EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF KAZARTSEVA AND OTHERS v. RUSSIA
(Application No. 13995/02)
JUDGMENT <*>
(Strasbourg, 17.XI.2005)
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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 Kazartseva and Others v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and S. Quesada, Deputy Section Registrar,
Having deliberated in private on 25 October 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 13995/02) 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 three Russian nationals, Ms
Valentina Vladimirovna Kazartseva, Ms Zoya Filippovna Kalinina and
Ms Larisa Alekseyevna Zhdankina, on 28 February 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 March 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
I. The circumstances of the case
4. The applicants were born in 1946, 1957 and 1970 respectively
and live in Voronezh.
5. The applicants are in receipt of welfare payments for their
children. In 1999 - 2000 they brought separate sets of civil
proceedings against a local welfare authority, claiming arrears in
those payments.
1. The first applicant
6. On 17 December 1999 the Levoberezhny District Court of
Voronezh awarded the first applicant 3,245.28 Russian roubles
(RUR) against the welfare authority. This judgment entered into
force on 28 December 1999.
7. On 31 January 2000 the writ of execution was issued and sent
to the bailiffs.
8. On 26 July 2001 the bailiffs discontinued the enforcement
proceedings in respect of the judgment of 17 December 1999 and
returned the writ of execution to the first applicant, as the
debtor had insufficient funds.
9. On 26 February 2002 the first applicant complained to the
Department of Justice of the Voronezh Region about the bailiffs'
failure to execute the judgment in her favour.
10. By letter of 27 March 2002 the Department of Justice of the
Voronezh informed the first applicant that the judgment in
question had not been enforced, as the defendant had insufficient
assets, and that it was open to her again to send the writ of
execution to the bailiffs' service.
11. On 29 April 2002 the first applicant lodged a court
complaint against the bailiffs for their failure to enforce the
judgment in her favour.
12. On 19 June 2002 the Leninskiy District Court of Voronezh
allowed the first applicant's complaint and ordered the bailiffs
to recommence the enforcement proceedings.
13. On 2 June 2004 the first applicant was paid the amount due
pursuant to the writ of execution.
2. The second applicant
14. On 29 March 2000 the Leninskiy District Court of Voronezh
awarded the second applicant RUR 1,980.6 against the welfare
authority. This judgment entered into force on 9 April 2000.
15. On 29 March 2000 the writ of execution was issued and sent
to the bailiffs.
16. On 26 July 2001 the bailiffs discontinued the enforcement
proceedings in respect of the judgment of 29 March 2000 and
returned the writ of execution to the second applicant, referring
to the lack of the debtor's funds.
17. On 27 April and 6 May 2002 the second applicant again sent
the writ of execution to the bailiffs' service.
18. On 30 September 2002 the bailiffs returned the writ of
execution to the second applicant, having stated that they had
been unable to enforce the judgment in her favour, as the
defendant refused to pay.
19. On 2 June 2004 the judgment of 29 March 2000 was paid in
full.
3. The third applicant
20. On 9 November 2000 the Tsentralny District Court of
Voronezh awarded the third applicant RUR 4,304.7. This judgment
entered into force on 20 November 2000. On the same date the writ
of execution was issued and sent to the bailiffs.
21. On 26 July 2001 the bailiffs discontinued the enforcement
proceedings in respect of the judgment of 9 November 2000 and
returned the writ of execution to the third applicant by reference
to the lack of the debtor's funds.
22. On 24 May 2002 the third applicant requested the bailiffs'
service and the Department of Justice of the Voronezh Region to
ensure the enforcement of the judgment in her favour. It is
unclear whether any response was ever sent to that request.
23. On 2 June 2004 the third applicant was paid the amount due
pursuant to the writ of execution.
II. Relevant domestic law
24. 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 coercive action will follow, should the defendant fail to
comply with the time-limit.
25. Under Section 13 of the Law, the enforcement proceedings
should be completed within two months of the receipt of the writ
of enforcement by the bailiff.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
and Article 1 of Protocl No. 1 to the Convention
26. The applicants complained about the prolonged non-
enforcement of the judgments in their favour. The Court will
examine this complaint under Article 6 з 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention. These Articles in
so far as relevant read 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
27. The Government informed the Court that the authorities of
the Voronezh Region had attempted to secure a friendly settlement
of the case and that the applicants had refused to accept the
friendly settlement on the terms proposed by the authorities. By
reference to this refusal and to the fact that, in any event, the
judgments in the applicants' favour had been enforced, the
Government invited the Court to strike out the application, in
accordance with Article 37 of the Convention.
28. The applicants disagreed with the Government's arguments
and maintained their complaints. As regards the friendly
settlement proposal, the applicants claimed that the authorities
of the Voronezh Region had made an offer to them, but did not
allow the applicants to acquaint themselves with the terms of that
offer.
29. The Court firstly observes that the parties were unable to
agree on the terms of a friendly settlement of the case. The Court
recalls that under certain circumstances an application may indeed
be struck out of its list of cases 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-...).
