EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF BAZHENOV v. RUSSIA
(Application No. 37930/02)
JUDGMENT <*>
(Strasbourg, 20.X.2005)
--------------------------------
<*> 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 Bazhenov 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,
Ms R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 29 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 37930/02) 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 Sergey
Serafimovich Bazhenov ("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 14 January 2004 the Court decided to communicate the
complaint about lengthy non-enforcement of the judgments dated 19
June 2000, 14 March 2001 and 28 May 2002 to the Government. Under
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 1960 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 late 1998 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 June 2000 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 10,890.73.
8. The judgment was upheld on appeal by the Tambov Regional
Court ("the Regional Court") on 4 September 2000. 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 June 2000 and decision of 4 September 2000 was not paid to him
until February 2004, which is three years and seven months after
the entry of the judgment into force.
2. Court proceedings in connection with delayed
enforcement of the judgment of 19 June 2000
10. In 2001 the applicant brought another action against the
authority, claiming damages for non-enforcement of the judgment of
19 June 2000.
11. On 14 March 2001 the District Court examined and granted
the applicant's claims. It ordered the authority to pay a half
percent penalty fee for each day of the delay between September
2000 and March 2001, totalling at RUR 36,383.07. This judgment was
not appealed against by the parties and came into force on 26
March 2001.
12. Thereafter the applicant submitted an execution writ in
respect of the judgment of 14 March 2001 to the bailiffs. By
letter of 15 December 2002 the bailiffs returned the documents and
invited him to submit them to a local branch of the Federal
Treasury.
13. Upon the authority's request, on 19 June 2003 the District
Court corrected an arithmetical mistake in the judgment of 14
March 2001 by replacing the amount of award of RUR 36,383.07 with
RUR 25,492.32.
14. The judgment of 14 March 2001, as corrected by the decision
of 19 June 2003, was enforced in full in February 2004, which is
two years and eleven months later after its entry into force.
3. Court proceedings in connection with delayed
enforcement of the judgment of 14 March 2001
15. On 28 May 2002 the District Court examined and granted the
applicant's another claim for penalty, this time in connection
with alleged non-enforcement of the judgment of 14 March 2001. The
court ordered the authority to pay the applicant a half percent
penalty fee for each day of the delay between April 2001 and May
2002, totalling at RUR 20,858.98.
16. The judgment of 28 May 2002 was not appealed against by the
parties and came into force on 13 June 2002.
17. By letter of 10 December 2002 the authority informed the
applicant of receipt in June 2002 of an execution writ in respect
of the judgment of 28 May 2002. The authority refused to pay the
money due as the federal budget had allocated funds only as
regards court decisions which had came into force prior to 1
January 2002. By the same letter the authority returned the writ
and supporting documents to the applicant.
18. Thereafter the applicant twice submitted the writ to the
bailiffs' service which, by letter of 18 February and 4 March
2003, returned the documents and informed him that the documents
ought to be submitted directly to the local branch of the Federal
Treasury.
19. On an unspecified date the 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.
20. By letter of 17 June 2003 the Regional Court notified the
applicant of the supervisory review hearing of 26 June 2003.
21. On 26 June 2003 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.
22. By letter of 30 June 2003 the Regional Court informed the
applicant of the outcome of the supervisory review hearing of 26
June 2003.
23. 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.
4. Second set of court proceedings in connection with
delayed enforcement of the judgment of 19 June 2000
24. By default judgment of 3 July 2003 which came into force on
14 July 2003 the District Court ordered the authority to
compensate the applicant for inflation losses in connection with
the delays in enforcement of the judgment of 19 June 2000. The
award of RUR 5,892.03 was to cover the period between September
2000 and June 2003.
25. It was paid to the applicant in full six months later, in
February 2004.
5. Second set of court proceedings in connection with
delayed enforcement of the judgment of 14 March 2001
26. On 12 February 2004 the applicant brought another action
against the authority, claiming inflation compensation for the
delay between 1 April 2001 and 31 December 2003 in enforcement of
the judgment of 14 March 2001.
27. By decision of 26 February 2004 the District Court granted
his claims and awarded the applicant RUR 10,944.36 as a
compensation for the inflation losses sustained by the applicant
as a result of the said delay.
28. This decision came into force on 9 March 2004. It is not
clear from the case-file whether this judgment has been enforced.
II. Relevant domestic law
29. 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.
30. 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.
31. 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.
32. 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).
33. 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 of the Convention
and Article 1 of Protocol No. 1
34. The applicant complained that non-enforcement of the
judgments of 19 June 2000, 14 March 2001 and 28 May 2002 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
35. The Government submitted that the first two judgments in
question had been enforced while the third 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. Furthermore, 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.
