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FIRST
SECTION
CASE OF VAKULENKO v. RUSSIA
(Application
no. 38035/04)
JUDGMENT
STRASBOURG
14
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vakulenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38035/04) 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, Ms Larisa Ivanovna
Vakulenko (“the applicant”), on 30 July 2004.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation
at the European Court of Human Rights.
- On
6 November 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3). The Government objected to the
joint examination of the admissibility and merits, but the Court
rejected this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Zernograd, a town in the
Rostov Region.
- The
applicant's family has modest means. By virtue of two judgments of
the Justice of the Peace of the First Court Circuit of the
Zernogradskiy District of the Rostov Region of 3 April 2003, a local
welfare authority was to pay the applicant 438.35 Russian roubles
(RUB) in subsistence allowance (адресная
социальная
помощь).
These judgments became binding on 8 May 2003 and have been enforced
by 19 December 2007.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months. Under
section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of
Finance must enforce a judgment within three months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Articles 6 and 14 of the Convention, and
Article 1 of Protocol No. 1 about the delayed enforcement of the
judgments. The Court will examine this complaint under Articles 6 §
1 of the Convention and Article 1 of Protocol No. 1. Insofar as
relevant, these Articles read as follows:
Article 6 § 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
- The
Government argued that this complaint was inadmissible. The applicant
had failed to submit enforcement papers to the correct authority in
time. Besides, the applicant had not exhausted such domestic remedies
as a negligence complaint, a claim for non-pecuniary damages, and
adjustment for the cost of living.
- The
applicant maintained her complaint.
- The
Court considers that the remedies cited by the
Government would be ineffective. A negligence complaint would yield a
declaratory judgment that would reiterate what was in any event
evident from the original judgment: the State was to honour its debt.
This new judgment would not bring the applicant closer to her desired
goal, that is the actual payment of the judicial awards or, if
appropriate, compensation for late payment (see Jasiūnienė
v. Lithuania
(dec.), no. 41510/98, 24 October 2000;
Plotnikovy v. Russia,
no. 43883/02, § 16, 24 February 2005). A claim
for non-pecuniary damages has not been shown to be sufficiently
certain in practice so as to offer the applicant reasonable prospects
of success as required by the Convention. Likewise, the
adjustment for the cost of living would not compensate pecuniary and
non-pecuniary damage.
It
follows that this complaint cannot be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that an unreasonably long delay in the enforcement
of a binding judgment may breach the Convention (see Burdov
v. Russia,
no. 59498/00, ECHR 2002 III). To decide if the delay was
reasonable, the Court will look at how complex the enforcement
proceedings were, how the applicant and the authorities behaved, and
what the nature of the award was (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
13. In
the case at hand, the period of enforcement was four years and seven
months: from the date the judgments had become binding to the date of
the last payment. The Government argue that this period should run
from the date when the applicant had submitted the enforcement papers
to the correct authority, but the Court reiterates that where a
judgment is against the State, the State must take the initiative to
enforce it (see Akashev v. Russia,
no. 30616/05, § 21–23, 12 June 2008).
- The
above period is incompatible with the requirements of the Convention.
There has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that she had no effective domestic remedy
against the non-enforcement of the judgments. Article 13 reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court has found above that the remedies suggested by the Government
were ineffective. There has, accordingly, been a violation of Article
13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested this claim as excessive and unreasonable.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court accepts that the applicant must have been
distressed by the delayed enforcement of the judgments. Making its
assessment on an equitable basis, the Court awards EUR 3,500 under
this head.
B. Costs and expenses
- The
applicant also claimed RUB 1,000 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government contested this claim as unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 27 covering costs
under all heads.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there have been violations of
Articles 6 § 1 and 13 of the Convention, and Article 1 of
Protocol No. 1;
- 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 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR 3,500 (three thousand five
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(iii) EUR 27 (twenty-seven euros),
plus any tax that may be chargeable to the applicant, in respect of
costs and expenses;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
