EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF OOO RUSATOMMET v. RUSSIA
(Application No. 61651/00)
JUDGMENT <*>
(Strasbourg, 14.VI.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 OOO Rusatommet v. Russia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr M. Ugrekhelidze,
Mr A. Kovler,
Mrs A. Mularoni, judges,
and Mrs S. {Dolle} <*>, Section Registrar,
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 24 May 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 61651/00) 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 OOO Rusatommet, a limited-liability
company registered in Russia ("the applicant company"), on 20
April 2000.
2. The applicant company was represented by Mr A. Kemishev, a
lawyer practising in Moscow. The Russian Government ("the
Government") were represented by Mr P. Laptev, the Representative
of the Russian Federation at the European Court of Human Rights.
3. The applicant company alleged, in particular, that the State
had failed to honour a judgment debt.
4. The application was allocated to the Second 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. When the
Court changed the composition of its Sections on 1 November 2004,
this case was allocated to the new Second Section.
5. By a decision of 14 September 2004, the Court declared the
application partly admissible.
6. The applicant company 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 applicant company
replied in writing to the Government's observations.
THE FACTS
7. The applicant company is a debt collector. In July 1999, it
bought a defaulted State bond and sued the Government for the
debt. After several years of litigation, on 10 April 2002 the
Moscow City Commercial Court ordered the Government to pay the
applicant company 100,000 American dollars ("USD").
8. On 5 August 2002, the Appeals Division of the Moscow City
Commercial Court upheld the judgment, but specified that the debt
was to be paid by the Ministry of Finance.
9. On 6 November 2002, the ministry asked the court to stay the
enforcement of the judgment until January 2003, because there were
no funds in the State budget of 2002.
10. On 19 November 2002, bailiffs opened enforcement
proceedings.
11. On 16 December 2002, the court refused to stay the
enforcement because the ministry had failed to prove either that
it did not have the funds, or that the funds would become
available after January 2003.
12. On 7 February 2003, the ministry asked the court to stay
the enforcement of the judgment until January 2004, because there
were no funds in the State budget of 2003.
13. On 20 March 2003, the court refused to stay the enforcement
because the ministry had failed to prove either that it did not
have the funds, or that the funds would become available after
January 2004.
14. In August 2003, the ministry asked the appeal court to
clarify how the judgment was to be enforced.
15. On 3 September 2003, the appeal court clarified that the
judgment was to be enforced only once the applicant company had
handed in the bond. The applicant company appealed against this
decision because the general conditions of the bond's issue did
not require that it be handed in. In addition, the applicant
company argued that the judgment could be enforced on the basis of
a writ of enforcement alone, and that the bond was to be returned
to the ministry only after the enforcement. On 25 November 2003,
the Federal Commercial Court of the Moscow Circuit dismissed this
appeal.
16. On 18 February 2004, the applicant company handed in the
bond to the ministry.
17. Subsequently, the applicant company unsuccessfully sought
an injunction to oblige the ministry to enforce the judgment.
THE LAW
18. The applicant company complained under Article 6 з 1 of the
Convention and under Article 1 of Protocol No. 1 that the judgment
of 10 April 2002 had not been enforced.
I. Alleged violation of Article 6 з 1 of the Convention
19. As far as relevant, Article 6 з 1 of the Convention reads
as follows:
"In the determination of his civil rights and obligations...,
everyone is entitled to a fair... hearing... by [a]...
tribunal...."
A. The parties' arguments
20. The Government rejected this complaint as manifestly ill-
founded. Initially, they asserted that the applicant company was
itself responsible for the delay, because it had resisted handing
in the bond. In their observations of 17 January 2005, the
Government asserted that the Ministry of Finance was taking steps
to enforce the judgment.
21. The applicant company insisted on its complaint. It
asserted that it had done everything it could to have the judgment
enforced. The ministry's doubts about the manner of enforcement
were a ruse to put off the payment day. The ministry was taking no
steps to enforce the judgment.
B. The Court's assessment
22. Article 6 з 1 guarantees the "right to a court": any person
should be able to apply to a court to defend his or her civil
rights. However, this right would be futile if the State allowed a
final, binding judgment to idle (see Hornsby v. Greece, judgment
of 19 March 1997, Reports of Judgments and Decisions 1997-II, з
40).
