EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF GERASIMOVA v. RUSSIA
(Application No. 24669/02)
JUDGMENT <*>
(Strasbourg, 13.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 Gerasimova v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
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,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 22 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 24669/02) 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, Ms Galina
Petrovna Gerasimova ("the applicant"), on 20 May 2002.
2. The Russian Government ("the Government") were represented
by their Agent, Mr Pavel Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant alleged that the judgment of the Commercial
Court of the Samara Region of 4 September 1995 had not been
executed by the State.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a partial decision of 13 November 2003, the Court
declared the application partly inadmissible and communicated the
complaint concerning the failure to execute the judgment of the
Commercial Court of the Samara Region of 4 September 1995 to the
respondent Government. By a decision of 16 September 2004, the
Court declared the remainder of the application admissible.
6. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
7. The applicant and the Government each filed observations on
the merits (Rule 59 з 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 з 3 in fine), the parties replied in writing to each
other's observations.
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1953 and lives in Chapayevsk,
Samara Region.
9. On 4 September 1995 the Commercial Court of the Samara
Region (Арбитражный суд Самарской области) granted a claim by the
applicant's employer - a private company - for recovery of damages
against the Chapayevsk Social Security Service (Управление
социальной защиты населения администрации г. Чапаевска).
10. On 15 August 1997 the applicant's employer assigned her a
part of the judgment debt in the amount of RUR 114,000,000 towards
salary due <*>. The applicant applied to the Chapayevsk Town Court
of the Samara Region for execution of the judgment on 29 May 1998.
-------------------------------
<*> The amount is indicated without regard to the revaluation
of 1998. In accordance with the Presidential Decree "On the
Modification of the Face Value of Russian Currency and Standards
of Value" of 4 August 1997, 1,000 "old" roubles became 1 "new"
rouble as of 1 January 1998.
11. It appears that by 2001 only the amount of RUR 16,000 <*>
has been paid to the applicant. As the judgment had not been
executed in full, in 2001 she filed a claim with the Chapayevsk
Town Court of the Samara Region against the Chapayevsk Social
Security Service for recovery of the sum with interest.
-------------------------------
<*> The amount is indicated with regard to the revaluation of
1998. It thus corresponded to 16,000,000 "old" roubles.
12. The Chapayevsk Town Court of the Samara Region dismissed
the claim on 5 April 2001 on the ground that the applicant had
failed to substantiate her calculation of the amount of the
interest. On 19 September 2001 the Presidium of the Samara
Regional Court, following an application for supervisory review
lodged by the President of the Samara Regional Court, quashed the
judgment of 5 April 2001 and remitted the case for a fresh
examination.
13. On 21 June 2002 the Chapayevsk Town Court of the Samara
Region dismissed the claim and indicated that the execution of
judgment by the Chapayevsk Social Security Service had been
carried out according to the sums allocated from the budget. Thus,
in 2000 the budget estimate provided for RUR 16,000 to be paid in
instalments during that year. The estimate for 2001 provided for
RUR 5,000 to be paid to the applicant, and the estimate for 2002
provided for RUR 12,000, out of which RUR 5,000 was paid to the
applicant as of 1 June 2002. The outstanding debt remained at RUR
87,445.
It is not clear whether any further payments have been made.
THE LAW
I. Alleged violation of Article 6 of the Convention
and Article 1 of Protocol No. 1
14. The applicant complained under Article 6 з 1 of the
Convention and Article 1 of Protocol No. 1 that the State had
failed to execute fully and in due time the judgment of the
Commercial Court of the Samara Region of 4 September 1995.
Article 6 of the Convention, in so far as relevant, reads as
follows:
"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 to the Convention reads as follows:
"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."
15. The Government, in their additional observations of 12
January 2005 following the Court's decision on admissibility of 16
September 2004, insisted that the Russian Federation could not be
held responsible for non-execution of the judgment against the
Chapayevsk Social Security Service as this was a municipal
institution and not a State organisation. They further reiterated
that the applicant had failed to exhaust domestic remedies as she
had not applied to the bailiffs' service for enforcement of the
judgment. The Government furnished statistical data concerning the
efficiency of the bailiffs' service in the Russian Federation and,
in particular, in Chapayevsk in 1998 and 1999. In this respect
they also submitted that the present case was substantially
different from the case of Burdov v. Russia (No. 59498/00, ECHR
2002-III), since the judgment in question did not concern payment
of social benefits. The Government made no submissions on the
merits of the case.
16. The applicant contended that she had applied to the
bailiffs' service in due course and that the Russian Federation
was responsible for non-execution of the judgment.
