CASE OF SHATUNOV v. RUSSIA
Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - State to secure enforcement of judgment debt;Non-pecuniary damage - financial award
Christos Rozakis
7. The applicant was born in 1954 and lives in Kursk. 8. The applicant worked as a forwarding agent for a catering enterprise. In January 1999 the enterprise’s director instructed him to sell 10 tonnes of flour. The applicant sold the flour, purchased certain foodstuffs with the money thus raised and paid the transportation expenses. The director refused to accept the foodstuffs and asked the applicant to remit the value of the flour. The applicant sold the foodstuffs but the amount raised was insufficient to cover that value. The applicant offered various other goods in payment of the outstanding amount. The director refused to accept them. It appears that the applicant was subsequently dismissed. In January 2000 criminal proceedings for embezzlement were brought against the applicant. From 25 January 2000 to 4 February 2000 he was held in pre-trial detention. 9. On an unspecified date the applicant fully reimbursed the value of the flour. 10. On 17 May 2000 the Leninskiy District Court of Kursk convicted the applicant of embezzlement. He was given a two-year suspended prison sentence and fined 2,087.25 Russian roubles (RUR), which he paid. 11. The Kursk Regional Court upheld the judgment on 20 June 2000. 12. On 18 July 2001, following an application for supervisory review lodged by the Deputy President of the Supreme Court of Russia, the Presidium of the Kursk Regional Court quashed the sentence and terminated the criminal proceedings against the applicant on the basis that there was no indication that an offence had been committed. 13. On 17 August 2001 the applicant brought proceedings against the Ministry of Finance seeking compensation for pecuniary and non-pecuniary damage caused by the criminal proceedings against him, in particular as a result of his detention between 25 January 2000 and 4 February 2000 and his conviction of 17 May 2000. 14. The Leninskiy District Court of Kursk partially granted the claim for damages on 12 November 2001. 15. On 18 December 2001 the Kursk Regional Court quashed the judgment and remitted the case for a fresh examination. 16. The Leninskiy District Court of Kursk partially granted the claim for damages on 10 January 2002. 17. On 14 March 2002 the Kursk Regional Court once more quashed the judgment and remitted the case for a fresh examination. 18. On 16 April 2002 the Leninskiy District Court of Kursk partially granted the claim for damages. The court awarded the applicant RUR 15,000 in damages and RUR 3,700 for costs. The judgment stated: “Under Article 1070 of the Civil Code, damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, unlawful application of detention as a preventive measure ... shall be compensated at the expense of the Treasury of the Russian Federation. ... Under Article 1100 compensation for non-pecuniary damage shall be effectuated irrespective of the fault of the causer of the damage where the damage is caused as a result of unlawful conviction, unlawful criminal prosecution. ... On the foregoing grounds ... the court has decided to award [damages] against the Ministry of Finance in favour of [Mr] Shatunov...” 19. By a final decision of 14 May 2002 the Kursk Regional Court varied the judgment and awarded the applicant RUR 25,000 in damages and RUR 4,700 for costs. 20. On 23 April 2002 the applicant brought proceedings seeking compensation for the fine he had been ordered to pay in the judgment of 17 May 2000. 21. By a final decision of 17 June 2002 the Leninskiy District Court of Kursk granted the claim and ordered the Ministry of Finance to pay the applicant RUR 2,087. 22. On 28 May 2002 the Leninskiy District Court of Kursk issued a writ of execution for recovery of RUR 29,700 from the Ministry of Finance, pursuant to the judgment of 16 April 2002, which had been varied on appeal on 14 May 2002. 23. On an unspecified date the same court issued a writ of execution for recovery of RUR 2,087 from the Ministry of Finance, pursuant to the ruling of 17 June 2002. 24. It appears that the applicant initially sent the writs to the First Department of the Bailiffs’ Service for the Central District of Moscow. In a letter of 5 September 2002 the Ministry of Justice informed the applicant that a writ of execution had been transferred to the Second Department of the Bailiffs’ Service for the Central District of Moscow. It is not clear which of the two writs was referred to in the letter. Nevertheless, it appears that both writs either remained in, or were subsequently returned to, the First Department of the Bailiffs’ Service. 25. The First Department of the Bailiffs’ Service transferred both writs to the Second Department of the Bailiffs’ Service on 22 April 2004. 