23. Lack of funds does not excuse the State from honouring a
judgment debt. Even though in certain circumstances enforcement
may be delayed, the delay must not undermine the right to a court
(see Burdov v. Russia, no. 59498/00, з 35, ECHR 2002-III).
24. Turning to this case, the Court notes that the judgment has
not yet been enforced. To date, 1 year and 3 months have passed
from the day when the applicant company handed in the bond as the
appeal court had required (and some three years since the date of
the original judgment debt). This former delay is long enough to
undermine the applicant company's right to a court. The Government
have not advanced any justification for this delay.
25. There has, accordingly, been a violation of Article 6 з 1
of the Convention.
II. Alleged violation of Article 1 of Protocol No. 1
26. 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."
27. The Court repeats that a "claim" can be a "possession"
within the meaning of Article 1 of Protocol No. 1 if sufficiently
established in law to be enforceable (see Stran Greek Refineries
and Stratis Andreadis v. Greece, judgment of 9 December 1994,
Series A No. 301-B, з 59).
28. The judgment gave the applicant company a reason to expect
from the State 100,000 US dollars. The judgment became final and
was submitted for enforcement. It follows that the non-enforcement
of the judgment was an interference with the applicant company's
right to the peaceful enjoyment of its possessions. The Government
have not advanced any justification for this interference.
29. There has, accordingly, been a violation of Article 1 of
Protocol No. 1.
III. 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. The applicant company claimed 210,332.24 American dollars
("USD"). This amount included the judgment debt and compensation
for the bond's late redemption. The applicant company suggested
that, until settlement, this amount should also be increased by
23% a year. In addition, the applicant company asked the Court to
fix compensation for the breach of the Convention.
32. The Government stated that these claims were unreasonably
high. Besides, since the State was taking measures to pay the
debt, the Court's mere finding of a violation would suffice.
33. As to pecuniary damage, the Court notes that the judgment
debt of 10 April 2002 has not yet been enforced. The Court
considers that if the Government were to pay this debt, it would
constitute full and final settlement of the dispute. Therefore,
the Court awards the applicant USD 100,000 under this head.
34. As to non-pecuniary damage, the Court considers that the
applicant company has suffered prejudice as a result of the
violation found, and that it cannot be made good by the Court's
mere finding of a violation. Deciding equitably, the Court awards
2,000 euros ("EUR") under this head.
B. Default interest
35. 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
1. Holds unanimously that there has been a violation of Article
6 з 1 of the Convention;
2. Holds unanimously that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
3. Holds by five votes to two
(a) that the respondent State is to pay the applicant company,
within three months from the date on which the judgment becomes
final according to Article 44 з 2 of the Convention, the following
amounts, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i) USD 100,000 (one hundred thousand American dollars) in
respect of pecuniary damage;
(ii) EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage;
(iii) 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 unanimously the remainder of the applicant
company's claim for just satisfaction.
Done in English, and notified in writing on 14 June 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
J.-P. COSTA
President
S. {DOLLE}
Registrar
In accordance with Article 45 з 2 of the Convention and Rule 74
з 2 of the Rules of Court, the separate opinion of Mr Ugrekhelidze
and Mr Kovler is annexed to this judgment.
J.-P.C.
S.D.
PARTIALLY DISSENTING OPINION OF
JUDGES UGREKHELIDZE AND KOVLER
We share the conclusions of the Chamber concerning a violation
of Article 6 з 1 of the Convention and Article 1 Protocol No. 1,
but we regret that the Chamber did not follow the Court's case-law
in recent non-enforcement cases where the Court held that the
respondent Government, within three months from the date on which
the judgment becomes final, according to Article 44 з 2 of the
Convention, should secure, by appropriate means, the enforcement
of the award made by the domestic court. (Makarova and others v.
Russia, No. 7023/03, 24 February 2005; Plotnikovy v. Russia, No.
43883/02, 24 February 2005).
This clause would have permitted, in our opinion, to follow the
domestic procedure of enforcement and to determine an appropriate
amount of interest in accordance with the domestic rules.
The wording adopted by the majority of the Chamber in paragraph
3 (a) of the operative part of the judgment seems to fail to take
into account the actual interest accrued during a long period of
non-enforcement. We fear that this approach could foster an
incorrect interpretation of the principle of "just satisfaction to
the injured party", provided in Article 41 of the Convention. It
might also create certain difficulties for the respondent
Government in the course of the execution of the judgment.
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