EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF NIKOLAYEV v. RUSSIA
(Application No. 37927/02)
JUDGMENT <*>
(Strasbourg, 2.III.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 Nikolayev v. Russia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Mr {B.M. Zupancic} <*>, President,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mr J. Hedigan,
Mr {C. Birsan},
Mrs M. Tsatsa-Nikolovska,
Mr A. Kovler,
Mrs R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 9 February 2006,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 37927/02) 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 a Russian national, Mr Petr
Ivanovich Nikolayev ("the applicant"), on 23 September 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 8 January 2004 the Court decided to communicate the
application to the Government. Applying 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 1943 and lives in the town of
Tambov.
5. In the 1980s he took part in a rescue operation on the site
of the Chernobyl nuclear disaster. As of an unspecified date the
applicant has been in receipt of social benefits in this
connection.
1. Court proceedings for unpaid benefits
6. On an unspecified date the applicant sued the Tambov Pension
Authority (Управление социальной защиты населения мэрии города
Тамбова, "the authority") seeking to recover the amount of
allegedly unpaid social benefits.
7. By judgment of 19 March 2001 the Oktyabrskiy District Court
of Tambov ("the District Court") examined and granted the
applicant's action and ordered the authority to pay him the
arrears of RUR 20,603.67.
8. The judgment was upheld on appeal by the Tambov Regional
Court ("the Regional Court") on 16 May 2001. It came into force on
the same date. Immediately thereafter the applicant obtained an
execution writ and instituted enforcement proceedings.
9. The amount due to the applicant pursuant to the judgment of
19 March 2001 and decision of 16 May 2001 was paid to him by two
money transfers dated 7 March 2003 (20,603.67 RUR) and 19 February
2004 (5,130.31 RUR) respectively.
2. Court proceedings in connection with delayed
enforcement of the judgment of 19 March 2001
10. On 28 May 2002 the District Court examined and granted the
applicant's claim for penalty in connection with alleged non-
enforcement of the judgment of 19 March 2001. The court ordered
the authority to pay the applicant RUR 38,940.93.
11. The judgment of 28 May 2002 was not appealed against by the
parties and came into force on 13 June 2002.
12. Immediately thereafter the applicant obtained an execution
writ and instituted enforcement proceedings.
13. By letter of 18 February 2003 the bailiffs returned the
writ and supporting documents to the applicant and invited him to
apply to a local branch of the Federal Treasury.
14. It appears that the applicant followed these instructions
and submitted the writ and supporting documents to the Federal
Treasury. On 4 March 2003 the Federal Treasury refused to pay the
money due by reference to the fact that the respondent authority
had not been registered.
15. On an unspecified date the respondent authority brought an
application seeking supervisory review of the judgment of 28 May
2002. A judge of the Regional Court on 17 June 2003 examined the
application and decided to forward it for examination on the
merits to the Presidium of the Regional Court.
16. It appears that by letter of 17 June 2003 the Regional
Court notified the applicant and other parties in the case of the
supervisory review hearing of 26 June 2003.
17. On 26 June 2003 the Regional Court quashed the judgment of
28 May 2002 by way of supervisory review and remitted the case for
a fresh examination at the first instance. It appears that the
applicant was absent from the hearing.
18. According to the Government, on 16 July 2003 the first
instance court discontinued the proceedings in the case for the
applicant's failure to appear.
3. Other sets of proceedings
19. It appears that on 16 June and 10 October 2003 the District
Court examined and fully granted the applicant's two fresh claims
for unpaid social benefits. It ordered the authority to pay RUR
18,721.85 and RUR 5,130.31 respectively. Both decisions were
enforced with a six months delay, in December 2003 and February
2004 respectively.
II. Relevant domestic law
20. A special law adopted in 1995 entitles the participants of
the liquidation of the consequences of the Chernobyl nuclear
accident to additional social benefits, including monthly
payments.
