CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 19 février 2015

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RUSSIA   (Application no. 25856/07)                   JUDGMENT     STRASBOURG   19 February 2015           This judgment is final but it may be subject to editorial revision. In the case of Koval v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Khanlar Hajiyev, President,   Julia Laffranque,   Erik Møse, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 27 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 25856/07) 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 Aleksandr Vasilyevich Koval (“the applicant”), on 10 May 2007. 2.     The Russian Government (“the Government”) were represented by Mr   G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     On 9 January 2009 the President of the First Section decided to give notice of the application to the Government. 4.     In accordance with the pilot judgment Burdov v. Russia (no.   2) (no.   33509/04, ECHR 2009), this application was adjourned pending its resolution at the domestic level. 5.     On 15   September 2010 the Government submitted their comments on the case and informed the Court that the applicant had died on 4   June 2010. 6.     Thereafter the Court sent letters to the applicant’s known address with the request for any legal successors wishing to continue the proceedings. Since no reply followed before or shortly after expiration of the allotted time-limit, on 17   January 2012 the Court sitting as a Committee decided to strike the application out of its list of cases. 7.     On 30   January 2012 the Court received a letter from the applicant’s widow dated 5   January 2012, in which Mrs Agrippina Mironovna Koval, born in 1945 and living in Aksay, expressed the wish to pursue the application in the applicant’s stead, and submitted her comments and claims for just satisfaction. In that letter she advised the Court that she had timeously requested to admit her as the applicant’s successor and enclosed a copy of her letter of 28   October 2010 to that effect. On 13   March 2012 the Court decided, under Article 37   §   2 of the Convention, to restore the application to its list. For the sake of convenience, the Court will continue to refer to Mr   A.V. Koval as “the applicant”. 8.     The Government later informed the Court that enforcement of the judgment in the applicant’s favour was impossible and asked the Court to consider the application in due course. The Court therefore decided to resume examination of the present case. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1949 and lived in Aksay. 10.     He sued Russian military authorities in domestic courts, seeking recovery of pension arrears. 11.     On 12   August 2004 the Rostov-on-Don Military Circuit Court granted the applicant’s claim and ordered the Military Commission of the Rostov Region (“the military commission”) to pay the applicant 204,870.78   Russian roubles. The judgment became final on 23   August 2004. 12 .     On 23 August 2004 the respondent military commission received a writ of execution in relation to the judgment debt from the court and at some point issued a payment order pursuant to the judgment in the applicant’s favour. However, that order was subsequently revoked and the writ of execution was seized due to a check held by a military prosecutor’s office and no funds were transferred to the applicant’s account (see also paragraph   13 below). 13.     At some point the respondent authority sought restoration of the term for challenging of the judgment by way of the supervisory review procedure. On 1   December 2006 the Rostov-on-Don Military Circuit Court rejected that claim. 14 .     In response to the applicant’s several requests, the authority in charge of the payment submitted that the writ of execution was not in its possession and therefore it was unable to pay the judgment debt. At some point the applicant requested a court to issue a duplicate of the writ of execution and to restore the time-limit for its submission for execution. In its decision of 14   April 2009 the Rostov-on-Don Military Circuit Court confirmed that the writ of execution had been seized during the inquiry. However, the court found no reasons to consider the writ of execution as being lost as it was apparently in the possession of the military prosecutor’s office. The court accordingly decided that no duplicate could be issued as the time-limit for its submission for execution had expired. The court also refused to reinstate the missed term as the applicant could have requested the prosecutor’s office to return him the document in question and after that submit it for execution. On 10   June 2009 the North Caucasus Circuit Military Court upheld the decision on appeal. 15 .     The judgment of 12   August 2004 remained unenforced up to the date of the applicant’s death in 2010. In December 2011 his widow obtained a certificate issued by a public notary by which she was officially recognised as the applicant’s successor in respect of his right to claim the judgment debt. Then she sought in courts substitution of her late husband in the enforcement proceedings. On 10   August 2012 the Rostov-on-Don Military Circuit Court rejected her claim, stating that the deceased applicant could not be substituted because no execution proceedings had ever been initiated, no writ of execution had been submitted for execution, and the three ‑ year term for its submission and initiation of the execution proceedings had expired. The applicant’s widow sought in court reinstatement of the term for appealing against the decision of 10   August 2012. It follows from the parties’ later submissions that the request was granted and she was able to challenge the decision on appeal. The parties have not provided any information on the outcome of those proceedings. 16.     The judgment remains unenforced to date. II.     RELEVANT DOMESTIC LAW 17.     For the relevant provisions on the execution proceedings, which were in force at the material time, see the Court’s judgment in the case of Burdov (no.   2) , cited above. THE LAW I.     LOCUS STANDI 18.     