EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF BOGDANOV v. RUSSIA
(Application No. 3504/02)
JUDGMENT <*>
(Strasbourg, 9.II.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 Bogdanov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 19 January 2006,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 3504/02) 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 Aleksandr
Petrovich Bogdanov ("the applicant"), on 15 March 2001.
2. The applicant complained about the insufficiency of the
award made in his favour by the judgment of the Krasnoarmeyskiy
Town Court of 14 September 1998. He also complained that the above
judgment was not enforced.
3. The Russian Government ("the Government") were represented
by Mr P. Laptev, the Representative of the Russian Federation at
the European Court of Human Rights.
4. On 19 November 2003 the Court decided to communicate the
complaint concerning non-enforcement of a judgment in his favour
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
I. The circumstances of the case
5. The applicant was born in 1960 and lives in the
Novolobinskaya village, Krasnodar Region.
6. In 1992 the applicant was convicted of theft and sentenced
to 5 years and 6 months' imprisonment. Following the revision of
his criminal case by way of supervisory review in 1995, his
sentence was reduced. However, this decision was erroneously sent
to the prison administration with a considerable delay. As a
result, the applicant was released eight months later than
provided by the court decision.
7. In September 1996 the applicant brought civil proceedings
claiming damages in this respect. On 14 September 1998 the
Krasnoarmeyskiy Town Court of the Saratov Region awarded the
applicant 1,000 Roubles, to be paid by the Ministry of Finances of
Russia. The parties did not appeal and this judgment became final.
8. The Krasnoarmeyskiy Town Court issued an execution order and
on 23 October 1998 (or, according to the Government, on 20 October
1998) it was forwarded to the Kirovskiy District Court of Saratov.
On 26 October the Kirovskiy District Court received the execution
order. On the same day the execution order was forwarded to the
court bailiffs for execution. However, it never reached the
bailiffs.
9. The applicant asserted that in the following years he
requested the Kirovskiy District Court of Saratov and the
bailiffs' service to resume the enforcement proceedings. In reply
to one of his letters, on 16 April 2001 the Saratov Region Chief
Bailiff advised the applicant to file a request to the
Krasnoarmeyskiy District Court with a view to obtain a duplicata
of the execution order. However, as the Government suggested, he
did not do so.
10. On 20 October 2004 the Krasnoarmeyskiy District Court of
the Saratov Region issued a duplicata of the execution order. It
is unclear whether the court did it on its own motion or upon the
applicant's initiative. In December 2004 it was forwarded to the
Ministry of Finance, with a copy to the applicant. In a cover
letter of 6 December 2004 the District Court noted that the
parties had been duly notified about the hearing but failed to
appear. The Court also drew the applicant's attention to the fact
that he should provide the Ministry of Finance with his bank
account details.
11. It appears that the judgment of 14 September 1998 remains
unenforced to date.
II. Relevant domestic law and practice
12. For relevant provisions of Russian law on enforcement of
court judgments against budget-funded organisations see Wasserma
v. Russia (dec., No. 15021/02, 25 March 2004), and Shatunov and
Shatunova v. Russia (dec., No. 31271/02, 30 June 2005).
13. 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".
Pursuant to this Decree, the judgment creditor should forward to
the Ministry of Finance a writ of execution, a copy of the court's
judgment duly attested, and an application form, containing, inter
alia, information on the plaintiff's bank account. 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,
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 and Article 1
of Protocol No. 1 to the Convention
14. The applicant complained about the lengthy non-enforcement
of the court judgment of 14 September 1998 in his favour. The
Court will examine this complaint under Article 6 з 1 and Article
1 of Protocol No. 1 to the Convention. These articles, in so far
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 the 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
15. The Government indicated that the execution writ issued by
the Krasnoarmeyskiy Town Court should have been enforced by the
Saratov branch of the Federal Treasury. For some reason it was
lost on its way to the bailiff's office. The applicant knew that
the enforcement proceedings were not initiated, however, he failed
to lodge a request with the competent court in order to obtain a
duplicata of the execution order. In their further submissions the
Government also indicated that the applicant did not submit to the
Ministry of Finance the application form with his banking
information and the writ of execution, as required by Government
Decree No. 666, and, consequently, the execution order could not
be enforced. Therefore, the applicant's complaint should be
rejected as manifestly ill-founded.