17. The Court observes that it has examined and rejected the
Government's objections in its decision on admissibility of 16
September 2004. The Government did not make any new submissions
that would warrant a fresh examination of the same issues. In
particular, the general statistics concerning the efficiency of
the bailiffs' service in 1998 and 1999 is not relevant for the
case at hand since in the aforementioned decision the Court found
that the execution of the judgment was prevented by the failure to
make adequate budgetary provisions by appropriate legislative
measures, over which the bailiffs could not possibly have any
control. The Court further observes that nothing in the Burdov
case suggests that the application of principles concerning the
execution of a final judgment established in the Court's case-law
(see, among others, Hornsby v. Greece, judgment of 19 March 1997,
Reports of Judgments and Decisions 1997-II, p. 510, з 40, and
Immobiliare Saffi v. Italy [GC], No. 22774/93, з 74, ECHR 1999-V)
is limited to instances related to payment of social benefits. In
any event, the Court reiterates that, according to Rule 55 of the
Rules of Court, any plea of inadmissibility must be raised by the
respondent Contracting Party in its written or oral observations
on the admissibility of the application rather than during the
procedure on the merits (see K. and T. v. Finland [GC], No.
25702/94, з 145, ECHR 2001-VII, and N.C. v. Italy [GC], No.
24952/94, з 44, ECHR 2002-X). The Government's objection must
therefore be dismissed.
18. Turning to the merits of the case, the Court notes that on
15 August 1997, pursuant to the assignment of claims, the
applicant became a creditor in the amount of RUR 114,000,000 under
the final judgment of 4 September 1995 of the Commercial Court of
Samara Region against the Chapayevsk Social Security Service. On
21 June 2002, when the Chapayevsk Town Court of the Samara Region
dismissed the applicant's claim for recovery of the sum under the
judgment with interest due to the failure to execute it, the
outstanding amount came to RUR 87,445. The judgment has not to
date been fully executed, which is not in dispute by the parties.
19. The Court further observes that, as is apparent from the
judgment of the Chapayevsk Town Court of the Samara Region of 21
June 2002, the judgment has not been executed because the
Chapayevsk Social Security Service had no cash funds since the
sums allocated to it from the town budget were insufficient. The
applicant was thus precluded from receiving the judgment debt
until the local authority had made appropriate budgetary
provisions. It does not appear, however, that the local authority
has taken adequate measures to comply with the judgment. In fact,
the judgment has not been fully executed to date, that is more
than ten years since it became enforceable and more than eights
years since the applicant acquired rights under the judgment. The
Government did not offer any justification for that omission.
20. 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 Burdov, cited
above, з 34 et seq.; Wasserman v. Russia, No. 15021/02, з 35 et
seq., 18 November 2004; and Poznakhirina v. Russia, No. 25964/02,
з 22 et seq., 24 February 2005).
21. Having examined the material submitted to it, the Court
notes that the Government have 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 her from receiving the money she could
reasonably have expected to receive.
22. There has accordingly been a violation of Article 6 of the
Convention and Article 1 of Protocol No. 1.
II. Application of Article 41 of the Convention
23. 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
24. The applicant claimed USD 638,000 in respect of pecuniary
damage, of which USD 40,000 was for the principal amounts awarded
by the judgment of the Commercial Court of the Samara Region of 4
September 1995 and also by a judgment of 2 October 1996. The
outstanding part of the amount claimed related to alleged damage
to the applicant's property caused by State authorities, the poor
state of the environment the applicant had to live in, a fine
allegedly imposed on her in 1994 - 1995 and items allegedly seized
in the course of searches of the applicant's flat conducted in
1999 - 2001. The applicant further submitted that she had suffered
non-pecuniary damage as a result of the authorities' failure to
execute the judgment of 4 September 1995 and also a failure to
execute the judgment of 2 October 1996 in full in due time, but
did not specify her claims in that respect.
25. The Government submitted that the applicant's claims
relating to the failure to execute the judgment of the Commercial
Court of the Samara Region of 4 September 1995 were excessive and
unsubstantiated. They considered the rest of the claims, including
those relating to the complaints that the Court declared
inadmissible by the partial decision on admissibility of 13
November 2003, to be irrelevant. In the Government's view, the
finding of a violation would constitute sufficient compensation in
the present case.
26. The Court notes that the State's outstanding obligation to
enforce the judgment of the Commercial Court of the Samara Region
of 4 September 1995 is not in dispute. Accordingly, the applicant
is still entitled to recover the principal amount of the debt in
the course of domestic proceedings. The Court recalls that the
most appropriate form of redress in respect of a violation of
Article 6 is to ensure that the applicant as far as possible is
put in the position he would have been in had the requirements of
Article 6 not been disregarded (see Makarova and Others v. Russia,
No. 7023/03, з 47, 24 February 2005 and Poznakhirina v. Russia,
No. 25964/02, з 33, 24 February 2005). The Court finds that in the
present case the same principle applies, having regard to the
violations found. It therefore considers that the Government
should secure, by appropriate means, the enforcement of the award
made by the domestic courts. For this reason the Court does not
find it necessary to make an award for pecuniary damage in so far
as it relates to the principal amount.
