Право
Навигация

 

Реклама




 

 

Ресурсы в тему

 

Реклама

Секс все чаще заменяет квартплату

Новости законодательства Беларуси

 

СНГ Бизнес - Деловой Портал. Каталог. Новости

 

Рейтинг@Mail.ru


Законодательство Российской Федерации

Архив (обновление)

 

 

ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 17.11.2005 ДЕЛО КАЗАРЦЕВА И ДРУГИЕ (KAZARTSEVA AND OTHERS) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

<<< Назад

                                
                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                             FIRST SECTION
                                   
                CASE OF KAZARTSEVA AND OTHERS v. RUSSIA
                      (Application No. 13995/02)
                                   
                             JUDGMENT <*>
                                   
                       (Strasbourg, 17.XI.2005)
   
   --------------------------------
       <*>  This  judgment will become final in the circumstances  set
   out  in  Article  44 з 2 of the Convention. It may  be  subject  to
   editorial revision.
   
       In the case of Kazartseva and Others v. Russia,
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mr P. Lorenzen,
       Mrs {N. Vajic} <*>,
   --------------------------------
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
   
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mrs E. Steiner,
       Mr K. Hajiyev, judges,
       and S. Quesada, Deputy Section Registrar,
       Having deliberated in private on 25 October 2005,
       Delivers  the  following judgment, which was  adopted  on  that
   date:
                                   
                               PROCEDURE
                                   
       1. The case originated in an application (No. 13995/02) 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  three  Russian  nationals,   Ms
   Valentina Vladimirovna Kazartseva, Ms Zoya Filippovna Kalinina  and
   Ms Larisa Alekseyevna Zhdankina, on 28 February 2002.
       2.  The  Russian Government ("the Government") were represented
   by  Mr  P. Laptev, Representative of the Russian Federation at  the
   European Court of Human Rights.
       3.  On  8  March  2004  the Court decided  to  communicate  the
   application to the Government. Under the provisions of  Article  29
   з  3  of  the Convention, it decided to examine the merits  of  the
   application at the same time as its admissibility.
                                   
                               THE FACTS
                                   
                   I. The circumstances of the case
                                   
       4. The applicants were born in 1946, 1957 and 1970 respectively
   and live in Voronezh.
       5.  The applicants are in receipt of welfare payments for their
   children.  In  1999  -  2000 they brought separate  sets  of  civil
   proceedings against a local welfare authority, claiming arrears  in
   those payments.
                                   
                        1. The first applicant
                                   
       6.  On  17  December  1999 the Levoberezhny District  Court  of
   Voronezh  awarded  the  first applicant  3,245.28  Russian  roubles
   (RUR)  against  the welfare authority. This judgment  entered  into
   force on 28 December 1999.
       7. On 31 January 2000 the writ of execution was issued and sent
   to the bailiffs.
       8.  On  26  July 2001 the bailiffs discontinued the enforcement
   proceedings  in  respect of the judgment of 17  December  1999  and
   returned  the  writ  of execution to the first  applicant,  as  the
   debtor had insufficient funds.
       9.  On  26 February 2002 the first applicant complained to  the
   Department  of  Justice of the Voronezh Region about the  bailiffs'
   failure to execute the judgment in her favour.
       10. By letter of 27 March 2002 the Department of Justice of the
   Voronezh  informed  the  first  applicant  that  the  judgment   in
   question  had  not been enforced, as the defendant had insufficient
   assets,  and  that  it was open to her again to send  the  writ  of
   execution to the bailiffs' service.
       11.  On  29  April  2002  the first applicant  lodged  a  court
   complaint  against the bailiffs for their failure  to  enforce  the
   judgment in her favour.
       12.  On  19 June 2002 the Leninskiy District Court of  Voronezh
   allowed  the  first applicant's complaint and ordered the  bailiffs
   to recommence the enforcement proceedings.
       13.  On 2 June 2004 the first applicant was paid the amount due
   pursuant to the writ of execution.
                                   
