In
the case of Timofeyev v. Russia,
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of
MrG.Ress,
President,
MrI.Cabral
Barreto,
MrP.Kuris,
MrB.Zupancic,
MrsM.Tsatsa-Nikolovska,
MrK.Traja,
MrA.Kovler,judges,
and Mr V.Berger,
Section
Registrar,
Having deliberated in private on 2
October 2003,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
1.
The case originated in an application (no. 58263/00) 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 a Russian national,
Mr Nikolay Vasilyevich Timofeyev (“the applicant”), on 17
March 2000.
2.
The Russian Government (“the Government”) were represented by their Agent,
Mr P. A. Laptev, the Representative of the Russian
Federation in
the European Court of Human Rights.
3.
The applicant alleged, in particular, that the failure to execute a final
judgment in his favour was incompatible with the Convention.
4.
The application was allocated to the Second Section of the Court (Rule
52 § 1 of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the Convention) was constituted as
provided in Rule 26 § 1.
5.
On 1
November 2001 the Court changed the
composition of its Sections (Rule 25 § 1). This case was assigned to the
newly composed Third Section (Rule 52 § 1).
6.
By a decision of 5
September 2002, the Court declared
the application partly admissible.
THE
FACTS
I.
THE CIRCUMSTANCES OF THE CASE
7.
The applicant was born in 1948 and lives in Orsk.
1. Persecution by the Soviet regime
and subsequent rehabilitation
8.
In 1981 criminal charges were brought against the applicant for dissemination
of anti-Soviet propaganda. On 30
July 1981 the police searched his home
and confiscated certain items – a radio, audio records, books, newspaper
clippings and manuscripts – which he had allegedly used in his unlawful
activity.
9.
On 7
April 1982 the Orenburg
Regional Court held
that the applicant was not guilty on the ground of insanity and ordered
him to be placed in a mental asylum.
10.
On 23
April 1986 the Oktyabrskiy District
Court of Orsk found that the applicant's mental health had improved and
that he could be released.
11.
On 15
September 1992 the Orenburg Regional
Public Prosecutor's Office issued a statement to acknowledge that the applicant
had been unlawfully persecuted by the State. The applicant was reinstated
in his rights.
2. Claim for compensation and enforcement
12.
In the course of 1995 to 1997 the applicant made several unsuccessful attempts
to recover the property that had been confiscated in 1981. His requests
to prosecutors' offices and the organisations then in possession of the
property were rejected.
13.
On 28
June 1996 the applicant brought a claim
for repossession against the Orenburg Regional Public Prosecutor's Office
and the Orsk City Committee of the Voluntary Society for Assistance to
the Army, Air Force and Navy. He also brought a claim for damages against
the Orsk City Council.
14.
On 22
July 1998 the Leninskiy District Court
of Orsk granted the applicant's claims in part and ordered the Federal
Treasury Department to pay the applicant 2,570.92 Russian roubles (RUR)
compensation and RUR 200 by way of legal costs. On appeal, the judgment
was upheld by the Civil Chamber of the Orenburg
Regional Court on 8
December 1998.
15.
On 5
February 1999 the applicant submitted
a writ of execution in respect of the judgment of 22
July 1998 to the registry of the Oktyabrskiy
District Court.
16.
He was not notified in time whether enforcement proceedings had been opened,
or what action had been taken to execute the judgment. For this reason,
he issued proceedings against the bailiff in charge of the execution. On 14
May 1999 the Oktyabrskiy Court found
in the applicant's favour, holding that the bailiff had acted unlawfully.
The applicant was also informed that responsibility for enforcement of
the judgment had been passed to a different bailiff's service – the Leninskoye
Bailiff's Service of Orenburg.
17.
On 25
May 1999 the Leninskiy
Court issued clarification
on how its judgment of 22
July 1998 was to be enforced. It confirmed
that, even though the Ministry of Finance was the defendant in the case,
the compensation should be recovered from the Treasury Department – the
authority liable for debts of the Ministry. The applicant appealed, insisting
that the debtor's bank account details should be included in the operative
part of the judgment to make the enforcement easier. The appeal was dismissed
on 8
July 1999.
18.
