EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHATUNOV v. RUSSIA
(Application No. 31271/02)
JUDGMENT <*>
(Strasbourg, 1.VI.2006)
--------------------------------
<*> 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 Shatunov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
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 11 May 2006,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 31271/02) 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 two Russian nationals, Mr Sergey
Nikolayevich Shatunov and Mrs Irina Valeryevna Shatunova ("the
applicants"), on 23 July 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. Mr Shatunov alleged, in particular, that the final decisions
of the Kursk Regional Court of 14 May 2002 and of the Leninskiy
District Court of Kursk of 17 June 2002 had not been executed in
due time.
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 30 June 2005, the Court declared the
application partly admissible. In particular, the complaints made
by Mrs Shatunova were declared inadmissible.
6. The applicant and the Government each filed further written
observations (Rule 59 з 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 з 3 in fine), the parties replied in writing to each
other's observations.
THE FACTS
I. The circumstances of the case
7. The applicant was born in 1954 and lives in Kursk.
1. Proceedings against the applicant
8. The applicant worked as a forwarding agent for a catering
enterprise. In January 1999 the enterprise's director instructed
him to sell 10 tonnes of flour. The applicant sold the flour,
purchased certain foodstuffs with the money thus raised and paid
the transportation expenses. The director refused to accept the
foodstuffs and asked the applicant to remit the value of the
flour. The applicant sold the foodstuffs but the amount raised was
insufficient to cover that value. The applicant offered various
other goods in payment of the outstanding amount. The director
refused to accept them. It appears that the applicant was
subsequently dismissed. In January 2000 criminal proceedings for
embezzlement were brought against the applicant. From 25 January
2000 to 4 February 2000 he was held in pre-trial detention.
9. On an unspecified date the applicant fully reimbursed the
value of the flour.
10. On 17 May 2000 the Leninskiy District Court of Kursk
convicted the applicant of embezzlement. He was given a two-year
suspended prison sentence and fined 2,087.25 Russian roubles
(RUR), which he paid.
11. The Kursk Regional Court upheld the judgment on 20 June
2000.
12. On 18 July 2001, following an application for supervisory
review lodged by the Deputy President of the Supreme Court of
Russia, the Presidium of the Kursk Regional Court quashed the
sentence and terminated the criminal proceedings against the
applicant on the basis that there was no indication that an
offence had been committed.
2. Proceedings for damages instituted by the applicant
13. On 17 August 2001 the applicant brought proceedings against
the Ministry of Finance seeking compensation for pecuniary and non-
pecuniary damage caused by the criminal proceedings against him,
in particular as a result of his detention between 25 January 2000
and 4 February 2000 and his conviction of 17 May 2000.
14. The Leninskiy District Court of Kursk partially granted the
claim for damages on 12 November 2001.
15. On 18 December 2001 the Kursk Regional Court quashed the
judgment and remitted the case for a fresh examination.
16. The Leninskiy District Court of Kursk partially granted the
claim for damages on 10 January 2002.
17. On 14 March 2002 the Kursk Regional Court once more quashed
the judgment and remitted the case for a fresh examination.
18. On 16 April 2002 the Leninskiy District Court of Kursk
partially granted the claim for damages. The court awarded the
applicant RUR 15,000 in damages and RUR 3,700 for costs. The
judgment stated:
"Under Article 1070 of the Civil Code, damage caused to a
citizen as a result of unlawful conviction, unlawful criminal
prosecution, unlawful application of detention as a preventive
measure... shall be compensated at the expense of the Treasury of
the Russian Federation....
Under Article 1100 compensation for non-pecuniary damage shall
be effectuated irrespective of the fault of the causer of the
damage where the damage is caused as a result of unlawful
conviction, unlawful criminal prosecution....
On the foregoing grounds... the court has decided to award
[damages] against the Ministry of Finance in favour of [Mr]
Shatunov..."
19. By a final decision of 14 May 2002 the Kursk Regional Court
varied the judgment and awarded the applicant RUR 25,000 in
damages and RUR 4,700 for costs.
