EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MAKAROVA AND OTHERS v. RUSSIA
(Application No. 7023/03)
JUDGMENT <*>
(Strasbourg, 24.II.2005)
In the case of Makarova and Others 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 S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 1 February 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 7023/03) 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 three Russian nationals Ms Raisa
Grigoryevna Makarova, the first applicant, Mr Georgiy Mikhailovich
Zabolotskiy, the second applicant, and Ms Anna Nikitichna
Zabolotskaya, the third applicant, on 3 October 2003.
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 13 May 2003 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
applications at the same time as their admissibility.
THE FACTS
4. The applicants were born in 1930, 1931 and 1935 respectively
and live in Novovoronezh, Voronezh Region.
5. In 2000 the applicants each brought a set of proceedings
against the welfare office of Novovoronezh to claim a raise of
their pensions by a statutory index ratio.
6. On 7 August 2000 the Novovoronezh Town Court of the Voronezh
Region granted the second and the third applicants' claims. It
awarded them arrears of 2,110.58 roubles (RUR) and RUR 1,521.09
respectively. Both judgments entered into force on 17 August 2000.
7. On 28 - 29 August 2000 the bailiff service instituted
enforcement proceedings in respect of the judgments of 7 August
2000.
8. On 22 January 2001 the Novovoronezh Town Court of the
Voronezh Region granted the first applicant's claim. It awarded
her arrears of RUR 1,062.11. This judgment entered into force on 1
February 2001.
9. On 30 January 2001 the bailiff service terminated execution
proceedings in respect of both judgments of 7 August 2000, which
had not been enforced.
10. On 14 March 2001 the Voronezh Regional Office of the
Pension Fund reported to the Town Administration of Novovoronezh
that certain judgments concerning pension raise could not be
enforced for lack of funding from the Pension Fund of the Russian
Federation.
11. On 31 May 2001 the bailiff service informed the second and
the third applicants that the judgments in their favour could not
be enforced for lack of funds on the debtor's accounts. It also
informed the applicants that they could apply again for
enforcement of the same judgments.
12. On 20 August 2001 the Ministry of Justice of the Russian
Federation reported to the Chairman of the Novovoronezh
legislature that the bailiff service could not enforce certain
judgments against the welfare office concerning pension matters.
It pointed out that following a budgetary reform the welfare
office was neither authorised, nor allocated funds to, make
relevant payments. The bailiff office was thus unable to seize
funds to secure enforcement of the judgments.
13. The judgments of 7 August 2000 and of 22 January 2001 have
not been enforced to date.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention
14. The applicants complained that the prolonged non-
enforcement of their respective awards provided for in the
judgments of 7 August 2000 and of 22 January 2001 violated their
"right to a court" under Article 6 з 1 of the Convention and their
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
15. The Government made a number of objections to the
admissibility of the present application. Firstly, they requested
the Court to dismiss the application as an actio popularis because
it was lodged by three persons. They construed the right of
individual petition in Article 34 of the Convention as requiring
each applicant to file a separate application. Secondly, they
contested the admissibility of the application on the ground that
the applicants had failed to exhaust domestic remedies. They
claimed that the applicants should have brought an action against
the Administration of the Voronezh Region, which was liable for
outstanding debts of the welfare office. They also alleged that
the applicants should have brought an action against the bailiff
service which was in charge of the execution proceedings.
16. The applicants contested both objections. They maintained
that each of them was personally affected by the alleged
violations of their rights. As for the alleged non-exhaustion of
domestic remedies, the applicants cited the reasons given by the
authorities for the non-enforcement of the judgments, notably the
unavailability of financial resources. They claimed that
institution of proceedings against the Administration of the
Voronezh Region, or against the bailiff service, would not have
addressed the problem of inadequate funding which had prevented
the enforcement of the judgments in question.
