EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF GOROKHOV AND RUSYAYEV v. RUSSIA
(Application No. 38305/02)
JUDGMENT <*>
(Strasbourg, 17.III.2005)
In the case of Gorokhov and Rusyayev v. Russia,
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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.
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs {N. Vajic} <*>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, 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 February 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 38305/02) 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 two Russian nationals, Mr Dmitriy
Ivanovich Gorokhov and Mr Rostislav Vladimirovich Rusyayev ("the
applicants"), on 12 September 2002.
2. The applicants were represented by Mmes K.A. Moskalenko and
E.L. Liptser, lawyers practising in Moscow. The Russian Government
("the Government") were represented by Mr P.A. Laptev, the
representative of the Russian Federation at the European Court of
Human Rights.
3. The applicants alleged a violation of Article 6 з 1 and
Article 1 of Protocol No. 1 in that the respondent State failed to
enforce final judicial decisions in their favour.
4. On 8 January 2004 the Court decided to communicate the
application 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.
5. The applicants and the Government each filed observations on
the admissibility and merits (Rule 54A з 1).
THE FACTS
I. The circumstances of the case
6. The applicants were born in 1952 and 1961 respectively and
both live in Moscow.
7. The applicants took part in the liquidation of the
consequences of the nuclear accident at the Chernobyl nuclear
plant. They were recognised as handicapped, becoming entitled to a
special disability pension.
1. Court judgments in the applicants' favour
8. In 2000 the applicants brought a civil action against the
social security authorities, claiming that the amounts of their
disability pensions had not been properly calculated. They
maintained that the social security authorities should have
increased their pensions in line with the increase of the minimal
wage in Russia, but failed to do so.
9. On 29 January 2001 the Nikulinskiy District Court of Moscow
satisfied their claims awarding the first applicant 11,568.98
Russian roubles (RUR), and the second applicant RUR 14,862.5. The
arrears awarded to the applicants by the District Court
constituted more than 58 per cent of the amounts received by the
applicants from the social security authorities within the
contested period. On 18 April 2001 this decision was upheld by the
Moscow City Court.
10. Later this year the applicants brought a new action
claiming the outstanding amounts of the disability pensions due to
them for the period starting from January 2001. They also claimed
penalties for the delayed payment of their pensions during this
period.
11. On 21 June 2001 the Nikulinskiy District Court awarded the
first applicant RUR 10,351 and the second applicant RUR 13,274 as
the outstanding amount of their pensions for the period January -
June 2001. The sums awarded by the District Court as arrears
constituted approximately 50 per cent of the amount paid to the
applicants by the social security authorities during this period.
Both applicants were also entitled to penalties, to be recovered
from the social security authorities. The penalties were
calculated on the basis of the amounts due to the applicants for
the period between January and June 2001. On 28 November 2001 this
decision was upheld in the main by the Moscow City Court, which
only reduced the amount of penalties to RUR 1,000 for each
applicant.
2. Enforcement proceedings
12. On an unspecified date between May and September 2001 the
applicants obtained writs of execution in respect of the first
judgments of the Nikulinskiy District Court of January 2001. In
December 2001 the applicants obtained execution writs in respect
of the decisions rendered by the District Court in June 2001.
These execution writs were forwarded to the bailiffs. However, for
a certain period of time the judgments of the Nikulinskiy District
Court remained unexecuted.
13. In December 2001 the Ministry of Justice of the Russian
Federation, which was in charge of the bailiffs, informed the
applicants that the execution of the above judgments was
conditional upon the availability of budgetary funds allocated for
these purposes by the federal legislature and could not be carried
out through the bailiffs. The applicants were advised to send
their writs of execution directly to the Ministry of Finance, a
State body in charge of distributing budgetary funds.
14. However, as follows from the letter of 5 March 2002, the
Ministry of Finance was no longer responsible for distributing the
pension funds. Consequently, in 2002 the execution writs were
forwarded to the Ministry of Labour and Social Security.
15. In April 2002 the bailiffs discontinued the enforcement
proceedings. The applicants challenged the discontinuation, and on
1 November 2002 the Nikulinskiy District Court of Moscow ordered
the resumption the enforcement proceedings.
