, which was
the applicant's main source of income. In the present case, on the
contrary, the applicant was gainfully employed and the payment at
stake was a marginal benefit which was not the applicant's means
of support. Having regard to the nature of the breach in this
case, the Court finds that the finding of a violation constitutes
in itself sufficient just satisfaction for the non-pecuniary
damage, if any, sustained by the applicant.
B. Costs and expenses
36. The applicant also claimed EUR 1,834.61 for the costs and
expenses incurred as a result of a visit to Strasbourg which she
undertook to familiarise herself with the file concerning the
application.
37. The Government contested the applicant's claims concerning
reimbursement of her trip to Strasbourg, since the applicant's
attendance was not required by the Court and was undertaken on the
applicant's own initiative.
38. 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. In the present case,
although the applicant was permitted, at her request, to have
access to her case file, her attendance was not required by the
Court. Regard being had to the information in its possession and
the above criteria, the Court rejects the claim for costs and
expenses in respect of the applicant's travel to Strasbourg.
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 з 1 of
the Convention;
3. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention;
4. 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, and in
addition pay the applicant RUR 3,132 (three thousand one hundred
and thirty two roubles) in respect of pecuniary damage, 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
amount 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 24 February 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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