17. The Court recalls that Article 34 of the Convention
requires that an individual applicant should claim to have been
actually affected by the violation he alleges. That Article does
not institute for individuals a kind of actio popularis for the
interpretation of the Convention; it does not permit individuals
to complain against a law in abstracto simply because they feel
that it contravenes the Convention (see Klass and Others v.
Germany, judgment of 6 September 1978, Series A No. 28, pp. 17 -
18, з 33).
18. In the instant case the Court is satisfied that each
applicant appears to have been affected by the alleged violations
of the Convention rights and each of them signed the application
forms filed with the Court. The Court therefore dismisses this
objection.
19. Turning to the second objection, the Court reiterates that
Article 35 з 1 of the Convention, which sets out the rule on
exhaustion of domestic remedies, provides for a distribution of
the burden of proof. It is incumbent on the Government claiming
non-exhaustion to satisfy the Court that the remedy was an
effective one available in theory and in practice at the relevant
time, that is to say, that it was accessible, was one which was
capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see
Selmouni v. France [GC], No. 25803/94, з 76, ECHR 1999-V, and
Mifsud v. France (dec.), No. 57220/00, з 15, ECHR 2002-VIII). The
Court further recalls that the domestic remedies must be
"effective" in the sense either of preventing the alleged
violation or its continuation, or of providing adequate redress
for any violation that had already occurred (see {Kudla} <*> v.
Poland [GC], No. 30210/96, з 158, ECHR 2000-XI).
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
20. The Court notes that the validity of the judgments held
against the welfare office on 7 August 2000 and on 22 January 2001
is undisputed. The Court considers that having obtained a judgment
and an execution order against a particular State authority the
applicants should not be required to institute, on their own
initiative, other proceedings against different State agency to
meet their claims. Moreover, even assuming that the applicants
brought an action against the Administration of the Voronezh
Region, the underlying problem of non-enforcement of the judgments
at issue would remain. The Court concludes that such an action
would not have been an effective remedy within the meaning of
Article 35 з 1 of the Convention.
21. In so far as the Government suggest an action against the
bailiff service, no reasons were put forward why it should be
considered an effective remedy. Neither party suggested that it
was the inefficiency of the bailiff service which prevented the
enforcement of the judgments at issue; it was apparently the lack
of funds. The Court therefore finds that an action against the
bailiff office would not have enhanced the applicants' prospects
of receiving their awards. The Court considers that in the present
case it could not be said to have constituted an effective remedy
against non-enforcement.
22. The Court therefore does not accept that the applicants
were required to exhaust domestic remedies through a further court
action against the Administration of the Voronezh Region or the
bailiff service.
23. The Court notes that this 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
24. The Government did not dispute the validity of the
judgments in question and admitted that the authorities were under
obligation to enforce them. They did not present any justification
for the failure to do so.
25. The applicants maintained their complaints.
Article 6 з 1 of the Convention
26. 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).
27. The Court further reiterates that it is not open to a State
authority to cite the lack of funds or other resources as an
excuse for not honouring a court award. Admittedly, 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).
28. Turning to the instant case, the Court notes that the
judgments of 7 August 2000 have remained unenforced for more than
four years, and the judgment of 22 January 2001 has remained
unenforced for almost four years.
29. By failing for such a substantial period 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.
30. There has accordingly been a violation of Article 6 з 1 of
the Convention.
Article 1 of Protocol No. 1 to the Convention
31. 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 judgments of 7 August 2000 and the judgment
of 22 January 2001 provided their respective beneficiaries with
enforceable claims 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
applicants to have the judgments enforced for a substantial period
of time constitutes an interference with their right to peaceful
enjoyment of their possessions, as set forth in the first sentence
of the first paragraph of Article 1 of Protocol No. 1.
32. By failing to comply with above judgments, the national
authorities prevented the applicants from receiving their awards.
The Government have not advanced any other justification but the
lack of financial resources for this interference. However, the
Court considers that the lack of funds cannot justify such an
omission (see Burdov v. Russia, cited above, з 41).
