EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHILYAYEV v. RUSSIA
(Application No. 9647/02)
JUDGMENT <*>
(Strasbourg, 6.X.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 Shilyayev 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 Mr S. Quesada, Deputy Section Registrar,
Having deliberated in private on 15 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 9647/02) 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
Anatolyevich Shilyayev ("the applicant"), on 7 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 16 March 2004 the Court decided to communicate the
complaint about the delays in enforcement of the decisions 20 July
and 11 September 2001 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. In this
respect, the Court decided to reject the Government's request to
discontinue the application of Article 29 з 3 of the Convention.
THE FACTS
I. The circumstances of the case
4. The applicant is a Russian national, born in 1959 and living
in the Perm Region.
1. The applicant's conviction and its subsequent reversal
5. By a first instance judgment of 24 October 1997 the Perm
Regional Court sentenced the applicant to nineteen years'
imprisonment for murder and rape. On 19 February 1998 the judgment
was upheld by the Supreme Court and came into force.
6. On 20 January 1999 the Regional Court reversed the
conviction by reference to newly discovered circumstances and
remitted the case for a fresh investigation to a prosecutor. On 8
February 1999 the prosecutor took a decision fully to acquit the
applicant.
2. Proceedings for damages against the State
7. Thereafter the applicant brought court proceedings against
the State, claiming damages for the wrongful conviction and
unlawful detention for twenty months.
8. On 20 July 2001 the Lysva Town Court of the Perm Region
examined and granted his action. The court took account of the
circumstances of the criminal proceedings against the applicant
and his conviction, including total length of his remand in
custody which was of one year, eight months and twenty one days,
and related after-effects, such as personal anxiety, anguish and
feeling of isolation. The applicant was awarded RUR 70,000 (~2,740
euros) in damages to be paid by the Ministry of Finance.
9. On 11 September 2001 the decision was upheld by the Perm
Regional Court and came into force.
3. Enforcement proceedings
10. On an unspecified date the applicant obtained an execution
writ and forwarded it, together with supporting documents, to the
bailiffs' service. By two letters of 30 March and 21 May 2001 the
bailiffs refused to institute enforcement proceedings and returned
the writ and documents to the applicant. They stated, in
particular, that under the legislation in force execution writs
issued against the State should be submitted directly to the
Ministry of Finance (see the relevant domestic law section below).
11. The applicant followed the instruction and applied to the
said Ministry. Upon receipt of the documents on 13 November 2001,
the Ministry discovered that the address and details of the debtor
in the writ had been mistaken. By a letter of 2 June 2002 the
Ministry returned the documents to the applicant.
12. Having obtained an amended writ from the court, on 3
October 2002 the applicant re-submitted the documents. They
reached the Ministry on 11 October 2002. By a letter of 4 June
2003 the Ministry informed the applicant that the new writ was
invalid in that it did not contain a submission period and again
returned him the documents.
13. On 20 June 2003 the applicant sent off the documents and 15
October 2003 the Ministry of Finance transferred him the money due
pursuant to the decisions of 20 July and 11 September 2001.
II. Relevant domestic law
1. Compensation for unlawful conviction
14. Under Sections 151 and 1070 of the Civil Code the State is
liable for damage inflicted as a result of unlawful conviction,
prosecution, detention on remand, imposition of an undertaking not
to leave a place of residence and administrative penalties such as
arrest and correctional works irrespective of whether any such
measure was imposed as a result of relevant officials' misconduct.
2. Enforcement proceedings
15. 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.
16. 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.
17. Under Sections 1 to 4 of the 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 should apply to a relevant branch of
the Federal Treasury holding debtor's accounts.
18. Within the next five days the branch examines the
application as well as the supporting documents. It either accepts
the application in which case it notifies the debtor of the writ,
compelling the latter to abide by the respective court decisions
(Sections 7 to 12) or rejects it as inadmissible on formal grounds
(see Section 5). In the latter case the branch returns the
documents to the creditor within the said time-limit. In case of
the debtor's failure to comply within two months, the branch may
temporarily freeze the debtor's accounts (Section 13).
THE LAW
I. Alleged violation of Article 5 of the Convention
and Article 3 of Protocol No. 7 to the Convention
19. The applicant complained that the court award of 20 July
2001 was insufficient. He relied on Article 5 of the Convention
and Article 3 of Protocol No. 7 which insofar as relevant provide
as follows:
Article 5 з 5
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
Article 3 of Protocol No. 7
"When a person has by a final decision been convicted of a
criminal offence and when subsequently his conviction has been
reversed, or he has been pardoned, on the ground that a new or
newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as
a result of such conviction shall be compensated according to the
law or the practice of the State concerned, unless it is proved
that the non-disclosure of the unknown fact in time is wholly or
partly attributable to him."
20. The Court recalls that the above provisions provide for a
right to compensation of those whose detention was found in breach
of one of the paragraphs of Article 5 of the Convention (see
Solduk v. Turkey, No. 31789/96, Commission decision of 16 April
1998) and a right to compensation for miscarriages of justice,
when an applicant has been convicted of a criminal offence by a
final decision and suffered consequential punishment (see, e.g.,
Nakov v. Macedonia (dec.), No. 68286/01, 24.10.2002). These
Convention provisions do not however prohibit the Contracting
States from making the award of compensation dependent upon the
ability of the person concerned to show damage resulting from the
breach, nor do they actually refer to any specific amounts (see
Wassink v. the Netherlands, judgment of 27 September 1990, Series
A No. 185-A, з 38 and Cumber v. UK, No. 28779/95, Commission
decision of 27 November 1996.
