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 14.06.2005 ДЕЛО ООО "РУСАТОММЕТ" (RUSATOMMET) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

<<< Назад


                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                            SECOND SECTION
                                   
                   CASE OF OOO RUSATOMMET v. RUSSIA
                      (Application No. 61651/00)
                                   
                             JUDGMENT <*>
                                   
                       (Strasbourg, 14.VI.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 OOO Rusatommet v. Russia,
       The European Court of Human Rights (Second Section), sitting as
   a Chamber composed of:
       Mr J.-P. Costa, President,
       Mr I. Cabral Barreto,
       Mr K. Jungwiert,
       Mr V. Butkevych,
       Mr M. Ugrekhelidze,
       Mr A. Kovler,
       Mrs A. Mularoni, judges,
       and Mrs S. {Dolle} <*>, Section Registrar,
   --------------------------------
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
   
       Having deliberated in private on 24 May 2005,
       Delivers  the  following judgment, which was  adopted  on  that
   date:
   
                               PROCEDURE
   
       1. The case originated in an application (No. 61651/00) 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 OOO Rusatommet, a limited-liability
   company  registered  in  Russia ("the applicant  company"),  on  20
   April 2000.
       2.  The applicant company was represented by Mr A. Kemishev,  a
   lawyer   practising  in  Moscow.  The  Russian   Government   ("the
   Government")  were represented by Mr P. Laptev, the  Representative
   of the Russian Federation at the European Court of Human Rights.
       3. The applicant company alleged, in particular, that the State
   had failed to honour a judgment debt.
       4.  The application was allocated to the Second Section of  the
   Court  (Rule  52 з 1 of the Rules of Court). Within  that  Section,
   the  Chamber that would consider the case (Article 27 з  1  of  the
   Convention)  was constituted as provided in Rule 26 з 1.  When  the
   Court  changed the composition of its Sections on 1 November  2004,
   this case was allocated to the new Second Section.
       5.  By a decision of 14 September 2004, the Court declared  the
   application partly admissible.
       6.   The  applicant  company  and  the  Government  each  filed
   observations  on  the  merits (Rule 59 з  1).  The  Chamber  having
   decided,  after  consulting the parties, that  no  hearing  on  the
   merits  was  required (Rule 59 з 3 in fine), the applicant  company
   replied in writing to the Government's observations.
   
                               THE FACTS
   
       7.  The applicant company is a debt collector. In July 1999, it
   bought  a  defaulted  State bond and sued the  Government  for  the
   debt.  After  several years of litigation, on  10  April  2002  the
   Moscow  City  Commercial Court ordered the Government  to  pay  the
   applicant company 100,000 American dollars ("USD").
       8.  On  5 August 2002, the Appeals Division of the Moscow  City
   Commercial Court upheld the judgment, but specified that  the  debt
   was to be paid by the Ministry of Finance.
       9. On 6 November 2002, the ministry asked the court to stay the
   enforcement of the judgment until January 2003, because there  were
   no funds in the State budget of 2002.
       10.   On   19   November  2002,  bailiffs  opened   enforcement
   proceedings.
       11.  On  16  December  2002,  the court  refused  to  stay  the
   enforcement  because the ministry had failed to prove  either  that
   it  did  not  have  the  funds,  or that  the  funds  would  become
   available after January 2003.
       12.  On  7 February 2003, the ministry asked the court to  stay
   the  enforcement of the judgment until January 2004, because  there
   were no funds in the State budget of 2003.
       13. On 20 March 2003, the court refused to stay the enforcement
   because  the ministry had failed to prove either that  it  did  not
   have  the  funds,  or that the funds would become  available  after
   January 2004.
       14.  In  August  2003, the ministry asked the appeal  court  to
   clarify how the judgment was to be enforced.
       15.  On  3 September 2003, the appeal court clarified that  the
   judgment  was  to be enforced only once the applicant  company  had
   handed  in  the bond. The applicant company appealed  against  this
   decision  because  the general conditions of the bond's  issue  did
   not  require  that  it  be  handed in. In addition,  the  applicant
   company argued that the judgment could be enforced on the basis  of
   a  writ  of enforcement alone, and that the bond was to be returned
   to  the  ministry only after the enforcement. On 25 November  2003,
   the  Federal Commercial Court of the Moscow Circuit dismissed  this
   appeal.
       16.  On  18 February 2004, the applicant company handed in  the
   bond to the ministry.
       17.  Subsequently, the applicant company unsuccessfully  sought
   an injunction to oblige the ministry to enforce the judgment.
   
