CASE OF WASSERMAN v. RUSSIA (No. 2)
Preliminary objection dismissed (ratione materiae);Violation of Art. 6-1;Violation of P1-1;Violation of Art. 13;Pecuniary and non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
5. The applicant was born in 1926 and lives in Ashdod, Israel. 6. On 9 January 1998 the applicant arrived in Russia. On crossing the border, he omitted to report a certain sum of cash in his customs declaration and the customs office seized his money. The applicant appealed to a court. 7. On 30 July 1999 the Khostinskiy District Court of Sochi set aside the seizure order and ordered the Treasury to repay the applicant the equivalent in Russian roubles of the 1,600 United States dollars (USD) seized. On 9 September 1999 the Krasnodar Regional Court upheld that judgment on appeal. 8. At the applicant's request the District Court amended the operative part of the judgment on 15 February 2001 and ordered the Treasury to pay USD 1,600 into the applicant's bank account in Israel. 9. On 10 April 2001 the District Court issued a writ of execution and sent it to the bailiffs' service in Moscow. On 30 October 2001 the Moscow bailiffs sent the writ back to Sochi, for reasons which are unclear. 10. After the judgment in his favour had remained unenforced for more than a year, the applicant complained to the Court (application no. 15021/02). 11. On 18 November 2004 the Court delivered judgment in the above case. It noted the Government's acknowledgment that the writ of execution had been lost in the process of being transferred from the Moscow bailiffs to the Sochi office. However, in the Court's view, the logistical difficulties experienced by the State enforcement services could not serve as an excuse for not honouring a judgment debt; the applicant's complaints concerning the non-enforcement of the judgment should have prompted the competent authorities to investigate the matter and to ensure that the enforcement proceedings were brought to a successful conclusion. The Court found a violation of the applicant's “right to a court” under Article 6 § 1 of the Convention and of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 (see Wasserman v. Russia, no. 15021/02, §§ 3840 and 43-45, 18 November 2004). 12. The Court granted the applicant's claim for the interest on the judgment debt. It rejected, however, the claim for the outstanding amount on the ground that “the Government's obligation to enforce the judgment at issue ha[d] not been yet extinguished and the applicant [was] still entitled to recover this amount in the domestic enforcement proceedings” (see Wasserman, cited above, § 49). It also made awards in respect of nonpecuniary damage and costs and expenses (§§ 50-53). 13. In the meantime, on 17 February 2004, a duplicate of the writ was issued and presented to the Ministry of Finance for enforcement. 14. In its observations on the applicant's claim (see below), the Ministry of Finance mentioned that on 21 June 2004 payment of the outstanding amount into the applicant's account in Israel had been authorised. 15. By letter of 17 May 2005 the Ministry of Finance informed the applicant that it would not enforce the judgment because the District Court's decision of 15 February 2001 had misspelled one letter in his patronymic name and because the writ of execution had incorrectly designated the debtor as the “Chief State Directorate of the Federal Treasury” (the correct name of the entity does not contain the word “State”). 16. By decision of 5 October 2005 the District Court corrected the spelling mistake in the decision of 15 February 2001. 17. On 3 October 2006 the sum of USD 1,569 was credited to the applicant's bank account in Israel. An amount of USD 31 was withheld by the State-owned bank Vneshtorgbank as commission for the wire transfer. 18. On 12 May 2003 the applicant brought a civil claim against the Moscow bailiffs, the Ministry of Justice and the Ministry of Finance. He sought compensation for pecuniary and non-pecuniary damage allegedly incurred as a result of the unlawful actions of the bailiffs and the continued failure to enforce the judgment. 19. On 25 August 2004 the Zamoskvoretskiy District Court of Moscow found that the Moscow bailiffs had acted unlawfully in that they had never instituted enforcement proceedings and had had no legal grounds for sending the writ back to Sochi. However, it refused the claim for damages, finding that the applicant had not incurred any pecuniary damage as a result of the non-enforcement of the judgment of 30 July 1999. As to nonpecuniary damage, Russian law did not provide for compensation in situations such as the applicant's. 20. On 30 March 2005 the Moscow City Court dismissed an appeal by the applicant, reproducing verbatim the text of the District Court's judgment. 21. The applicant lodged an application for supervisory review. On 1 June 2006 the Presidium of the Moscow City Court granted his application, quashed the judgments of 25 August 2004 and 30 March 2005 in part and remitted the claim for damages for fresh examination by the District Court. 22. Between 25 September 2006 and 22 February 2007 the District Court listed nine hearings which were subsequently adjourned for various reasons. 23. On 22 February 2007 the Zamoskvoretskiy District Court issued a new judgment. It rejected the applicant's claim in respect of pecuniary damage on the ground that no admissible evidence had been produced in support of it. It accepted the claim for non-pecuniary damage in part, finding as follows: “...the court takes into account the fact that the Zamoskvoretskiy District Court judgment of 25 August 2004 found the [Moscow] bailiffs' actions to have been unlawful, and the fact that enforcement of the judgment was protracted and did not actually occur until 3 October 2006. This was not disputed by the parties. The court therefore finds that there has been a violation of the claimant's right to a fair hearing within a reasonable time on account of an unlawful delay in the enforcement of a judicial decision, which implies that just compensation must be paid to the individual who sustained damage as a result. and the physical and mental suffering caused to the claimant on account of the belated enforcement of the judgment, and also the fact that the claimant is a pensioner and [has the title] 'Honoured Coach of Russia', the court considers it necessary to award him 8,000 Russian roubles as compensation for non-pecuniary damage, to be paid by the Ministry of Finance. The court finds no grounds to award a larger amount of compensation as the claimant did not produce evidence showing that the defendants had caused him physical or mental suffering of an irreversible nature...” The District Court further rejected the applicant's claim for legal costs and expenses. 24. On 7 August 2007 the Moscow City Court upheld that judgment on appeal, reproducing verbatim the District Court's reasoning. 25. A court may hold the tortfeasor liable for non-pecuniary damage caused to an individual by actions impairing his or her personal nonproperty rights or affecting other intangible assets belonging to him or her (Articles 151 and 1099 § 1 of the Civil Code). 26. Compensation for non-pecuniary damage sustained as a result of the infringement of an individual's property rights is recoverable only in the cases provided for by law (Article 1099 § 2 of the Civil Code). 27. Compensation for non-pecuniary damage is payable irrespective of the tortfeasor's fault if damage was caused to an individual's life or health as a result of unlawful criminal prosecution or dissemination of untrue information, and in the other cases provided for by law (Article 1100 of the Civil Code). 28. In ruling no. 1-P of 25 January 2001, the Constitutional Court found that Article 1070 § 2 of the Civil Code was compatible with the Constitution in so far as it made State liability for damage caused by the administration of justice subject to special conditions. Nevertheless, it stated explicitly that the term “administration of justice” did not cover the judicial proceedings in their entirety but extended only to judicial acts touching upon the merits of a case. Other judicial acts – mainly of a procedural nature – fell outside the scope of the notion of “administration of justice”. State liability for the damage caused by such procedural acts or failures to act, such as a breach of the reasonable-time requirement in relation to court proceedings, could arise even in the absence of a final criminal conviction against a judge, if the fault of the judge had been established in civil proceedings. The Constitutional Court emphasised, however, that the constitutional right to compensation from the State for the damage caused should not be bound up with the individual fault of the judge concerned. An individual should be able to obtain compensation for any damage incurred as a result of the violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds for and procedure governing State compensation for damage caused by unlawful acts or failures to act of a court or a judge, and should determine territorial and subject-matter jurisdiction in respect of such claims.