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Судебное дело "Карпачева и Карпачев против России (нарушение статьи 2 Протокола 4 к Конвенции)"


Постановление ЕСПЧ по делу Карпачева и Карпачев против России от 27 января 2011 (на английской)

 

27.01.2011

 

                               FIRST SECTION

                 CASE OF KARPACHEVA AND KARPACHEV v. RUSSIA

                         (Application no. 34861/04)

                                  JUDGMENT

                                 STRASBOURG

                              27 January 2011

   This  judgment  will  become  final  in  the  circumstances set out in
   Article 44  S: 2  of  the  Convention.  It may be subject to editorial
   revision.

   In the case of Karpacheva and Karpachev v. Russia,

   The  European  Court  of  Human  Rights  (First Section), sitting as a
   Chamber composed of:

   Christos Rozakis, President,
   Nina Vajic,
   Anatoly Kovler,
   Khanlar Hajiyev,
   Dean Spielmann,
   Giorgio Malinverni,
   George Nicolaou, judges,
   and So/ren Nielsen, Section Registrar,

   Having deliberated in private on 6 January 2011,

   Delivers the following judgment, which was adopted on that date:

   PROCEDURE

   1.  The  case  originated in an application (no. 34861/04) 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  two  Russian nationals, Ms Yelena Alekseyevna
   Karpacheva  and Mr Maksim Vladislavovich Karpachev ("the applicants"),
   on 28 August 2004.

   2.  The  applicants  were  represented  by  Ms  N. Kutepova,  a lawyer
   working for an NGO in Ozersk, Russia, and Mr Ph. Leach and
   Mr B.  Bowring,  lawyers  practising in London. The Russian Government
   ("the   Government")  were  represented  by  Ms  V. Milinchuk,  former
   Representative  of  the  Russian  Federation  at the European Court of
   Human  Rights, and subsequently by Mr G. Matyushkin, Representative of
   the Russian Federation at the European Court of Human Rights.

   3.  The  second applicant alleged, in particular, that the judgment in
   the  second  applicant's  favour  had  not  been enforced and that the
   second  applicant's  rights set out in Article 2 of Protocol No. 4 had
   been infringed.

   4.  On  7 May  2008 the President of the First Section decided to give
   notice of the application to the Government.

   THE FACTS

   I.  THE CIRCUMSTANCES OF THE CASE

   5.  The  applicants,  mother  and  son,  were  born  in  1958 and 1981
   respectively.  The  first  applicant lives in Ozersk, a closed town in
   Chelyabinsk  Region where the Mayak nuclear fuel reprocessing plant is
   located  and where the second applicant permanently resided before his
   conviction  in  2002.  They  are joint owners of a flat in Ozersk. The
   second   applicant  is  currently  serving  a  prison  sentence  in  a
   correctional colony in Chelyabinsk Region.

   6.  On  5 August  2002 the second applicant was found guilty at Ozersk
   Town  Court  of certain criminal offences and sentenced to four years'
   imprisonment.

   7.  On 15 July 2004 the Kasli Town Court, Chelyabinsk Region, relieved
   him  from  further serving his sentence. The second applicant returned
   to Ozersk.

   8.  The   first   applicant  requested  the  local  administration  to
   authorise the second applicant's entry to, and permanent residence in,
   Ozersk.  It  appears  the authorities permitted the second applicant's
   temporary stay in Ozersk from 25 November 2004 to 16 January 2005.

   9.  On   an   unspecified   date   the   Ozersk   Town  Administration
   (Администрация Озерского городского округа, "the Town Administration")
   and  the Chelyabinsk Regional Division of the Federal Security Service
   (Управление  федеральной  службы  безопасности по Челябинской области,
   "the  Regional  Security Service") dismissed the request, referring to
   the second applicant's conviction. The second applicant challenged the
   refusal in court.

   10.  On  21 June  2005  the  Ozersk  Town  Court,  Chelyabinsk Region,
   granted  the  second  applicant's  claim.  According  to  the  court's
   findings,  the  dismissal  by  the competent authorities of the second
   applicant's  request  for  the  entry  to, and permanent residence in,
   Ozersk  did  not  have  a basis in law. The Town Court ordered (1) the
   Town  Administration  to  issue the second applicant with an entry and
   residence permit and (2) the Regional Security Service to approve it.

