Постановление Европейского суда по правам человека от 01.04.2010 «Дело Маргушин (margushin) против России» [англ.]

Город принятия

(Application No. 11989/03)
(Strasbourg, 1.IV.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Margushin v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Andre}*Wampach, Deputy Section Registrar,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 11 March 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 11989/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Viktor Vladimirovich Margushin ("the applicant"), on 28 April 2001.

2. The Russian Government ("the Government") were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that the judgment in his favour had not been enforced.

4. On 13 March 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

The circumstances of the case
5. The applicant was born in 1930 and lives in Taganrog.

A. Proceedings concerning withdrawal
of the applicant's deposit
6. On 27 April 1998 the applicant made a deposit in the amount of 7,218.00 United States dollars (USD) with a private bank, Bank Rossiyskiy Kredit ("the Bank").

7. On 7 September 1998 the Bank repaid USD 1,200 to the applicant.

8. On 16 September 1998 the applicant tried unsuccessfully to recover the outstanding amount.

9. On an unspecified date the applicant brought an action against the Bank seeking the withdrawal of the deposit, payment of the interest and compensation for non-pecuniary damage.

10. On 21 September 1998 the Taganrog Town Court of the Rostov-on-Don Region granted the applicant's claims in part and ordered the Bank to pay the applicant USD 6,085.20. The court dismissed the claim for compensation for non-pecuniary damage.

11. On 30 September 1999 the Presidium of the Rostov Regional Court quashed the judgment of 21 September 1998 by way of supervisory review and remitted the matter to the Town Court for fresh consideration. It appears that on 14 March 2000 the Town Court dismissed the applicant's claims without consideration on the merits.

B. Transfer of the applicant's deposit to Sberbank
12. On 5 December 1998 the applicant accepted the Bank's offer to have the outstanding amount converted into Russian roubles (RUB) at the rate of RUB 9.33 to USD 1 and to have it transferred to his account with another bank. On 5 March 1999 the amount was transferred to his account in the Sberbank.

13. On 1 April 1999 the Sberbank paid the applicant RUB 54,148.54.

C. Friendly settlement agreement
14. On 19 October 1999 the management of the Bank was taken over by the Agency on Restructuring of Depositary Institutions (the "ARKO"), set up by the State in accordance with applicable legislation aimed at mitigating the consequences of the financial crisis of 1998.

15. On 15 May 2000 the association of the Bank's creditors adopted the terms and conditions of a friendly settlement agreement between the Bank's creditors, the Bank and the ARKO. The agreement substantially limited the Bank's liability before its creditors. The Bank had to repay its creditors only the amounts of the deposits. No interest or late payment fees were to be paid. On 15 August 2000 the Moscow Commercial Court approved the friendly settlement agreement.

D. Proceedings against the Bank for compensation for damage
16. On an unspecified date the applicant brought an action against the Bank seeking compensation for his pecuniary losses arising from the Bank's failure to repay the deposit promptly. He also sought payment of interest, late payment fee and non-pecuniary damage.

17. On 5 October 1999 the Taganrog Town Court of the Rostov Region dismissed the applicant's claims. The said judgment was quashed on appeal by the Rostov Regional Court on 7 June 2000.

18. On 13 September 2000 the Town Court dismissed the applicant's claims. On 6 December the Regional Court quashed the judgment of 13 September 2000 on appeal and remitted the matter for reconsideration.

19. On 28 March 2001 the Town Court considered the applicant's claims for the third time. The Bank's representative was present and made submissions to the court asking it to dismiss the claims in full as manifestly ill-founded. She asserted, inter alia, that the applicant had agreed for his monies to be transferred to another bank and accordingly had forfeited his right to claim the interest. No reference to the friendly settlement agreement was made. The Town Court granted the applicant's claims in part and awarded him RUB 23,535.04 (USD 819.19). The applicant appealed. On 22 August 2001 the Rostov Regional Court upheld the judgment on appeal.

E. Proceedings concerning the enforcement of the judgment
of 28 March 2001 as upheld on 22 August 2001
20. On 24 October 2001 bailiffs instituted enforcement proceedings.

21. On an unspecified date the Bank requested the Taganrog Town Court to discontinue the enforcement proceedings in respect of the judgment of 28 March 2001 as upheld on 22 August 2001. The Bank indicated that according to the friendly settlement agreement of 15 May 2000 the Bank only had to repay to its creditors the sums deposited with the Bank and that no interest or fees had to be paid.

22. The applicant contested the Bank's arguments. He asserted that he had not been included in the list of the Bank's creditors, and that he had not been invited to participate in the friendly settlement negotiations. Nor had he signed the friendly settlement agreement.

23. On 24 December 2001 the Taganrog Town Court granted the Bank's request and discontinued the enforcement proceedings in respect of the judgment of 28 March 2001 as upheld on 22 August 2001.

