BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF BAKHAREV v. RUSSIA
(Application no. 21932/03)
JUDGMENT
STRASBOURG
19
July 2007
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 Bakharev v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mrs M.
Tsatsa-Nikolovska,
Mr A. Kovler,
Mr J. Borrego
Borrego,
Mr M. Villiger, judges,
and Mrs F.
Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21932/03) 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 Anatoliy Yemelyanovich
Bakharev, (“the applicant”) on 24 June 2003. He was
represented before the Court by Mrs E.A. Ponomareva, a lawyer
practising in Barnaul.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mrs V. Milinchuk.
- On
13 October 2006 the Court decided to give notice of the application
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
- The
applicant was born in 1954 and lives in Barnaul, the Altay Region.
- On
an unspecified date in 2002 the applicant, acting as a participant of
rescue operation on the site of the Chernobyl nuclear disaster in the
1980s, applied to a local council, requesting them to grant him a
flat.
- Having
faced a refusal, the applicant filed a suit in court.
- By
judgment of the Industrialnyy District Court of Barnaul of 14 October
2002 the local authorities were ordered to grant the applicant a flat
of at least 18 square metres. It became final on 27 November 2002.
- On
16 December 2002 the writ of execution was issued and sent to the
bailiffs.
- It
appears that on 13 January 2005 the local authorities, acting in
agreement with the applicant and with his financial participation,
purchased a three-room flat of 28 square metres for the applicant.
- The
contract has been registered on 14 January 2005.
- Four
days later, on 18 January 2005, the local authorities transferred the
money for the flat to the seller's account.
- According
to the Government, the judgment of 14 October 2002 should be
considered as fully enforced on the latter date.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 OF THE CONVENTION AND 1
OF PROTOCOL No. 1 TO THE CONVENTION
- The applicant complained about the non-enforcement of
a court judgment in his favour. He relied on Article 6 of the
Convention and Article 1 of Protocol No. 1, which, 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
- The Government accepted that there had been a delay in
the enforcement of the court award in favour of the applicant and
acknowledged that there had been a breach of the above-mentioned
Convention provisions.
- The applicant's counsel maintained his complaints.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court first notes that the judgment in the applicant's favour dated
14 October 2002, final on 27 November 2002, remained without
enforcement at least until 18 January 2005, i.e. for the period
of two years, one month and twenty-two days.
- The Court has found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in many cases
raising issues similar to the ones in the present case (see, among
other authorities, Burdov v. Russia, no. 59498/00, ECHR
2002-III; and, more recently, Petrushko v. Russia,
no. 36494/02, 24 February 2005, or Poznakhirina v. Russia,
no. 25964/02, 24 February 2005).
- Having
noted the Government's acknowledgement that there had been a
violation of the said Convention provisions and in view of its
case-law on the subject, the Court finds that by failing for such a
substantial period to comply with the enforceable judgment in the
applicant's favour the domestic authorities prevented him from
receiving the property which he was entitled to receive under final
and binding judgment.
- There
has accordingly been a violation of Articles 6 § 1 of the
Convention and 1 of Protocol No. 1.
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.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not comment on the applicant's claims.
- The
Court observes that the applicant must have suffered a certain degree
of stress and frustration as a result of the delayed enforcement of
the awards in his favour. The actual amount claimed is, however,
excessive. Making its assessment on an equitable basis, it awards the
applicant the sum of EUR 1,200 in respect of non-pecuniary damage.
B. Costs and expenses
- 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
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage to be
converted into Russian roubles at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Peer
Lorenzen
Deputy
Registrar President