As no progress was made in the enforcement proceedings, on an unspecified
date the applicant issued fresh professional negligence proceedings against
the bailiff. On 28
July 1999 the Leninskiy District Court
of Orenburg examined the complaint and dismissed it. It found that the
bailiff had lawfully stayed the enforcement proceedings because an acting
Public Prosecutor of the Orenburg Region had initiated supervisory-review
of the judgment of 22
July 1998. The court stated that under
national law, enforcement could be stayed pending supervisory review. The
applicant's appeal was dismissed on 23
September 1999 by the Regional
Court.
19.
On 3
February 2000 the bailiff attempted
to attach the accounts of the Federal Treasury Department. The Department
challenged the bailiff's actions in court. The complaint was granted by
the Central District Court of Orenburg on 23
March 2000. The court concluded that
the seizure of the Department's assets had been unlawful because, according
to the clarifications provided on 25
May 1999 concerning the enforcement,
the debt should have been recovered from the Treasury of the Russian
Federation. The
applicant had not been aware of these proceedings, and was not summoned
to the hearing. He successfully raised this point on appeal to the Orenburg
Court. The decision
of 23 March was quashed and a fresh examination of the case was ordered.
20.
On 9
February 2000 the Leninskiy
Court refused the applicant's
application to have the judgment enforced in a different way. His appeal
against that decision was dismissed on 21
March 2000.
21.
On 10 and 21
February 2000 the bailiff stayed the
enforcement proceedings because the Treasury Department had requested supervisory-review
of the judgment of 22
July 1998.
22.
In March 2000 the applicant learned that the President of the Regional
Court had stayed the
execution because the supervisory-review of the judgment of 22
July 1998 had been in progress. The
applicant lodged a complaint against the President, which was dismissed
on 12
April 2000 by the Sovetskiy District
Court of Orsk as not amenable to judicial review. The applicant was later
informed that the stay of execution had been lifted.
23.
On 27
September 2000 the Senior Bailiff of
the Leninskoye Bailiff's Service decided that the execution should be stopped
as the writ of execution did not unequivocally identify the debtor. The
applicant successfully appealed against this decision: on 16
November 2000 the Central District Court
of Orenburg held that the Senior Bailiff had exceeded her authority when
she closed the enforcement proceedings.
24.
On 30
November 2000 the bailiff responsible
for the applicant's file revoked her decision of 9
April 1999 commencing the enforcement
since the writ of execution did not clearly identify the debtor and its
address. The applicant successfully complained to the Central
Court about this decision:
on 1
March 2001 the court ordered the bailiff
to proceed with the execution of the judgment.
25.
On 14
December 2000 the same court ruled
that the stay of execution pending the supervisory review was unlawful
and ordered the bailiff to continue the execution.
26.
On 21
March 2001 the bailiff applied to the
Leninskiy District Court for clarification as to how the judgment should
be enforced, what legislation should be applied and which accounts of which
branch of the Treasury Department should be charged. The court did not
satisfy the bailiff's request as the writ of execution was sufficiently
clear, and the court had no competence to advise the bailiff on possible
modes of enforcement.
27.
On 4
April 2001 the acting Public Prosecutor
of the Orenburg Region lodged an application for supervisory review of
the judgment of 22
July 1998 on the ground that the compensation
should have been awarded against the Regional Authority and not against
the Treasury Department. On 16
April 2001 the Presidium of the Orenburg
Regional Court granted
the prosecutor's application and quashed the judgments of 22
July 1998 and 8
December 1998. The case was remitted
for a new examination.
28.
On 15
May 2001 the Central District Court
of Orenburg refused the Treasury Department's application to lift the attachment
of its accounts. Instead, the court ordered that the execution should cease
since the judgment debt had been quashed on 16
April 2001.
29.
On 29
June 2001 the Lenisnkiy District Court
gave a new judgment in the case. The applicant was awarded RUR 2,869.50
in compensation for the property and RUR 1,000 in legal costs. The compensation
was to be paid by the financial department of the Orsk City Council. The
claims for repossession and non-pecuniary damages were dismissed. The applicant's
appeal against the judgment was disallowed by the Orenburg
Regional Court on 14
August 2001.
30.