16. On 1 November 2002 the above judgments were enforced. The
authorities paid RUR 22,919.32 to Gorokhov and RUR 29,136.40 to
Rusyayev. On 5 November 2002 the money were received by the
applicants. On 20 February 2004 the authorities offered the
applicants additional compensation on certain conditions. However,
the applicants rejected this offer.
II. Relevant domestic law and practice
17. The Russian Law on Enforcement Proceedings (No. 119-FZ of
21 July 1997) designates the court bailiffs' service as the
authority charged with enforcement of court decisions (Section 3 з
1). Pursuant to this Law, any decision of the bailiff can be
challenged in court within 10 days from the moment when the
concerned person learned about this decision (Article 90 з 1).
Articles 19 and 90 з 2 of this law stipulate that the damage
caused by the bailiffs should be compensated under general rules
of civil responsibility.
18. Article 1064 з 1 of the Civil Code of the Russian
Federation provides that the damage caused to the person or
property of a citizen shall be compensated in full by the
tortfeasor.
19. Under Article 1069 of the Civil Code a State agency or a
State official shall be liable to a citizen for damage caused by
their unlawful actions or failures to act. Such damage is to be
compensated at the expense of the federal or regional treasury.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
20. The applicants complained that the lengthy non-enforcement
of the court judgments in their favour rendered by the Nikulinskiy
District Court on 29 January and 21 June 2001 constituted a breach
of their right to a court and the right to peaceful enjoyment of
their possessions. They referred to Article 6 з 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention,
which, insofar as relevant, read as follows:
Article 6
"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
"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."
21. In their observations to the Court the respondent
Government indicated that the judgments in the applicants' favour
had been duly enforced and that an additional compensation
calculated on the basis of the Court's case-law in similar cases
had been offered to the applicants. On this ground the Government
submitted that the application was incompatible with the
provisions of the Convention because the applicants were no longer
victims of the alleged violation.
22. In reply to the Government's observations the applicants
accepted that the outstanding amounts of their pensions, awarded
by the courts, had been paid to them. The applicants further
recognised that the Government had offered them compensation,
which, however, they did not accept.
23. In their additional observations the applicants also
claimed that the social security authorities failed to comply with
the decisions of the Nikulinskiy District Court of Moscow in that
they did not increase the disability pensions in line with the
raise of the minimum wage in Russia.
A. Admissibility
1. Non-enforcement of the judgments
in the applicants' favour
24. In their initial application the applicants complained
about the non-payment of the outstanding amounts awarded to them
in January and June 2001 by the Nikulinskiy District Court. The
Court notes that these judgments entitled the applicants only to
previous underpayments; no decision as to the future indexation of
their pensions has ever been taken within these proceedings.
Consequently, the complaint that the above decisions remain
unexecuted because the pensions were not increased by the social
security authorities is manifestly ill-founded.
25. As regards the payment of the arrears awarded by the
Nikulinskiy District Court, the Court notes that, once the
applicants had brought proceedings to Strasbourg in September
2002, the domestic authorities executed the judgments within less
than two months. It is regrettable that the applicants did not
inform the Court about this fact at the relevant time. The Court
finds that, in so far the applicants complain about the non-
enforcement as such, they could not any longer claim to be victims
within the meaning of Article 34 of the Convention.
2. Length of enforcement proceedings
26. However, the Court notes that it took the domestic
authorities from eleven to sixteen months to execute the
judgments, which, without doubt, was the applicants' concern (see
з 20 above). The Court recalls in this respect that the "right to
a court", derived from Article 6, comprises a duty of the State to
implement final judicial decisions (see Hornsby v. Greece,
judgment of 19 March 1997, Reports of Judgments and Decisions 1997-
II з 40). The interference with this right may shape into an
absolute ban on execution. However, it may also take the form of a
delayed execution of the court judgment (see Burdov v. Russia, No.
59498/00, ECHR 2002-III). When considering the applicants'
grievances in this way, the Court accepts that the applicants may
still claim to be victims within the meaning of Article 34 of the
Convention and, thus, the Court has to examine whether the late
execution of the judgments in the applicants' favour constituted a
breach of their "right to a court" implied by Article 6 of the
Convention.
