EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF KORCHAGIN v. RUSSIA
(Application No. 19798/04)
JUDGMENT <*>
(Strasbourg, 1.VI.2006)
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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.
In the case of Korchagin v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs {N. Vajic} <*>,
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<*> 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. 19798/04) 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, Mr Valeriy
Pavlovich Korchagin, on 16 February 2004.
2. The applicant was represented before the Court by Mr R.
Tontaryov, a lawyer practising in Rostov in the Yaroslavl Region.
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. On 15 December 2004 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
The circumstances of the case
4. The applicant was born in 1942 and lives in Rostov in the
Yaroslavl Region.
5. On 5 October 2000 criminal proceedings were instituted
against the applicant on suspicion of theft. On 19 April 2001 the
proceedings were discontinued as no indications of a criminal
offence had been established.
6. The applicant sued the Ministry of the Interior for the
damage sustained through the unlawful prosecution.
7. On 26 September 2001 the Rostovskiy District Court of the
Yaroslavl Region granted the applicant's claim and awarded him RUR
5,000 (EUR 184). As no appeal had been lodged within the ten-day
statutory time-limit, on 8 October 2001 the judgment became
binding and the District Court issued the applicant with a writ of
enforcement.
8. On 15 November 2001 the Moscow bailiffs returned the writ to
the applicant, indicating that he should have submitted it
directly to the Ministry of Finance.
9. On 14 January 2002 the applicant sent the writ to the
Ministry of Finance which acknowledged its receipt on 11 February
2002.
10. On 25 April 2002 the Ministry of Finance forwarded the writ
to the Ministry of the Interior. According to the Government, the
Ministry of the Interior decided that payment should be effected
by the Ministry of Finance and returned the writ.
11. On 16 May 2003 the Ministry of Finance asked the Ministry
of the Interior whether the judgment had been appealed against. On
21 August 2003 the Ministry of the Interior responded to the
inquiry.
12. On 10 September 2003 the Ministry of Finance paid the
amount outstanding to the applicant's bank account. The applicant
was not informed about the payment.
13. In November 2003 the applicant complained to the Prosecutor
General's Office about prolonged non-enforcement of the judgment.
On 18 December 2003 the Office forwarded his letter to the
Ministry of Finance. No further replies have been received.
THE LAW
I. Alleged violation of Article 6
of the Convention and Article 1 of Protocol No. 1
14. The applicant complained that the prolonged non-enforcement
of the judgment in his favour had violated his right to a court
under Article 6 з 1 and his right to peaceful enjoyment of
possessions under Article 1 of Protocol No. 1. The relevant parts
of these provisions read as follows:
Article 6 з 1
"In the determination of his civil rights and obligations...,
everyone is entitled to a fair... hearing within a reasonable
time... 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..."
A. Admissibility
15. 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
16. The Government submitted that the judgment had been fully
enforced and that the authorities had taken necessary and lawful
measures for enforcement. It was open to the applicant to apply to
a court for adjustment of the award to take account of inflation
or for compensation for non-pecuniary damage. He had done neither.
17. The applicant responded that he had never been informed of
the transfer of money onto his bank account, his complaint to the
Prosecutor General's Office in November 2003 bears evidence to
that. He had only learnt of the enforcement from the Government's
memorandum in April 2005. He considered that no objective cause
could account for the two years' delay in enforcement.
18. On the facts, the Court observes that on 26 September 2001
the applicant obtained a judgment in his favour. On 8 October 2001
the judgment became enforceable against the Ministry of the
Interior. However, it remained unenforced until 10 September 2003,
that is for almost two years.
19. 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 Gizzatova v.
Russia, No. 5124/03, з 19 et seq., 13 January 2005; Wasserman v.
Russia, No. 15021/02, з 35 et seq., 18 November 2004; Burdov v.
Russia, No. 59498/00, з 34 et seq., ECHR 2002-III).
20. Having examined the material submitted to it, the Court
notes that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion
in the present case. It considers that the delays in enforcement
were entirely attributable to the conduct of the domestic
authorities. The first delay was caused by the bailiffs service
which returned the writ to the applicant instead of forwarding it
directly to the competent State agency. Further significant delays
were occasioned by the difference of opinion between the two
Ministries as to which one should pay the award. Finally, the
applicant was never informed of the bank transfer to his account.
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 breached his right
to a court and prevented him from receiving the money he could
reasonably have expected to receive.
21. There has accordingly been a violation of Article 6 of the
Convention and Article 1 of Protocol No. 1.
II. Application of Article 41 of the Convention
22. 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
23. The applicant claimed 10,000 euros (EUR) in respect of non-
pecuniary damage. He indicated that the amount outstanding had
been an important part of his retirement income.
24. The Government submitted that the applicant had not
produced any evidence of non-pecuniary damage. Furthermore, having
regard to his own conduct and, in particular, his failure to check
his bank account in good time, no compensation should be awarded
to him. A finding of a violation would constitute sufficient just
satisfaction.
25. The Court observes that non-pecuniary damage is the
applicant's subjective measure of the distress he had endured
because of a violation of his rights and, by its nature, is not
amenable to proof. Furthermore, the applicant cannot be blamed for
the authorities' failure to update him on the progress of the
enforcement proceedings. The Court accepts that he has suffered
distress and frustration because of the State authorities' failure
to enforce the judgment in his favour within a reasonable time.
Making its assessment on an equitable basis and taking into
account the nature of the award as compensation for the unlawful
criminal prosecution, the Court awards the applicant EUR 1,200 in
respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
26. The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
27. 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;
3. 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, EUR 1,200 (one
thousand two hundred 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 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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