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СНГ Бизнес - Деловой Портал. Каталог. Новости



Законодательство Российской Федерации

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(по состоянию на 20 октября 2006 года)

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                             FIRST SECTION
                      CASE OF PETRUSHKO v. RUSSIA
                      (Application No. 36494/02)
                             JUDGMENT <*>
                       (Strasbourg, 24.II.2005)
       In the case of Petrushko v. Russia,
       <*>  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.
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mrs E. Steiner,
       Mr K. Hajiyev,
       Mr D. Spielmann,
       Mr S.E. Jebens, judges
       and Mr S. Nielsen, Section Registrar,
       Having deliberated in private on 1 February 2005,
       Delivers  the  following judgment, which was  adopted  on  that
       1. The case originated in an application (No. 36494/02) 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 Petrushko Valentina  Vasilyevna,  a
   Russian national, on 6 September 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  13  May  2003  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
       4.  The  applicant was born in 1965 and lives in Novocherkassk,
   Rostov Region.
       5.  In 2001 the applicant brought an action for damages against
   the  Ministry  of  Internal  Affairs following  the  death  of  her
   husband during his military service in Chechnya.
       6.  On  7  June  2001 the Leninskiy District  Court  of  Rostov
   granted  the applicant's claim. Her award consisted of  a  lump-sum
   compensation  of  71,851.50 roubles (RUR) and monthly  payments  of
   RUR  1,710.75,  subject to future adjustment to a  statutory  rate.
   The monthly payments were not paid to the applicant.
       7.  In 2002 the applicant brought new proceedings to obtain the
   adjustment of the outstanding monthly payments.
       8.  On 27 September 2002 the Leninskiy District Court of Rostov
   granted  the  applicant's  claim. It  made  an  adjustment  of  the
   monthly  payments increasing them retrospectively to RUR 3,849.  It
   awarded  the applicant arrears of RUR 88,916.16 in respect  of  the
   period from 1 January 2002 to 1 October 2002.
       9. On 9 October 2002 the applicant obtained an execution order,
   which  she  submitted  to the Ministry of Finance  of  the  Russian
   Federation for payment.
       10.  On  17 June 2003, after the case had been communicated  to
   the  Government, the applicant was paid RUR 30,793.44,  and  on  19
   June 2003 she was paid RUR 88,916.
                                THE LAW
        I. Alleged violation of Article 6 з 1 of the Convention
           and Article 1 of Protocol No. 1 to the Convention
       11. The applicant complained that the prolonged non-enforcement
   of  the  judgments of 7 June 2001 and of 27 September 2002 violated
   her  "right  to a court" under Article 6 з 1 of the Convention  and
   her  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
       12.   The  Government  contested  the  admissibility   of   the
   application  on  the  ground that the applicant  was  no  longer  a
   victim.  They  submitted that the judgments in  question  had  been
   enforced.  They asserted that the applicant had thus been  afforded
   redress  at the national level and that her application  should  be
   declared  inadmissible. In the alternative, they  argued  that  the
   applicant  had not exhausted domestic remedies. They  claimed  that
   she  should have requested an enforcement of her award by the court
   bailiff  service following the failure of the Ministry  of  Finance
   to pay under the execution order.
       13.  The  applicant  did not accept that she  had  lost  victim
   status  because her award had finally been enforced.  She  observed
   that  her  monthly payments had not been made to her for two  years
   owing  to  the  non-enforcement of the judgment by the authorities,
   in  respect  of  which  delay  they had  neither  acknowledged  the
   violation  nor  afforded  redress to her. She  also  contested  the
   objection  concerning non-exhaustion of domestic  remedies  alleged
   by  the Government, claiming that she had acted in accordance  with
   law  by  having  submitted the execution order to the  Ministry  of
       14.  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).
       15.  In  the  instant  case, after a year of  the  authorities'
   failure  to  make  regular  payments  the  applicant  brought   new
   successful  proceedings  seeking a retrospective  increase  of  the
   arrears.  This decision, had it been duly enforced, could  arguably
   have  constituted a remedy against the State's previous failure  to
   comply  with  the  judgment. However,  the  new  judgment  was  not
   enforced  for  another  10  months,  until  the  notice   of   this
   application  was  given to the Government by the Court.  The  Court
   observes   that   neither  the  Government   nor   other   domestic
   authorities  have  acknowledged  that  the  applicant's  Convention
   rights  were  unjustifiably restricted by  the  non-enforcement  of
   these  judgments. Furthermore, no redress has been offered  to  the
   applicant for the delay, as required by the Court's case-law.
       16.  The Court therefore 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
   applicant  of  her victim status under the Convention.  It  rejects
   the Government's objection as to the loss of victim status.
       17.  As  to the alleged non-exhaustion of the domestic remedies
   by  the applicant, the Court reiterates that Article 35 з 1 of  the
   Convention,  which  sets  out the rule on  exhaustion  of  domestic
   remedies,  provides for a distribution of the burden of  proof.  It
   is  incumbent on the Government claiming non-exhaustion to  satisfy
   the  Court that the remedy was an effective one available in theory
   and  in practice at the relevant time, that is to say, that it  was