                                THE LAW
   
       18. The applicant company complained under Article 6 з 1 of the
   Convention and under Article 1 of Protocol No. 1 that the  judgment
   of 10 April 2002 had not been enforced.
   
        I. Alleged violation of Article 6 з 1 of the Convention
   
       19.  As far as relevant, Article 6 з 1 of the Convention  reads
   as follows:
       "In  the  determination of his civil rights and obligations...,
   everyone   is   entitled   to  a  fair...  hearing...   by   [a]...
   tribunal...."
   
                       A. The parties' arguments
   
       20.  The Government rejected this complaint as manifestly  ill-
   founded.  Initially, they asserted that the applicant  company  was
   itself  responsible for the delay, because it had resisted  handing
   in  the  bond.  In  their  observations of  17  January  2005,  the
   Government  asserted that the Ministry of Finance was taking  steps
   to enforce the judgment.
       21.  The  applicant  company  insisted  on  its  complaint.  It
   asserted  that it had done everything it could to have the judgment
   enforced.  The  ministry's doubts about the manner  of  enforcement
   were a ruse to put off the payment day. The ministry was taking  no
   steps to enforce the judgment.
   
                       B. The Court's assessment
   
       22. Article 6 з 1 guarantees the "right to a court": any person
   should  be  able  to apply to a court to defend his  or  her  civil
   rights. However, this right would be futile if the State allowed  a
   final,  binding  judgment to idle (see Hornsby v. Greece,  judgment
   of  19  March 1997, Reports of Judgments and Decisions  1997-II,  з
   40).
       23.  Lack  of funds does not excuse the State from honouring  a
   judgment  debt.  Even  though in certain circumstances  enforcement
   may  be delayed, the delay must not undermine the right to a  court
   (see Burdov v. Russia, no. 59498/00, з 35, ECHR 2002-III).
       24. Turning to this case, the Court notes that the judgment has
   not  yet  been enforced. To date, 1 year and 3 months  have  passed
   from  the day when the applicant company handed in the bond as  the
   appeal  court had required (and some three years since the date  of
   the  original judgment debt). This former delay is long  enough  to
   undermine  the applicant company's right to a court. The Government
   have not advanced any justification for this delay.
       25.  There has, accordingly, been a violation of Article 6 з  1
   of the Convention.
   
         II. Alleged violation of Article 1 of Protocol No. 1
   
       26.  Article  1  of Protocol No. 1 to the Convention  reads  as
   follows:
       "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."
       27.  The  Court  repeats that a "claim" can be  a  "possession"
   within  the  meaning of Article 1 of Protocol No. 1 if sufficiently
   established  in  law to be enforceable (see Stran Greek  Refineries
   and  Stratis  Andreadis v. Greece, judgment  of  9  December  1994,
   Series A No. 301-B, з 59).
       28.  The judgment gave the applicant company a reason to expect
   from  the  State 100,000 US dollars. The judgment became final  and
   was  submitted for enforcement. It follows that the non-enforcement
   of  the  judgment was an interference with the applicant  company's
   right  to the peaceful enjoyment of its possessions. The Government
   have not advanced any justification for this interference.
       29.  There has, accordingly, been a violation of Article  1  of
   Protocol No. 1.
   
