EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF YAVORIVSKAYA v. RUSSIA
(Application No. 34687/02)
JUDGMENT <*>
(Strasbourg, 21.VII.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 Yavorivskaya 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 30 June 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 34687/02) 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 Ukrainian national, Ms Natalya
Alimpiyevna Yavorivskaya, on 18 August 2002.
2. The applicant was represented by Mr M. Karchevskiy, a lawyer
practising in Ternopil, Ukraine. The Russian Government ("the
Government") were represented by Mr P. Laptev, Representative of
the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, a violation of her
Convention rights in that a final judgment in her favour had not
been enforced.
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 decision of 13 May 2004, the Court declared the
application partly 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 Government, but not the applicant, filed observations on
the merits (Rule 59 з 1). The Ukrainian Government did not
exercise their right to intervene (Rule 36 з 1 of the Convention).
THE FACTS
The circumstances of the case
8. The applicant was born in 1965 and lives in Ternopil,
Ukraine.
9. From 1996 to 2000 the applicant and her family lived and
worked in the Chukotka Region in the Russian Federation.
10. In the winter of 1998 the applicant was taken to a hospital
in the town of Bilibino. According to the applicant, local doctors
failed to diagnose her correctly and provide adequate treatment;
as a result her health was seriously damaged.
11. In August 1998 the applicant brought a medical malpractice
suit against the municipal health protection institution "Bilibino
Central District Hospital" (муниципальное учреждение
здравоохранения "Билибинская центральная районная больница").
12. On 21 February 2000 the Bilibinskiy District Court of the
Chukotka Region allowed the applicant's action and awarded her RUR
60,000 (EUR 2,109). The judgment was not appealed against and on 1
March 2000 it became final and enforceable.
13. After the hospital had failed to pay the judgment debt for
over a year the applicant sent complaints to the President of the
Russian Federation, the Minister of Health, the Court Bailiffs'
Service and other authorities.
14. On 15 November 2001 the Chukotka Regional Department of the
Ministry of Justice (in charge of the court bailiffs) advised the
applicant as follows:
"... it was established that the debtor had no cash funds in
its accounts. According to its founding documents, the debtor is
an institution and, pursuant to Article 120 of the Civil Code, an
institution is only liable to the extent of its cash funds.
Article 298 з 1 of the Civil Code provides that an institution may
not alienate or otherwise dispose of the property attached to it
or of the property acquired at the expense [of its owner].
In accordance with Information Letter No. 45 of the Presidium
of the Supreme Commercial Court of the Russian Federation of 14
July 1999 "On the recovery out of the property of an institution",
if the debtor, who is an institution, lacks cash funds, then
recovery is not possible out of the other property assigned to the
institution by its owner..."
15. The Justice Department further informed the applicant that
the enforcement proceedings had been closed on 30 November 2000
because the enforcement had been impossible, but it was open for
the applicant to initiate the enforcement proceedings again.
16. On 29 November 2001 the Chukotka Regional Department of the
Ministry of Justice forwarded the applicant's complaint to the
chief court bailiff of the Bilibino District, for enforcement.
17. On 10 December 2001 the Chukotka Regional Department of the
Ministry of Justice responded to the applicant and gave the same
explanation as in the letter of 15 November 2001. It also added
that in respect of the hospital there were several other
enforcement proceedings having the first and second rank, whilst
the applicant's claim only had the fifth rank.
18. On 18 January 2002 a court bailiff confirmed again that the
hospital had no cash funds and that the recovery could not be made
out of its property.
19. On 28 January 2002 the bailiff required the Bilibino
clearing centre to seize the cash funds of the hospital.
20. On 6 February 2002 the bailiff determined that the
enforcement was not possible due to the debtor's lack of funds.
The enforcement proceedings were definitively closed and the writ
of execution was returned to the applicant.
THE LAW
I. Alleged violation of Article 6
of the Convention and Article 1 of Protocol No. 1
21. The applicant complained that the judgment of 21 February
2000 has not been enforced. The Court has considered that these
complaints fall to be examined under Article 6 з 1 of the
Convention and Article 1 of Protocol No. 1 (see Burdov v. Russia,
No. 59498/00, з 26, ECHR 2002-III). Article 6, in the relevant
part, provides 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 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."
22. The Government, in their additional observations of 30
August and 18 October 2004 following the Court's decision as to
the admissibility of the application on 13 May 2004, insisted that
the applicant should have sued the bailiffs in tort and/or
attempted to recover the amounts outstanding from the hospital
owner (the local authority) which was vicariously liable for the
hospital debts. The Government made no comments on the merits of
the case.