30. On the facts, the Court observes that the Government failed
to submit with the Court any formal statement capable of falling
into that 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, to Akman v. Turkey (striking out), No.
37453/97, зз 23 - 24, ECHR 2001-VI).
31. As regards the Government's argument that the judgments in
question have already been enforced, the Court considers that the
mere fact that the authorities complied with the judgments after a
substantial delay cannot be viewed in this case as automatically
depriving the applicants of their victim status under the
Convention. (see, e.g., Petrushko v. Russia, No. 36494/02, з 16,
24 February 2005).
32. In the light of the above considerations, the Court rejects
the Government's request to strike the application out under
Article 37 of the Convention.
33. 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
34. The Government advanced no arguments on the merits of the
application.
35. The applicants maintained their complaint.
36. The Court observes that the judgments of 17 December 1999,
29 March 2000 and 9 November 2000 remained inoperative for four
years four months and seventeen days, four years two months and
five days and three years five months and twenty-five days
respectively. No justification was advanced by the Government for
these delays.
37. 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, cited above, or Poznakhirina v. Russia,
No. 25964/02, 24 February 2005).
38. 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 judgments in the applicants' favour the domestic
authorities prevented them from receiving the money they could
reasonably have expected to receive.
39. 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
40. The applicants also complained that the lengthy non-
enforcement of the judgments in their favour violated their rights
to effective domestic remedies under Article 13 of the Convention.
41. The Court considers that this complaint is linked to the
above issues of non-enforcement to such an extent that it should
be declared admissible as well. However, having regard to the
finding relating to Article 6 з 1 (see paragraph 39 above), the
Court considers that it is not necessary to examine whether, in
this case, there has been a violation of Article 13.
III. Application of Article 41 of the Convention
42. 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
43. As regards compensation for pecuniary damage, the
applicants claimed the interest payable at statutory rate for the
default period in the amount of RUR 3,160.92 for the first
applicant, RUR 1,770.11 for the second applicant and RUR 2,695.15
for the third applicant. The latter also claimed RUR 4,652.66
without further explanation. In addition, the applicants claimed
each 31,000 US dollars (USD), of which USD 10,000 represented the
amount they could have earned during the period when, instead,
they had sought the enforcement of their court awards and USD
20,000 was the compensation for the losses their children had
sustained as a result of the untimely enforcement of the judgment
in the applicants' favour in respect of pecuniary damage. The
applicants did not specify their claims as regards the remaining
USD 1,000. They also claimed USD 45,000 in respect of non-
pecuniary damage.
44. 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
applicants' claims were excessive and unjustified.
45. The Court finds that some pecuniary loss must have been
occasioned by reason of the period that elapsed from the time
between the entry into force of the judgments in question and
their subsequent enforcement (see, e.g., Poznakhirina, cited
above, з 34 and Makarova and others v. Russia, No. 7023/03, 24
February 2005, з 38). Regard being had to the information in its
possession, the Court awards the first applicant RUR 3,160.92, the
second applicant RUR 1,770.11 and the third applicant RUR
2,695.15, plus any tax that may be chargeable, in respect of
pecuniary damage.
46. As regards the compensation for non-pecuniary damage, the
Court would not exclude that the applicants might have suffered
distress and frustration resulting from the State authorities'
failure to enforce the judgments in their favour. However, having
regard to the nature of the breach in this case and making its
assessment on an equitable basis, the Court considers that the
finding of a violation constitutes in itself sufficient just
satisfaction for any non-pecuniary damage sustained by the
applicants (see, in a similar context, Poznakhirina, cited above,
з 35).
B. Costs and expenses
47. The applicants also claimed RUR 10,045 for the costs and
expenses incurred before the domestic courts and the Court.
48. The Government considered that the documents submitted by
the applicants did not indicate that the applicants had incurred
any costs.
49. According to the Court's case-law, an applicant is entitled
to reimbursement of his 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,
regard being had to the information in its possession and the
above criteria, the Court considers it reasonable to award each
applicant the sum of EUR 20 in respect of costs and expenses, plus
any tax that may be chargeable.
C. Default interest
50. 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 to the Convention;
3. Holds that there is no need to examine the complaint under
Article 13 of the Convention;
4. Holds
(a) that the respondent State is to pay, within three months
from the date on which the judgment becomes final in accordance
with Article 44 з 2 of the Convention, the following amounts:
(i) RUR 3,160.92 (three thousand one hundred and sixty roubles
and ninety-two kopecks) to the first applicant, RUR 1,770.11 (one
thousand seven hundred and seventy roubles and eleven kopecks) to
the second applicant and RUR 2,695.15 (two thousand six hundred
and ninety-five roubles and fifteen kopecks) to the third
applicant in respect of pecuniary damage;
(ii) EUR 20 (twenty euros) in respect of costs and expenses, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts 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 applicants;
6. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 17 November 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
Santiago QUESADA
Deputy Registrar
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