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European Court of Human Rights
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GORBUNOV v. RUSSIA - 9593/06 [2008] ECHR 1586 (4 December 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1586.html
Cite as:
[2008] ECHR 1586
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FIRST
SECTION
CASE OF GORBUNOV v. RUSSIA
(Application
no. 9593/06)
JUDGMENT
STRASBOURG
4 December
2008
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 Gorbunov 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 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 9593/06) 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 Vladislav Gennadyevich
Gorbunov (“the applicant”), on 21 February 2006.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former Representatives of
the Russian Federation at the European Court of Human Rights.
On
6 October 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1965 and lives in Chelyabinsk, a town in the
Chelyabisnk Region.
The
applicant is a retired officer. In 2002 he sued a local authority for
the provision of a flat.
On
4 June 2002 the Kurchatovskiy District Court of Chelyabinsk held for
the applicant. On 15 August 2002 the Chelyabinsk Regional Court
upheld the judgment having modified the award as follows:
“The local authority of Chelyabinsk is to provide
[the applicant] at the expense of the federal budget with a decent
dwelling for his family.”
This
judgment became binding on 15 August 2002, but has not been enforced
to date.
II. RELEVANT DOMESTIC LAW
Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained under Article 6 of the Convention about the
non-enforcement of the judgment. The Court will examine this
complaint 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 ... 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 admitted that the period of the enforcement had breached
the Convention. They noted that the judgment could have been enforced
only by means of a State housing voucher – a registered
instrument entitling its owner to a housing subsidy.
The
applicant maintained his complaint.
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
Government have admitted a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
In
the circumstances of the present case, the Court has no reason to
hold otherwise. There has, accordingly, been a violation of these
Articles.
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
In
respect of pecuniary damage, the applicant claimed 9,682.90 euros
(EUR). This amount represented his rent from 1998, the year when he
retired.
The
Government argued that this claim was unsubstantiated.
The
Court finds that the formulated claim is unsupported by evidence and
cannot be entertained. However, the Court reiterates that violations
of Article 6 are best redressed by putting an applicant in the
position he would have been if Article 6 had been respected. The
Government shall therefore secure, by appropriate means, the
enforcement of the domestic court's award (see,
with further references, Poznakhirina v. Russia,
no. 25964/02, § 33, 24 February 2005).
In
respect of non-pecuniary damage, the applicant claimed EUR 2,281.80.
The
Government argued that this claim was unsubstantiated.
The
Court accepts that the applicant must have been distressed by the
non-enforcement of the judgment. Making its assessment on an
equitable basis, the Court awards EUR 2,200 under this head.
B. Costs and expenses
The
applicant also claimed EUR 449.50 for the costs and expenses incurred
before the domestic courts and the Court.
The
Government argued that this claim was unsubstantiated.
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 information in its possession and the above criteria, the Court
rejects this claim.
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 § 1 of the Convention and Article 1 of Protocol No. 1;
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 award made by the domestic court, and in addition
pay the applicant EUR 2,200 (two thousand two hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
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 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