20. On 23 April 2002 the applicant brought proceedings seeking
compensation for the fine he had been ordered to pay in the
judgment of 17 May 2000.
21. By a final decision of 17 June 2002 the Leninskiy District
Court of Kursk granted the claim and ordered the Ministry of
Finance to pay the applicant RUR 2,087.
3. Enforcement proceedings
22. On 28 May 2002 the Leninskiy District Court of Kursk issued
a writ of execution for recovery of RUR 29,700 from the Ministry
of Finance, pursuant to the judgment of 16 April 2002, which had
been varied on appeal on 14 May 2002.
23. On an unspecified date the same court issued a writ of
execution for recovery of RUR 2,087 from the Ministry of Finance,
pursuant to the ruling of 17 June 2002.
24. It appears that the applicant initially sent the writs to
the First Department of the Bailiffs' Service for the Central
District of Moscow. In a letter of 5 September 2002 the Ministry
of Justice informed the applicant that a writ of execution had
been transferred to the Second Department of the Bailiffs' Service
for the Central District of Moscow. It is not clear which of the
two writs was referred to in the letter. Nevertheless, it appears
that both writs either remained in, or were subsequently returned
to, the First Department of the Bailiffs' Service.
25. The First Department of the Bailiffs' Service transferred
both writs to the Second Department of the Bailiffs' Service on 22
April 2004.
26. On 1 June 2004 the Second Department of the Bailiffs'
Service returned the writ for recovery of RUR 29,700 to the
applicant because it did not meet the statutory requirements. In
particular, the date of issue of the writ and the time-limit for
its submission for execution had not been indicated. The applicant
was also advised that, pursuant to a Government Decree of 9
September 2002, writs against the Treasury of the Russian
Federation were to be sent for execution to the Ministry of
Finance. It appears that the applicant applied to the Leninskiy
District Court of Kursk to have the writ amended.
27. On 5 July 2004 the Second Department of the Bailiffs'
Service transferred the writ for recovery of RUR 2,087 to the
Leninskiy District Court of Kursk, apparently because it too
failed to meet the statutory requirements.
28. On an unspecified date the Leninskiy District Court of
Kursk returned the writ for recovery of RUR 2,087 to the applicant
and advised him that it should be sent to the Ministry of Finance.
29. The Leninskiy District Court of Kursk sent the writ for
recovery of RUR 29,700 to the applicant on 26 July 2004.
30. In July and August 2004 the applicant sent both writs to
the Ministry of Finance.
31. According to the Government, on 27 July 2004 the Ministry
of Finance had received the writ of execution for recovery of RUR
2,087. On 6 October 2004 the Ministry of Finance had returned the
writ of execution to the applicant, stating that it did not meet
the statutory requirements in that the time-limit for its
submission for execution had not been indicated and the operative
part of the judgment had been cited incorrectly.
32. According to the Government, on 24 August 2004 the Ministry
of Finance had received the writ of execution for recovery of RUR
29,700. On 27 May 2005 the writ had been returned to the applicant
because it did not meet the statutory requirements. In particular,
the time-limit for its submission for execution had not been
indicated. Furthermore, the decision of the Kursk Regional Court
of 14 May 2002 had not specified that the amount was to be
recovered from the Treasury of the Russian Federation.
33. On 2 November 2004 the applicant applied to the Leninskiy
District Court of Kursk to have the writ for recovery of RUR 2,087
amended. On 1 December 2004 the writ was again received by the
Ministry of Finance. According to the Government, the payment
pursuant to the writ had been made by the Ministry of Finance on 5
May 2005. According to the applicant, the writ had never been
executed.
34. According to the Government, on 4 July 2005 the writ of
execution for recovery of RUR 29,700 had again been received by
the Ministry of Finance. However, its defects had not been
rectified. For these reasons it had again been returned to the
applicant.
