ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 20.10.2005<ДЕЛО ШВЕДОВ (shvedov) ПРОТИВ РОССИИ> [англ.]

the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must be therefore declared admissible.
B. Merits
1. Alleged breach of Article 6 § 1 of the Convention
29. The Government claim that the judgment has not been enforced because of the applicant"s failure to submit appropriate documents to the Ministry of Finance of the Russian Federation, as provided by Decree No. 666 of 9 September 2002.
30. The second applicant submits that by the moment of adoption of the regulations referred to by the Government the court decision in the applicant"s favour of 15 March 1999 had remained unexecuted for a considerable period of time and that, moreover, the adoption of special rules on the enforcement of judgments against the State authorities did not preclude the creditors from seeking enforcement in an ordinary way, that is through the bailiffs. The second applicant referred to the Russian Supreme Court decisions cited above (see the "Relevant Domestic Law" above).
31. The Court notes that the parties are in dispute as to whether the applicant"s behaviour or the conduct of the State authorities (the debtor) were the principal cause for the delay in the execution of the judgment of 15 March 1999.
32. In this respect the Court recalls, at the outset, that the "right to a court", derived from Article 6, comprises a duty of the State to implement final judicial decisions (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, § 40; Burdov v. Russia, No. 59498/00, § 34, ECHR 2002-III). However, this duty is not absolute and may be subject to certain limitations permitted by implication: a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt (see Treial v. Estonia, (dec.) No. 48129/99, 28 November 2000). At the same time the formalities required from the creditor may not restrict or reduce his access to the enforcement proceedings in such a way or to such an extent that the very essence of the "right to a court" is impaired (see, mutatis mutandis, Kreuz v. Poland, No. 28249/95, § 53, ECHR 2001-VI).
33. Turning to the present case the Court notes that the enforcement proceedings started in May 1999. On 26 March 2001 the bailiffs returned the writ of execution to the applicant. They advised him to submit it directly to the Ministry of Finance, referring to the new regulations on enforcement of judgments against the State, introduced by the Law on the Federal Budget for 2001. However, by this time the writ of execution had been with the bailiffs for more than two years. During this period the enforcement made no progress at all and the Government do not present any justification why this delay occurred. The only reason referred to by the domestic authorities was the absence of funds. However, in the eyes of the Court, "it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment" (Romashov v. Ukraine, No. 67534, 27 July 2004, § 43). Therefore, this delay in executing the judgment in the applicant"s favour is imputable to the State.
34. As to the period after 26 March 2001, the Court notes the following. The new regulations on enforcement, enacted in 2000 did not preclude the applicant from seeking the enforcement in a normal way, i.e. through the bailiffs (see the "Relevant domestic law", § 23). Moreover, the Ministry of Finance had all necessary information about the applicant"s claim already in 1999 (see § 12), that is prior to enactment of the new regulations.
35. Therefore, after more than two years of inactivity the authorities de facto required the applicant to re-start the enforcement proceedings. It was not necessary from the standpoint of the national law and, moreover, excessive from the standpoint of the Convention. Consequently, the applicant could not be blamed for delaying the enforcement of the judgment by not making use of an alternative procedure indicated by the respondent Government.
36. The Court concludes that the non-execution of the judgment of 15 March 1999 is attributable solely to the authorities. The Government did not advance any plausible justification for the delay in paying off the judgment debt. Therefore, the delayed enforcement of the judgment impaired the applicant"s right to the court.
37. It follows that there has been a violation of Article 6 § 1 of the Convention.
2. Alleged breach of Article 1 of Protocol No. 1
to the Convention
38. 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 Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301-B, p. 84, § 59). By failing to comply with the final judgment of 15 March 1999 the national authorities prevented the applicant from receiving the money he could reasonably have expected to receive (see Burdov v. Russia, No. 59498/00, ECHR 2002-III).
39. The Court refers to its finding (see §§ 31 - 37) that there was no fault on behalf of the applicant in delaying the enforcement of the judgment of 15 March 1999. 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.
40. In the absence of any justification for such an interference (see § 36 above), the Court concludes that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
II. Other alleged violations of the Convention
41. The second applicant complained of the refusal of the Soviet authorities to let his family return to Australia in 1957. However, the events complained of took place before the date of the Convention"s entry into force in respect of the Russian Federation. Therefore, this complaint is incompatible with the provisions of the Convention ratione temporis, and must be rejected pursuant to Article 35 §§ 3 and 4 thereof.