The Court notes the fact of the death of Mr Koval and the wish of his widow, Mrs Koval, to pursue the proceedings he initiated. 19.     The Court reiterates that where an applicant dies during the examination of a case his heirs of next kin may in principle pursue the application on his behalf (see Ječius v.   Lithuania , no.   34578/97, §   41, ECHR   2000-IX). Furthermore, in several Russian cases concerning non ‑ enforcement of court judgments in applicants’ favour, the Court recognised the right of the relatives of the deceased applicants to pursue the application (see, for example, Shiryayeva v. Russia , no. 21417/04, §§   8 ‑ 9, 13   July 2006). 20.     The Court notes that the rights at stake in the present case are very similar to those at the heart of the last case referred to above. Nothing suggests that the rights the applicant sought to protect through the Convention mechanism were eminently personal and non-transferable (see, as regards Article 6, Malhous v.   the Czech Republic [GC], no.   33071/96, §   1, 12   July 2001). The Government did not contend that Mrs Koval had no standing to pursue the case. Thus, the Court considers that the applicant’s widow has a legitimate interest in pursuing the application in her late husband’s stead. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 21.     The applicant complained about the non-enforcement of the judgment of 12 August 2004 in his favour. He relied on Article   6 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, provide as follows: Article   6   §   1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time 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.” 22.     In their initial submissions the Government argued that the writ of execution had been served on the applicant and that the latter had failed to forward it to the bailiffs’ service in order to initiate the enforcement proceedings. They also argued that as the time-limit for the enforcement had expired, the claim for the duplicate of the writ had been rejected and that the expiration of the time-limit cannot be attributed to the State authorities as the applicant had failed to request the prosecutor’s office to return him the writ of execution. 23.     Later the Government acknowledged that the judgment in question had not been enforced and submitted that the enforcement had not been possible without the substitution of the applicant by his widow in the enforcement proceedings, because the writs of execution should contain the information on the recipient of the funds. As the domestic proceedings concerning the substitution had been underway and the applicant’s widow had had a possibility to challenge the first-instance decision by which her claim for the substitution was rejected, the Government argued that the complaint was premature. 24.     The applicant’s widow argued that the writ of execution had been received by the respondent authority directly from the court and that this document has never been served on the applicant. The respective payment order had been made by the authority, but later revoked and the applicant had not received it. Thus, she concluded that the applicant could not be blamed for the failure to cooperate. She also reiterated that all the succession formalities had been complied with and she had been officially recognised as a successor of the applicant in relation to his right to claim the judgment debt. A.     Admissibility 25.     The Court notes that the application is not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     General principles 26.     The Court reiterates that an unreasonably long delay in enforcement of a binding judgment may breach the Convention (see Burdov v.   Russia , no.   59498/00, §   37, ECHR 2002 ‑ III). The reasonableness of such delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities, and the amount and nature of the court award (see Raylyan v. Russia , no. 22000/03, § 31, 15 February 2007). 27.     A person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v.   Greece , no.   8415/02, § 19, 27 May 2004). Where a judgment is against the State, the defendant State authorities must be duly notified thereof and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authorities responsible for compliance (see Akashev v.   Russia , no. 30616/05, § 21, 12 June 2008). 28.     The creditor’s uncooperative behaviour may be an obstacle to timely enforcement of a judgment, thus alleviating the authorities’ responsibility for delays (see Belayev v. Russia (dec.), 36020/02, 22 March 2011). For example, a State cannot be at fault for a non-enforcement in case of deliberate withholding of writs of execution for several years by a person in absence of any explanations for it (see Gadzhikhanov and Saukov v.   Russia , nos.   10511/08 and 5866/09, §§ 29-30, 31 January 2012). 29.     The requirement of the creditor’s cooperation must not, however, go beyond what is strictly necessary and, in any event, does not relieve the authorities of their obligation under the Convention to take timely action of their own motion, on the basis of the information available to them, with a view to honouring the judgment against the State (see Akashev , cited above, §   22, and Burdov (no. 2) , cited above, § 69). Thus, the Court did not accept, for instance, the State’s attempts to justify the enforcement delays by an erroneous transmission of the writ of execution by one authority to another (see Akashev , cited above, §§ 19-20). Nor was the applicant to blame for successive transmissions of the writ of execution to various State authorities after fruitless attempts to secure the respondent’s voluntary compliance with the judgment ( Burdov (no. 2) , cited above, § 75). 2.     Application of these principles to the present case 30.     The Court will consider the delay in the execution of the judgment concerned in this case on the basis of the above principles. 31.     