21. 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 a coercive action will follow, should the defendant fail to
comply with the time-limit.
22. Under Section 13 of the Law, the enforcement proceedings
should be completed within two months upon receipt of the writ of
enforcement by the bailiff.
23. Under special rules governing enforcement of execution
writs against the recipients of allocations from the federal
budget, adopted by the Federal Government on 22 February 2001
(Decree No. 143, as in force at the relevant time), a creditor is
to apply to a relevant branch of the Federal Treasury holding
debtor's accounts (Sections 1 to 4).
24. Within the next five days the branch examines the
application and notifies the debtor of the writ, compelling the
latter to abide by the respective court decisions (Sections 7 to
12). In case of the debtor's failure to comply within two months,
the branch may temporarily freeze the debtor's accounts (see
Section 13).
THE LAW
I. Alleged violation of Article 6 з 1
of the Convention and Article 1 of Protocol No. 1
25. The applicant complained that delayed enforcement of the
judgments of 19 March 2001, 28 May 2002, 16 June and 10 October
2003 violated his "right to a court" under Article 6 з 1 of the
Convention and his right to the peaceful enjoyment of possessions
as guaranteed in Article 1 of Protocol No. 1. 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
26. As regards the judgments dated 16 June and 10 October 2003,
the Court observes that they were fully enforced in December 2003
and February 2004 respectively, i.e. with a six months' delay.
Having regard to the overall length of enforcement which by the
case-law standards does not appear excessive (see, e.g.,
Grishchenko v. Russia (dec.), No. 75907/01, 8.07.2004) and to the
lack of delays attributable to the authorities, the Court finds no
evidence of interference with the applicant's Convention rights in
connection with the enforcement of the judgments of 16 June and 10
October 2003.
27. It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 зз
3 and 4 of the Convention.
28. As regards the judgments of 19 March 2001 and 28 May 2002,
the Government submitted that the first judgment in question had
been enforced while the second judgment had been quashed. They
asserted that the applicant was no longer a victim of the
violations alleged as he had been afforded redress at the national
level and that his application should be declared inadmissible. In
addition, the Government informed the Court of the applicant's
refusal to accept the settlement of the case on the terms proposed
by the Government. By reference to this refusal and the
admissibility decision in the case of Aleksentseva and Others v.
Russia ((dec.), No. 75025/01 et seq., 4 September 2003) the
Government argued that the applicant was no longer a victim and
abused his right of individual petition and therefore invited the
Court to declare the application inadmissible.
29. The applicant disagreed with the Government's arguments and
maintained his complaints.
30. The Court reiterates that "a decision or measure favourable
to the applicant is not in principle sufficient to deprive him of
his status as a "victim" unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention" (see Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions 1996-
III, p. 846, з 36, Dalban v. Romania [GC], No. 28114/95, з 44,
ECHR 1999-VI, and Rotaru v. Romania [GC], No. 28341/95, з 35, ECHR
2000-V). Only when these conditions are satisfied does the
subsidiary nature of the protective mechanism of the Convention
preclude examination of an application (see, for example, Jensen
and Rasmussen v. Denmark (dec.), No. 52620/99, 20 March 2003).
31. On the facts, the Court observes that the mere fact that
the authorities complied with the first judgment after a
substantial delay cannot be viewed in this case as automatically
depriving the applicant of his victim status under the Convention.
Neither the Government nor other domestic authorities have
acknowledged that the applicant's Convention rights were
unjustifiably restricted by the non-enforcement of these two
judgments and no redress has been offered to the applicant for the
delays, as required by the Court's case-law (see, e.g., Petrushko
v. Russia, No. 36494/02, з 16, 24 February 2005). As regards the
quashing of the second judgment, dated 28 May 2002, by way of
supervisory review, this measure was clearly unfavourable to the
applicant and it thus did not deprive him of the victim status in
respect of the problem of the delayed enforcement of that
judgment.