24. On 18 December 2002 the Rostov Regional Court upheld the judgment on appeal. The relevant part of the judgment read as follows:

"Due to the fact that the Association of the Bank's creditors had acted on behalf of all creditors, the [town] court correctly concluded that the friendly settlement was binding on the applicant, although he had not taken part in the creditors' meetings. According to the submitted record, although the applicant had not been included in the list of the Bank's creditors, the court decision by which the friendly settlement had been approved had become final, and thus the [town] court correctly discontinued the enforcement proceedings because the friendly settlement had been approved. The complaints that the court judgment [of 28 March 2001] had to be enforced cannot be taken into account because after the friendly settlement had been adopted, the obligation to enforce the judgment was changed into new obligations according to the provisions of the friendly settlement. As follows from the ARKO's letter, when Mr Margushin presents a copy of the court judgment [of 28 March 2001], the necessary changes will be made to the list of the claims of the Bank's creditors and the debt will be repaid according to the established procedure."
25. On an unspecified date the applicant requested the Bank to pay him the judgment debt. On 12 May 2003 the chief accountant of the Bank informed the applicant that the Bank was under no obligation to repay him the requested amount, given that the applicant had recovered the original deposit through the Sberbank.

I. Alleged violation of Article 6
of the Convention and Article 1 of Protocol No. 1 on account
of non-enforcement of the judgment of 28 March 2001
as upheld on 21 August 2001
26. The applicant complained that the judgment of 28 March 2001, as upheld on appeal on 22 August 2001, had not been enforced and the enforcement proceedings were discontinued in contravention of Article 6 of the Convention and Article 1 of Protocol No. 1, the relevant parts of which read as follows:

Article 6 § 1
"In the determination of his civil rights and obligations..., everyone is entitled to a fair... hearing within a reasonable time... by [a]... tribunal..."
Article 1 of Protocol No. 1
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law..."
27. The Government considered that the applicant's complaints were incompatible ratione personae. In this respect they noted that the onus of the applicant's grievances concerned the Bank's refusal to enforce the judgment in the applicant's favour. However, the State bore no responsibility for acts and omissions of a commercial bank. They further asserted that the applicant's complaint was, in any event, manifestly ill-founded. They conceded that pursuant to the judgment of 28 March 2001 the applicant was entitled to receive the interest and late payment fees from the Bank. However, the Bank was relieved from the obligation to repay the interest in respect of its creditors' deposits pursuant to the friendly settlement agreement entered into, inter alia, by the Bank and the creditors. The said friendly settlement agreement, as a matter of law, was binding on all creditors of the Bank, including the applicant.

28. The applicant maintained his complaint.

A. Admissibility
29. As to the Government's objection that the applicant's complaint is incompatible ratione personae with the Convention provisions, it being directed against a commercial bank which refused to honour the judgment debt, the Court cannot subscribe to such a narrow interpretation of the applicant's allegations. It notes that the applicant's grievances concern non-enforcement of the judgment in his favour, which covered not only the Bank's refusal to repay the judgment debt but also the discontinuation of the enforcement proceedings by domestic courts.

While it is true and not disputed by the applicant that the debtor under the said judgment was indeed a private legal entity, this fact alone is insufficient to absolve the State from responsibility with regard to the enforcement of the said judgment. The Court therefore considers that it has jurisdiction to examine whether the domestic authorities have complied with their positive obligation to enforce the judgment given against a private entity in the applicant's favour. It accordingly dismisses the Government's preliminary objection (see Fuklev v. Ukraine, No. 71186/01, §§ 67 - 68, 7 June 2005).

30. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits
1. Article 6 § 1 of the Convention
31. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question (see {Brumarescu} v. Romania [GC], No. 28342/95, § 61, ECHR 1999-VII). A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see, among numerous authorities, Ryabykh v. Russia, No. 52854/99, § 52, ECHR 2003-IX).

32. While it may be accepted that Contracting States may, in exceptional circumstances and, by availing themselves of their margin of appreciation, intervene in proceedings for the enforcement of a judicial decision, the consequence of such an intervention should not be that execution is prevented, invalidated or unduly delayed or, still less, that the substance of the decision is undermined (see Immobiliare Saffi v. Italy [GC], No. 22774/93, § 74, ECHR 1999-V).

33. Turning to the circumstances of the present case, the Court observes that on 28 March 2001 the applicant obtained a judgment by which the Bank, a private legal entity, was to pay him interest and fees in respect of his deposit at the Bank. The judgment became final and enforceable on 22 August 2001. On 24 October 2001 the bailiff opened enforcement proceedings. However, on 24 December 2001 the court discontinued the enforcement of the judgment in the applicant's favour noting, with the reference to the entering into force on 15 August 2000 of the friendly settlement agreement between the Bank and its creditors, that the Bank was relieved of its obligation to pay the interest and other fees on the deposits of all creditors, including the applicant.

34. In this respect the Court notes that the validation of the friendly settlement agreement preceded by approximately a year the adoption of the judgment in the applicant's favour. Accordingly, had the Bank considered the agreement relevant in respect of the applicant's claims, it could have raised this issue before the domestic courts considering the dispute between the applicant and the Bank. The Bank did not do so. It remained silent as to the consequences the friendly settlement agreement could have had for the applicant's claims when the case was considered at the first level of jurisdiction. Nor did it raise that issue on appeal.

35. The Court further notes that the Government did not point to any exceptional circumstances that would have prevented the Bank from raising the issue of the friendly settlement agreement either at first or appeal instance. In such circumstances, the Bank's application for discontinuation