The Government did not contest that the judgment in the applicant’s favour had not been enforced. However, they initially argued that the non ‑ enforcement was due to the applicant’s own negligence. The Court cannot accept this argument. As it clearly transpires from the case file, and from the domestic judgments of 14   April and 10   June 2009 the respondent authority timeously received the writ and, moreover, issued a payment order on its basis (see paragraphs   12 and 14 above). Since some date in late 2004 the enforcement document was in possession of the respondent authority, and the fact of its subsequent seizure and the subsequent impossibility to find it (see paragraph   14 above) cannot be attributed to the applicant. In these circumstances the Court considers that the applicant cannot be blamed for the lack of cooperation (see, by way of contrast, Gadzhikhanov and Saukov, cited above , §§   22-24 and 29-30). 32.     The Court further notes the Government’s reference to the authority’s inability to pay the judgment debt to the applicant’s widow without the substitution in the enforcement proceedings. The Court does not need to assess this argument separately. It is sufficient for the Court to note that by the date of the applicant’s death the initial judgment had remained unenforced for six years without a valid reason (see paragraph   15 above), which is in itself incompatible with the Convention requirements (see, among many others, Kosheleva and Others v. Russia , no.   9046/07, §   19, 17   January 2012). 33.     Taking into account these considerations, and in the light of the parties’ factual submissions received on 16 November 2012 at the latest, the Court concludes that the authority has failed to comply with the judgment since 2004. There was accordingly a violation of Article   6 of the Convention. 34.     Given that the binding and enforceable judgment created an established right to payment in the applicant’s favour, which should be considered as a “possession” within the meaning of Article   1 of Protocol   No. 1 ( see Vasilopoulou v. Greece , no. 47541/99, § 22, 21   March 2002), the authority’s prolonged failure to comply with this judgment also violated the applicant’s right to peaceful enjoyment of his possessions (see Burdov , cited above, § 41). There was accordingly a violation of Article 1 of Protocol   No.   1. III.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 35.     The Court decided on its own motion, before the adoption of the Burdov   (no. 2) pilot judgment, to ask the Government under Article   13 about the effective domestic remedy available to the applicant in respect of excessive delay in the enforcement of the judgment in his favour. The relevant provision 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.” 36.     The Government did not specify their position in relation to this question. 37.     The Court takes cognisance of the existence of a new remedy introduced at the national level after the Burdov (no.   2) pilot judgment, which enables those concerned to seek compensation for the damage sustained as a result of excessive delay in the enforcement of court judgments against the State (see Tkhyegepso and Others v.   Russia , nos.   44387/04 et al., §§ 21-23, 25 October 2011). However, in respect of the applications lodged before the delivery of the cited above pilot judgment, the Court has decided to resume examination of such applications on the merits. Otherwise it would be unfair if the applicants, who had allegedly been suffering for years of continuing violations of their right to a court and sought relief in this Court, were compelled yet again to resubmit their grievances to the domestic authorities, be it on the grounds of a new remedy or otherwise (see Burdov (no. 2) , cited above, §   144). 38.     Having regard to these special circumstances, although declaring the respective complaint admissible, the Court does not find it necessary to consider it separately under Article   13 ( see, mutatis mutandis , Kravchenko and Others v. Russia , nos. 11609/05 et al., §   45, 16   September 2010 ) . IV.     OTHER INADMISSIBLE COMPLAINTS 39.     In the letter dated 25 October 2012 the applicant raised further complaints under Article 6 of the Convention in relation to the proceedings, ended in June 2009, in which her husband sought issuance of the duplicate of the writ of execution (see paragraph   14 above). The Court notes, that the complaints were made for the first time after the communication of the case, that is, more than six months after the termination of the proceedings in question. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 of the Convention. V.     APPLICATION OF ARTICLE   41 OF THE CONVENTION 40.     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 41.     The applicant’s widow claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage. 42.     The Government agreed with this claim and stated that such amount met the requirements of reasonableness and proportionality. 43.     The Court accepts that the applicant must have suffered distress and frustration due to the authority’s lengthy failure to honour the State’s debt to him. Deciding on an equitable basis and having regard to all relevant factors (see Burdov (no. 2) , cited above, §§ 154-57), it awards EUR   5,000 as non ‑ pecuniary damage. B.     Costs and expenses 44.     The applicant’s widow did not seek reimbursement of the costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court does not make any award under this head. C.     Default interest 45.     The Court considers it appropriate that the default interest rate 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.     Decides that the applicant’s widow, Mrs Agrippina Mironovna Koval, has standing to continue the proceedings in Mr   Koval’s stead;   2.     Declares the application in the part related to delayed enforcement of the judgement in the applicant’s favour admissible and the remainder of the application inadmissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of lengthy non-enforcement of the judgment in the applicant’s favour;   4.     Holds that there is no need to examine the complaint under Article 13 of the Convention;   5.     Holds (a)     that the respondent State is to pay Mrs Koval, within three months, EUR 5,000 (five thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (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. Done in English, and notified in writing on 19 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André Wampach   Khanlar Hajiyev Deputy Registrar   President