42. The second applicant also complained about a civil dispute concerning his father"s flat. The Court notes that this dispute ended with two final decisions (see § 18), delivered more than six months before the date on which the application in this respect was lodged with the Court (see § 3). It follows that this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
III. Application of Article 41 of the Convention
43. 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
44. In his initial application to the Court the applicant claimed for both pecuniary and non-pecuniary damage sustained by him 3,000,000 US Dollars. The second applicant, in his application of 27 January 2004, repeated this claim. After the communication the second applicant was invited by the Registry to submit his claims for just satisfaction, which he did on 18 October 2004. He claimed two amounts: EUR 5,000 for wrongful conviction of his father, and EUR 3,000 for non-enforcement of the court judgment of 15 March 1999. It appears that the amounts sought by the applicant comprised both pecuniary and non-pecuniary damage allegedly sustained by him and his father in the course of the domestic proceedings.
45. The Government maintained that the applicant did not suffer any pecuniary or non-pecuniary damage. They suggested that a finding of a violation would of itself constitute sufficient just satisfaction. Alternatively, they suggested that a compensation similar to one awarded in the case Burdov v. Russia (cited above, § 47) would suffice.
46. As regards the first amount sought by the applicant, the Court notes the following. The complaint to the Court concerned only the non-enforcement of the judgment of 15 March 1999, and not its alleged unfairness or inadequacy. Consequently, the sole matter to be taken into consideration for the purposes of Article 41 is the prejudice supposedly entailed by the lengthy non-enforcement of the judgment in the applicant"s favour.
A. Pecuniary damage
47. As regards any possible material losses sustained by the applicant as a result of the lengthy non-enforcement of the judgment at issue, the Court points out that under Rule 60 of the Rules of the Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, "failing which the [Court] may reject the claim in whole or in part".
48. Insofar as the second applicant"s claim relate to the outstanding principal amount due to his father under the judgment of 15 March 1999 (RUR 24,917), the Court notes that the Government"s obligation to enforce the judgment at issue is not yet extinguished in the domestic terms and the second applicant, as the applicant"s heir, is still entitled to recover this amount in the course of enforcement proceedings. The Court recalls that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A No. 85, p. 16, § 12, and, mutatis mutandis, {Gencel} v. Turkey, No. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the violations found. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the award made by the domestic court. For this reason the Court does not find it necessary to make an award for pecuniary damage in so far as it relates to the principal amount (see Poznakhirina v. Russia, No. 25964/02, § 33, 24 February 2005).
49. As regards other possible material losses arising from the non-enforcement of the judgment, the Court makes no award in this respect as the applicant has not substantiated any such loss.
B. Non-pecuniary damage
50. The applicant, referring to an award made by the Court in the case Burdov v. Russia cited above, sought compensation for non-pecuniary damage in the amount of EUR 3,000.
51. The Court recalls that in Burdov the judgment at issue concerned the Chernobyl-victim"s pension payable as compensation for health damage leading to disability, which represented the applicant"s main source of income. In the present case the court award was of a different nature. Nevertheless, the Court is ready to accept that the prolonged non-payment of the judgment debt caused certain mental distress to the applicant (see Wasserman v. Russia, No. 15021/02, 18 November 2004, § 50). Making an assessment on an equitable basis in accordance with Article 41, the Court awards the applicant EUR 3,000 (three thousand euros) under this head, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on the above amount. This sum should be paid to his heir, the second applicant, who continued the proceedings in the applicant"s stead.
B. Costs and expenses
52. The applicant also claimed reimbursement of the costs and expenses incurred before the Court. He left the determination of the exact amount of these expenses at the Court"s discretion.
53. The Government considered that the applicant"s claim for reimbursement of his legal costs was unsubstantiated.
54. The Court notes that in the present case the applicant was represented by a lawyer and was involved in a correspondence with the Court, which necessarily put him to expenses. At the same time the applicant presented no supporting documents, which would allow the Court to make a precise calculation of his legal costs. Consequently, according to the estimate of standard legal expenses which might have incurred by a successful applicant in a comparable situation, the Court awards the applicant EUR 300 (three hundred euros) under this head, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount. This sum is to be paid to his heir, the second applicant, in the applicant"s stead.
C. Default interest
55. 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 complaint concerning the prolonged non-enforcement of the judgment of 15 March 1999 in the applicant"s favour admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention;
3. Holds:
(a) that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the award made by the domestic court on 15 March 1999, and in addition pay the second applicant EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 300 (three hundred euros) in respect of costs and expenses, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(c) 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 applicants" claims for just satisfaction.
Done in English, and notified in writing on 20 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar

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