27. As regards the remainder of the applicant's claims for
pecuniary damage, the Court notes, firstly, that by the partial
decision on admissibility of 13 November 2003 it declared the
applicant's complaints concerning the alleged failure to execute
the judgment of the Commercial Court of the Samara Region of 2
October 1996 and the search of the applicant's flat inadmissible.
The other claims made by the applicant do not relate to the
subject of the present proceedings. Accordingly, the Court rejects
the applicant's claim for pecuniary damage.
28. On the other hand, the Court accepts that the applicant
suffered distress because of the State authorities' failure to
enforce the judgment at issue. The Court takes into account the
amount and nature of the award, the lengthy period of the
authorities' inactivity and the fact that the judgment has not
been fully enforced. Making its assessment on an equitable basis,
it awards the applicant EUR 2,400 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
29. The applicant did not make any claims in respect of the
costs and expenses incurred before the domestic courts and before
the Court.
30. Accordingly, the Court makes no award under this head.
C. Default interest
31. 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. Holds that there has been a violation of Article 6 of the
Convention;
2. Holds that there has been a violation of Article 1 of
Protocol No. 1;
3. Holds
(a) that the respondent State, within three months from the
date on which the judgment becomes final in accordance with
Article 44 з 2 of the Convention, shall secure, by appropriate
means, the enforcement of the awards made by the domestic courts,
and in addition pay the applicant EUR 2,400 (two thousand four
hundred euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, 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;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 13 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
In accordance with Article 45 з 2 of the Convention and Rule 74
з 2 of the Rules of Court, the concurring opinion of Mr Kovler is
annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE KOVLER
Whereas I concur with the Chamber's finding that there has been
a violation of Article 6 of the Convention on account of a lengthy
non-enforcement of a judicial decision in the applicant's favour
and, as a consequence, a violation of Article 1 of Protocol No. 1,
I would like to discuss in more detail the Government's objection
to the admissibility of the application founded on the premise
that self-government (municipal) bodies do not form part of the
system of State bodies by virtue of Article 12 of the Russian
Constitution (see paragraph 15 of the judgment) and, consequently,
the State is not responsible for the acts of the Chapayevsk Social
Security Service.
1. As the national judge, I bear witness to many discussions
about Article 12 of the Constitution and, especially, of its
provision that "local self-government bodies shall not form part
of the system of State bodies". Contradictory interpretations of
that provision were given in the light of Article 132 з 2 of the
Constitution which conferred public-law functions on the local
self-government bodies: "Local self-government bodies may be
vested by law with certain State functions and accordingly receive
material and financial resources which are necessary for their
implementation. The implementation of the State functions shall be
controlled by the State".
It is understood that the Chapayevsk Social Security Service
exercised precisely public-law functions, including the social
protection of the population, even though emoluments were payable
from the local rather than federal budget.
2. The protection of social rights of individuals is an
integral part of the general system for the protection of human
rights which, under the Russian Constitution, is either under the
exclusive jurisdiction of the federation (Article 71) or under the
joint jurisdiction of the federation and its constituent entities
(Article 72), but never, and I emphasise - never, under the
exclusive jurisdiction of a constituent entity.
If it were otherwise, the State would not be responsible for
ensuring effective respect for many individual rights, including
those enshrined in Article 1 of Protocol No. 1. Obviously, such a
construction would be contrary to Article 1 of the Convention and
to the "ordinary meaning" of the term "jurisdiction". Explaining
the meaning of Article 1 of the Convention, the Court noted that
it "makes no distinction as to the type of rule or measure
concerned, and does not exclude any part of the member States'
"jurisdiction" from scrutiny under the Convention" (Matthews v.
the United Kingdom [GC], No. 24833/94, з 29, ECHR 1999-I).
I will not speculate about a possible breach of the "vertical
of power". If the term "jurisdiction" is to be linked to the
concept of "responsibility", the argument that a State is not
responsible for the acts (failures to act) of the agencies located
within its territory, even if those are municipal agencies, is
unsustainable. Indeed, as the Court noted on many occasions, a
State is not responsible for the obligations of "third parties",
such as private individuals, companies or banks (see, among
others, Shestakov v. Russia (dec.), No. 48757/99, 18 June 2002).
However, it is highly unlikely that the Court would include
municipal bodies in that category of "third persons", even having
regard to the respondent State's margin of appreciation.
Once the Court rejected the argument by a State that denied its
responsibility for the acts of the independent judicial
authorities: "In all cases before the Court, what is in issue is
the international responsibility of the State" (Lukanov v.
Bulgaria, judgment of 20 March 1997, Reports of Judgments and
Decisions 1997-II, з 40).
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