32. The Court furthermore observes the parties' mere
disagreement on the terms of a friendly settlement of the case is
not the ground for declaring the respective grievances
inadmissible. Whilst under certain circumstances an application
may indeed be struck out 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-...), this procedure is not, as such,
intended to circumvent the applicant's opposition to a friendly
settlement.
33. Furthermore, the Court observes that a distinction must be
drawn between, on the one hand, declarations made in the context
of strictly confidential friendly-settlement proceedings (Article
38 з 2 of the Convention and Rule 62 з 2 of the Rules of Court)
and, on the other hand, unilateral declarations made by a
respondent Government in public and adversarial proceedings before
the Court.
34. 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, Aleksentseva and Others cited above and Akman
v. Turkey (striking out), No. 37453/97, зз 23 - 24, ECHR 2001-VI).
In particular, the scope of their admissions and the extent of
undertakings aimed at remedying the applicant's individual
situation are vague and unspecific.
35. Accordingly, the Court rejects the Government's objections
as to the loss of victim status.
36. The Court notes that the applicant's complaint about the
delayed enforcement of the judgments of 19 March 2001 and 28 May
2002 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
37. The Government submitted that in view of the fact that the
first judgment in question had been enforced while the second
judgment had been quashed there has been no violation of the
applicant's Convention rights.
38. The applicant maintained his complaints.
39. The Court first notes that the judgment dated 19 March 2001
remained without enforcement for the period ranging between a
year, nine months and twenty-one days and two years, nine months
and five days, whereas the judgment of 28 May 2002 remained
without enforcement for a year and one month.
40. The Court has found violations of Article 6 з 1 of the
Convention and Article 1 of Protocol No. 1 in many 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).
41. 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 such substantial periods to comply
with the enforceable judgments in the applicant's favour the
domestic authorities prevented him from receiving the money which
he was entitled to receive under final and binding judgments.
42. There has accordingly been a violation of Articles 6 з 1 of
the Convention and 1 of Protocol No. 1.
II. Other alleged violations of the Convention
43. The applicant also complained about the supervisory review
proceedings of 26 June 2003 as a result of which the judgment of
28 May 2002 had been quashed and the case was remitted for a fresh
examination at the first instance.
44. At the outset the Court notes that according to the
documents at its disposal the applicant first learned about the
outcome of supervisory review proceedings in his case from the
letter of the registry of the Regional Court dated 30 June 2003.
The Court next observes that the complaint about the supervisory
review proceedings in his case was originally raised by the
applicant in his letter to the Court dated 24 April 2004, which is
more than nine months later. As there is nothing in the case-file
or in the applicant's submissions to suggest that the dispatching
of the letter of 30 June 2003 took unusually long or that there
existed any other exceptional circumstance preventing the
applicant from complying with the six-months time-limit set out in
Article 35 з 1 of the Convention, it follows that the complaint
was introduced out of time (see Sardin v. Russia (dec.), No.
69582/01, ECHR 2004-...).
45. It must therefore be rejected pursuant to Article 35 зз 1
and 4 of the Convention.
III. Application of Article 41 of the Convention
46. 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
47. The applicant claimed 50,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
48. The Government did not make any comments under this head.
49. The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it accepts that the
applicant suffered some distress as a result of the violations at
issue and therefore awards the applicant EUR 4,500 in respect of
non-pecuniary damage.
B. Costs and expenses
50. The applicant did not submit any claims under this head and
the Court accordingly makes no award in respect of costs and
expenses.
C. Default interest
51. 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 about non-enforcement of the
judgments dated 19 March 2001 and 28 May 2002 admissible and the
remainder of the application inadmissible;
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;
4. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention, EUR 4,500 (four
thousand five hundred euros) to be converted into Russian roubles
on the date of settlement in respect of non-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. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 2 March 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
{Bostjan M. ZUPANCIC}
President
Vincent BERGER
Registrar
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