33. There has accordingly been a violation of Article 1 of
Protocol No. 1 to the Convention.
II. Application of Article 41 of the Convention
34. 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
35. The first applicant claimed RUR 1,424 in respect of
pecuniary damage, of which RUR 1,062 was for the principal amount
of her unpaid award and RUR 362 was for the interest payable at
the statutory rate. The second applicant claimed RUR 3,615 in
respect of pecuniary damage, of which RUR 2,110 was for the
principal amount of his unpaid award and RUR 1,505 was for the
interest payable at the statutory rate. The third applicant
claimed RUR 2,606 in respect of pecuniary damage, of which RUR
1,521 was for the principal amount of her unpaid award and RUR
1,085 was for the interest payable at the statutory rate. Each
applicant claimed EUR 20,000 in respect of non-pecuniary damage
which they had sustained as a result of the authorities' failure
to duly enforce the judgments.
36. The Government do not contest the applicants' claims in
respect of pecuniary damage. As for the non-pecuniary damage, they
consider that the amounts claimed are unreasonable and
unsubstantiated. They believe that, in any event, their awards
should not exceed the amount awarded by the Court in the Burdov v.
Russia case.
37. The Court notes that the State's outstanding obligation to
enforce the judgments at issue is not in dispute. Accordingly, the
applicants are still entitled to recover the principal amount of
the debt in the course of domestic proceedings. The Court recalls
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 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 finds that in the
present case this principle applies as well, having regard to the
violations found. It therefore considers that the Government shall
secure, by appropriate means, the enforcement of the awards made
by the domestic courts. For this reason the Court does not find it
necessary to make an award for pecuniary damage in so far as it
relates to the principal amount.
38. However, it considers that interest is payable from the day
the judgments at issue became final and enforceable, i.e. from 17
August 2000 and 1 February 2001 respectively. As the Government
did not dispute the calculations of interest presented by the
applicants, and as the Court does not find them unreasonable, it
makes the awards on that basis. The Court awards the first
applicant RUR 362, the second applicant RUR 1,505 and the third
applicant RUR 1,085 in compensation for pecuniary damage, plus any
tax that may be chargeable on these amounts.
39. The Court also accepts that the applicants suffered
distress because of the State authorities' failure to enforce the
judgments. 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 applicants' age, personal income, the nature
of the awards in the present case, i.e. arrears in respect of the
increase of retirement pension, the length of the enforcement
proceedings and other relevant aspects. Making its assessment on
an equitable basis, it awards the first applicant EUR 1,200, the
second applicant EUR 1,500 and the third applicant EUR 1,500 in
respect of non-pecuniary damage, plus any tax that may be
chargeable on these amounts.
B. Costs and expenses
40. The applicant made no claims under this head.
C. Default interest
41. 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 application admissible;
2. Holds that there has been a violation of Article 6 з 1 of
the Convention in respect of each applicant;
3. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention in respect of each applicant;
4. Holds
(a) that the respondent State, within three months from the
date on which the judgment becomes final according to Article 44 з
2 of the Convention, shall secure, by appropriate means, the
enforcement of the awards made by the domestic courts, and in
addition pay the following amounts:
- to the first applicant RUR 362 (three hundred and sixty
two roubles) in respect of pecuniary damage and EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary
damage,
- to the second applicant RUR 1,505 (one thousand five
hundred and five roubles) in respect of pecuniary damage and
EUR 1,500 (one thousand five hundred euros) in respect of non-
pecuniary damage,
- to the third applicant RUR 1,085 (one thousand and
eighty five roubles) in respect of pecuniary damage and EUR
1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage;
- to all applicants any tax that may be chargeable on the
above amounts;
(b) that the amounts awarded in euros shall be converted into
the national currency of the respondent State at the rate
applicable at the date of settlement;
(c) 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;
5. Dismisses the remainder of the applicants' claims for just
satisfaction.
Done in English, and notified in writing on 24 February 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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