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Законодательство Российской Федерации

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(по состоянию на 20 октября 2006 года)

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                             FIRST SECTION
                       CASE OF BUTSEV v. RUSSIA
                       (Application No. 1719/02)
                             JUDGMENT <*>
                       (Strasbourg, 22.IX.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 Butsev v. Russia,
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mrs F. Tulkens,
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mr K. Hajiyev,
       Mr D. Spielmann,
       Mr S.E. Jebens, judges,
       and Mr S. Nielsen, Section Registrar,
       Having deliberated in private on 30 August 2005,
       Delivers  the  following judgment, which was  adopted  on  that
       1.  The case originated in an application (No. 1719/02) 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 a  Russian  national,  Mr  Viktor
   Grigoryevich Butsev ("the applicant"), on 7 March 2001.
       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  4  December 2003 the Court decided to  communicate  the
   complaints concerning alleged non-execution of judgment of  21  May
   1999  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
                     The circumstances of the case
       4.  The  applicant was born in 1951 and lives in  the  town  of
   Shakhty, the Rostov Region.
       5.  In 1987 the applicant took part in the emergency operations
   at  the  site of the Chernobyl nuclear plant disaster. As a  result
   the  applicant  suffered  from extensive  exposure  to  radioactive
   emissions.  In  1996  the applicant underwent medical  examinations
   which established the link between the applicant's poor health  and
   his  involvement in the Chernobyl events. The applicant was awarded
   compensation, to be paid monthly.
       6.  On  an unspecified date the applicant sued a local  pension
   authority  (Управление социальной защиты г. Шахты, "the authority")
   for  allegedly  erroneous calculation of his  monthly  compensation
   and demanded arrears and damages.
       7.  By  judgment of 21 May 1999 the Shakhy Town  Court  of  the
   Rostov  Region  granted  the  applicant's  claim  and  ordered  the
   authority  to recalculate his monthly compensation for  the  period
   between  14  May  1996 and 31 May 1999, to pay  the  applicant  the
   arrears  of RUR 134,442.46 in this respect and monthly compensation
   of  RUR  4,547.75  with  further indexation  until  any  subsequent
   changes of legislation.
       8.  The judgment of 21 May 1999 was not appealed against by the
   parties and came into force ten days later, on 31 May 1999.
       9. Some time thereafter the authority applied to the Town Court
   requesting  to re-open the applicant's case by reference  to  newly
   discovered  evidence, such as his pay statements for twelve  months
   preceding the disabling incident.
       10.  On 10 July 2000 the Town Court granted the application and
   re-opened the proceedings.
       11.  It appears that the defendant authority and the Town Court
   failed   properly  to  notify  the  applicant  of  the   re-opening
   proceedings and the decision of 10 July 2000.
       12.  The  applicant challenged the decision of 10 July 2000  by
   way  of supervisory review by reference to this failure. His appeal
   also  stated  that  the  piece  of  evidence  referred  to  by  the
   authority could not be considered as newly discovered since it  had
   been  fully  available to the Town Court during the first  instance
       13.  On 9 November 2000 the Rostov Regional Court acting  as  a
   supervisory  review  instance set aside the  decision  of  10  July
   2000.  The  court upheld the applicant's arguments in full  and  by
   the   same   decision  dismissed  the  authority's   arguments   as
       14.  On 29 January 2001 the writ of execution in respect of the
   judgment  of  21 May 1999 reached the baillifs and  on  31  January
   2001 they opened the enforcement proceedings in this connection.
       15.  According  to the Government, the authority complied  with
   the  judgment by five bank transfers, dated 29 March, 24 April,  30
   May,  27  and  28  June 2002 respectively. As of 1  July  2002  the
   applicant  has been in receipt of the monthly compensation  of  RUR
   7,627.49, with no debts outstanding.
       16.  According to the applicant, to date the judgment of 21 May
   1999  has not been enforced in part relating to indexation  of  his
   monthly   compensation  until  any  subsequent   changes   in   the
                                THE LAW
          I. Alleged violation of Article 6 of the Convention
                    and Article 1 of Protocol No. 1
       17.  The  applicant  complained  that  non-enforcement  of  the
   judgment  of  21  May 1999 violated his "right to  a  court"  under
   Article  6  з  1  of the Convention and his right to  the  peaceful
   enjoyment  of  possessions as guaranteed in Article 1  of  Protocol
   No.  1  to  the  Convention. These Articles in so far  as  relevant
   provide as follows:
       Article 6 з 1
       "In  the  determination of his civil rights and obligations...,
   everyone   is   entitled   to  a  fair...  hearing...   by   [a]...
       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
       18.  The Government submitted that the judgment in question had
   been  enforced. They asserted that the applicant was  no  longer  a
   victim  of  the violations alleged as he had been afforded  redress
   at  the  national level and that his application should be declared
       19. The applicant disagreed with the Government's arguments and
   maintained  his  complaints. As regards  the  loss  of  the  victim
   status,  the applicant submitted that the judgment of 21  May  1999
   has  remained  non-enforced in part relating to indexation  of  his
   monthly  compensation  and  that,  in  any  event,  there   was   a
   substantial delay in the enforcement proceedings.