35. According to the applicant, neither writ has been executed.
II. Relevant domestic law
36. Section 9 of the Enforcement Proceedings Act 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.
37. Under section 13 of the Act, enforcement proceedings must
be completed within two months of the receipt of the writ of
execution by the bailiff.
38. The Rules on execution by the Ministry of Finance of the
Russian Federation of judicial acts concerning claims against the
Treasury of the Russian Federation in respect of damage caused by
the unlawful acts (omissions) of agencies of State authority or
officials of the agencies of State authority, approved by
Government Decree No. 666 of 9 September 2002, provide that a writ
of execution should be sent to the Ministry of Finance together
with a copy of the judicial act and the claimant's bank-account
details (Rule 2). Within five days from the receipt of the above
documents the Ministry of Finance sends them to the debtor State
agency in order to find out whether the underlying judicial
decision is being appealed against. The time-limit for execution
of the writ by the Ministry of Finance is two months (Rule 5). The
writ of execution may be returned without execution in the
following situations: if the time-limit for its submission has
expired, if the documents submitted do not meet the statutory
requirements or some of the documents are missing, or if the
execution of the underlying judicial decision has been stayed or
discontinued (Rule 6).
39. On 20 May 2003 the Supreme Court of the Russian Federation
in its decision No. KAC 03-205 held that the Rules adopted by
Decree No. 666 concerned the voluntary execution of court
decisions against the Federal Treasury and did not prevent the
creditor from seeking enforcement through the court bailiffs.
40. On 14 July 2005 the Constitutional Court of the Russian
Federation in its decision No. 8-II held, inter alia, that Rules
3, 5 and 6 of the Rules adopted under Decree No. 666 were
unconstitutional and were to become invalid from 1 January 2006.
THE LAW
1. Alleged violation of Article 6
of the Convention and Article 1 of Protocol No. 1
41. Relying on Article 5 з 5 of the Convention, Article 1 of
Protocol No. 1 and Article 3 of Protocol No. 7, the applicant
complained about non-execution of the judgment of the Kursk
Regional Court of 14 May 2002 and the ruling of the Leninskiy
District Court of Kursk of 17 June 2002. The Court will examine
this complaint under Article 6 з 1 of the Convention and Article 1
of Protocol No. 1. Article 6, in so far as relevant, provides as
follows:
"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 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."
1. The parties' submissions
42. In their observations submitted prior to the decision on
admissibility of 30 June 2005 the Government noted that, pursuant
to the Government Decree of 9 September 2002, writs of execution
against the Treasury were to be sent to the Ministry of Finance.
They further submitted that the writ for recovery of RUR 2,087 had
been received by the Ministry of Finance on 27 July 2004 and had
been found not to meet the statutory requirements, which
constituted a ground for returning it to the claimant without
execution. As regards the writ for recovery of RUR 29,700, the
Government submitted that the Ministry of Finance had never
received it. They maintained that the judgment of 14 May 2002 and
the ruling of 17 June 2002 had not been executed because the
applicant had failed to submit valid writs of execution to the
Ministry of Finance, an option which remained open to him.
43. In their observations submitted after the decision on
admissibility of 30 June 2005 the Government stated that that the
writ for recovery of RUR 2,087 had been received again by the
Ministry of Finance on 1 December 2004 and executed on 5 May 2005.
The writ for recovery of RUR 29,700 had been received by the
Ministry of Finance on 24 August 2004. It had subsequently been
returned twice to the applicant for not meeting the statutory
requirements. The Government submitted that it was open to the
applicant to resubmit the writ for execution.
44. The applicant disagreed with the Government and contended
that the decisions in his favour had not been executed because of
numerous failures on the part of various domestic authorities. In
the first place, the writs of execution had remained for a long
period with the First Department of the Bailiffs' Service for the
Central District of Moscow, which had taken no steps to enforce
them. They had later been returned to him, first by another
department of the Bailiffs' Service and then by the Ministry of
Finance, on the ground that they did not meet the statutory
requirements. The applicant claimed that any such failure was not
attributable to him but to the court that had issued the writs. He
contended that neither writ had been executed because of the State
authorities' failure.
