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You are here: BAILII >> Databases >> European Court of Human Rights >> BURDOV v. RUSSIA (No. 2) - 33509/04 [2009] ECHR 86 (15 January 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/86.html Cite as: [2009] ECHR 86, (2009) 49 EHRR 2

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FIRST SECTION

CASE OF BURDOV v. RUSSIA (No. 2)

(Application no. 33509/04)

JUDGMENT

STRASBOURG

15 January 2009

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 Burdov v. Russia (no. 2),

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 16 December 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The Court’s judgment of 7 May 2002 in Burdov v. Russia and further developments

1.  The Court’s findings

2.  Resolution ResDH(2004)85 of the Committee of Ministers concerning the Court’s judgment of 7 May 2002

“(...) With regard to individual measures, the amounts due under the domestic judicial decisions were paid to the applicant on 5 March 2001. (...) Subsequently, a fresh indexation of the monthly allowance was ordered by the Shakhty City Court on 11 July 2003 (final on 1 October 2003). The social authorities continue to comply with the domestic judicial decisions by regularly paying the sums awarded.

In addition, the following general measures were adopted by the Russian authorities to comply with the European Court’s judgment.

a) Resolving similar cases

At the outset, the government paid the arrears accumulated as a result of the non-execution, as in the present case, of domestic judgments ordering the payment of compensation and allowances for the Chernobyl victims in the applicant position (a total of 2,846 million roubles were paid between January and October 2002).

5 128 other domestic judgments concerning the indexation of the allowances for the victims of Chernobyl were executed by the authorities.

The government has also improved its budgetary process to ensure that the necessary budgetary means are allocated to social security bodies (2,152,071,000 roubles were allocated for 2003, 2,538,280,500 roubles for 2004, and 2,622,335,000 for 2005) to allow them continuously to meet their financial obligations arising inter alia from similar judgments. (...)

b) New indexation system introduced through legislation

As regards the obligation of continuous indexation of the amounts awarded by domestic courts, the legislation in force at the relevant time provided for the cost of living as index for calculation of allowances. By decision of 19 June 2002, the Constitutional Court declared the relevant legislative provisions unconstitutional, insofar as this system was found to lack clarity and predictability; in this decision, the Constitutional Court referred, inter alia, to the conclusions of the European Court in the Burdov judgment. Consequently, on 2 April 2004, the Russian Parliament amended the legislation governing the social insurance of Chernobyl victims. The new law, which has been in force since 29 April 2004, provides for a new system of indexation of allowances, which is based on the inflation rate used for calculation of the federal budget for the next financial year.

c) Publication and dissemination of the judgment

The European Court’s judgment in [the] Burdov case has been published in Rossijskaia Gazeta (on 4 July 2002), the main official periodical publishing all laws and regulations of the Russian Federation and widely disseminated to all authorities. The judgment has also been published in a number of Russian legal journals and internet data bases, and is thus easily available to the authorities and the public.

d) Conclusion

In view of the foregoing, the Russian Government considers that the measures adopted following the present judgment will prevent new similar violations of the Convention in respect of the category of persons in the applicant’s position and that the Russian Federation has thus fulfilled its obligations under Article 46, paragraph 1, of the Convention in the present case.

The government also believes that the measures adopted constitute, moreover, a noticeable step towards resolving the more general problem of non-enforcement of domestic court decisions in various areas, as highlighted in particular by other cases brought before the European Court against the Russian Federation. The government continues to take measures to remedy this problem, not least in the context of the execution, under the Committee’s supervision, of other judgments of the European Court.”

B. Enforcement of new domestic judgments in the applicant’s favour

1.   Shakhty Town Court’s judgment of 17 April 2003

2.  Shakhty Town Court’s judgment of 4 December 2003

3.  Shakhty Town Court’s judgment of 24 March 2006

4.  Judgments of 22 May 2007 and 21 August 2007

II.  RELEVANT DOMESTIC MATERIAL

A. Execution of domestic judgments

1. Law on Enforcement Proceedings

2. Special execution procedure for the judgments delivered against the State and its entities

3. Report of the Commissioner for Human Rights of the Russian Federation

B. Domestic remedies in respect of the non-execution or delayed execution of domestic judgments

1. Legal provisions

(a) Civil law

(b) Criminal law

2. Constitutional Court’s judgment of 25 January 2001

3. Supreme Court’s decision of 26 September 2008 and the new Compensation Bill

4. The Address by the President of the Russian Federation to the Federal Assembly

III.  RELEVANT INTERNATIONAL MATERIAL

A. Council of Europe

1. Committee of Ministers

“The Deputies, (...)

“- Improvement of budgetary procedures and of practical implementation of the budget decisions;

- Identifying a specific state authority as a defendant;

- Ensuring effective compensation for delays (indexation, default interest, specific damages, penalties for delays);

- Increasing the effectiveness of domestic remedies for proper enforcement of judicial decisions;

- Improvement of the legal framework governing compulsory execution against the public authorities;

- Ensuring effective liability of civil servants for non-enforcement;

Special consideration is given to possible ways of ensuring coherence of the present execution mechanisms by allowing the Treasury and the bailiffs to act in a complementary manner in their respective fields of competence and under appropriate judicial review. A strong emphasis is also put on possible ways of preventing litigation against the State through improved budgetary proceedings, which would allow the State to timely comply with its pecuniary obligations.”

“(...) member states review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court (...)”

