EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MIKHAYLOVA AND OTHERS v. RUSSIA
(Application No. 22534/02)
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 Mikhaylova and Others 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},
--------------------------------
<*> 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. 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. 22534/02) 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 four Russian nationals, Ms Larisa
Ivanovna Mikhaylova, Ms Galina Viktorovna Bukhonova, Ms Tatyana
Viktorovna Kaptenok and Ms Tatyana Mikhaylovna Mikhaylova, on 22
January 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 7 October 2003 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 1960, 1964, 1972 and 1954
respectively and live in Voronezh.
5. The applicants are in receipt of welfare payments for their
children. In 1999 - 2001 they brought separate sets of civil
proceedings against a local welfare authority, claiming arrears in
those payments.
1. The first applicant
6. On 5 October 2000 the Sovetskiy District Court of Voronezh
awarded the first applicant 4,295.89 Russian roubles (RUR) against
the welfare authority. This judgment entered into force on 16
October 2000.
7. On 9 November 2000 a writ of execution was issued and sent
to the bailiffs. It appears that some time later the bailiffs
discontinued the enforcement proceedings in respect of the above
judgment and returned the writ of execution to the first
applicant, as the debtor had insufficient funds.
8. In January - February 2004 the first applicant was paid the
amount due pursuant to the writ of execution.
2. The second applicant
9. On 27 December 1999 the Sovetskiy District Court of Voronezh
awarded the second applicant RUR 2,221.45 against the welfare
authority. This judgment entered into force on 7 January 2000 and
a writ of execution was sent to the bailiffs.
10. On 26 July 2001 the bailiffs discontinued the enforcement
proceedings in respect of the judgment of 27 December 1999 and
returned the writ of execution to the second applicant, referring
to the lack of the debtor's funds.
11. In January - February 2004 the second applicant was paid
the amount due pursuant to the writ of execution.
3. The third applicant
12. On 30 January and 29 May 2001 the Zheleznodorozhny District
Court of Voronezh awarded the third applicant RUR 3,939.15 and
2,550.07 respectively. The judgments entered into force on 12
February and 11 June 2001.
13. On 12 February and 14 June 2001 writs of execution were
issued and sent to the bailiffs. It appears that some time later
the bailiffs discontinued the enforcement proceedings in respect
of the above judgments and returned the writs of execution to her,
referring to the lack of the debtor's funds.
14. On 3 September 2001, in reply to the third applicant's
complaint about the bailiffs' failure to enforce the judgments in
her favour, the Department of Justice of the Voronezh Region
informed the applicant that her award would be enforced in the
order of priority set out by the Federal Law on Enforcement
Procedure.
15. In January - February 2004 the third applicant was paid the
amounts due pursuant to the writs of execution.
4. The fourth applicant
16. On 27 October 2000 the Levoberezhny District Court of
Voronezh awarded the fourth applicant RUR 5,024.98. The judgment
entered into force on 8 November 2000.
17. On 14 November 2000 a writ of execution was issued and sent
to the bailiffs. It appears that some time later the bailiffs
discontinued the enforcement proceedings in respect of the above
judgment and returned the writ of execution to the fourth
applicant, as the debtor had insufficient funds.
18. In January - February 2004 the fourth applicant was paid
the amount due pursuant to the writ of execution.
II. Relevant domestic law
19. 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.
20. 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
21. 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
22. 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.
23. The applicants disagreed with the Government and maintained
their complaints. As regards the friendly settlement proposal, the
applicants claimed that the calculations presented by the
authorities of the Voronezh Region had been incorrect since they
had contained no adjustment to the inflation rate and also noted
that the respective offer had not covered all their complaints.
24. 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-...).
25. 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).
26. 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).
27. 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.
28. 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
29. The Government advanced no arguments on the merits of the
application.
30. The applicants maintained their complaint.
31. The Court observes that the judgments of 27 December 1999,
5 and 27 October 2000, 30 January and 29 May 2001 remained
inoperative for about four years and one month, three years and
four months, three years and two years and eight months
respectively. No justification was advanced by the Government for
these delays.
32. 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).
33. 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.
34. 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
35. The third applicant also complained that the lengthy non-
enforcement of the judgments in her favour violated her rights to
effective domestic remedies under Article 13 of the Convention.
36. 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 34 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
37. 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
38. The first applicant claimed RUR 129,314.79 in respect of
pecuniary damage, of which RUR 75,091.79 was the judgment debt for
2000 - 2004 index-linked to a monthly inflation rate of 30% and
RUR 54,223 was penalty payments at a rate of 1% per day, and RUR
387,944.37 in respect of non-pecuniary damage. The second
applicant claimed RUR 74,751.66 in respect of pecuniary damage, of
which RUR 40,541.46 was the judgment debt for 1999 - 2004 index-
linked to the monthly inflation rate of 30% and RUR 34,210.20 was
penalty payments at the rate 1% per day, and RUR 224,254.98 in
respect of non-pecuniary damage. The third applicant claimed RUR
177,186.44 in respect of pecuniary damage, of which RUR 105,973.04
was the judgment debt for 2001 - 2004 index-linked to the monthly
inflation rate of 30% and RUR 71,213.40 was penalty payments at
the rate 1% per day, and RUR 531,559.32 in respect of non-
pecuniary damage. The fourth applicant claimed RUR 140,691.43 in
respect of pecuniary damage, of which RUR 78,741.43 was the
judgment debt for 2000 - 2004 index-linked to the monthly
inflation rate of 30% and RUR 61,950 was penalty payments at the
rate 1% per day, and RUR 422,074.29 in respect of non-pecuniary
damage.
39. The Government contended that the applicants' claims were
wholly excessive and unjustified. They pointed out that, according
to the information provided by the Department of Statistics of the
Voronezh Region, the average monthly rate of inflation during the
reference period was equal to 1.59% in respect of the first
applicant, 1.87% in respect of the second applicant, 1.51% in
respect of the third applicant and 1.56% in respect of the fourth
applicant. As to the non-pecuniary damage, the Government
considered that should the Court find a violation in this case
that would in itself constitute sufficient just satisfaction.
40. 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). Having regard to the materials in its
possession and the Government's arguments, the Court awards the
first applicant EUR 80, the second applicant EUR 60, the third
applicant EUR 100 and the fourth applicant EUR 95 in respect of
pecuniary damage, plus any tax that may be chargeable.
41. As regards the compensation of 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
42. The applicants also claimed each RUR 2,000 for the costs
and expenses incurred before the domestic courts and the Court.
43. The Government considered that the documents submitted by
the applicants lacked evidence that the applicants had incurred
any costs.
44. 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
45. 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 third applicant's
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) EUR 80 (eighty euros) to the first applicant, EUR 60 (sixty
euros) to the second applicant, EUR 100 (one hundred euros) to the
third applicant and EUR 95 (ninety-five euros) to the fourth
applicant in respect of pecuniary damage, to be converted into the
national currency of the respondent State at the rate applicable
at the date of settlement;
(ii) EUR 20 (twenty euros) to each of the applicants 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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