EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF BUTSEV v. RUSSIA
(Application No. 1719/02)
JUDGMENT <*>
(Strasbourg, 22.IX.2005)
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<*> 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
date:
PROCEDURE
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
proceedings.
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
unfounded.
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
legislation.
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]...
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
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
inadmissible.
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
status.
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
Convention.
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
amount.
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
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;
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
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;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
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
President
{Soren} <*> NIELSEN
Registrar
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<*> Слово на национальном языке набрано латинским шрифтом и
выделено фигурными скобками.
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