21. On the facts, the Court observes that the domestic
authorities recognised the miscarriage of justice in the
applicant's criminal case, quashed his conviction of 24 October
1997, as upheld on appeal on 19 February 1998, as unlawful and
granted him damages of RUR 70,000 (~2,740 euros) in this
connection. This award does not appear arbitrary or unreasonable
as the courts at two instances carefully examined all relevant
circumstances of the applicant's personal situation including the
nature of the criminal case against him, total length of his
detention and personal after-effects and reached reasoned
conclusions as to the amount of the award. The applicant was fully
able to take part in this procedure and the amount of the award
does not appear disproportionate even in the domestic terms.
22. Having regard to the above, the Court considers this part
of the application manifestly ill-founded within the meaning of
Article 35 з 3 of the Convention. It must therefore be rejected
pursuant to Article 35 з 4.
II. Alleged violation of Article 6 з 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention
23. The applicant complained that the delayed enforcement of
the judgment of 20 July 2001 violated his Convention rights. The
Court will examine this complaint under Article 6 з 1 of the
Convention and Article 1 of Protocol No. 1 which, 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
24. The Government made two objections to the admissibility of
the complaint. Firstly, they alleged that under domestic law it
was open to the applicant to claim enforcement of the judgment in
his favour from the relevant branch of the Ministry of Finance and
also apply to the bailiffs service in the same connection.
According to the Government, the former option provided for a
voluntary execution of the judgment whereas in the latter case the
State would have been compelled to comply with it. They submitted
that the applicant had only used the former option and had failed
to avail himself of the latter one. Accordingly, they invited to
reject the case for the applicant's failure to exhaust. Secondly,
the Government submitted that the judgment in question had already
been enforced and that the applicant was no longer a victim of the
violations alleged.
25. The applicant contested both objections and maintained his
complaints.
26. As regards the first objection, the Court observes that
even assuming that the applicant was required by Article 35 з 1 of
the Convention to apply to the bailiffs' service for execution of
the judgment in his case, it is clear from the case-file that he
did so and by two letters dated 30 March and 21 May 2001
respectively was refused. The objection should therefore be
dismissed.
27. Insofar as the Government's second argument is concerned,
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).
28. The mere fact that the authorities complied with the
judgment after substantial delay cannot be viewed in this case as
automatically depriving the applicant of his victim status under
the Convention. The Court is unable to conclude that the
Government or other domestic authorities have acknowledged the
violations alleged by the applicant and provided redress for them
and thus deprived him of the victim status (see, e.g., Petrushko
v. Russia, No. 36494/02, з 16, 24 February 2005).
29. The Court concludes that this part of 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
30. The Government did not dispute the validity of the judgment
in question and admitted that the authorities were under
obligation to enforce it. They did not present any justification
for the failure to do so.
31. The applicant maintained their complaints.
Article 6 з 1 of the Convention
32. 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 of Judgments and Decisions 1997-II, p. 510,
з 40).
33. 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).
34. Turning to the instant case, the Court notes that the
judgment of 20 July 2001 remained without enforcement for two
years, one month and four days between 11 September 2001 which is
the date on which it came into force and 15 October 2003 when the
money due was paid to the applicant. It is true that the Ministry
of Finance twice rejected his requests for payment on formal
grounds. The Court notes however that each time the reason for
refusal was an informality of the writ issued by the domestic
court and it is difficult to see how and whether at all the
resulting delays may be attributable to the applicant. Even
assuming that both refusals occurred through the applicant's own
fault, it took the Ministry six months and nineteen days and seven
months and twenty-four days respectively to respond to the
applicant's requests. These delays are in flagrant disregard of
the respective domestic rules (see з 18 above) which require the
Ministry to examine and answer the applications within the five
days and the Government failed to advance any arguments to justify
them.
35. Having regard to the above, the Court concludes that by
failing for such a substantial period of time to take the
necessary measures to comply with the final judicial decision in
the present case, the Russian authorities deprived the provisions
of Article 6 з 1 of their useful effect.
36. There has accordingly been a violation of Article 6 з 1 of
the Convention.
Article 1 of Protocol No. 1 to the Convention
37. 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 judgment of 20 July 2001 provided the
applicant with enforceable claim, it had become final as no
further ordinary appeal laid against it, and enforcement
proceedings had been instituted. It follows that the impossibility
for the applicant to have the judgment enforced for a substantial
period of time constitutes 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.
38. By failing to comply with above judgment, the national
authorities prevented the applicant from receiving his award. The
Government have not advanced any justification for the failure to
do so.
39. There has accordingly been a violation of Article 1 of
Protocol No. 1 to the Convention.
III. Application of Article 41 of the Convention
40. 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
41. The applicant claimed a just satisfaction of EUR 100,000.
42. The Government considered that the amount claimed was
unreasonable and excessive.
43. The Court does not discern any causal link between the
violation found and the extensive amount of the pecuniary damage
alleged; it therefore rejects this claim. On the other hand, it
accepts that the applicant must have suffered distress because of
the State's failure timely to enforce the judgment in question and
awards the applicant EUR 3,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on this amount.
B. Costs and expenses
44. The applicant made no claims under this head.
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 complaint about the prolonged non-enforcement
of the judgment of 20 July 2001 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;
3. Holds
(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) be converted into the Russian roubles at the rate
applicable at the date of settlement in respect of non-pecuniary
damage, plus any tax that may be chargeable on the above amount;
(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 6 October 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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