26. On 1 June 2004 the Second Department of the Bailiffs’ Service returned the writ for recovery of RUR 29,700 to the applicant because it did not meet the statutory requirements. In particular, the date of issue of the writ and the time-limit for its submission for execution had not been indicated. The applicant was also advised that, pursuant to a Government Decree of 9 September 2002, writs against the Treasury of the Russian Federation were to be sent for execution to the Ministry of Finance. It appears that the applicant applied to the Leninskiy District Court of Kursk to have the writ amended. 27. On 5 July 2004 the Second Department of the Bailiffs’ Service transferred the writ for recovery of RUR 2,087 to the Leninskiy District Court of Kursk, apparently because it too failed to meet the statutory requirements. 28. On an unspecified date the Leninskiy District Court of Kursk returned the writ for recovery of RUR 2,087 to the applicant and advised him that it should be sent to the Ministry of Finance. 29. The Leninskiy District Court of Kursk sent the writ for recovery of RUR 29,700 to the applicant on 26 July 2004. 30. In July and August 2004 the applicant sent both writs to the Ministry of Finance. 31. According to the Government, on 27 July 2004 the Ministry of Finance had received the writ of execution for recovery of RUR 2,087. On 6 October 2004 the Ministry of Finance had returned the writ of execution to the applicant, stating that it did not meet the statutory requirements in that the time-limit for its submission for execution had not been indicated and the operative part of the judgment had been cited incorrectly. 32. According to the Government, on 24 August 2004 the Ministry of Finance had received the writ of execution for recovery of RUR 29,700. On 27 May 2005 the writ had been returned to the applicant because it did not meet the statutory requirements. In particular, the time-limit for its submission for execution had not been indicated. Furthermore, the decision of the Kursk Regional Court of 14 May 2002 had not specified that the amount was to be recovered from the Treasury of the Russian Federation. 33. On 2 November 2004 the applicant applied to the Leninskiy District Court of Kursk to have the writ for recovery of RUR 2,087 amended. On 1 December 2004 the writ was again received by the Ministry of Finance. According to the Government, the payment pursuant to the writ had been made by the Ministry of Finance on 5 May 2005. According to the applicant, the writ had never been executed. 34. According to the Government, on 4 July 2005 the writ of execution for recovery of RUR 29,700 had again been received by the Ministry of Finance. However, its defects had not been rectified. For these reasons it had again been returned to the applicant. 35. According to the applicant, neither writ has been executed. 36. Section 9 of the Enforcement Proceedings Act of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time-limit. 37. Under section 13 of the Act, enforcement proceedings must be completed within two months of the receipt of the writ of execution by the bailiff. 38. The Rules on execution by the Ministry of Finance of the Russian Federation of judicial acts concerning claims against the Treasury of the Russian Federation in respect of damage caused by the unlawful acts (omissions) of agencies of State authority or officials of the agencies of State authority, approved by Government Decree No. 666 of 9 September 2002, provide that a writ of execution should be sent to the Ministry of Finance together with a copy of the judicial act and the claimant’s bank-account details (Rule 2). Within five days from the receipt of the above documents the Ministry of Finance sends them to the debtor State agency in order to find out whether the underlying judicial decision is being appealed against. The time-limit for execution of the writ by the Ministry of Finance is two months (Rule 5). The writ of execution may be returned without execution in the following situations: if the time-limit for its submission has expired, if the documents submitted do not meet the statutory requirements or some of the documents are missing, or if the execution of the underlying judicial decision has been stayed or discontinued (Rule 6). 39. On 20 May 2003 the Supreme Court of the Russian Federation in its decision no. KAC 03-205 held that the Rules adopted by Decree No. 666 concerned the voluntary execution of court decisions against the Federal Treasury and did not prevent the creditor from seeking enforcement through the court bailiffs. 40. On 14 July 2005 the Constitutional Court of the Russian Federation in its decision no. 8-П held, inter alia, that Rules 3, 5 and 6 of the Rules adopted under Decree No. 666 were unconstitutional and were to become invalid from 1 January 2006.