CASE OF KESYAN v. RUSSIA
Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-1 and P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award
Christos Rozakis
4. The applicant was born in 1952 and lives in the town of Sochi, in the Krasnodar Region. 5. On 31 July 1998 the applicant sued the Rostov Regional Department of the Federal Treasury and Mrs O. in tort. A stamp on his statement of claims shows that the Kuybyshevskiy District Court of the Rostov Region received the statement of claim on the same day. According to the Government, the District Court received the statement of claim on 5 August 1998 and listed the first hearing for 22 September 1998. 6. On 22 September 1998 the hearing was adjourned due to the judge's leave. The following hearing on 28 December 1998 did not take place because of the defendants' absence. 7. On 11 February 1999 the District Court ordered an expert study and stayed the proceedings. The experts' report was received by the District Court in September 1999. 8. In October 1999 the applicant's representative amended the claims and asked the District Court to resume the proceedings and to question witnesses. The applicant then again amended the claims in November 1999. 9. On 25 November 1999 the District Court resumed the proceedings and summoned witnesses. 10. Between 25 November 1999 and 3 October 2000 the District Court listed eight hearings, of which three were adjourned because the defendants defaulted and five were postponed because none of the parties attended. 11. On 3 October 2000 the District Court adjourned the proceedings because the applicant appeared to have lost interest in the case. The applicant's representative objected to that decision, indicating that neither he nor the applicant had been duly apprised of the hearing dates. 12. On 12 July 2001 the District Court quashed the decision of 3 October 2000 and resumed the proceedings, having found no evidence that the applicant and/or his representative had been duly notified of the hearings. 13. Upon the applicant's request, on 10 October 2001 the District Court adjourned the proceedings because a similar claim was pending before another court. The proceedings were resumed on 30 September 2002. 14. Between 30 September and 20 December 2002 three hearings were adjourned because the parties did not attend. 15. On 20 December 2002 the District Court suspended the proceedings by reason of the applicant's repeated failure to appear. The proceedings were then resumed on 23 January 2004 once it had been discovered that the applicant and his representative had not been duly summoned to the hearings. 16. Of the ten hearings listed between 20 February and 16 November 2004, four hearings were adjourned due to Mrs O.'s absence, two hearings due to the parties' absence, one upon the applicant's representative's request and two because the presiding judge was on leave. 17. On 16 November 2004 the Kuybyshevskiy District Court dismissed the applicant's claim. On 16 February 2005 the Rostov Regional Court quashed the judgment of 16 November 2004 and remitted the matter for a new consideration by the District Court. 18. The Kuybyshevskiy District Court listed the first hearing for 18 May 2005. Of the three hearings fixed between 18 May and 28 June 2005, two were adjourned because the defendants defaulted and one was postponed upon the defendants' request. 19. On 28 June 2005, upon the applicant's request, the District Court ordered an expert study and stayed the proceedings. 20. The proceedings were later resumed and on 15 December 2005 the Kyubyshevskiy District Court partly allowed the applicant's action. The judgment of 15 December 2005 was upheld on appeal by the Rostov Regional Court on 28 February 2006. 21. On 8 August 1996 the applicant transported goods in his car from Ukraine to Russia and crossed the border without declaring the goods at the Russian customs. On the same day policemen of the Rostov Regional police department stopped the applicant and seized his car due to a violation of customs regulations. On 16 October 1996 the Taganrog town customs issued a confiscation order in respect of the car and organised its sale in November 1996 through a private company. 22. The applicant brought an application to a court seeking invalidation of the confiscation order of 16 October 1996. On 29 June 1999 the Taganrog Town Court quashed the confiscation order of 16 October 1996 and held that the Taganrog town customs should return the car to the applicant. The judgment did not become final as the town customs appealed against it. 23. On 2 July 1999 the Taganrog Town Court issued a charging order over the car with a view to preventing it from being sold, holding that the car should be seized and returned to the applicant. The charging order was binding, enforceable and addressed to any current holder of the applicant's car. 24. On 5 July 1999 the applicant's representative handed over the charging order of 2 July 1999 to the bailiffs. The covering letter of 5 July 1999 listed a writ of execution of 2 July 1999 as an enclosure and bore a stamp of the Taganrog Town bailiffs' service. 25. In July 1999 the bailiffs established that the private company had sold the car to Mr S. in 1996. However, they did not impound the car. 26. On 21 June 2000 the Rostov Regional Court quashed the judgment of 29 June 1999 and remitted the matter concerning the confiscation order of 16 October 1999 for a fresh examination. The charging order of 2 July 1999 remained unaffected. 27. On 26 September 2000 the applicant successfully amended his claims. He dropped his claims against the Taganrog town customs and sought repossession of his car from Mr S. 28. In October 2000 a bailiff asked Mr S. about the location of the car. A written statement by Mr S. read as follows: “I use [the car] for transportation of goods from Moscow to Rostov. It is kept at my house in the town of Azov, the address: Yuzhnaya street, 4, in the territory of MTP “Ikar”. The car is now in Moscow but it will come back around Monday...” 