       20.  The Court, firstly, reiterates that "a decision or measure
   favourable  to  the  applicant is not in  principle  sufficient  to
   deprive  him  of  his  status  as a "victim"  unless  the  national
   authorities  have acknowledged, either expressly or  in  substance,
   and  then afforded redress for, the breach of the Convention"  (see
   Amuur  v.  France, judgment of 25 June 1996, Reports  of  Judgments
   and  Decisions 1996-III, p. 846, з 36, Dalban v. Romania [GC],  No.
   28114/95,  з  44,  ECHR 1999-VI, and Rotaru v.  Romania  [GC],  No.
   28341/95,  з  35,  ECHR  2000-V). Only when  these  conditions  are
   satisfied  does  the subsidiary nature of the protective  mechanism
   of  the Convention preclude examination of an application (see, for
   example,  Jensen and Rasmussen v. Denmark (dec.), No. 52620/99,  20
   March 2003).
       21.  In the instant case the Court notes at the outset that the
   parties  disagreed as to whether the judgment of 21  May  1999  had
   been  fully enforced. In particular, the applicant alleged that  in
   the  part  relating  to  indexation the judgment  of  21  May  1999
   remained  non-enforced. The Court considers however that  there  is
   nothing  in the case-file or in the parties' submissions to support
   this allegation. It is undisputed between the parties that as of  1
   July  2002  the  applicant  has been  in  receipt  of  the  monthly
   compensation  of  a  substantially  higher  amount  that  the   one
   originally determined in the judgment of 21 May 1999 which, in  the
   absence  of  any  evidence to the contrary, conclusively  indicates
   that  the  compensation was index-linked. Insofar as the  applicant
   alleges that the indexation was insufficient, it is clear from  the
   operative  part  of the judgment of 21 May 1999 that  the  District
   Court  ordered the authority to index-link the applicant's  monthly
   compensation but did not specify the manner of such indexation.  It
   was  open  to the applicant to challenge this ruling on  appeal  or
   subsequently  to apply to the District Court for interpretation  of
   the  relevant part of the judgment but he did not avail himself  of
   these  opportunities. The Court finds no indication that the manner
   in   which  the  authority  index-linked  the  applicant's  monthly
   compensation was arbitrary or unreasonable and therefore  concludes
   that the judgment of 21 May 1999 was enforced in full.
       22.  However,  the Court observes that the mere fact  that  the
   authorities  complied with the judgment after a  substantial  delay
   cannot  be  viewed  in  this  case as automatically  depriving  the
   applicant  of his victim status under the Convention.  Neither  the
   Government  nor  other domestic authorities have acknowledged  that
   the applicant's Convention rights were unjustifiably restricted  by
   the  non-enforcement of the judgments of 21 May 1999.  Furthermore,
   no  redress  has been offered to the applicant for  the  delay,  as
   required  by the Court's case-law (see, e.g., Petrushko v.  Russia,
   No.  36494/02,  з  16,  24 February 2005). Accordingly,  the  Court
   rejects  the  Government's  objection as  to  the  loss  of  victim
       23.  Furthermore, the Court observes that this complaint is not
   manifestly ill-founded within the meaning of Article 35 з 3 of  the
   Convention  and  notes  that it is not inadmissible  on  any  other
   grounds. It must therefore be declared admissible.
                               B. Merits
       24.  The Government submitted that in view of the fact that the
   judgment  in question had been enforced there has been no violation
   of the applicant's Convention rights.
       25. The applicant maintained his complaints.
                  1. Article 6 з 1 of the Convention
       26. The Court reiterates that Article 6 з 1 secures to everyone
   the  right  to  have  any claim relating to his  civil  rights  and
   obligations  brought before a court or tribunal;  in  this  way  it
   embodies  the  "right to a court", of which the  right  of  access,
   that  is the right to institute proceedings before courts in  civil
   matters,  constitutes  one aspect. However,  that  right  would  be
   illusory  if a Contracting State's domestic legal system allowed  a
   final,  binding  judicial  decision to remain  inoperative  to  the
   detriment of one party. It would be inconceivable that Article 6  з
   1  should describe in detail the procedural guarantees afforded  to
   litigants  -  proceedings that are fair, public and  expeditious  -
   without  protecting  the implementation of judicial  decisions;  to
   construe Article 6 as being concerned exclusively with access to  a
   court  and  the conduct of proceedings would be likely to  lead  to
   situations  incompatible with the principle  of  the  rule  of  law
   which  the  Contracting  States  undertook  to  respect  when  they
   ratified  the  Convention. Execution of a  judgment  given  by  any
   court  must  therefore  be  regarded as an  integral  part  of  the
   "trial"  for  the purposes of Article 6 (see Burdov v. Russia,  No.
