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FIRST
SECTION
CASE OF BUTENKO AND OTHERS v. RUSSIA
(Applications
nos. 2109/07, 2112/07, 2113/07 and 2116/07)
JUDGMENT
STRASBOURG
20 May
2010
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 Butenko and Others
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications (nos. 2109/07, 2112/07, 2113/07
and 2116/07) 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 four
Russian nationals, whose names and dates of birth appear in the
appended table. The respective dates of introduction of the
applications are also shown in the table.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
Court.
- The
applicants alleged in particular that judgments given in their favour
had not been enforced.
- On
24 September 2008 the President of the First Section decided to
communicate these applications to the respondent Government. It was
also decided in all cases to examine the merits of the applications
at the same time as their admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are four Russian nationals.
- As victims of the Chernobyl nuclear disaster they were
entitled to social housing under domestic law. Because the
authorities had failed to provide them with housing in good time, the
applicants sought relief in courts. In October and December 2004 the
Pervomayskiy District Court of Krasnodar (“the District Court”)
held for the applicants, the judgments became binding. The details of
the judgments are shown in the appended table.
- In
March 2006 the writs of execution were issued in respect of the
judgments. According to the writs, the applicants were to be granted
housing, as ordered by the domestic court.
8. In
2006 the respondent authority offered the applicants to settle the
case by providing them with cash payment in the amount allegedly
representing the value of the flat. The applicants submitted that the
amounts proposed were manifestly lower than the market value of the
flats granted by the domestic judgments.
9. By
four separate written statements the applicants refused the offer.
They stated in their refusals that in accordance with the judgments
in their favour and with the writs of execution the authorities were
under obligation to provide them with flats, and not with the sums of
money.
- On 24 May 2007 the District Court instructed the
bailiffs to enforce the judgments in accordance with the writs of
execution.
- On
20 November 2007 the bailiffs informed the applicants that the
execution of the judgments in compliance with the writs was
impossible, “since the Administration of the Krasnodar Region
could only use the monetary funds allocated from the federal budget”.
- The
authorities sought to alter the mode of enforcement of the judgments
from in-kind provision of flats to delivery of housing certificates.
By a decision of 6 April 2009, upheld on appeal on 7 May 2009, the
District Court refused to change the mode of execution of the
judgments.
II. RELEVANT DOMESTIC LAW
- Section
14 (3) of the Law On Social Protection of Citizens Exposed to
Radiation as a Result of the Chernobyl Nuclear Power Station
Explosion (no. 1224-I of 15 May 1991, as amended at the material
time), as in force at the material time, set out that disabled
victims of the Chernobyl explosion were to be granted social housing
within three months from submitting an appropriate application,
provided that their existing accommodation did not comply with the
minimum housing standards.
- Under
Section 13 of the Federal Law on Enforcement Proceedings of
21 July 1997, the enforcement proceedings should be
completed within two months upon receipt of the writ of enforcement
by the bailiff.
THE LAW
I. JOINDER OF THE APPLICATIONS
- Given
that these four applications concern similar facts and complaints and
raise identical issues under the Convention, the Court decides to
consider them in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The applicants complained that despite the judgments
they had not been provided with housing in good time. The Court will
examine these complaints under Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1. Insofar as relevant, these
Articles read as follows:
Article
6 § 1
“In the determination of his
civil rights and obligations ..., everyone is entitled to a fair and
public hearing within a reasonable time 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...”
A. Admissibility
- The
Government argued that the applicants had not exhausted the
domestic remedies. They relied, in particular, on three examples from
domestic practice (case of Khakimovy, case of Smetanko,
case of Shubin) where the complainants had been awarded
substantial amounts of compensation for non-pecuniary damage (ranging
from 65,000 to 200,000 Russian Roubles) caused by prolonged
non-enforcement of binding civil judgments.
- The
Court reiterates that it earlier concluded that there was no
effective domestic remedy in Russia, either preventive or
compensatory, that allowed for adequate and sufficient redress in the
event of violations of the Convention on account of prolonged
non-enforcement of judicial decisions delivered against the State or
its entities (see Burdov v. Russia (no. 2),
no. 33509/04, § 117, ECHR 2009 ...).
- In
the case at hand the Court accepts, to the Government's advantage,
that in the three cited examples from domestic practice the
complainants were awarded compensation of non-pecuniary damage in the
amounts that are not unreasonable in comparison with the awards made
by the Court in similar cases.
- However,
the existence of such isolated examples cannot either alter the
Court's conclusion reached in the Burdov (no.
2) judgment mentioned above, or newly
demonstrate that this remedy was sufficiently certain in
practice so as to offer the applicants reasonable prospects of
success as required by the Convention. Thus, the Government's
argument as to non-exhaustion of domestic remedies should be
dismissed.
- The
Court notes that this complaint 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. This
complaint must therefore be declared admissible.
B. Merits
- The
Government initially contended that by refusing to accept housing
certificates the applicants had obstructed the only possible way of
enforcement of the judgments. In their further observations the
Government suggested that the enforcement period to be taken into
consideration should start running from 7 May 2009, the day on
which the mode of enforcement of the judgments had been definitely
clarified.
- The
applicants maintained their complaints.
