CASE OF BELYATSKAYA v. RUSSIA
Violation of Art. 6-1 (enforcement delay);Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient
Christos Rozakis
4. The applicant was born in 1958 and lives in the town of Arkhangelsk. 5. The applicant instituted proceedings against the Social Security Department and the Finance Department of the Arkhangelsk Regional Administration (Управление социальной защиты населения и Финансовое управление администрации Архангельской области), seeking to recover unpaid child allowance for the period between June 1998 and December 1999. 6. On 16 February 2001 the Oktyabrskiy District Court of Arkhangelsk (Октябрьский районный суд г. Архангельска) granted the applicant’s claims in so far as they concerned the Finance Department and ordered the latter to pay 2,244.16 Russian roubles (approximately 85 euros at the material time) to the applicant. 7. No appeal was lodged and this judgment became final on 26 February 2001. 8. On 9 April 2001 the Oktyabrskiy District Bailiff’s Office of Arkhangelsk (Служба судебных приставов по Октябрьскому району г. Архангельска) received the execution writ in respect of the judgment. 9. By letter of 13 March 2002 the Regional Prosecutor’s Office (прокуратура Архангельской области) informed the applicant that the unpaid child allowances were paid by the Finance Department in turns, depending on the availability of funds. 10. On 19 May 2003 the amount due was paid to the applicant by the Social Security Department. 11. On 16 September 2003 the Bailiff’s Office terminated the enforcement proceedings on the ground that the judgment had been enforced. As indicated in a letter of the Bailiff’s Office of 13 September 2004, the delayed enforcement of the judgment had been caused by lack of funds. 12. On 22 April 2002 the applicant instituted proceedings in the Lomonosovskiy District court of Arkhangelsk (Ломоносовский районный суд г. Архангельска) against the Oktyabrskiy District Bailiff’s Office and the State Treasury, seeking pecuniary and non-pecuniary damages for the non-enforcement of the judgment. 13. She claimed that the Bailiff’s Office had failed to take the necessary actions to enforce the judgment and requested that damages be recovered from the State Treasury. 14. On 23 April 2002 the Lomonosovskiy District Court of Arkhangelsk refused to deal with her claim for lack of territorial jurisdiction. The court found that, since the applicant in her claim insisted that damages be recovered from the State Treasury, she should have applied to the relevant court in Moscow where the office of the State Treasury was situated. 15. On 8 May 2002 the applicant filed an appeal against this decision which was received by the court on 13 May 2002. In her appeal she argued that, as long as in her claim she had indicated both the Bailiff’s Office and the State Treasury as defendants, she was free in her choice as to which of the two courts, which had territorial jurisdiction over the defendants, to apply. Since the Oktyabrskiy District Bailiff’s Office was situated under the territorial jurisdiction of the Lomonosovskiy District Court, she had chosen to apply to this court. 16. On 14 May 2002 the District Court found that the appeal had been filed out of time and no request for leave to appeal out of time had been made. It advised the applicant to submit such request by 24 May 2002, indicating the reasons for missing the appeal time-limit. Otherwise, her appeal would be returned. 17. On 20 May 2002 the applicant submitted such request. In her request she argued that she had not missed the appeal time-limit as the decision of 23 April 2002 was received by her only on 30 April 2002. The appeal was filed on 8 May 2002, i.e. within the required ten days. 18. The court scheduled a hearing on the applicant’s request on 4 June 2002. The Government submitted that the applicant had been properly notified of that hearing but failed to appear. 19. The applicant did not comment on that point. 20. Accordingly, by letter of 4 June 2002 the District Court returned the applicant’s appeal on the ground that she had failed to comply with the instructions given in its decision of 14 May 2002. 21. The outcome of the proceedings remains unclear. 22. According to Articles 13, 209 and 338 of the Code of Civil Procedure (Гражданский процессуальный кодекс РСФСР), in force at the material time, a court judgment, which has become final, is binding and must be executed. 23. Section 9 of the Law on Enforcement Proceedings of 21 July 1997 (Закон об исполнительном производстве) provides that a bailiff’s order on the institution of enforcement proceedings shall fix a time-limit for the defendant’s voluntary compliance with the writ of execution. The time-limit cannot exceed five days. The bailiff shall also warn the defendant that coercive action will follow, should the defendant fail to comply within the time-limit.