EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF PETRUSHKO v. RUSSIA
(Application No. 36494/02)
JUDGMENT <*>
(Strasbourg, 24.II.2005)
In the case of Petrushko 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. 36494/02) 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 Petrushko Valentina Vasilyevna, a
Russian national, on 6 September 2002.
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
application at the same time as its admissibility.
THE FACTS
4. The applicant was born in 1965 and lives in Novocherkassk,
Rostov Region.
5. In 2001 the applicant brought an action for damages against
the Ministry of Internal Affairs following the death of her
husband during his military service in Chechnya.
6. On 7 June 2001 the Leninskiy District Court of Rostov
granted the applicant's claim. Her award consisted of a lump-sum
compensation of 71,851.50 roubles (RUR) and monthly payments of
RUR 1,710.75, subject to future adjustment to a statutory rate.
The monthly payments were not paid to the applicant.
7. In 2002 the applicant brought new proceedings to obtain the
adjustment of the outstanding monthly payments.
8. On 27 September 2002 the Leninskiy District Court of Rostov
granted the applicant's claim. It made an adjustment of the
monthly payments increasing them retrospectively to RUR 3,849. It
awarded the applicant arrears of RUR 88,916.16 in respect of the
period from 1 January 2002 to 1 October 2002.
9. On 9 October 2002 the applicant obtained an execution order,
which she submitted to the Ministry of Finance of the Russian
Federation for payment.
10. On 17 June 2003, after the case had been communicated to
the Government, the applicant was paid RUR 30,793.44, and on 19
June 2003 she was paid RUR 88,916.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention
11. The applicant complained that the prolonged non-enforcement
of the judgments of 7 June 2001 and of 27 September 2002 violated
her "right to a court" under Article 6 з 1 of the Convention and
her 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
12. The Government contested the admissibility of the
application on the ground that the applicant was no longer a
victim. They submitted that the judgments in question had been
enforced. They asserted that the applicant had thus been afforded
redress at the national level and that her application should be
declared inadmissible. In the alternative, they argued that the
applicant had not exhausted domestic remedies. They claimed that
she should have requested an enforcement of her award by the court
bailiff service following the failure of the Ministry of Finance
to pay under the execution order.
13. The applicant did not accept that she had lost victim
status because her award had finally been enforced. She observed
that her monthly payments had not been made to her for two years
owing to the non-enforcement of the judgment by the authorities,
in respect of which delay they had neither acknowledged the
violation nor afforded redress to her. She also contested the
objection concerning non-exhaustion of domestic remedies alleged
by the Government, claiming that she had acted in accordance with
law by having submitted the execution order to the Ministry of
Finance.
14. 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).
15. In the instant case, after a year of the authorities'
failure to make regular payments the applicant brought new
successful proceedings seeking a retrospective increase of the
arrears. This decision, had it been duly enforced, could arguably
have constituted a remedy against the State's previous failure to
comply with the judgment. However, the new judgment was not
enforced for another 10 months, until the notice of this
application was given to the Government by the Court. The Court
observes that neither the Government nor other domestic
authorities have acknowledged that the applicant's Convention
rights were unjustifiably restricted by the non-enforcement of
these judgments. Furthermore, no redress has been offered to the
applicant for the delay, as required by the Court's case-law.
16. The Court therefore considers that the mere fact that the
authorities complied with the judgments after a substantial delay
cannot be viewed in this case as automatically depriving the
applicant of her victim status under the Convention. It rejects
the Government's objection as to the loss of victim status.
17. As to the alleged non-exhaustion of the domestic remedies
by the applicant, 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 observes 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.
18. Turning to the present case, it is undisputed that the
Ministry of Finance was competent to effect payments under the
execution order on behalf of the State. The Court reiterates that
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 Court
considers that after a competent State agency was served with a
judgment the recourse by the applicant to another State agency
should not in principle have been necessary to secure its
enforcement. The Court considers that in the present case recourse
to the bailiff service would only have produced the same result
and could not be said to have constituted an effective remedy
against non-enforcement (cf. Yavorivskaya v. Russia (dec.), No.
34687/02, 15 May 2004, and {Jasiuniene} v. Lithuania (dec.), No.
41510/98, 24 October 2000).
19. The Court therefore does not accept that the applicant was
required to apply to the bailiff service in order to exhaust
domestic remedies.
20. The Court notes that the 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
21. The Government submitted that in view of the fact that the
judgment in question had been enforced there has been no violation
of the applicant's Convention rights.
22. The applicant maintained her complaints.
Article 6 з 1 of the Convention
23. 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).
24. 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).
25. Turning to the instant case, the Court notes that the
judgment of 7 June 2001 remained inoperative in part for about two
years, including nearly one year after the judgment of 27
September 2002 had been pronounced to redress the non-enforcement
of the first one. No justification was advanced by the Government
for this delay. 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.
26. There has accordingly been a violation of Article 6 з 1 of
the Convention.
Article 1 of Protocol No. 1 to the Convention
27. 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 June 2001 and 27 September
2002 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 judgment
enforced for a substantial period of time constituted an
interference with her right to peaceful enjoyment of her
possessions, as set forth in the first sentence of the first
paragraph of Article 1 of Protocol No. 1.
28. Not having found any justification for such an interference
(see paragraph 25 above), the Court concludes that there has
accordingly been a violation of Article 1 of Protocol No. 1 to the
Convention.
II. Application of Article 41 of the Convention
29. 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
30. The applicant claimed 50,000 euros (EUR) in respect of non-
pecuniary damage.
31. The Government considered that should the Court find a
violation in this case that would in itself constitute sufficient
just satisfaction. They also contended that in any event the
applicant's claims were excessive and if the Court decided to make
an award it should not exceed the amount awarded by the Court in
the Burdov v. Russia case.
32. The Court considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to enforce judgments in her favour, which cannot
sufficiently be compensated by the finding of a violation.
However, the amount claimed appears excessive. The Court takes
into account the award it made in the case of Burdov v. Russia
(cited above, з 47), the nature of the award whose non-enforcement
was at issue in the present case, the delay before 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
that amount.
B. Costs and expenses
33. The applicant sought reimbursement of her costs and
expenses incurred before the domestic authorities and the Court.
However, she 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
34. 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;
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 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) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at
the rate applicable at the date of settlement, 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 applicant's claim 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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