CASE OF KRAVCHENKO v. RUSSIA
Remainder inadmissible;Violation of Art. 6;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1960 and lives in Voronezh. 6. In August 1998 the applicant deposited 40,000 US dollars (USD) for three months with a private bank “SBS-AGRO” (hereafter – “the Bank”). Following the Bank’s refusal to return the deposit, the applicant sued the Bank for the deposit, interest and compensation for non-pecuniary damage. According to the Government, the Bank’s refusal to return the deposit was caused by a major financial crisis which had occurred in the Russian Federation in the summer of 1998 and which had led to the Bank’s inability to return money to its more than 1.2 million creditors. 7. In September 1998 the Central Bank of Russia adopted a programme aimed at the protection of deposits made by private individuals with private banks. In line with measures adopted, the Bank signed an agreement with the Russian Savings Bank. Under the terms of the agreement, the Bank transferred its liabilities to the Russian Savings Bank which, in its turn, undertook to repay deposits made in US dollars at the exchange rate of 9.33 Russian roubles for 1 US dollar. On 28 December 1998 the Bank, through a division of the Russian Savings Bank, paid the applicant 373,204 Russian roubles (RUB). 8. On 10 March 1999 the Zheleznodorozhniy District Court of Voronezh found that the applicant had not consented to the liability transfer. However, taking into account that he had already been repaid a part of the deposit, the District Court ordered that the Bank should repay the applicant USD 30,919.40 and that it should also pay him annual interest starting from the date of the pronouncement of the judgment. The District Court dismissed the claim for compensation for non-pecuniary damage. The judgment was not appealed against and became final on 22 March 1999. A month later the Moscow bailiffs’ office instituted enforcement proceedings. 9. On an unspecified date the Presidium of the Voronezh Regional Court, acting on an application for a supervisory review, quashed the judgment of 10 March 1999 and sent the case for a fresh examination. 10. On 29 February 2000, following the re-examination of the applicant’s action, the Zheleznodorozhniy District Court awarded him USD 20,841.68 in main debt, interest thereon and USD 2,853.73 in compensation for damage. That judgment was not appealed against and became final. 11. By the end of March 1999 over 2,000 enforcement claims were pending against the Bank, with an additional 70-80 claims added every week. 12. On 16 August and 15 September 1999 the Central Bank of Russia declared a moratorium until 17 November 1999 on the execution of all creditors’ demands against the Bank. On 16 November 1999 the management of the Bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (hereafter – “the ARKO”), set up by the State in accordance with the Law on Restructuring of Lending Agencies (hereafter - “the Law”). On 16 November 1999, in accordance with the Law, a moratorium was set for enforcement of all creditors’ demands against the Bank for a year. This period was prolonged by the ARKO on 17 November 2000 for another six months, until 17 May 2001. 13. On 8 May 2001 the Moscow Commercial Court had approved the text of a tripartite friendly settlement involving the Association of the Bank’s Creditors, the Bank and the ARKO. The text of the friendly settlement was adopted at the general meeting of the Association of Creditors on 9 February 2001 by a majority of votes. The friendly settlement substantially limited the Bank’s liability to its creditors. 14. On 3 July 2001 the Constitutional Court found unconstitutional the legislative provision that allowed the ARKO unilaterally to extend the moratorium for another six months, and ruled that such decisions should be subject to judicial control. 15. Seven days later the Basmanniy District Court of Moscow ordered that the bailiffs should discontinue the consolidated enforcement proceedings against the Bank in respect of liabilities which had arisen before 16 November 1999. 16. On 23 July 2001 the Moscow bailiffs’ office discontinued the consolidated enforcement proceeding against the Bank and returned writs of execution to the courts which had issued them. On 29 September 2001 the bailiffs informed the applicant that the enforcement proceedings against the Bank had been discontinued. 17. The applicant asked the ARKO to confirm that he had been recognised as a creditor of the Bank and to inform him about future meetings of the Bank’s creditors. On 11 September 2001 the ARKO notified the applicant that he had not been registered as a creditor of the Bank. The ARKO requested the applicant to send the documents showing the Bank’s liability to him. The applicant fulfilled the ARKO’s request. 18. On an unspecified date the applicant sued the ARKO and the Central Bank of Russia for damages. He claimed that the ARKO had not recognised him as a creditor of the Bank, that he had not participated in the friendly-settlement negotiations and that he had not been able to recover his money from the Bank. The applicant insisted that the respondents should repay him the Bank’s debt. 19. On 17 December 2001 the Zheleznodorozhniy District Court held that the Central Bank and ARKO were responsible for the applicant’s inability to obtain payment of the judgment debt and that the refusal to recognise the applicant as a Bank’s creditor was unlawful. The District Court ordered that the ARKO should repay the applicant USD 30,919.40 of the Bank’s debt. 20. On 9 January 2002 the ARKO informed the applicant that he had been registered as the creditor of the Bank and the terms of the friendly settlement of 8 May 2001 were applicable to him although he had not been able to negotiate them. The applicant was also informed that according to the terms of the friendly settlement he would not be paid the judgment debt. 21. On 19 February 2002 the Voronezh Regional Court upheld the judgment of 17 December 2001. The Regional Court again confirmed that the terms of the friendly settlement could not be applied to the applicant and the fact that the draft of the settlement had been published in the press did not imply that the applicant had agreed to the terms of that document. 22. According to the Government, the applicant applied for a supervisory review of the judgments of 17 December 2001 and 19 February 2002. It appears from the case file that the Voronezh Regional Prosecutor lodged an application for a supervisory review, arguing that the judgment of 17 December 2001, upheld on appeal on 19 February 2002, was erroneous in that the applicant’s claims had been accepted. The prosecutor submitted that the terms of the friendly settlement should have been applied to the applicant’s claims against the Bank and thus his action against the ARKO should have been dismissed. 23. On 15 May 2002 the Presidium of the Voronezh Regional Court, by way of supervisory-review proceedings, quashed the judgments of 17 December 2001 and 19 February 2002 and remitted the case for a fresh examination. The Presidium noted that the District and Regional courts erred in assessing the facts of the case and that the terms of the friendly settlement should be applicable to the applicant because the information about the general assembly of the Bank’s creditors and the draft of the friendly settlement had been published in the press. 24. On 2 July 2003 the Zheleznodorozhniy District Court made a new judgment in the applicant’s favour and awarded him USD 30,919.40, relying on the same line of arguments as in its previous judgment of 17 December 2001 and citing the case-law of the European Court of Human Rights. That judgment was also quashed on appeal by the Voronezh Regional Court. The case was again sent for re-examination on 13 November 2003. 25. On 20 December 2004 the Zheleznodorozhniy District Court of Voronezh again issued the judgment in the applicant’s favour, although reducing the amount of the award to USD 20.841,68. The judgment was quashed by the Voronezh Regional Court and the proceedings were discontinued because the ARKO had ceased to exist as a legal entity.