                        2. The second applicant
                                   
       14.  On  29 March 2000 the Leninskiy District Court of Voronezh
   awarded  the  second  applicant RUR  1,980.6  against  the  welfare
   authority. This judgment entered into force on 9 April 2000.
       15.  On 29 March 2000 the writ of execution was issued and sent
   to the bailiffs.
       16.  On  26 July 2001 the bailiffs discontinued the enforcement
   proceedings  in  respect  of the judgment  of  29  March  2000  and
   returned  the writ of execution to the second applicant,  referring
   to the lack of the debtor's funds.
       17.  On 27 April and 6 May 2002 the second applicant again sent
   the writ of execution to the bailiffs' service.
       18.  On  30  September 2002 the bailiffs returned the  writ  of
   execution  to  the second applicant, having stated  that  they  had
   been  unable  to  enforce  the  judgment  in  her  favour,  as  the
   defendant refused to pay.
       19.  On  2 June 2004 the judgment of 29 March 2000 was paid  in
   full.
                                   
                        3. The third applicant
                                   
       20.  On  9  November  2000  the Tsentralny  District  Court  of
   Voronezh  awarded  the third applicant RUR 4,304.7.  This  judgment
   entered  into force on 20 November 2000. On the same date the  writ
   of execution was issued and sent to the bailiffs.
       21.  On  26 July 2001 the bailiffs discontinued the enforcement
   proceedings  in  respect of the judgment of  9  November  2000  and
   returned  the writ of execution to the third applicant by reference
   to the lack of the debtor's funds.
       22.  On 24 May 2002 the third applicant requested the bailiffs'
   service  and  the Department of Justice of the Voronezh  Region  to
   ensure  the  enforcement  of the judgment  in  her  favour.  It  is
   unclear whether any response was ever sent to that request.
       23.  On 2 June 2004 the third applicant was paid the amount due
   pursuant to the writ of execution.
                                   
                       II. Relevant domestic law
                                   
       24. Section 9 of the Federal Law on Enforcement Proceedings  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.
       25.  Under  Section 13 of the Law, the enforcement  proceedings
   should  be completed within two months of the receipt of  the  writ
   of enforcement by the bailiff.
                                   
                                THE LAW
                                   
        I. Alleged violation of Article 6 з 1 of the Convention
           and Article 1 of Protocl No. 1 to the Convention
                                   
       26.   The  applicants  complained  about  the  prolonged   non-
   enforcement  of  the  judgments in their  favour.  The  Court  will
   examine  this  complaint under Article 6 з 1 of the Convention  and
   Article  1  of Protocol No. 1 to the Convention. These Articles  in
   so far as relevant read as follows:
       Article 6 з 1
       "In  the  determination of his civil rights and obligations...,
   everyone   is   entitled   to  a  fair...  hearing...   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.
       The  preceding provisions shall not, however, in any way impair
   the right of a State to enforce such laws as it deems necessary  to
   control  the  use  of  property  in  accordance  with  the  general
   interest  or  to secure the payment of taxes or other contributions
   or penalties."
                                   
                           A. Admissibility
                                   
       27.  The Government informed the Court that the authorities  of
   the  Voronezh Region had attempted to secure a friendly  settlement
   of  the  case  and that the applicants had refused  to  accept  the
   friendly  settlement on the terms proposed by the  authorities.  By
   reference  to this refusal and to the fact that, in any event,  the
   judgments  in  the  applicants'  favour  had  been  enforced,   the
   Government  invited  the Court to strike out  the  application,  in
   accordance with Article 37 of the Convention.
       28.  The  applicants disagreed with the Government's  arguments
   and   maintained   their  complaints.  As  regards   the   friendly
   settlement  proposal, the applicants claimed that  the  authorities
   of  the  Voronezh  Region had made an offer to them,  but  did  not
   allow the applicants to acquaint themselves with the terms of  that
   offer.
       29. The Court firstly observes that the parties were unable  to
   agree  on the terms of a friendly settlement of the case. The Court
   recalls that under certain circumstances an application may  indeed
   be  struck out of its list of cases under Article 37 з 1 (c) of the
   Convention  on  the  basis  of  a  unilateral  declaration  by  the
   respondent  Government even if the applicant wishes the examination
   of  the  case to be continued (see Tahsin Acar v. Turkey [GC],  No.
   26307/95, з 76, ECHR 2003-...).
       30. On the facts, the Court observes that the Government failed
   to  submit  with the Court any formal statement capable of  falling
   into  that  category and offering a sufficient  basis  for  finding
   that  respect  for human rights as defined in the  Convention  does
   not  require  the  Court to continue its examination  of  the  case
   (see,  by  contrast,  to  Akman  v.  Turkey  (striking  out),   No.
   37453/97, зз 23 - 24, ECHR 2001-VI).
       31. As regards the Government's argument that the judgments  in
   question  have already been enforced, the Court considers that  the
   mere fact that the authorities complied with the judgments after  a
   substantial  delay cannot be viewed in this case  as  automatically
   depriving   the  applicants  of  their  victim  status  under   the
   Convention.  (see, e.g., Petrushko v. Russia, No. 36494/02,  з  16,
   24 February 2005).
       32. In the light of the above considerations, the Court rejects
   the  Government's  request  to strike  the  application  out  under
   Article 37 of the Convention.
       33. The Court notes that the application is not manifestly ill-
   founded within the meaning of Article 35 з 3 of the Convention.  It
   further notes that it is not inadmissible on any other grounds.  It
   must therefore be declared admissible.
                                   
