AS TO THE ADMISSIBILITY OF
Application no. 55531/00
by Anatoliy Ivanovich SITKOV
The European Court of Human Rights (First Section),
9 November 2004 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 7 February 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Anatoliy Ivanovich Sitkov, is a Russian national, who was born in 1948 and lives in Moscow. He is represented before the Court by Mme Elena Liptser, a lawyer practising in Moscow. The respondent Government are represented by Mr Pavel Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Court dispute with a private company
On 25 November 1996 the applicant took out insurance for his summer cottage. On 21 May 1997 the cottage burnt down. The insurer, a private company (hereinafter referred as “company”), paid only a part of the amount claimed by the applicant. The applicant brought an action against the company claiming the rest. On 5 December 1997 the Moscow Lefortovskiy District Court ordered the company to pay the applicant 86,621 Russian Rouble (RUR). On 16 January 1998 the Moscow City Court upheld this judgment.
2. Enforcement proceedings against the company
On 18 December 1997, upon the applicant's request, the Lefortovskiy District Court ordered the seizure of the company's accounts in a private bank “Yunikbank”. As follows from the extract of this account, provided by the “Yunikbank”, on 29 December 1997 the company had RUR 14,991 on this account. There is no indication, however, that the money on this account has ever been seized.
Following the judgment of 5 December 1997 as upheld on 16 January 1998, the Lefortovskiy District Court issued an execution order against the company. On 26 January 1998 the execution order was sent to the bailiff.
On 28 January 1998 a bailiff initiated the enforcement proceedings. On 2 February 1998 the bailiff requested from the State Tax Office information about the accounts and assets of the company. The Tax Office informed the bailiff that by 1 October 1997 the company had declared RUR 350,000 in cash and RUR 12,274 on accounts in three private banks. According to the Tax Office, in the last fiscal report the company had also declared RUR 98,507,000 in capital assets, RUR 116,534,000 in intangible assets, and RUR 24,804,000 in receivable accounts.
On 11 February 1998 the bailiff visited the headquarters of the company, indicated in the company's official documents, but no property belonging to the company was found at this address. On the same day the bailiff discontinued the enforcement proceedings on the ground that the defendant had no assets to seize.
On 12 February 1998 the applicant brought an action against the bailiff. He claimed that the bailiff had failed to take appropriate steps to find and seize the company's property. On 23 February 1998 the Lefortovskiy District Court ruled in the applicant's favour. The court found, in particular, that the bailiff had failed to withdraw the debt from the defendant's account in “Yunikbank”. The court also found that the bailiff had breached a number of procedural rules, in particular, had not informed the applicant about the initiation of the enforcement proceedings. The court ordered the enforcement of the judgment in the applicant's favour.
A new bailiff was appointed to deal with the applicant's case. However, he found no money on two of the defendant's accounts, including the one in “Yunikbank”. On 18 March 1998 the enforcement proceedings were discontinued.
The applicant challenged in court the discontinuation of the proceedings. On 18 May 1998 the Lefortovskiy District Court quashed the bailiff's decision and ordered the re-opening of the enforcement proceedings. The court found, in particular, that the bailiff had failed to establish the real whereabouts of the company and its property. On 24 June 1998 the Moscow City Court dismissed the Senior Bailiff's appeal against this decision.
On 16 November 1998 the bailiff again discontinued the enforcement proceedings in view of the absence of assets belonging to the defendant. The applicant did not appeal against this decision.
3. Claim for damages against the Bailiff's Office
On 16 April 1998 the applicant brought an action for damages against the Ministry of Justice, which is responsible for the Bailiff's Office.
On 10 March 1999 the Moscow Presnenskiy District Court recognised liability of the Bailiff's Office for the non-execution of the judgment of 5 December 1997 as upheld on 16 January 1998. The court granted the applicant damages in the amount of RUR 86,621, i.e. the sum which he had initially claimed from the insurance company. This judgment was not appealed against. It became final on 20 March 1999, and was transmitted to the bailiffs for enforcement.
On 29 July 1999 the Moscow City Prosecutor lodged with the Moscow City Court an extraordinary appeal against the judgment of 10 March 1999. The Prosecutor also suspended the enforcement proceedings. On 16 September 1999 the Presidium of the Moscow City Court dismissed the appeal, upholding the judgment of 10 March 1999.
On 28 January 2000 the Deputy Prosecutor General lodged with the Supreme Court of Russia a new extraordinary appeal against the judgment of 10 March 1999. He alleged, inter alia, that the Moscow Presnenskiy District Court should have imposed responsibility for the alleged non-execution on the Treasury, not the Ministry of Justice.