2. The Court's assessment
45. The Court notes firstly that the Government did not furnish
any documents to confirm that the applicant had received the
amount due under the writ of execution for recovery of RUR 2,087.
Accordingly, the Court accepts the applicant's submission that
neither the decision of the Kursk Regional Court of 14 May 2002
awarding him RUR 29,700 for damage caused by the criminal
prosecution and for costs, nor the decision of the Leninskiy
District Court of Kursk of 17 June 2002 awarding him RUR 2,087 in
reimbursement of the fine, has been executed. Therefore, the final
decisions in the applicant's favour have remained unexecuted for a
period of over three years and ten months.
46. The Court further notes that the applicant first submitted
the writs of execution for enforcement to the Bailiffs' Service in
accordance with the domestic rules then in force. After having
been informed by the bailiffs about the changes in the procedure,
he resubmitted the writs to the Ministry of Finance in accordance
with the new rules. The Court observes that the writs remained
unenforced by the bailiffs for almost two years between summer
2002 and summer 2004 until they were returned for not complying
with the statutory requirements. Then they remained unexecuted
with the Ministry of Finance, which also returned them a number of
times for the same reasons. The writs were submitted to the
domestic courts several times for rectification, and more than
once the courts failed to make the proper amendments.
47. The Court considers that the failure of the domestic courts
to issue writs of execution in compliance with the statutory
requirements, and even more so the failure to bring them into
conformity with such requirements when their defects had been
pointed out, is entirely attributable to the State. The Court
further observes that the Government advanced no explanation for
the lengthy periods of non-enforcement when the writs were either
with the Bailiffs' Service or with the Ministry of Finance.
48. 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 those in the present case (see, among other
authorities, Burdov v. Russia, No. 59498/00, ECHR 2002-III and
Poznakhirina v. Russia, No. 25964/02, 24 February 2005).
49. 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 execute the final
judicial decisions in the applicant's favour the domestic
authorities deprived the provisions of Article 6 з 1 of their
useful effect and prevented the applicant from receiving the money
he could reasonably have expected to receive.
50. There has accordingly been a violation of Article 6 з 1 of
the Convention and Article 1 of Protocol No. 1.
2. Application of Article 41 of the Convention
51. 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
52. The applicant claimed RUR 600,000 in respect of pecuniary
and non-pecuniary damage caused by the domestic authorities'
failure to execute final judicial decisions in his favour. The
applicant also claimed to have suffered non-pecuniary damage
caused by the criminal proceedings against him, his loss of
employment and the length of the proceedings for damages.
53. The Government considered that should the Court find a
violation in this case that would in itself constitute sufficient
just satisfaction. They also contended that in any event the
applicant's claims were excessive and that there was no causal
link between the damage alleged and the length of the enforcement
proceedings in the present case.
54. The Court notes that the State has provided no evidence
that it had complied, at least in part, with its obligation to
execute the judicial decisions at issue. 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 is as far as possible
put in the position he would have been in 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 this principle applies also in
the present case, having regard to the violations found. It
therefore considers that the Government should secure, by
appropriate means, the enforcement of the awards 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 of the debt.
55. The Court considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to execute final judicial decisions in his favour, and
that this cannot sufficiently be compensated for by the finding of
a violation. However, the amount claimed appears excessive. The
Court takes into account the award it made in the case of Burdov
v. Russia (cited above, з 47), the nature of the award of which
the non-enforcement was at issue in the present case, the delay in
the enforcement proceedings and other relevant aspects. Making its
assessment on an equitable basis, it awards the applicant 3,000
euros (EUR) in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
56. The applicant did not make any claims in respect of the
costs and expenses incurred before the domestic courts and before
this Court.
57. Accordingly, the Court makes no award under this head.
C. Default interest
58. 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 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, and in
addition pay the applicant EUR 3,000 (three thousand euros) in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at a 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
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 applicant's claim for just
satisfaction.
Done in English, and notified in writing on 1 June 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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