On 18
December 2001 the bailiff closed the
enforcement proceedings because the award had been credited to the applicant's
bank account on 30
November 2001. The applicant challenged
this decision in court claiming that he had not received the money. On 15
February 2002 the Leninskiy District
Court established that there was insufficient evidence that the award had
indeed been paid to the applicant and annulled the bailiff's decision to
close the enforcement.
31.
By letter of 31
October 2002 the Government informed
the Court that the award of 29
June 2001 had been paid to the applicant
on 30
November 2001.
32.
By letter of 18
October 2002 the applicant informed
the Court that he had not received the money awarded.
II. RELEVANT
DOMESTIC LAW
33.
Section 9 of the Federal Law on Enforcement Proceedings of 21
July 1997 provides that a bailiff's
order on the institution of enforcement proceedings must fix a time-limit
for the defendant's voluntary compliance with a writ of execution. The
time-limit may not exceed five days. The bailiff must also warn the defendant
that coercive action will follow, should the defendant fail to comply with
the time-limit.
34.
Under section 13 of the Law, the enforcement proceedings should be completed
within two months of the receipt of the writ of enforcement by the bailiff.
THE LAW
I. THE APPLICANT'S STATUS AS
A VICTIM
35.
Before turning to the substance of the complaints, the Court must ascertain
whether, and to what degree, the applicant continues to be a victim of
the alleged breaches of the Convention.
36.
The Court 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, with further references, Burdov v. Russia, no. 589498/00,
§ 31, ECHR 2002-III).
37.
According to the information submitted by the Government – but disputed
by the applicant – the authorities have paid to the applicant the money
awarded by the judgment of 28
June 2001. Even if the applicant has
indeed received the money, the Court does not consider this payment as
an acknowledgement of, still less redress for the breach of applicant's
right to benefit from the judgment debt as soon as it became enforceable.
38.
The applicant therefore may still claim to be a victim of a violation of
Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.
II. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
39.
Article 6 § 1 of the Convention reads:
“In the determination of his civil rights
and obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
40.
The Court reiterates that Article 6 § 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 ContractingState'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 § 1 should describe in detail 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, cited above, § 34).
41.
The Court notes that the judgment of 22
July 1998, which became final on 8
December 1998, remained unenforced
at least until 30
November 2001,
that is for almost three years.
42.
It appears that the delays in the execution were caused by the bailiffs'
unlawful actions, numerous adjournments due to interference of supervisory-review
authorities, and the obscurity of the judgment. The Court considers that
the applicant should not pay the price of these omissions of the State
(see, with necessary changes made, Burdov, cited above, § 35). The
Court finds it unacceptable that a judgment debt against the State is not
honoured for such a long period of time.
43.
There has accordingly been a violation of Article 6 § 1.
III.
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
44.
Article 1 of Protocol No. 1 provides:
“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.”
45.
The Court reiterates that a “claim” can constitute a “possession” within
the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently
established to be enforceable (see, with further references, Burdov,
cited above, § 40).
46.
The judgment of the Leninskiy District Court of Orsk of 22
July 1998 became final on 8
December 1998. But the applicant did
not receive from the State the judgment debt as soon as it became enforceable
or, at least, within the time-limit set in the domestic law.
47.
By failing to comply with the judgment of the Leninskiy District Court
of Orsk the national authorities prevented the applicant from receiving
the money he could reasonably have expected to receive. The Government
have not advanced any justification for this interference.
48.
There has accordingly been a violation of Article 1 of Protocol No. 1.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
49.
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.”
50.
The Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing together
with the relevant supporting documents or vouchers, “failing which the
Chamber may reject the claim in whole or in part”.
51.
In the instant case, on 16
September 2002, after the application
was declared admissible, the applicant was invited to submit his claims
for just satisfaction. He did not submit any such claims within the required
time-limits.
52.
In these circumstances, the Court makes no award under Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the applicant
may claim to be a “victim” for the purposes of Article 34 of the Convention;
2. Holds that there has
been a violation of Article 6 § 1 of the Convention;
3. Holds that there has
been a violation of Article 1 of Protocol No. 1.
Done in English, and notified in
writing on 23
October 2003, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Vincent BergerGeorgRess
RegistrarPresident