“(...) Remedies following a “pilot” judgment

13. When a judgment which points to structural or general deficiencies in national law or practice (“pilot case”) has been delivered and a large number of applications to the Court concerning the same problem (“repetitive cases”) are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system.

14. The introduction of such a domestic remedy could also significantly reduce the Court’s workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution. (...)

16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation. (...)

18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases. (...)”

2. Parliamentary Assembly

“ 58.  The Rapporteur welcomes the frank and open position of most of the Russian officials and institutions he met in Moscow as well as their clear understanding that the above problems put at stake the effectiveness of the Russian judicial system, and indeed, of the State as a whole. It is perhaps indicative that especially the presidents of the Constitutional Court and of the Supreme Court showed a very constructive attitude, as both of them recognized the problems and encouraged the Rapporteur in his endeavours to help find a solution for them.

59.  The authorities provided assurances that the most important problems would be addressed as a matter of priority and that appropriate steps would be taken to ensure rapid adoption of reforms required by the European Court’s judgments.

60.  The Russian officials’ clear willingness to come to grips with the aforementioned important problems is most welcome. The Rapporteur stresses that the complexity of these issues is such as to require enhanced and concerted efforts of all actors within the Russian legal system.

61.  Thorough reform strategies in this respect, however, still remain to be established. In view of the present problems raised in the judgments and others still to come, the Rapporteur has strongly recommended to the authorities to set up a special mechanism of interagency cooperation in the implementation of Strasbourg Court judgments. Constant involvement of Parliament and the Russian delegation to the Assembly in the implementation process is also necessary. The Rapporteur is convinced that his Russian parliamentary colleagues will seriously consider his recommendation to set up a specific mechanism and procedure for parliamentary oversight to implement Strasbourg Court judgments, as well as other relevant proposals made in the draft resolution. The Rapporteur also trusts that the members of the Russian delegation to the Assembly will promote and follow-up the adoption of the specific measures required by certain judgments (for details, see Appendix III, Part III).”

B. United Nations

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

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.  Parties’ submissions

1. The Government

2. The applicant

B.  The Court’s assessment

1. Admissibility

2. Merits

(a) General principles

(b) Application of these principles to the present case

(i) Judgment of 17 April 2003

(ii) Judgment of 4 December 2003

(iii) Judgment of 24 March 2006

(iv) Judgments of 22 May 2007 and 21 August 2007

(v) Conclusions

II.  EXISTENCE OF EFFECTIVE DOMESTIC REMEDIES AS REQUIRED BY ARTICLE 13 OF THE CONVENTION

“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.  The parties’ submissions

B.  Court’s assessment

1.  General principles

• an action for compensation must be heard within a reasonable time (see Scordino, cited above, § 195 in fine);

• the compensation must be paid promptly and generally no later than six months from the date on which the decision awarding compensation becomes enforceable (ibid., § 198);

• the procedural rules governing an action for compensation must conform to the principle of fairness guaranteed by Article 6 of the Convention (ibid., § 200);

• the rules regarding legal costs must not place an excessive burden on litigants where their action is justified (ibid., § 201);

• the level of compensation must not be unreasonable in comparison with the awards made by the Court in similar cases (ibid., §§ 202-206 and 213).

2.  Application of the principles to the present case

(a) Preventive remedies

(b) Compensatory remedies

(i) Pecuniary damage

(ii) Non-pecuniary damage

(c) Conclusion

III.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

IV.  ALLEGED SHORTFALL IN PAYMENT OF JUST SATISFATION DUE UNDER THE COURT’S JUDGMENT OF 7 MAY 2002

V.  APPLICATION OF ARTICLE 46 OF THE CONVENTION

“Article 46 Binding force and execution of judgments

1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

A.  The parties’ submissions

B.  The Court’s assessment

1.  General principles

127.  Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court’s task, as defined by Article 19, that is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in large series of cases (see, mutatis mutandis, E.G. v. Poland (dec.), no. 50425/99, § 27, 23 September 2008, § 27). The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order (see Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, ECHR 2007 ... (extracts)). While the respondent State’s action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements. The Court may decide to adjourn examination of all similar cases, thus giving the respondent State an opportunity to settle them in such various ways (see, mutatis mutandis, Broniowski, cited above, § 198, and Xenides-Arestis v. Turkey, no. 46347/99, § 50, 22 December 2005).

2. Application of the principles to the present case

(a) Application of the pilot-judgment procedure

(b) Existence of a practice incompatible with the Convention

132.  Although the Government denied such a situation in their additional observations, their submissions in the present case appear to run against an almost undisputed recognition at both domestic and international level of the existence of structural problems in this field (see paragraphs 25 and 38-45 above). The problems appear, in addition, to have been acknowledged by the Russian competent authorities (see notably CM/Inf/DH(2006)45, cited above) and are being repeatedly emphasised by the Committee of Ministers. The Committee’s recent decisions noted, in particular, that the structural problems in question in the Russian legal system severely affected, by their nature and scale, its effectiveness and caused very numerous violations of the Convention (see paragraph 39 above).

(c) General measures

(d) Redress to be granted in similar cases

(i) Applications lodged after the delivery of the present judgment

(ii) Applications lodged before the delivery of the present judgment

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“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

B.  Costs and expenses

C.  Default interest

FOR THESE REASONS, THE COURT UNANIMOUSLY

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, EUR 6,000 (six thousand 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;

Done in English, and notified in writing on 15 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Christos Rozakis
Deputy Registrar President