   accessible,  was  one  which was capable of  providing  redress  in
   respect  of  the  applicant's  complaints  and  offered  reasonable
   prospects of success (see Selmouni v. France [GC], No. 25803/94,  з
   76,  ECHR 1999-V, and Mifsud v. France (dec.), No. 57220/00, з  15,
   ECHR  2002-VIII).  The  Court further observes  that  the  domestic
   remedies must be "effective" in the sense either of preventing  the
   alleged  violation  or its continuation, or of  providing  adequate
   redress  for  any violation that had already occurred (see  {Kudla}
   <*> v. Poland [GC], No. 30210/96, з 158, ECHR 2000-XI).
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
       18.  Turning  to  the present case, it is undisputed  that  the
   Ministry  of  Finance was competent to effect  payments  under  the
   execution  order on behalf of the State. The Court reiterates  that
   a  person  who  has  obtained an enforceable judgment  against  the
   State  as  a result of successful litigation cannot be required  to
   resort  to  enforcement proceedings in order to  have  it  executed
   (see  Metaxas v. Greece, No. 8415/02, з 19, 27 May 2004). The Court
   considers  that after a competent State agency was  served  with  a
   judgment  the  recourse by the applicant to  another  State  agency
   should  not  in  principle  have  been  necessary  to  secure   its
   enforcement. The Court considers that in the present case  recourse
   to  the  bailiff service would only have produced the  same  result
   and  could  not  be  said to have constituted an  effective  remedy
   against  non-enforcement (cf. Yavorivskaya v.  Russia  (dec.),  No.
   34687/02,  15 May 2004, and {Jasiuniene} v. Lithuania  (dec.),  No.
   41510/98, 24 October 2000).
       19.  The Court therefore does not accept that the applicant was
   required  to  apply  to the bailiff service  in  order  to  exhaust
   domestic remedies.
       20. 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
       21.  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.
       22. The applicant maintained her complaints.
       Article 6 з 1 of the Convention
       23. 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).
       24. 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).
       25.  Turning  to  the instant case, the Court  notes  that  the
   judgment of 7 June 2001 remained inoperative in part for about  two
   years,  including  nearly  one  year  after  the  judgment  of   27
   September  2002  had been pronounced to redress the non-enforcement
   of  the  first one. No justification was advanced by the Government
   for  this delay. By failing for such a substantial period  of  time
   to  take  the necessary measures to comply with the final  judicial
   decisions  in  the  present case, the Russian authorities  deprived
   the provisions of Article 6 з 1 of their useful effect.
       26. There has accordingly been a violation of Article 6 з 1  of
   the Convention.
       Article 1 of Protocol No. 1 to the Convention
       27.  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 judgments of 7 June 2001 and 27  September
   2002  provided  the  applicant with an enforceable  claim  and  not
   simply  a  general  right to receive support from  the  State.  The
   judgments  had become final as no ordinary appeal was made  against
   them,  and enforcement proceedings had been instituted. It  follows
   that  the  impossibility for the applicant to have either  judgment
   enforced   for   a  substantial  period  of  time  constituted   an
   interference   with  her  right  to  peaceful  enjoyment   of   her
   possessions,  as  set  forth in the first  sentence  of  the  first
   paragraph of Article 1 of Protocol No. 1.
       28. Not having found any justification for such an interference
   (see  paragraph  25  above), the Court  concludes  that  there  has
   accordingly been a violation of Article 1 of Protocol No. 1 to  the
            II. Application of Article 41 of the Convention
       29. 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
       30. The applicant claimed 50,000 euros (EUR) in respect of non-
   pecuniary damage.
       31.  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.
       32.  The  Court considers that the applicant must have suffered
   distress  and  frustration resulting from  the  State  authorities'
   failure   to   enforce  judgments  in  her  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 3,000  in  respect
   of  non-pecuniary  damage, plus any tax that may be  chargeable  on
   that amount.
                         B. Costs and expenses
       33.  The  applicant  sought  reimbursement  of  her  costs  and
   expenses  incurred before the domestic authorities and  the  Court.
   However,  she  has neither quantified the amount nor submitted  any
   receipts or other vouchers on the basis of which such amount  could
   be  established.  Accordingly, the Court does not  make  any  award
   under this head.
                          C. Default interest
       34.  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 з  1  of
   the Convention;
       3.  Holds  that  there has been a violation  of  Article  1  of
   Protocol No. 1 to the Convention;
       4. 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  3,000  (three
   thousand  euros)  in  respect  of  non-pecuniary  damage,   to   be
   converted  into  the national currency of the respondent  State  at
   the  rate  applicable at the date of settlement, plus any tax  that
   may be chargeable on that amount;
       (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;
       5.  Dismisses the remainder of the applicant's claim  for  just
       Done  in English, and notified in writing on 24 February  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
                                                      Christos ROZAKIS
                                                       {Soren} NIELSEN

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