27. Having regard to this aspect of the case the Court recalls
that, under Article 35 з 1 of the Convention, the Court may only
deal with applications introduced after all domestic remedies have
been exhausted and within a period of six months after the final
domestic decision. In the present case, the Government did not
suggest that there was an effective remedy available to the
applicants under Russian law to challenge the length of the
execution of judgments. The Court therefore, for the purposes of
the present case, considers that six months run from the end of
the situation complained of (see, for example, Demirel v. Turkey
(dec.), No. 30493/96, 9 March 1999).
28. As to the compliance with the six-month rule, the Court
notes that the subject-matter of the present complaint is the
length of the execution proceedings in respect of the judgments of
29 January and 21 June 2001, as upheld on 18 April and 28 November
2001 respectively. The applicants filed their grievances with the
European Court on 12 September 2002, when the execution
proceedings in respect these judgments were still pending.
Accordingly, the application has been introduced and pursued in
accordance with the six-month rule prescribed in Article 35 з 1.
29. The Court further notes that first judgment in the
applicants' favour was executed with a delay of one year, six
months, and eighteen days, and that the second judgment was
executed within one year after it had become effective. These
delays do not seem insignificant. Therefore, this complaint cannot
be regarded as manifestly ill-founded within the meaning of
Article 35 з 3 of the Convention. The Court concludes that the
complaint about the length of enforcement proceedings raises
complex issues of facts and law, the determination of which should
depend on an examination of the merits. No other ground for
declaring it inadmissible has been established.
B. Merits
1. General principles
30. The Court accepts that not every delay in the execution of
a judgment constitutes a breach of Article 6 з 1 of the Convention
(see, among recent authorities, Grishchenko v. Russia, (dec.), 8
July 2004, No. 75907/01). However, the delay may not be such as to
impair the essence of the "right to a court" protected by this
provision (see Immobiliare Saffi v. Italy [GC], No. 22774/93, з
74, ECHR 1999-V). The Court's task will be to establish whether
the delays in executing the judgments in the applicants' favour
were justified in the particular circumstances of the present
case.
31. The Court recalls that the execution proceedings are an
integral part of the "trial" for the purposes of Article 6 of the
Convention (see, Hornsby v. Greece and Burdov v. Russia mentioned
above). Consequently, whether the length issue is raised in
respect of a trial or enforcement proceedings, applicable
principles are broadly similar. The limit of tolerance as regards
the delay in honouring a judgment debt will depend of different
factors, such as the complexity of the enforcement proceedings,
the applicant's own behaviour and that of the competent
authorities, the amount and the nature of court award (see, by
analogy, Frydlender v. France [GC], No. 30979/96, з 43, ECHR 2000-
VII, see also Grishchenko mentioned above).
2. Application of these principles in the present case
32. Turning to the present case, the Court notes that the
applicants were awarded a sum of money. Hence, the judgments were
not particularly difficult to execute.
33. As regards the conduct of the parties, the Court observes
that the State authorities were perfectly aware of the applicants'
claims, and, as soon as the judgments in the applicants' favour
were upheld on appeal, it became incumbent on the State to execute
them. It is true that the enforcement proceedings were initiated
by the applicants with a certain delay (see з 12). However, as
transpires from the materials of the case, the only apparent
reason for the non-enforcement of the judgments was the
authorities' reluctance to make adequate budgetary appropriations
(see з 13). Therefore, whether the bailiffs were involved in the
enforcement proceedings or not did not change the situation.
Moreover, a person who has obtained an enforceable judgment
against the State as a result of successful litigation cannot be
required to resort to enforcement proceedings in order to have it
executed (see Metaxas v. Greece, No. 8415/02, з 19, 27 May 2004).
The Government present no evidence that the applicants somehow
contributed to the overall length of the enforcement proceedings.
The Court therefore concludes that the whole period between the
appeal court's decisions upholding the judgments in the
applicants' favour (18 April and 28 November 2001 respectively)
and the date of receipt by the applicants of the amounts due to
them under these judgment (5 November 2002) should be considered
as a delay in execution imputable to the State authorities.
34. As to what was at stake for the applicants in the present
case, the Court notes that the sum awarded by the Nikulinskiy
District Court to each applicant constituted an important part of
their disability pensions, to which they were entitled as victims
of the Chernobyl nuclear accident (see з 9 and з 11). From the
materials of the case it appears that these pensions were the
applicants' main source of income. In view of the above the Court
concludes that the domestic authorities should have treated the
applicants' cases with special diligence.