   59498/00,  з 34, ECHR 2002-III, and Hornsby v. Greece, judgment  of
   19 March 1997, Reports 1997-II, p. 510, з 40).
       27. The Court further observes that a delay in the execution of
   a  judgment may be justified in particular circumstances,  but  the
   delay  may  not  be  such as to impair the  essence  of  the  right
   protected  under  Article  6  з  1. The  applicant  should  not  be
   prevented  from  benefiting from the success of the  litigation  on
   the  ground  of alleged financial difficulties experienced  by  the
   State (see Burdov v. Russia, cited above, з 35).
       28.  Turning  to  the instant case, the Court  notes  that  the
   execution  of the judgment of 21 May 1999 was delayed in total  for
   three  years  and twenty eight days. No justification was  advanced
   by  the  Government for this delay. By failing for such substantial
   periods  of time to take the necessary measures to comply with  the
   final   judicial  decision  in  the  present  case,   the   Russian
   authorities  deprived the provisions of Article  6  з  1  of  their
   useful effect.
       29. There has accordingly been a violation of Article 6 з 1  of
   the Convention.
           2. Article 1 of Protocol No. 1 to the Convention
       30.  The  Court  reiterates  that a "claim"  can  constitute  a
   "possession" within the meaning of Article 1 of Protocol No.  1  if
   it  is  sufficiently established to be enforceable (see  Burdov  v.
   Russia,  cited above, з 40, and Stran Greek Refineries and  Stratis
   Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301-
   B,  p.  84,  з  59).  The  judgment of 21  May  1999  provided  the
   applicant with an enforceable claim and not simply a general  right
   to  receive  support from the State. The judgment had become  final
   as  no  ordinary  appeal  was  made  against  it,  and  enforcement
   proceedings  had been instituted. It follows that the impossibility
   for  the  applicant to have the judgment enforced for a substantial
   period  of  time  constituted an interference  with  his  right  to
   peaceful  enjoyment of his possessions, as set forth in  the  first
   sentence of the first paragraph of Article 1 of Protocol No. 1.
       31.   In   the  absence  of  any  justification  for  such   an
   interference  (see  paragraph 28 above), the Court  concludes  that
   there  has been a violation of Article 1 of Protocol No. 1  to  the
            II. Application of Article 41 of the Convention
       32. 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
       33. The applicant requested the Court to index-link his monthly
   compensation in line with the minimum monthly wage and claimed  RUR
   24,508.88 to be paid monthly and the arrears of RUR 628,575.75  for
   the  period  between 1 January 1999 and 31 October 2004 in  respect
   of pecuniary and non-pecuniary damage.
       34.  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
   applicant's claims were excessive and if the Court decided to  make
   an  award  it should not exceed the amount awarded by the Court  in
   the Burdov v. Russia case.
       35.  The  Court  does not discern any causal link  between  the
   violations  found and the amounts of the pecuniary damage  alleged.
   Accordingly, it rejects this part of the claim. However, the  Court
   considers  that  the  applicant must  have  suffered  distress  and
   frustration  resulting  from  the  State  authorities'  failure  to
   enforce  judgments  in  his favour, which  cannot  sufficiently  be
   compensated  by  the  finding of a violation. However,  the  amount
   claimed  appears excessive. The Court takes into account the  award
   it  made  in the case of Burdov v. Russia (cited above, з 47),  the
   nature  of  the  award whose non-enforcement was at  issue  in  the
   present  case,  the  delay before the enforcement  proceedings  and
   other  relevant  aspects.  Making its assessment  on  an  equitable
   basis,  it  awards  the  applicant EUR 4,500  in  respect  of  non-
   pecuniary  damage,  plus any tax that may  be  chargeable  on  that
                         B. Costs and expenses
       36.  The applicant did not claim reimbursement of his costs and
   expenses  incurred before the domestic authorities and  the  Court.
   Accordingly, the Court does not make any award under this head.
                          C. Default interest
       37.  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
       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;
       3. Holds
       (a)  that the respondent State is to pay the applicant,  within
   three  months  from  the date on which the judgment  becomes  final
   according  to  Article 44 з 2 of the Convention,  EUR  4,500  (four
   thousand  five hundred euros) to be converted into Russian  roubles
   at  a  rate applicable at the date of settlement in respect of non-
   pecuniary damage, plus any tax that may be chargeable on the  above
       (b)  that  from the expiry of the above-mentioned three  months
   until  settlement  simple interest shall be payable  on  the  above
   amount  at  a  rate  equal  to the marginal  lending  rate  of  the
   European  Central  Bank  during  the  default  period  plus   three
   percentage points;
       4.  Dismisses the remainder of the applicant's claim  for  just
       Done  in English, and notified in writing on 22 September 2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
                                                      Christos ROZAKIS
                                                   {Soren} <*> NIELSEN
       <*>  Слово  на национальном языке набрано латинским  шрифтом  и
   выделено фигурными скобками.

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