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 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 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 § 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 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
