EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF DENISENKOV v. RUSSIA
(Application No. 40642/02)
JUDGMENT <*>
(Strasbourg, 22.IX.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 Denisenkov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 30 August 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 40642/02) 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 Vladimir
Nikolayevich Denisenkov ("the applicant"), on 28 October 2002.
2. The applicant was represented by Mr K. Krakovskiy, a lawyer
practising in Rostov-on-Don. 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 4 February 2002 the Court decided to communicate the
complaint about the alleged non-execution of the judgment of 18
October 1999 and decision of 22 October 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.
THE FACTS
I. The circumstances of the case
4. The applicant was born in 1953 and lives in Rostov-on-Don.
5. In 1987 he took part in emergency operations at the site of
the Chernobyl nuclear plant disaster. As a result the applicant
suffered from extensive exposure to radioactive emissions.
6. On an unspecified date the applicant underwent medical
examinations which established the link between the applicant's
poor health and his involvement in the Chernobyl events. In 1994
the applicant was awarded compensation, to be paid monthly.
1. First set of proceedings
7. In 1999 the applicant sued a local pension authority
(Муниципальное учреждение социальной защиты населения
Первомайского района г. Ростова-на-Дону - "the defendant")
requesting to increase his monthly compensation, backdate the
increase and recover the unpaid amount. The applicant considered
that the amount of compensation had been determined incorrectly.
8. On 18 October 1999 the Pervomayskiy District Court of Rostov-
on-Don ("the District Court") granted the applicant's claim and
ruled that since 1 January 1999 his monthly compensation had been
wrongly calculated. The court awarded the applicant the arrears of
RUR 15,829.25 for the period between 1 January and 1 November 1999
and decided that as of 1 November 1999 the applicant was entitled
to a monthly compensation of RUR 2,440.70, to be index-linked in
line with changes of the minimum monthly wage.
9. The judgment of 18 October 1999 was not appealed against by
the parties and came into force on 29 October 1999.
2. Enforcement proceedings in
respect of the judgment of 18 October 1999
10. On 6 December 1999 the bailiffs instituted enforcement
proceedings in respect of the judgment of 18 October 1999.
11. Some time later the enforcement proceedings were terminated
by reference to the lack of funding. On 22 March 2001 the bailiffs
returned the writ and documents to the applicant. They referred to
Decree No. 143 dated 22 February 2001 (see the relevant domestic
law section below) and invited him to submit the documents to a
local department of the Ministry of Finance (ОФК по Первомайскому
району г. Ростова-на-Дону).
12. The applicant followed this invitation and on the same day
applied to the local department of the Ministry which four days
later rejected the application. It appears that the applicant was
invited to fetch a renewed writ of execution from the District
Court.
13. Having received the renewed writ from the court, the
applicant re-submitted the documents to the Ministry which on 11
April 2001 rejected them, this time by reference to the absence of
the defendant's account at the Ministry.
14. On 30 May and 1 July 2002 respectively the authorities
transferred a total amount of RUR 38.661,22 in the applicant's
favour and informed him that the enforcement of the judgment of 18
October 1999 was thus finalised.
15. It appears that the applicant disagreed. He informed the
authority that they had failed to index-link his monthly
compensation in line with the minimum monthly wage, as it was
ordered by the judgment of 18 October 1999, and used a less
favourable scheme of indexation.
16. On unspecified date the authority requested the District
Court to interpret the judgment of 18 October 1999 and uphold its
scheme of indexation.
17. By a decision of 6 March 2003 the District Court examined
and granted the authority's request. The decision was upheld on
appeal by the Regional Court on 16 April 2003.
18. On 3 June 2003 the bailiffs ruled that the defendant
authority had duly enforced the judgment of 18 October 1999 and
terminated the enforcement proceedings accordingly.
19. Thereafter the applicant challenged both decisions by way
of supervisory review.
20. On 3 June 2004 the Regional Court, acting as a supervisory
review instance, quashed the decision of 6 March 2003 as unlawful
and remitted the request for interpretation for a fresh
examination at the first instance. The court noted, in particular,
that by accepting the authority's interpretation of the judgment
of 18 October 1999 the District Court had in fact varied its
content and thus had acted unlawfully.
21. On 5 July 2004 the District Court rejected the authority's
request for interpretation as unfounded.
22. By first instance decision of 2 September 2004 which was
upheld on appeal on 13 October 2004 the applicant was issued with
a renewed writ of execution.