   11.  The  parties  did not appeal against the judgment of 21 June 2005
   and on 2 July 2005 it came into force. The Town Court issued two writs
   of execution.

   12.  On  29 July  2005  the Head of the Town's Administration approved
   the  second  applicant's  application  to be permanently registered in
   Ozersk.  Despite this, on 6 August 2005 the bailiff opened enforcement
   proceedings in respect of the Town Administration.

   13.  On  18 August  2005  the administration of the Mayak nuclear fuel
   reprocessing plant informed the first applicant as follows:

   "Pursuant  to  Decree  of  the  Government  of  the Russian Federation
   no. 693  as  of  11 July  1996  on  special  regulations  in  a closed
   administrative  and  territorial  entity  where enterprises affiliated
   with the Ministry of Nuclear Power are located, on 12 October 2004 the
   federal  security  service  authorised the temporary residence of [the
   second applicant] in ... Ozersk.

   As  regards  your  application for permanent residence [for the second
   applicant]  in  [Ozersk],  on 3 August 2005 the [Mayak administration]
   forwarded  the  [relevant]  documents  ...  to  the [Regional Security
   Service].  The  time-limit  for  their response shall not exceed sixty
   days.  Should the federal security service approve permanent residence
   [for  the  second  applicant], the [Mayak administration] will prepare
   the necessary documents for his registration at his place of residence
   and issuance of a permanent pass."

   14.  On  26 August  2005 the bailiff opened enforcement proceedings in
   respect of the Regional Security Service.

   15.  According to the Government, on 30 August 2005 the bailiff closed
   the  enforcement  proceedings  in  respect of the Town Administration,
   noting that the latter had complied with the judgment of 21 June 2005.
   According   to   the   applicants,  the  bailiff's  decision  was  not
   communicated to them.

   16.  On  5 September  2005  the  management  of the Mayak nuclear fuel
   reprocessing  plant  informed  the  second applicant that the Regional
   Security Service had refused to approve him for permanent residence in
   Ozersk.

   17.  According  to  the  Government,  on  10 October  2005 the bailiff
   closed the enforcement proceedings in respect of the Regional Security
   Service, noting that the judgment of 21 June 2005 had been enforced in
   full. The Government did not, however, submit any documents in support
   of  this  allegation.  According  to  the  applicants,  they  were not
   informed of the alleged closing of the enforcement proceedings.

   18.  On   13 December  2005  the  second  applicant  was  arrested  on
   suspicion  of  drug  dealing.  On  16 March 2006 the Ozersk Town Court
   found  him  guilty  as  charged  and  sentenced  him  to  four  years'
   imprisonment.   The   second  applicant's  conviction  was  upheld  in
   substance by the Presidium of the Chelyabinsk Regional Court by way of
   supervisory review.

   II.  RELEVANT DOMESTIC LAW

   19.  The  Law  of  the Russian Federation On Closed Administrative and
   Territorial Entities of 14 July 1992 (Article 1), as amended, provides
   as follows:

   "A  closed  administrative  and  territorial  entity is a municipality
   where  industrial enterprises specialising in development, production,
   storage  and  disposal  of  mass  destruction  weapons,  processing of
   radioactive  and other materials, military and other facilities... are
   located. [Such entities] are subject to special regulations on secured
   operation and protection of state secrets, including special residence
   conditions."

   20.  Decree  of the Government of the Russian Federation no. 693 as of
   11 July  1996  on  special  regulations in a closed administrative and
   territorial  entity  where enterprises affiliated with the Ministry of
   Nuclear  Power  are  located  stipulates  that entry to, and permanent
   residence  in,  a  closed  administrative  and  territorial  entity is
   subject  to  restrictions  (S: 2). The head of the administration may,
   subject  to  the  approval  of the federal security service, authorise
   entry  to the closed entity (S: 19). Title to real property located in
   a  closed  administrative  and  territorial  entity may give rise to a
   right to enter and reside there, subject to authorisation of access to
   state secrets (S: 23).