35. Regard being had to the above considerations the Court
concludes that that the length of the enforcement proceedings as
regards the first judgment of January 2001 (one year, six months
and eighteen days) was clearly excessive. As regards the duration
of the second set of enforcement proceedings (eleven months and
seven days) the Court notes that, although this length does not
appear unreasonable by itself, in the circumstances of the present
case and especially given the importance of this court award for
the applicants, it was unjustified. The Court accordingly finds
that both judgments were not enforced within the "reasonable
time".
There has accordingly been a violation of Article 6 з 1 of the
Convention.
II. Alleged violation of Article 1 of the Protocol No. 1
36. The applicants complained that the failure to honour a
judgment debt interfered with their property rights under Article
1 of Protocol No. 1 which 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."
37. The Government contested that argument.
A. Admissibility
38. The Court notes that this complaint is linked to the one
examined above and must be therefore declared admissible.
B. Merits
39. 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; Stran Greek Refineries and Stratis
Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301-
B, p. 84, з 59).
40. The Court further reiterates that, in so far as the
judgments of 29 January and 21 June 2001, as upheld on 18 April
and 28 November 2001 respectively, are concerned, the State did
not discharge its duty to enforce them in a sufficiently prompt
and adequate manner (see з 35 above). The Court considers that the
impossibility for the applicants to have these judgment enforced,
which persisted for a relatively long period of time, constituted
an interference with their right to peaceful enjoyment of their
possessions, as set out in the first sentence of the first
paragraph of Article 1 of Protocol No. 1. The Court further notes
that the Government do not advance any plausible justification for
this interference and the lack of funds cannot justify such an
omission (see Burdov v. Russia, cited above, з 41).
41. It follows that there has been a violation of Article 1 of
Protocol No. 1 to the Convention.
III. Application of Article 41 of the Convention
42. 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
1. Pecuniary damage
43. In respect of pecuniary damage the first applicant claims
RUR 90,939.70 and the second applicant RUR 110,966. In the
Government's view, these claims are unsubstantiated.
44. The Court notes that the amounts claimed constitute the
alleged underpayments of the applicants' disability pensions for
the period after June 2001. However, as it has already been
established by the Court (see з 24 above), the court judgments
which were at the heart of the present case did not entitle them
to any future raise of their pensions. The judgments concerned
only the arrears due to the applicants for the period before June
2001. Since the applicants presented no other claims in respect of
possible pecuniary damages caused by the lengthy non-enforcement
of the judgments in their favour, the Court considers that there
is no call to award them any sum on that account.
2. Non-pecuniary damage
45. The applicants also claim compensation for non-pecuniary
damage "in the amount established in the case Burdov v. Russia".
In their comments the Government consider the claim for non-
pecuniary damages as excessive and unreasonable. Alternatively the
Government indicate that if the Court nevertheless decides to
award non-pecuniary damages, a symbolic amount would suffice.
46. The Court accepts that the applicants have suffered
distress because of the State authorities' failure to enforce the
judgments in their favour within a reasonable time. The Court
recalls that in the case Burdov cited above and referred to by the
applicants it made an award of EUR 3,000 for non-pecuniary damage
suffered as a result of non-enforcement of a judgment in the
applicant's favour. In Burdov, as in the present case, the
judgment at issue concerned the Chernobyl-victim's pension payable
as compensation for health damage leading to disability, the
applicant's main source of income.
47. The Court notes, however, that the delay in execution of
the judgments in the present case was shorter than in Burdov.
Taking into account these aspects of the present case, as well as
other relevant factors, such as the amounts of the court awards
the Court on equitable basis awards to the each applicant EUR 900
in respect of non-pecuniary damage, plus any tax that may be
chargeable.
B. Default interest
48. 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 admissible the complaint concerning delayed payment
of the amounts awarded by the Nikulinskiy District Court on 29
January and 21 June 2001, as upheld on 18 April and 28 November
2001 respectively, and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 6 з 1 of
the Convention;
3. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention;
4. Holds:
(a) that the respondent State is to pay each of the applicants,
within three months from the date on which the judgment becomes
final according to Article 44 з 2 of the Convention, EUR 900 (nine
hundred euros) in respect of non-pecuniary damage, to be converted
into Russian Roubles at a rate applicable at the date of payment,
plus any tax that may be chargeable on that 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;
5. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 17 March 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} Nielsen
Registrar
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