36. The applicant disagreed with the Government's arguments and
maintained his complaints.
37. As regards the argument about the alleged loss of the
victim status by the applicant 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).
38. On the facts, the Court observes that the mere fact that
the authorities complied with the first two judgments 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 third 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.
Accordingly, the Court rejects the Government's objection as to
the loss of victim status.
39. As regards the Government's remaining arguments, the Court
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.
40. 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.
41. 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).
42. The Court notes that the applicant's 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
43. The Government submitted that in view of the fact that the
first two judgments in question had been enforced while the third
judgment had been quashed there has been no violation of the
applicant's Convention rights.
44. The applicant maintained his complaints.
1. Article 6 з 1 of the Convention
45. The Court reiterates that Article 6 з 1 secures to everyone
the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it
embodies the "right to a court", of which the right of access,
that is the right to institute proceedings before courts in civil
matters, constitutes one aspect. However, that right would be
illusory if a Contracting State's domestic legal system allowed a
final, binding judicial decision to remain inoperative to the
detriment of one party. It would be inconceivable that Article 6 з
1 should describe in detail the procedural guarantees afforded to
litigants - proceedings that are fair, public and expeditious -
without protecting the implementation of judicial decisions; to
construe Article 6 as being concerned exclusively with access to a
court and the conduct of proceedings would be likely to lead to
situations incompatible with the principle of the rule of law
which the Contracting States undertook to respect when they
ratified the Convention. Execution of a judgment given by any
court must therefore be regarded as an integral part of the
"trial" for the purposes of Article 6 (see Burdov v. Russia, No.
59498/00, з 34, ECHR 2002-III, and Hornsby v. Greece, judgment of
19 March 1997, Reports 1997-II, p. 510, з 40).
46. The Court further observes that a delay in the execution of
a judgment may be justified in particular circumstances, but the
delay may not be such as to impair the essence of the right
protected under Article 6 з 1. The applicant should not be
prevented from benefiting from the success of the litigation on
the ground of alleged financial difficulties experienced by the
State (see Burdov v. Russia, cited above, з 35).
47. Turning to the instant case, the Court notes that the
judgments dated 19 June 2000, 14 March 2001 and 28 May 2002
remained without enforcement for the respective periods of three
years and seven months, two years and eleven months and one year
and one month. No justification was advanced by the Government for
these delays. By failing for such substantial periods of time to
take the necessary measures to comply with the final judicial
decisions in the present case, the Russian authorities deprived
the provisions of Article 6 з 1 of their useful effect.
48. There has accordingly been a violation of Article 6 з 1 of
the Convention.
2. Article 1 of Protocol No. 1
49. The Court reiterates that a "claim" can constitute a
"possession" within the meaning of Article 1 of Protocol No. 1 if
it is sufficiently established to be enforceable (see Burdov v.
Russia, cited above, з 40, and Stran Greek Refineries and Stratis
Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301-
B, p. 84, з 59). The judgments of 19 June 2000, 14 March 2001 and
28 May 2002 provided the applicant with an enforceable claim and
not simply a general right to receive support from the State. The
judgments had become final as no ordinary appeal was made against
them, and enforcement proceedings had been instituted. It follows
that the impossibility for the applicant to have either decision
enforced for a substantial period of time constituted an
interference with his right to peaceful enjoyment of his
possessions, as set forth in the first sentence of the first
paragraph of Article 1 of Protocol No. 1.
50. In the absence of any justification for such an
interference (see paragraph 49 above), the Court concludes that
there has been a violation of Article 1 of Protocol No. 1.
II. Other alleged violations of the Convention
51. 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.
52. 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 20 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.
53. It must therefore be rejected pursuant to Article 35 зз 1
and 4 of the Convention.
III. Application of Article 41 of the Convention
54. 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
55. The applicant claimed 50,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
56. The Government submitted that the applicant's claims were
excessive and that no award should be made as the judgments in the
applicant's favour had in any event been enforced.
57. 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 3,000 in respect of
non-pecuniary damage.
B. Costs and expenses
58. 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
59. 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. Declared the complaint about lengthy non-enforcement of the
judgments dated 19 June 2000, 14 March 2001 and 28 May 2002
admissible and the remainder of the application inadmissible;
2. Held that there has been a violation of Article 6 of the
Convention;
3. Held that there has been a violation of Article 1 of
Protocol No. 1;
4. Held
(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 3,000 (three
thousand euros) 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. Dismissed the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 20 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
{Bostjan M. ZUPANCIC}
President
Vincent BERGER
Registrar
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