23. On 28 November 2004 the bailiffs re-instituted enforcement
proceedings in respect of the judgment of 18 October 1999 and
requested the authority to enforce it insofar as the judgment had
ordered indexation of the applicant's monthly compensation.
3. Second set of proceedings
24. On an unspecified date the applicant brought proceedings
against the pension authority claiming indexation for the delay of
execution of the judgment of 18 October 1999.
25. On 11 May 2001 the Justice of the Peace of the Pervomayskiy
District examined and granted his claim. It ordered the authority
to pay the applicant RUR 3,562.13 in damages for the period
between 1 November 1999 and 1 February 2001 and the arrears of RUR
18,556.24.
26. The judgment of 11 May 2001 was varied on appeal by the
District Court on 22 October 2001. In particular, the court
ordered the authority to pay the applicant RUR 6,341.73 in damages
for the period between 1 November 1999 and 1 September 2001 as
well as the arrears for the period from 1 November 1999 and 1
September 2001 of RUR 8,505.47. The decision of 22 October 2001
came into force on the same day.
4. Enforcement proceedings in respect
of the decision of 22 October 2001
27. On 11 November 2001 the bailiffs instituted enforcement
proceedings in relation to the decision of 22 October 2001. It
appears that the defendant refused to comply with it by reference
to the lack of funds and its disagreement with the amount of
award.
28. The decision of 22 October 2001 was enforced by the
authorities by a bank transfer of 1 July 2002.
5. Third set of proceedings
29. On an unspecified date the applicant brought a fresh claim
against the pension authority for an increase of his monthly
compensation.
30. By judgment of 25 December 2002 the District Court rejected
the claim as unsubstantiated. On 26 March 2003 the judgment was
upheld on appeal by the Rostov Regional Court.
6. Fourth set of proceedings
31. On an unspecified date the applicant brought a fresh claim
against the authority in which he requested additional damages for
non-enforcement of the judgment of 18 October 1999 and the
decision of 22 October 2001. The applicant also referred to the
authority's failure to index-link the award of 18 October 1999 in
line with changes of the minimum monthly wage and requested
compensation in this respect as well.
32. By decision of 25 April 2003 the District Court granted the
application in part. By reference to the decision of 6 March 2003
(see з 17 above) the court rejected his claim for an increase of
the award of 18 October 1999 in line with changes of the minimum
monthly wage. In respect of the delay in enforcement of the
judgment of 18 October 1999, the court ordered the authority to
pay the applicant RUR 3,065.95 in damages for the period between
September 2001 and 1 June 2002. As regards the decision of 22
October 2002, the court ordered RUR 2,722.88 in damages in the
applicant's favour for the period from November 2001 to July 2002.
33. On 23 July 2003 the Regional Court upheld the decision of
25 April 2003 on appeal.
34. It appears that the decision of 25 April 2003 was enforced
in full on 26 April 2004.
7. Fifth set of proceedings
35. On an unspecified date the applicant applied to a court
referring to the authority's failure to abide by the judgment of
18 October 1999 insofar as the latter had ordered to index-link
the applicant's compensation in line with the minimum monthly
wage.
36. Having adopted a different scheme of indexation from the
one suggested by the applicant and set out in the judgment of 18
October 1999, on 18 December 2003 the District Court partly
granted his claim and ordered the authority to pay the arrears of
RUR 28,947.24.
37. The judgment of 18 December 2003 was upheld on appeal in
full on 10 March 2004. The amount due to the applicant in this
connection was paid on 13 September 2004.
II. Relevant domestic law
38. 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.
39. 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.
40. 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).
41. 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 (Section
13).
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention
42. The applicant complained that the prolonged non-enforcement
of the judgment of 18 October 1999 and the decision of 22 October
2001 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 to the Convention.
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
43. The Government submitted that the decisions in question had
been enforced. 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.
44. The applicant disagreed with the Government's arguments and
maintained his complaints. As regards the loss of the victim
status, he submitted that the judgment of 18 October 1999 remained
non-enforced in part relating to indexation of the applicant's
monthly compensation in line with the minimum monthly wage.
45. The Court, firstly, 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).
46. In the instant case, after a few years of the authorities'
failure to make regular payments the applicant brought two new
successful sets of proceedings seeking a retrospective increase of
the arrears. Had the judgment of 18 October 1999 been duly and
fully enforced, these decisions, dated 22 October 2001 and 25
April 2003 respectively, could arguably have deprived the
applicant of his victim status in respect of the State's previous
failure to comply with the judgment.