23. The Court recalls that it has examined and rejected these
objections by the Government in its decision as to the
admissibility of the application on 13 May 2004. The Government
did not furnish any new elements that would warrant a fresh
examination of the same issues. 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,
most recently, Prokopovich v. Russia, No. 58255/00, з 29, ECHR
2004-... (extracts), with further references). The Government's
objection must therefore be dismissed.
24. Turning to the merits of the case, the Court observes that
on 21 February 2000 the applicant obtained a judgment in her
favour against the municipal hospital. As no appeal was lodged
within the established time-limit, the judgment became final and
enforceable. However, it has not been enforced to date.
25. The Court notes that the debtor in the instant case has
been a municipal institution owned and funded by the local
authority. According to the established case-law of the Convention
organs, agencies of local self-government are State organisations
in the sense that they are governed by public law and exercise
public functions vested in them by the Constitution and the laws.
The Court reiterates that under the international law the term
"State organisation" is not limited only to organs of the central
Government. In cases where State power is decentralised it extends
to any national authority which exercises public functions (see
Gerasimova v. Russia (dec.), No. 24669/02, 16 September 2004; see
also Zhovner v. Ukraine, No. 56848/00, з 37, 29 June 2004; Piven
v. Ukraine, No. 56849/00, з 39, 29 June 2004). Accordingly, the
Court finds that the State has been responsible for the debt
arising from the judgment of 21 February 2000.
26. The Court further notes that the judgment has not been
enforced because the hospital had no cash funds and, according to
the interpretation of the applicable laws given by the regional
Justice Department, recovery of debts from the other property was
forbidden. Thus, the applicant was in a stalemate as she could not
receive the judgment debt until such time as the local authority
has credited the necessary amount to the hospital's bank account.
It does not appear, however, that the local authority has taken
any measures to comply with the judgment. In fact, the judgment
has remained without enforcement to date, that is for more than
five years since it was issued. The Government did not offer any
justification for that omission.
27. 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 Gizzatova,
cited above, з 19 et seq.; Wasserman v. Russia, No. 15021/02, з 35
et seq., 18 November 2004; Zhovner and Piven, cited above, з 37 et
seq.; Burdov, cited above, з 34 et seq.).
28. 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.
29. 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
30. 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
31. In respect of the pecuniary damage, the applicant claimed
the amount due to her under the judgment of 21 February 2000 which
would have been equivalent to 10,000 US dollars before the sharp
devaluation of the Russian currency in August 1998. She claimed a
further 10,000 euros (EUR) in respect of non-pecuniary damage.
32. The Government did not comment.
33. The Court reiterates 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 in which
he would have been had the requirements of Article 6 not been
disregarded (see Piersack v. Belgium (Article 50), judgment of 26
October 1984, Series A No. 85, p. 16, з 12; and, mutatis mutandis,
{Gencel} v. Turkey, No. 53431/99, з 27, 23 October 2003). The
Court observes that the enforcement proceedings in the present
case were finally closed in 2002 and neither party has indicated
any possibility for their re-opening. Accordingly, the enforcement
of the judgment of 21 February 2000 is no longer possible. This
indicates the existence of a causal link between the violation
found and the alleged pecuniary damage. However, noting the fact
that the judgment was given in 2000, that is almost two years
after the devaluation of the Russian currency in August 1998, the
Court does not discern a causal link between the violation found
and the applicant's claim to the pre-devaluation equivalent of the
judgment debt in US dollars. Having regard to the above
considerations, the Court awards the applicant EUR 2,109 in
respect of the pecuniary damage, plus any tax that may be
chargeable on that amount.
34. The Court also accepts that the applicant suffered distress
because of the State authorities' failure to enforce a judgment in
her favour. However, the amount claimed in respect of non-
pecuniary damage appears excessive. The Court takes into account
the amount and nature of the award in the instant case, that is
compensation for medical malpractice, a long period of the
authorities' inactivity, and the fact that the judgment has not
been enforced. Making its assessment on an equitable basis, it
awards the applicant EUR 4,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
35. The applicant claimed EUR 200 for the purchase of medicine,
EUR 300 for the legal representation before the Court and EUR 100
for secretarial and postal expenses.
36. The Government did not comment.
37. 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. It follows from a
legal services contract of 27 October 2003 that the applicant paid
Mr Karchevskiy a legal fee of EUR 150 and a further EUR 100 for
secretarial expenses. The applicant did not produce documents in
support of her further claims. Accordingly, the Court awards her
EUR 250 in respect of costs and expenses, plus any tax that may be
chargeable on that amount.
C. Default interest
38. 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 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, the following
amounts:
(i) EUR 2,109 (two thousand one hundred nine euros) in
respect of the pecuniary damage,
(ii) EUR 4,000 (four thousand euros) in respect of the
non-pecuniary damage,
(iii) EUR 250 (two hundred fifty euros) in respect of
costs and expenses;
(iv) 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;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 21 July 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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