ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 22.09.2005<ДЕЛО БУЦЕВ (butsev) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
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 § 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
§ 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 § 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 § 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, § 36, Dalban v. Romania
[GC], No. 28114/95, § 44, ECHR 1999-VI, and Rotaru v. Romania [GC], No.
28341/95, § 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, § 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 § 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 § 1 of the Convention
26. The Court reiterates
that Article 6 § 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 § 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, § 34, ECHR 2002-III, and Hornsby v. Greece, judgment of
19 March 1997, Reports 1997-II, p. 510, § 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 § 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, § 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 § 1 of their
useful effect.
29. There has accordingly been a violation of Article 6 §
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,
§ 40, and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A No. 301-B, p. 84, § 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