On 29 February 2000 the Supreme Court of Russia granted the prosecutor's appeal and quashed the judgment of 10 March 1999, stating, inter alia, that the first instance court had not established a causal link between the alleged negligence of the bailiffs and the damages incurred by the applicant. The case was remitted to the Moscow Presnenskiy District Court for a fresh examination.
The applicant indicates that after the quashing of the judgment of 10 March 1999 by the Supreme Court, the hearings were repeatedly adjourned, mainly due to the defendant's failure to appear before the court.
On 3 April 2001 the Presnenskiy District Court dismissed the applicant's claim. The court found no liability of the Bailiff's Office for the non-execution of the judgment.
On 20 July 2001 the Moscow City Court, acting as a court of appeal, quashed the judgment of 3 April 2001, remitting the case to the Presnenskiy District Court.
On 18 January 2002 the Presnenskiy District Court again refused the applicant's claim. It stated that the applicant was not deprived of his property as a result of the actions of the Bailiff's Office. Although the court acknowledged that the Bailiff's Office's actions prevented the applicant from recovering his money, it declared that the actions of the Bailiff's Office “only hindered compensation of damage”, but “did not cause damage”.
The applicant appealed against the judgment. On 5 March 2002 the Presnenskiy District Court disallowed the appeal as the applicant had not paid court fees. The applicant appealed against the decision, claiming that he was exempted from paying the fees. On 22 May 2002 the Moscow City Court upheld the decision of 5 March 2002. However, on 19 September 2002 the Presidium of the Moscow City Court overruled this decision, stating that the applicant should have been exempted from paying the fees.
On 28 November 2002 the Moscow City Court examined the applicant's appeal. It upheld the decision of the Presnenskiy District Court of 18 January 2002. The appellate court reiterated that as a result of the bailiff's actions the applicant had not been deprived of his possession. In the court's opinion, the bailiff's actions might be regarded only as a hindrance to a full compensation for damages caused by the insurance company.
B. Relevant domestic law
1. Execution of a judgment and supervisory review
For relevant details see the Ryabykh v. Russia judgment (no. 52854/99, 24 July 2003, §§31-40).
Pursuant to the Law “On enforcement proceedings” of 1997, any decision of the bailiff can be challenged in court within 10 days from the moment when the concerned person learned about this decision (Article 90 § 1). Articles 19 and 90 § 2 of this law stipulate that the damage caused by the bailiffs should be compensated under general rules of civil responsibility.
2. Damage caused by the acts of the authorities
Article 46 of the Russian Constitution provides that any acts or failure to act by State authorities may be appealed against to a court.
Article 53 of the Constitution and Article 1069 of the Civil Code provide for compensation of damage caused by the State. Article 1071 of the Civil Code authorises certain State financial authorities to act on behalf of the Treasury in cases where the State has been found liable for damages.
Article 90 § 2 of the Act on Enforcement Proceedings provides that the damage caused by the bailiff shall be reimbursed in accordance with the civil legislation.
1. Under Article 6 § 1 of the Convention and Article 1 of Protocol no. 1 to the Convention the applicant complains that, due to the negligence of the bailiffs, the court judgment of 5 December 1997, as upheld on 16 January 1998, remained unexecuted.
2. The applicant further complains that the time taken to determine his cases has exceeded the “reasonable time” threshold contained in Article 6.
3. Under Article 6 § 1 and Article 1 of Protocol no. 1 to the Convention the applicant complains of the fact that the final judgment of 10 March 1999 in his favour against the State was quashed by way of supervisory review.
4. Finally, under Article 13 of the Convention the applicant complains about the absence of any effective remedy in respect of his aforesaid complaints.
1. The applicant first complains that the judgment in his favour of 5 December 1997, as upheld on 16 January 1998, was not duly executed and that the proceedings in this respect lasted too long. He invokes Article 6 § 1 of the Convention, and Article 1 of Protocol no. 1 to the Convention. These provisions read, insofar as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 1 of the 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.”
The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints which have been submitted within six months from the date of the “final” domestic decision. The Court observes that the dispute with the insurance company ended with the final judgment of the Moscow City Court of 16 January 1998. The enforcement proceedings arising from this judgment were discontinued by the bailiff's decision of 16 November 1998. This decision was not appealed against and, therefore, became final (see the “Relevant Domestic Law” part above). The Court notes that in certain circumstances the enforcement proceedings may be regarded as a part of the trial (see the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-1384, §§ 20-24, and pp. 1410-1411, §§ 16-20 respectively). The Court notes that the present application was introduced before the European Court on 7 February 2000, that is more than six months after the final domestic decision had been taken.