29. In October, November and December 2000 the bailiffs ordered that Mr S. produce the car to the Taganrog town bailiffs' office. Mr S. did not respond. 30. On 20 November 2000 the Taganrog Town Court adjourned the enforcement proceedings, upon Mr S.'s request. That decision was quashed by the Rostov Regional Court on 14 February 2001. The matter was remitted for a fresh examination to the Town Court and the enforcement was resumed. 31. In October 2001 Mr S. asked the local road police department to cancel the car registration on the ground that it would be sold to a purchaser in Ukraine. 32. In November 2001 Mr S. informed the bailiffs that the car had been sold. The bailiffs, in their turn, told the applicant that the car had been sold and that Mr S. had refused to inform them who had bought the car. They asked whether the applicant would be willing to pay for the search of the car. The applicant agreed to bear the costs. 33. On 10 January 2002 the Taganrog Town Court issued a judgment by which Mr S. should return the car to the applicant. On 28 February 2002 a writ of execution was issued. The applicant submitted it to the bailiffs and asked them to calculate an approximate cost of the search. On 15 March 2002 enforcement proceedings were instituted, but the applicant's request for the calculation remained unanswered. 34. In July 2002 Mr S. bought a new car and asked the road police department to have it registered. A copy of the request indicated Mr S.'s home address. 35. On 27 December 2002 the enforcement proceedings related to the judgment of 10 January 2002 were discontinued because the bailiffs could not, allegedly, find Mr S.'s residence or the vehicle. 36. On 1 April 2003 the Taganrog Town Court ordered the bailiffs to impound three cars belonging to Mr S. with a view to enforcing the judgment of 10 January 2002. According to the Government, the bailiffs began searching for the cars on 24 October 2003, but never completed it because the applicant had refused to advance payment. 37. On 29 May 2003 the Taganrog Town Court, upon the applicant's request, ordered that Mr S. pay the applicant 462,384 Russian roubles (RUR) in lieu of the car. The judgment became final on 10 June 2003 and on 2 July 2003 enforcement proceedings were instituted. 38. In June 2003 Mr S. applied for renewal of his passport. His passport application listed his unchanged place of residence. On 16 August 2003 Mr S. received the passport. 39. In September 2003 the bailiffs, in the enforcement proceedings related to the judgment of 29 May 2003, issued a decision stating that Mr S. did not have any property and that the place of his residence was unknown. 40. In January 2004 the applicant received a calculation of the advance payments for the search of Mr S.'s property. He was to advance RUR 50,000 (approximately EUR 1,500). 41. In 2005 the applicant asked a prosecutor's office to institute criminal proceedings against Mr S. for his failure to abide by an enforceable judicial decision. In March, July and August 2005 an investigator questioned Mr S. Criminal proceedings were not instituted. The prosecutor's documents listed the same place of Mr S.'s residence as in 2002 and 2003. 42. On 3 October 2005 the bailiffs initiated the search of Mr S.'s property without any advance payment by the applicant. It appears that the enforcement proceedings are still pending. 43. On several occasions the applicant complained to the courts about the bailiffs' failure to enforce the charging order of 2 July 1999 and the judgments of 10 January 2002 and 29 May 2003. 44. On 22 November 2001 the Taganrog Town Court dismissed one complaint, finding that the bailiffs had acted properly, that they had known that Mr S. had purchased the car but had no reason to doubt that Mr S. had not been willing to return it. The bailiffs could not be held liable for the sale of the car by Mr S. 45. On 12 February 2003 the Azov Town Court dismissed another complaint, holding that the decision of 27 December 2002 (by which the enforcement proceedings in respect of the judgment of 10 January 2002 had been discontinued) had been lawful because it had been impossible to locate Mr S. or his property. Although on 14 November 2001 the applicant had agreed to pay for the search of Mr S.'s property, the costs had not yet been calculated. The judgment of 12 February 2003 was upheld on appeal on 9 April 2003. 46. On 13 November 2003 the Azov Town Court dismissed the applicant's complaint about the bailiffs' failure to enforce the judgments and to provide him with the calculation of the costs for the search of Mr S.'s property. The court held: “From the contents of the applicant's complaint about the acts (failures to act) of the bailiffs... it does not appear what rights or lawful interests have been violated and whether any damage has been caused, the complaint is unsubstantiated and may not be granted.” 47. Article 87 of the Russian federal law “on enforcement proceedings” (Law no. 119-FZ of 21 July 1997) provides for certain measures which the bailiffs may take when private persons or public officials fail to comply with lawful orders, provide false information about a debtor's income and financial status, do not inform a bailiff about the debtor's dismissal from work, a change of the debtor's places of work or residence or when they do not respond to the bailiff's summonses. These measures include a fine of up to 100 minimum wages, escorting a defaulting party by force to a place where enforcement actions are performed and institution of criminal proceedings.