                               B. Merits
                                   
       34.  The Government advanced no arguments on the merits of  the
   application.
       35. The applicants maintained their complaint.
       36.  The Court observes that the judgments of 17 December 1999,
   29  March  2000 and 9 November 2000 remained inoperative  for  four
   years  four  months and seventeen days, four years two  months  and
   five  days  and  three  years  five  months  and  twenty-five  days
   respectively.  No justification was advanced by the Government  for
   these delays.
       37. The Court has frequently found violations of Article 6 з  1
   of  the Convention and Article 1 of Protocol No. 1 in cases raising
   issues  similar to the ones in the present case (see,  among  other
   authorities,  Burdov v. Russia, No. 59498/00,  ECHR  2002-III  and,
   more  recently, Petrushko, cited above, or Poznakhirina v.  Russia,
   No. 25964/02, 24 February 2005).
       38.  Having  examined the material submitted to it,  the  Court
   notes  that the Government did not put forward any fact or argument
   capable  of  persuading it to reach a different conclusion  in  the
   present  case.  Having regard to its case-law on the  subject,  the
   Court  finds  that  by  failing  for  years  to  comply  with   the
   enforceable  judgments  in  the  applicants'  favour  the  domestic
   authorities  prevented them from receiving  the  money  they  could
   reasonably have expected to receive.
       39. There has accordingly been a violation of Article 6 з 1  of
   the Convention and Article 1 of Protocol No. 1.
                                   
            II. Other alleged violations of the Convention
                                   
       40.  The  applicants  also complained  that  the  lengthy  non-
   enforcement of the judgments in their favour violated their  rights
   to effective domestic remedies under Article 13 of the Convention.
       41.  The Court considers that this complaint is linked  to  the
   above  issues of non-enforcement to such an extent that  it  should
   be  declared  admissible as well. However,  having  regard  to  the
   finding  relating to Article 6 з 1 (see paragraph  39  above),  the
   Court  considers  that it is not necessary to examine  whether,  in
   this case, there has been a violation of Article 13.
                                   
           III. Application of Article 41 of the Convention
                                   
       42. Article 41 of the Convention provides:
       "If  the  Court  finds that there has been a violation  of  the
   Convention  or  the Protocols thereto, and if the internal  law  of
   the   High   Contracting  Party  concerned  allows   only   partial
   reparation  to be made, the Court shall, if necessary, afford  just
   satisfaction to the injured party."
                                   