The Court concludes that this complaint was submitted out of time and should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant complains further about the excessive length of the proceedings concerning his claim for damages against the bailiffs lodged on 16 April 1998, which ended on 28 November 2002. He also complains about the absence of any effective remedy with respect to this complaint. He invokes Articles 6 of the Convention, cited above, together with and Article 13 thereof, which 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 Government submit that, in view of the number of instances involved, the overall length of civil proceedings was not unreasonable. They do not present separate comments on Article 13, but insist that “the applicant's claims regarding interference with his rights connected with the “reasonable time” requirement are ill-founded”.
The applicant disputes the Government's view. He maintains that the dispute at issue was not particularly complex. He argues further that had the judgment of 5 December 1997, as upheld on 16 January 1998, been properly executed, the subsequent proceedings would not have taken so much time. He adds that the delays in the proceedings after the date of the quashing were also imputable to the State. The applicant maintains his complaint that he did not have effective remedies to expedite the proceedings.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. The applicant complains further about the quashing on 29 February 2000 of the final judgment of 10 March 1999, which entered into force on 20 March 1999, by way of supervisory review. He invokes in this respect Article 6 § 1 of the Convention and Article 1 of Protocol no. 1 to the Convention, cited above.
In their observations the Government deny any State responsibility for the non-execution of the Lefortovskiy District Court's judgment of 5 December 1997, as upheld on 16 January 1998. The Government argue that the judgment was not enforced due to the bankruptcy of the insurance company. The Government state further that the judgment of the Presnenskiy District Court of 10 March 1999, imposing the responsibility for the non-enforcement on the bailiffs, was erroneous from the legal standpoint. Therefore, there existed sufficient legal grounds for quashing it by way of supervisory review.
The applicant contests these arguments. He alleges that the judgment of 5 December 1997, as upheld on 16 January 1998, was not enforced due to the negligence of the bailiffs. The applicant indicates that on 18 December 1997, upon his request, the Lefortovskiy District Court ordered to seize the defendant company's bank account. However, despite the court order, the account was not seized. As a result, the company had time to withdraw money from the bank. Furthermore, the bailiffs failed to take necessary steps to find and seize other assets of the company. Therefore, the responsibility for the non-enforcement of the court judgment of 5 December 1997, as upheld on 16 January 1998 was fully with the State and the judgment of the Presnenskiy District Court of Moscow of 10 March 1999 was correct. The applicant further alleges that the quashing of the judgment of 10 March 1999 by the Supreme Court breached the principle of legal certainty, enshrined in Article 6 of the Convention.
In the light of the parties' submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
4. The applicant complains finally that he had no effective remedies in respect of the non-enforcement of the court judgment pronounced against the private company, the length of civil proceedings against the private company and the decision of 29 February 2000 to quash, on supervisory review, the final judgment of 10 March 1999, which entered into force on 20 March 1999. In this respect he invokes Article 13 of the Convention, cited above.
The Court recalls that Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 54; see also Lawlor v. the United Kingdom, no. 12763/87, 14 July 1988). Given that the complaints regarding the first set of civil proceedings were submitted out of time, the Court concludes that applicant had no arguable claim for the purposes of Article 13 of the Convention in this respect.
As regards his complaint under Article 13 about the quashing of a final judgment in his favour, the Court recalls that Article 13 of the Convention does not, as such, guarantee a right of appeal or a right to a second level of jurisdiction (cf. the decisions in Kopczynski v. Poland, no. 28863/95, 1 July 1998, and Csepyová v. Slovakia, no. 67199/01, 14 May 2002). In the present case, the Court considers that the mere fact that the judgment of the highest judicial body is not subject to further judicial review (at least within the ordinary proceedings) does not infringe in itself Article 13 of the Convention (see in this respect Tregubenko v. Ukraine, no. 61333/00, 21 October 2003).
It follows that the applicant's complaints under Article 13 of the Convention in this respect are manifestly ill-founded and must be rejected in accordance with Article 35 § 4 thereof.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the complaints, under Articles 6 and 13 of the Convention, that the length of the proceedings concerning his claim for damages against the bailiffs exceeded reasonable time and that he had no effective remedy in this respect,
Declares admissible, without prejudging the merits, the complaint, under Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention, that the final decision in his favour of 10 March 1999 was quashed by the Supreme Court by way of supervisory review;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
SITKOV v. RUSSIA DECISION
SITKOV v. RUSSIA DECISION