16. The applicant in reply maintained his arguments.
17. The Court notes that the new regulations on enforcement,
referred to by the Government, namely Government Decree No. 666,
did not preclude the applicant from seeking the enforcement in a
normal way, i.e. through the bailiffs (see з 13 above). The
applicant made use of that avenue; therefore, he cannot be held
responsible for not using the alternative procedure, indicated by
the respondent Government.
18. Further, as concerns the enforcement through the bailiffs,
the Government did not contest that the execution order had been
lost due to the authorities' fault. It is true that in April 2001
the applicant was advised to submit a request to the court in
order to obtain a duplicata (see з 9). However, even assuming that
after having learned about the loss of the execution order the
applicant should have had recourse to the court again, it does not
justify the authorities' inaction before that date. The Court also
notes that in October 2004 the Krasnoarmeyskiy District Court
issued a duplicata of the execution order of 14 September 1998
(see з 10). The Government did not explain why it could not have
been done before that date.
19. The Court concludes, in view of the above, that this
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. It must therefore be declared
admissible.
B. Merits
20. The Court observes that the judgment of the Krasnoarmeyskiy
Town of 14 September 1998 remained inoperative at least until the
end of 2004. The Government did not advance any arguments to
justify this delay other than those examined by the Court above
(see з 15 et seq.).
21. 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, among other
authorities, Burdov v. Russia, No. 59498/00, ECHR 2002-III and,
more recently, Petrushko, No. 36494/02, 24 February 2005, or
Poznakhirina v. Russia, No. 25964/02, 24 February 2005).
22. 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 comply with the
enforceable judgment in the applicant's favour the domestic
authorities prevented him from receiving the money he could
reasonably have expected to receive.
23. There has accordingly been a violation of Article 6 з 1 of
the Convention and Article 1 of Protocol No. 1.
II. Other alleged violations of the Convention
24. The applicant complained about the insufficiency of the
court award in his favour, made by the Krasnoarmeyskiy Town Court.
Admissibility
25. The Court notes that the application in this respect has
been introduced outside of the time-limit set down by Article 35 з
1 of the Convention: the decision, taken by the Krasnoarmeyskiy
District Court of Saratov on 14 September 1998, was not appealed
against and became final on 24 September 1998. The applicant's
subsequent requests for a supervisory review do not constitute
effective remedies within the meaning of Article 35 з 1 of the
Convention. It follows that 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
26. 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."
27. After the communication of the application to the
respondent Government, the applicant was invited to submit his
claims for just satisfaction under Article 41 of the Convention.
However, he did not present any claims for compensation of
pecuniary or non-pecuniary damages caused by the prolonged non-
enforcement of the judgment in his favour. Accordingly, the Court
considers that there is no call to award him any sum on that
account.
28. At the same time the applicant maintained his claims as to
the judgment debt, due to him under the judgment of 14 September
1998. Insofar as the applicant's claims relate to the outstanding
amount of the judgment debt (RUR 1,000) the Court notes that the
Government's obligation to enforce the judgment at issue is not
yet extinguished in the domestic terms and the applicant is still
entitled to recover this amount in the course of enforcement
proceedings. The Court recalls that the most appropriate form of
redress 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 THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning non-enforcement of the
Krasnoarmeyskiy District Court judgment of 14 September 1998
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
due to the prolonged non-enforcement of the judgment of 14
September 1998;
3. Holds 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 14
September 1998, and that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on
the outstanding amount of the judgment debt at a rate equal to the
marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 9 February 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrarт
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