   THE LAW

   I.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 OF THE CONVENTION

   21.  The  second  applicant  complained of a violation of Article 2 of
   Protocol No. 4 which reads, in so far as relevant, as follows:

   "1.  Everyone  lawfully  within the territory of a State shall, within
   that  territory,  have the right to liberty of movement and freedom to
   choose his residence.

   ...

   3.  No  restrictions  shall  be placed on the exercise of these rights
   other  than  such as are in accordance with law and are necessary in a
   democratic  society  in  the  interests of national security or public
   safety,  for  the  maintenance  of ordre public, for the prevention of
   crime,  for  the protection of health or morals, or for the protection
   of the rights and freedoms of others.

   4.  The  rights  set  forth  in  paragraph  1  may also be subject, in
   particular  areas,  to restrictions imposed in accordance with law and
   justified by the public interest in a democratic society."

   22.  The  Government contested that argument. While they conceded that
   there  had been an interference with the second applicant's freedom to
   choose  his  place of residence, they considered that the interference
   had been in accordance with law and necessary in a democratic society.

   23.  The applicant maintained his complaint.

   A.  Admissibility

   24.  The Court notes that this complaint is not manifestly ill-founded
   within  the  meaning  of Article 35 S: 3 of the Convention. It further
   notes  that  it  is  not  inadmissible  on  any other grounds. It must
   therefore be declared admissible.

   B.  Merits

   25.  The Court notes that it is common ground between the parties that
   the  authorities'  rejection of the second applicant's application for
   permanent  residence  in  Ozersk  constituted an interference with his
   right  to freedom to choose his own place of residence as protected by
   Article 2 of Protocol No. 4.

   26.  The  Court  further notes that the authorities' refusal to ensure
   permanent  residence for the second applicant in Ozersk has been found
   unlawful by the domestic judicial authorities. The Court has no reason
   to  doubt  the  interpretation  of  the Russian legislation by its own
   courts.  The situation was aggravated by the fact that, even following
   the  delivery  of the judgment confirming the second applicant's right
   to  live  permanently  in  Ozersk,  the authorities refused to respect
   their  obligations vis-`a-vis the second applicant. In this connection
   the  Court  notes  that  there is nothing in the material before it to
   support  the  Government's  assertion  to the contrary (see para. 17).
   Accordingly,  the  interference  with  the second applicant's right to
   choose  his own residence was not imposed in accordance with law. This
   finding  makes  it  unnecessary  to  determine  whether  it  pursued a
   legitimate aim and was justified in a democratic society.

   27.  There  has  been  therefore  a violation of Article 2 of Protocol
   No. 4.

   II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

   28.  The  second  applicant complained that the judgment in his favour
   had   not  been  enforced,  in  contravention  of  Article  6  of  the
   Convention, which reads as follows:

   "In  the  determination  of  his  civil  rights  and  obligations ...,
   everyone is entitled to a fair ... hearing ... by [a] ... tribunal..."

   29.  The  Government  considered that the second applicant's complaint
   was incompatible ratione materiae. In their opinion, the provisions of
   the  Russian  Civil Code were not applicable to the second applicant's
   case  and,  accordingly, it did not concern determination of his civil
   rights  and  obligations.  The  respondent  parties  in  the case were
   municipal and state authorities.

   30.  The  second  applicant  submitted  that  the  right to freedom to
   choose his residence clearly fell within the scope of civil rights.

   31.  Having  regard  to  the  particular  circumstances of the present
   case,  the Court takes the view that this complaint constitutes one of
   the  essential  points  of  the  complaint under Article 2 of Protocol
   No. 4.  Accordingly,  whereas  the  complaint is admissible, the Court
   finds  that it is not necessary to examine this issue separately under
   Article 6 S: 1 of the Convention.

