26365/05

FIRST SECTION             CASE OF KAZANTSEVA v. RUSSIA   (Application no. 26365/05)               JUDGMENT       STRASBOURG   23 October 2008     FINAL   23/01/2009   This judgment may be subject to editorial revision. In the case of Kazantseva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:  Nina Vajić, President,  Anatoly Kovler,  Elisabeth Steiner,  Dean Spielmann,  Sverre Erik Jebens,  Giorgio Malinverni,  George Nicolaou, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 2 October 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 26365/05) 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 Yekaterina Aleksandrovna Kazantseva (“the applicant”), on 29 June 2005. 2.  The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.  On 14 November 2006 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 FACTS I.  THE CIRCUMSTANCES OF THE CASE 4.  The applicant was born in 1971 and lives in Yakutsk, a town in Yakutia. 5.  On 5 December 2002 the Yakutsk Town Court ordered the local council to provide the applicant with a decent flat for a family of three. This judgment became binding on 15 December 2002. 6.  On 18 November 2004 the court redirected the debt from the local council to the Mayor’s Office. 7.  On 21 December 2005 the judgment was enforced. II. RELEVANT DOMESTIC LAW 8.  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 9.  The applicant complained under Article 1 of Protocol No. 1 about non-enforcement of the judgment. The Court will examine this complaint under Article 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 10.  The Government argued that the application was inadmissible. The applicant had missed six months because the final domestic decision had been given on 18 November 2004. Besides, the applicant had failed to exhaust domestic remedies because she could have sued the bailiffs for negligence. 11.  The applicant maintained her application. 12.  The Court considers that the six-month rule does not apply to the present case because on the date of introduction the judgment was outstanding (see Nazarchuk v. Ukraine, no. 9670/02, § 20, 19 April 2005). The Court also reiterates that a complaint against the bailiffs would not have been an effective remedy (see Jasiūnienė v. Lithuania (dec.), no. 41510/98, 24 October 2000; Plotnikovy v. Russia, no. 43883/02, § 16, 24 February 2005). 13.  The Court notes that the application 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 14.  In their initial observations the Government admitted that they had been responsible for a three years’ delay in the enforcement, and that this delay had violated the applicant’s rights. In their subsequent observations the Government argued that they had been responsible for only two months’ delay, and that this delay had not violated the applicant’s rights. 15.  The Court notes that the Government’s observations are self-contradictory, and that they have provided no plausible explanation for this contradiction. 16.  The Court thus considers that the Government have failed to rebut the applicant’s complaint. Accordingly, there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.  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 18.  The applicant claimed 200,000 euros (EUR) in respect of non-pecuniary damage. 19.  The Government argued that this claim had been excessive and unfounded. 20.  The Court accepts that the applicant must have been distressed by the delayed enforcement of the judgment. Making its assessment on an equitable basis, the Court awards EUR 2,300 under this head. B.  Costs and expenses 21.  The applicant made no claim for the costs and expenses. Accordingly, the Court makes no award under this head. C.  Default interest 22.  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 § 1 of the Convention and Article 1 of Protocol No. 1;   3.  Holds (a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles 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;   4.  Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 23 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  André Wampach Nina Vajić  Deputy Registrar President