           III. Application of Article 41 of the Convention
   
       30. 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
   
       31.  The  applicant company claimed 210,332.24 American dollars
   ("USD").  This  amount included the judgment debt and  compensation
   for  the  bond's  late redemption. The applicant company  suggested
   that,  until  settlement, this amount should also be  increased  by
   23%  a year. In addition, the applicant company asked the Court  to
   fix compensation for the breach of the Convention.
       32.  The  Government stated that these claims were unreasonably
   high.  Besides,  since the State was taking  measures  to  pay  the
   debt, the Court's mere finding of a violation would suffice.
       33.  As  to pecuniary damage, the Court notes that the judgment
   debt  of  10  April  2002  has not yet  been  enforced.  The  Court
   considers  that if the Government were to pay this debt,  it  would
   constitute  full  and  final settlement of the dispute.  Therefore,
   the Court awards the applicant USD 100,000 under this head.
       34.  As  to non-pecuniary damage, the Court considers that  the
   applicant  company  has  suffered prejudice  as  a  result  of  the
   violation  found, and that it cannot be made good  by  the  Court's
   mere  finding of a violation. Deciding equitably, the Court  awards
   2,000 euros ("EUR") under this head.
   
                          B. Default interest
   
       35.  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
   
       1. Holds unanimously that there has been a violation of Article
   6 з 1 of the Convention;
       2. Holds unanimously that there has been a violation of Article
   1 of Protocol No. 1 to the Convention;
       3. Holds by five votes to two
       (a)  that the respondent State is to pay the applicant company,
   within  three  months from the date on which the  judgment  becomes
   final  according to Article 44 з 2 of the Convention, the following
   amounts,  to  be  converted  into  the  national  currency  of  the
   respondent State at the rate applicable at the date of settlement:
           (i) USD 100,000 (one hundred thousand American dollars) in
       respect of pecuniary damage;
           (ii)   EUR  2,000  (two  thousand  euros)  in  respect  of
       non-pecuniary damage;
           (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;
       4.   Dismisses  unanimously  the  remainder  of  the  applicant
   company's claim for just satisfaction.
   
       Done  in  English,  and notified in writing on  14  June  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
   
                                                           J.-P. COSTA
                                                             President
                                                                      
                                                            S. {DOLLE}
                                                             Registrar
   
   
   
   
   
       In accordance with Article 45 з 2 of the Convention and Rule 74
   з  2 of the Rules of Court, the separate opinion of Mr Ugrekhelidze
   and Mr Kovler is annexed to this judgment.
   
                                                               J.-P.C.
                                                                      
                                                                  S.D.
   
                    PARTIALLY DISSENTING OPINION OF
                    JUDGES UGREKHELIDZE AND KOVLER
   
       We  share the conclusions of the Chamber concerning a violation
   of  Article 6 з 1 of the Convention and Article 1 Protocol  No.  1,
   but  we regret that the Chamber did not follow the Court's case-law
   in  recent  non-enforcement cases where the  Court  held  that  the
   respondent Government, within three months from the date  on  which
   the  judgment becomes final, according to Article 44  з  2  of  the
   Convention,  should secure, by appropriate means,  the  enforcement
   of  the  award made by the domestic court. (Makarova and others  v.
   Russia,  No.  7023/03, 24 February 2005; Plotnikovy v. Russia,  No.
   43883/02, 24 February 2005).
       This clause would have permitted, in our opinion, to follow the
   domestic  procedure of enforcement and to determine an  appropriate
   amount of interest in accordance with the domestic rules.
       The wording adopted by the majority of the Chamber in paragraph
   3  (a) of the operative part of the judgment seems to fail to  take
   into  account the actual interest accrued during a long  period  of
   non-enforcement.  We  fear  that  this  approach  could  foster  an
   incorrect interpretation of the principle of "just satisfaction  to
   the  injured  party", provided in Article 41 of the Convention.  It
   might   also   create  certain  difficulties  for  the   respondent
   Government in the course of the execution of the judgment.
   
   

<<< Назад

 
Реклама

Новости


Реклама

Новости сайта Тюрьма


Hosted by uCoz