   III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

   32.  Lastly,  the  first  applicant  complained  that the authorities'
   failure to enforce the judgment in second applicant's favour disclosed
   a  violation of her rights set out in Article 6 of the Convention. The
   applicants further alleged a violation of Article 8 of the Convention.
   The second applicant complained under Article 1 of Protocol No. 1 that
   he  could  not  use his real property in Ozersk. He further complained
   that  he  had  been  unable to obtain medical insurance, employment or
   social benefits. Finally, he referred to Article 14 of the Convention.

   33.  However,  having  regard  to  all  the  material  in  the Court's
   possession,  and  in  so  far  as  these  complaints  fall  within its
   competence   ratione   personae,  the  Court  finds  that  the  events
   complained  of  do  not  disclose any appearance of a violation of the
   rights  and  freedoms  set  out in the Convention or its Protocols. It
   follows  that  this  part of the application must be rejected as being
   manifestly  ill-founded,  pursuant  to  Articles 35 S: 3  and 4 of the
   Convention.

   IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

   34.  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

   35.  The  second  applicant  claimed 5,863 euros (EUR) as compensation
   for  loss  of  earnings  he had allegedly sustained as a result of the
   authorities'  failure  to  grant him permanent residence in Ozersk. He
   further claimed EUR 50,000 in respect of non-pecuniary damage.

   36.  The   Government  considered  these  claims  unsubstantiated  and
   excessive.

   37.  The  Court does not discern any causal link between the violation
   found  and  the  pecuniary  damage  alleged; it therefore rejects this
   claim.  On  the  other  hand,  the  Court  accepts  that the applicant
   suffered  frustration  on account of the violation found. However, the
   particular  amount claimed appears excessive. Making its assessment on
   an  equitable  basis,  it awards the applicant EUR 2,000 in respect of
   non-pecuniary  damage,  plus  any  tax  that may be chargeable on that
   amount.

   B.  Costs and expenses

   38.  The  applicants  claimed  EUR 1,700  for  the work carried out by
   Ms Kutepova.  According  to the applicants, she spent two hours on the
   preparation  of  the  application to the Court and thirty-two hours on
   preparation  of  their  observations in response to those submitted by
   the  Government.  The  applicants also claimed EUR 160 for the postal,
   telephone and fax expenses incurred by her. They did not submit copies
   of  the  relevant  receipts. The applicants further claimed (1) 249.98
   pounds  sterling  (GBP)  for  the  work carried out by Mr Keleher, who
   reviewed  the  documents for two and a half hours; (2) GBP 105 for the
   work  carried out by the EHRAC administrator who did some translation,
   arranged  for the translation of the documents by external translators
   and  compiled  the  list  of  documents;  (3) GBP 70  for  the postal,
   telephone/fax  and photocopying expenses incurred by the EHRAC office.
   No  copies of the relevant receipts were provided; and (4) GBP 1,452.6
   for  translators'  services. They submitted invoices in respect of the
   work performed by Mr Keleher and the translators.

   39.  The   Government   submitted  that  the  amounts  sought  by  the
   applicants   were   excessive   and   lacked  any  substantiation.  In
   particular,  they did not provide a copy of the contract for provision
   of legal services by Ms Kutepova or any other documents confirming the
   payment of the amounts claimed.

   40.  According  to  the  Court's case-law, an applicant is entitled to
   the  reimbursement of costs and expenses only in so far as it has been
   shown  that  these have been actually and necessarily incurred and are
   reasonable as to quantum. In the present case, regard being had to the
   documents  in  its  possession  and  the  above  criteria,  the  Court
   considers  it reasonable to award the sum of EUR 850 in respect of the
   work  performed  by  Ms  Kutepova  and  EUR 1,730 to cover translation
   costs.