                               A. Damage
                                   
       43.   As   regards  compensation  for  pecuniary  damage,   the
   applicants claimed the interest payable at statutory rate  for  the
   default  period  in  the  amount of  RUR  3,160.92  for  the  first
   applicant,  RUR 1,770.11 for the second applicant and RUR  2,695.15
   for  the  third  applicant. The latter also  claimed  RUR  4,652.66
   without  further  explanation. In addition, the applicants  claimed
   each  31,000 US dollars (USD), of which USD 10,000 represented  the
   amount  they  could  have earned during the period  when,  instead,
   they  had  sought  the enforcement of their court  awards  and  USD
   20,000  was  the  compensation for the losses  their  children  had
   sustained  as a result of the untimely enforcement of the  judgment
   in  the  applicants'  favour in respect of  pecuniary  damage.  The
   applicants  did not specify their claims as regards  the  remaining
   USD  1,000.  They  also  claimed USD  45,000  in  respect  of  non-
   pecuniary damage.
       44.  The  Government considered that should the  Court  find  a
   violation  in this case that would in itself constitute  sufficient
   just  satisfaction.  They also contended  that  in  any  event  the
   applicants' claims were excessive and unjustified.
       45.  The  Court finds that some pecuniary loss must  have  been
   occasioned  by  reason  of the period that elapsed  from  the  time
   between  the  entry  into force of the judgments  in  question  and
   their   subsequent  enforcement  (see,  e.g.,  Poznakhirina,  cited
   above,  з  34  and Makarova and others v. Russia, No.  7023/03,  24
   February  2005, з 38). Regard being had to the information  in  its
   possession, the Court awards the first applicant RUR 3,160.92,  the
   second   applicant  RUR  1,770.11  and  the  third  applicant   RUR
   2,695.15,  plus  any  tax  that may be chargeable,  in  respect  of
   pecuniary damage.
       46.  As regards the compensation for non-pecuniary damage,  the
   Court  would  not exclude that the applicants might  have  suffered
   distress  and  frustration resulting from  the  State  authorities'
   failure  to enforce the judgments in their favour. However,  having
   regard  to  the  nature of the breach in this case and  making  its
   assessment  on  an  equitable basis, the Court considers  that  the
   finding  of  a  violation  constitutes in  itself  sufficient  just
   satisfaction  for  any  non-pecuniary  damage  sustained   by   the
   applicants  (see, in a similar context, Poznakhirina, cited  above,
   з 35).
                                   
                         B. Costs and expenses
                                   
       47.  The  applicants also claimed RUR 10,045 for the costs  and
   expenses incurred before the domestic courts and the Court.
       48.  The Government considered that the documents submitted  by
   the  applicants did not indicate that the applicants  had  incurred
   any costs.
       49. According to the Court's case-law, an applicant is entitled
   to  reimbursement of his costs and expenses only in so  far  as  it
   has  been  shown  that  these have been  actually  and  necessarily
   incurred  and  were reasonable as to quantum. In the present  case,
   regard  being  had  to the information in its  possession  and  the
   above  criteria, the Court considers it reasonable  to  award  each
   applicant the sum of EUR 20 in respect of costs and expenses,  plus
   any tax that may be chargeable.
                                   
                          C. Default interest
                                   
       50.  The  Court  considers  it  appropriate  that  the  default
   interest  should  be  based on the marginal  lending  rate  of  the
   European  Central  Bank, to which should be added three  percentage
   points.
                                   
               FOR THESE REASONS, THE COURT UNANIMOUSLY
                                   
       1. Declares the application admissible;
       2.  Holds that there has been a violation of Article 6  of  the
   Convention and Article 1 of Protocol No. 1 to the Convention;
       3.  Holds that there is no need to examine the complaint  under
   Article 13 of the Convention;
       4. Holds
       (a)  that  the respondent State is to pay, within three  months
   from  the  date  on which the judgment becomes final in  accordance
   with Article 44 з 2 of the Convention, the following amounts:
       (i)  RUR 3,160.92 (three thousand one hundred and sixty roubles
   and  ninety-two kopecks) to the first applicant, RUR 1,770.11  (one
   thousand  seven hundred and seventy roubles and eleven kopecks)  to
   the  second  applicant and RUR 2,695.15 (two thousand  six  hundred
   and   ninety-five  roubles  and  fifteen  kopecks)  to  the   third
   applicant in respect of pecuniary damage;
       (ii) EUR 20 (twenty euros) in respect of costs and expenses, to
   be  converted into the national currency of the respondent State at
   the rate applicable at the date of settlement;
       (iii) any tax that may be chargeable on the above amounts;
       (b)  that  from the expiry of the above-mentioned three  months
   until  settlement  simple interest shall be payable  on  the  above
   amounts  at  a  rate  equal to the marginal  lending  rate  of  the
   European  Central  Bank  during  the  default  period  plus   three
   percentage points;
       5.  Holds that the finding of a violation constitutes in itself
   sufficient   just   satisfaction  for  any   non-pecuniary   damage
   sustained by the applicants;
       6.  Dismisses the remainder of the applicants' claim  for  just
   satisfaction.
   
       Done  in English, and notified in writing on 17 November  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
   
                                                      Christos ROZAKIS
                                                             President
                                                                      
                                                      Santiago QUESADA
                                                      Deputy Registrar
   
   

<<< Назад

 
Реклама

Новости


Реклама

Новости сайта Тюрьма


Hosted by uCoz