- The Court reiterates that an unreasonably long delay
in the enforcement of a binding judgment may breach the Convention
(see Burdov v. Russia, no. 59498/00, ECHR
2002-III). To decide if the delay was reasonable, the Court will look
at how complex the enforcement proceedings were, how the applicant
and the authorities behaved, and what the nature of the award was
(see Raylyan v. Russia, no. 22000/03, § 31,
15 February 2007).
- Turning
to the case at hand, the Court notes that the judgments have not been
enforced to date. Hence, their enforcement has lasted for more than
five years since the day they became binding.
- The
Court considers that the justifications put forward by the Government
are unconvincing. The applicants cannot be blamed for having refused
to accept the housing certificates. First, it does not transpire from
the operative part of the judgments that grant of housing
certificates was an appropriate way of enforcement of the judgments.
Second, the domestic courts explicitly dismissed the authorities'
action aimed at changing the mode of execution of the judgments to
delivery of housing certificates.
- In
view of the above considerations, the Court rejects the Government's
arguments and takes the view that the bulk of the non-enforcement
period, from the day the judgments became binding to date, i.e. more
than five years, should be considered as attributable to the
authorities. Such a long delay in enforcement cannot be considered as
reasonable in the light of the Court's established case-law (see the
above cited Burdov (no. 2), §
67).
- The
Court concludes that there has been a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that they had no effective domestic remedy
against the non-enforcement of the judgments. Article 13 reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government contended that the applicants had effective domestic
remedies at their disposal.
- The
applicants maintained their complaint.
- The
Court considers that the non-enforcement complaint raised by the
applicants was undoubtedly arguable. It follows that the complaint
about remedies under Article 13 is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. The Court
further notes that it is not inadmissible on any other grounds. This
complaint must therefore be declared admissible.
B. Merits
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for a prolonged non-enforcement of a
binding judgment (see, mutatis mutandis,
Kudła v. Poland [GC], no.
30210/96, § 156, ECHR 2000-XI).
- The Court has found above that the remedies suggested
by the Government could not be considered as effective (see paragraph
20 above). There has, accordingly, been a violation of Article 13 of
the Convention.
IV. 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
applicants asked the Court to oblige the Government to enforce the
judgments given in their favour. Each applicant also claimed
4,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government argued that no award should be made, because the
applicants' rights had not been infringed and because the applicants
had failed to substantiate their non-pecuniary damage.
- As to pecuniary damage, the Court reiterates that the
violation found is best redressed by putting the applicant in the
position he would have been if the Convention had been respected. The
Government shall therefore secure, by appropriate means, the
enforcement of the domestic courts' judgments (see, with further
references, Poznakhirina v. Russia, no. 25964/02,
§ 33, 24 February 2005).
- As
to non-pecuniary damage, the Court accepts that the applicants must
have suffered distress caused by the prolonged non-enforcement of the
judgments. Making its assessment on an equitable basis, the Court
awards EUR 4,000 to each applicant under this head.
B. Costs and expenses
- Each
applicant claimed 2,725 Russian roubles (RUB) for the costs and
expenses incurred before the Court.
- The
Government contended that the applicants had not shown that the
expenses were necessary and reasonable in the amounts claimed.
- 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 were
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 60 to each applicant
for the proceedings before the Court.
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
- Decides to join the applications;
- Declares the applications admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that the respondent State, within three months from
the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, shall secure,
by appropriate means, the enforcement of the judgments given in the
applicants' favour, and in addition pay each applicant EUR 4,000
(four thousand euros) in respect of non-pecuniary damage and EUR 60
(sixty euros) to each applicant in respect of costs and expenses,
plus any tax that may be chargeable to the applicants on the
mentioned amounts, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount[s] at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
APPENDIX
|
App.
No
(date)
|
Applicant
(year
of
birth)
|
judgment
by the
pervomayskiy district court of Krasnodar/date
|
Summary
of the operative parts of the judgments
|
|
2109/07
(26/12/06)
|
BUTENKO
Aleksandr Nikolayevich
(1953)
|
27/10/04,
binding since 11/11/04
|
Grant
the applicant a dwelling, to be financed from the funds allocated
for that purpose to the Krasnodar Regional Administration from the
federal budget.
|
|
2112/07
(27/12/06)
|
MARKUSHIN
Mikhail Nikolayevich
(1949)
|
08/12/04,
binding since 15/02/05
|
Grant
the applicant a decent dwelling, in order of precedence
established for citizens – participants of emergency
response operations, and citizens who became disable as a result
of their participation in the emergency response operations. The
dwelling should be granted at the expense of the federal budget.
|
|
2113/07
(26/12/06)
|
KARASEV
Valeriy Vasilyevich
(1944)
|
27/10/04,
binding since 11/11/04
|
Grant
the applicant a dwelling, to be financed from the funds allocated
for that purpose to the Krasnodar Regional Administration from the
federal budget for the purposes of enforcement of the Federal Law
“On Social Protection of Citizens
Exposed to Radiation as
a Result of the Chernobyl Nuclear Power Station Explosion”
|
|
2116/07
(27/12/06)
|
BRAGIN
Yevgeniy Fedotovich
(1942)
|
08/12/04,
binding since 15/02/05
|
Grant
the applicant a decent dwelling, in order of precedence
established for citizens – participants of emergency
response operations, and citizens who became disable as a result
of their participation in the emergency response operations. The
dwelling should be granted at the expense of the federal budget.
|