   C.  Default interest

   41.  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

   1.  Declares  unanimously the complaints concerning the alleged breach
   of the second applicant's right to freedom to choose his residence and
   the  non-enforcement  of  the judgment of 21 June 2005 rendered by the
   Ozersk  Town  Court  admissible  and  the remainder of the application
   inadmissible;

   2.  Holds  unanimously that there has been a violation of Article 2 of
   Protocol No. 4;

   3.  Holds  by  five  votes to two that there is no need to examine the
   complaint under Article 6 S: 1 of the Convention;

   4.  Holds unanimously

   (a)  that  the respondent State is to pay the second applicant, within
   three months, the following amounts:

   (i)  EUR 2,000  (two  thousand  euros),  plus  any  tax  that  may  be
   chargeable  to  the  second  applicant,  in  respect  of non-pecuniary
   damage, to be converted into Russian roubles at the rate applicable on
   the date of settlement;

   (ii)  EUR  850  (eight hundred and fifty euros), plus any tax that may
   be  chargeable  to  the  second applicant, in respect of the costs and
   expenses,  to be converted into Russian roubles at the rate applicable
   on the date of settlement;

   (iii)  EUR  1,730  (one thousand seven hundred and thirty euros), plus
   any  tax that may be chargeable to the second applicant, in respect of
   the  translation  costs, to be paid into the EHRAC bank account in the
   United Kingdom;

   (b)  that  from  the  expiry of the above-mentioned three months until
   settlement  simple interest shall be payable on the above amounts at a
   rate  equal  to the marginal lending rate of the European Central Bank
   during the default period, plus three percentage points;

   5.  Dismisses  unanimously  the  remainder  of  the second applicant's
   claim for just satisfaction.

   Done  in English, and notified in writing on 27 January 2011, pursuant
   to Rule 77 S:S: 2 and 3 of the Rules of Court.

   So/ren Nielsen Christos Rozakis
   Registrar President

   In  accordance with Article 45 S: 2 of the Convention and Rule 74 S: 2
   of  the Rules of Court, the joint separate opinion of Judges Vajic and
   Malinverni is annexed to this judgment.

                                                                   C.L.R.
                                                                     S.N.

                  JOINT DISSENTING OPINION OF JUDGES VAJIC
                               AND MALINVERNI

                               (Translation)

   To  our  regret,  we are unable to agree with the approach followed by
   the  majority, which in our opinion departs from that normally adopted
   by the Court in cases of this kind.

   In our view, the present case falls within the scope of both Article 6
   of  the  Convention  and  Article  2  of  Protocol  No. 4.  From  that
   perspective,  it  does  not differ fundamentally from the many Russian
   cases  in  which  the  Court has found a violation of Article 6 of the
   Convention  on the ground that the domestic administrative authorities
   failed  to  enforce  a judgment delivered by a national court, and has
   then  gone on to find a violation of Article 1 of Protocol No. 1 (see,
   for example, Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009-...).

   We  therefore  fail  to  understand  why  the Court has dealt with the
   present  case  solely  under Article 2 of Protocol No. 4 and has held,
   after  having  declared the complaint under Article 6 admissible, that
   it  was  not necessary to examine this issue separately (see paragraph
   31 of the judgment).

   Contrary  to  the  position  advanced by the Government and apparently
   shared,  at  least  implicitly,  by  the  majority,  the  present case
   indisputably  comes within the scope of Article 6 of the Convention in
   its civil aspect, even if the Russian Civil Code does not apply to the
   facts of the case (see paragraph 29). The notion of determination of a
   civil  right  has an autonomous meaning according to the case-law. The
   fact that the Civil Code does not contain any provisions applicable to
   the  matter is thus immaterial. In our view, the right to choose one's
   own  residence  is  incontestably  a civil right within the meaning of
   Article 6 of the Convention.

   In the present case the appropriate domestic courts had found that the
   administrative  authorities'  refusal  to  authorise  the  applicant's
   permanent  residence  in Ozersk had no valid basis in law and was thus
   unlawful (see paragraph 26 of the judgment).

   This  is  therefore  a  classic  case of failure by the administrative
   authorities  to comply with a domestic judicial decision. Accordingly,
   there has also been a violation of Article 6.

   10 KARPACHEVA AND KARPACHEV v. RUSSIA JUDGMENT

   KARPACHEVA AND KARPACHEV v. RUSSIA JUDGMENT 10

   10 KARPACHEVA AND KARPACHEV v. RUSSIA JUDGMENT - SEPARATE OPINION

   KARPACHEVA AND KARPACHEV v. RUSSIA JUDGMENT - SEPARATE OPINION 10


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