ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 22.09.2005<ДЕЛО БУЦЕВ (butsev) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF BUTSEV v.
(Application No. 1719/02)
<*> 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.
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,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
S. Nielsen, Section Registrar,
Having deliberated in private on 30
Delivers the following judgment, which was adopted on that
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 circumstances of the
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
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.
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
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.
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.
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]...
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
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."
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
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
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
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, §
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
II. Application of Article 41 of the Convention
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."
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.
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, § 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
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
2. Holds that there has been a violation of Article 6 of the
Convention and Article 1 of Protocol No. 1;
the respondent State is to pay the applicant, within three months from the date
on which the judgment becomes final according to Article 44 § 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
(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 §§ 2 and 3 of
the Rules of Court.
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