47. However, as it follows from the information available to
the Court on the developments of the case the enforcement
proceedings in respect of the judgment of 18 October 1999 in part
relating to indexation of the applicant's monthly compensation
with the minimum monthly wage were still pending on 28 November
2004 and it remains unclear whether until now the authorities have
fully complied with the judgment.
48. Having regard to the fact that the judgment of 18 October
1999 remained in part non-enforced for at least another year and a
half after the latest decision on compensation for the delay had
been taken and to the fact that it is still unclear whether it has
been executed, 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.
49. The Court observes that this 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
50. The Government submitted that in view of the fact that the
decisions in question had been enforced there has been no
violation of the applicant's Convention rights.
51. The applicant maintained his complaints.
1. Article 6 з 1 of the Convention
52. 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).
53. 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).
54. Turning to the instant case, the Court notes that in its
larger part the judgment of 18 October 1999 remained inoperative
for about two years and seven months, including more than eight
months after the decision of 22 October 2001 had been pronounced
to redress the non-enforcement of the first one. In part relating
to the applicant's claim to index-link his monthly compensation in
line with inflation, the judgment of 18 October 1999 remained
inoperative at least until 28 November 2004. 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.
55. There has accordingly been a violation of Article 6 з 1 of
the Convention.
2. Article 1 of Protocol No. 1 to the Convention
56. 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 18 October 1999 and the decision
of 22 October 2001 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.
57. In the absence of any justification for such an
interference (see paragraph 54 above), the Court concludes that
there has been a violation of Article 1 of Protocol No. 1 to the
Convention.
II. Other alleged violations of the Convention
58. Insofar as the applicant is dissatisfied with the amount of
the court award in the third set of proceedings, the Court recalls
that, in principle, it is not called upon to examine the alleged
errors of law and fact committed by the domestic judicial
authorities, insofar as no unfairness of the proceedings can be
detected (see, e.g., Daktaras v. Lithuania (dec.), No. 42095/98,
11.01.2000). In the proceedings at issue the domestic courts at
two levels of jurisdiction carefully examined the materials in
their possession and reached reasoned conclusions as to the merits
of the applicant's claim. Throughout the proceedings the applicant
was fully able to state his case and contest the evidence that he
considered false. Moreover, the Court observes that, in principle,
it cannot substitute itself for the national authorities in
assessing or reviewing the level of financial benefits available
under a social assistance scheme (see Pancenko v. Latvia (dec.),
No. 40772/98, 28.10.1999 and Larioshina v. Russia (dec.), No.
56869/00, 23.04.2002).
59. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 35 з 3 of the
Convention. Accordingly, it must be rejected pursuant to Article
35 з 4 of the Convention.
III. Application of Article 41 of the Convention
60. 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
61. The applicant claimed one time payment of EUR 12,770 and
monthly payments of RUR 17,538 with further indexation as of 1
April 2004 in respect of pecuniary and EUR 13,750 in respect of
non-pecuniary damage.
62. The Government considered these claims as wholly excessive
and unreasonable. They submitted that a finding of a violation
alone would constitute a sufficient just satisfaction.
63. The Court does not discern any causal link between the
violations found and the amounts of the pecuniary damage alleged
and also considers that the applicant's claims are not
substantiated by any documentary evidence. Accordingly, it rejects
this part of the claim. On the other hand, the Court accepts that
the applicant suffered distress because of the State authorities'
failure timely to enforce the decisions in question. However, the
amounts claimed in respect of non-pecuniary damage appear
excessive. The Court takes into account the award made in the
Burdov v. Russia case (cited above, з 47), such factors as the
applicant's age, personal income, the nature of the awards in the
present case, i.e. arrears in respect of the increase of monthly
compensation for participation in rescue operations at the site of
the Chernobyl nuclear disaster, the length of the enforcement
proceedings, and other relevant aspects. Making its assessment on
an equitable basis, it awards the applicant EUR 3,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on
these amounts.
B. Costs and expenses
64. The applicant sought reimbursement of his costs and
expenses incurred before the domestic authorities and the Court.
However, he has neither quantified the amount nor submitted any
receipts or other vouchers on the basis of which such amount could
be established. Accordingly, the Court does not make any award
under this head.
C. Default interest
65. 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 concerning the delays in execution of
the judgment of 18 October 1999 and the decision of 22 October
2001 in the applicant's favour admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article 6 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), to be converted into Russian roubles at a rate
applicable at the date of settlement, in respect of non-pecuniary
damage and 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
amounts 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 22 September 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} <*> NIELSEN
Registrar
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<*> Слово на национальном языке набрано латинским шрифтом и
выделено фигурными скобками.
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