AS TO THE ADMISSIBILITY OF
by Andrey Aleksandrovich LAMAKIN and Andrey Yevgenyevich CHERNYSHEV
The European Court of Human Rights (First Section), sitting on 12 February 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 18 April 2003,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicants, Mr Andrey Aleksandrovich Lamakin (“the first applicant”) and Mr Andrey Yevgenyevich Chernyshev (“the second applicant”), are Russian nationals who were born in 1966 and 1973 respectively and live in Sertolovo and Petrozavodsk, towns in the Leningrad Region and Karelia. They were represented before the Court by Mr R. Zarbeyev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
The applicants are servicemen. They sued their command for arrears in allowance for their service in Tajikistan and Georgia. On 29 August 2002 the Sertolovo Garrison Military Court awarded the first applicant 1,550 United States dollars (USD) less 1,870 Russian roubles (RUB) and the second applicant USD 2,922 less RUB 4,026. The judgment became binding on 9 September 2002 and was enforced on 2 December 2003 in respect of the first applicant and on 23 December 2003 in respect of the second applicant.
The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about the delayed enforcement of the judgment.
The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about the delayed enforcement of the judgment. 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. The first applicant
On 13 November 2008 the Court received the following declaration signed by the Government and the first applicant:
“The authorities of the Russian Federation and the applicant, Mr Andrey Aleksandrovich Lamakin, application no. 28292/03, have now reached the following settlement, on the basis of respect for human rights as defined in the European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols to it, with regard to costs and expenses incurred by the applicant in the course of consideration of the application before the European Court of Human Rights, in order to terminate the proceedings before the European Court of Human Rights on the following terms:
(a) Due to humanitarian considerations and interests of respect of human rights, the authorities of the Russian Federation will pay to the applicant the sum of 800 euros. It will be payable within three months after the notification of the decision taken by the Court pursuant to Article 39 of the Convention. The authorities of Russian Federation also guarantee to recover the sums of taxes that the applicant will pay when he will receive the sum mentioned in paragraph (a) of the present document, on conditions that he will submit corresponding confirmatory documents from the competent state tax authorities.
(b) The applicant declares that, subject to the fulfilment of what is stated under (a), he has no further claims against the Russian Federation based on the facts of the application filed by him with the European Court of Human Rights.
Both the authorities of the Russian Federation and the applicant undertake to inform the European Court forthwith of the fulfilment of the conditions stated under (a).
The above settlement can in no way be interpreted as a recognition on the behalf of the authorities of the Russian Federation of violation of any provisions of the Convention and Protocols to it.
The present settlement will constitute the final resolution of the case. The authorities of the Russian Federation and the applicant further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention.”
The Court takes note of the agreement reached between the Government and the first applicant (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
Accordingly, this part of the application should be struck out of the list.
B. The second applicant
The Government argued that the second applicant’s complaint was inadmissible because Article 6 had not applied to the proceedings in question, because the second applicant had failed to exhaust domestic remedies, because the period of enforcement had been reasonable, because the second applicant had lost his victim status, and because the matter had already been considered by the Court.
The second applicant maintained his complaint. He also pointed out that the matter had already been considered by the Court.
The Court reiterates that under Article 35 of the Convention it shall not deal with any application that is substantially the same as a matter that it has already examined. The Court recalls that on 27 March 2008 it delivered a judgment in the case Tikhov and Others v. Russia (no. 14296/03, 27 March 2008) which concerned, among other things, the enforcement of the judgment of the Sertolovo Garrison Military Court of 29 August 2002 in respect of the second applicant.
It follows that this part of the application is substantially the same as a matter that has already been examined by the Court within the meaning of Article 35 § 2 (b) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to strike the first applicant’s application out of its list of cases;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos