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]
FIRST
SECTION
DECISION
Application no. 39185/09
Aleksandr Petrovich ZABOTIN
against
Russia
The
European Court of Human Rights (First Section), sitting on 13 March
2012 as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Erik
Møse, judges,
and André
Wampach, Deputy Section Registrar,
Having
regard to the above application lodged on 30 May 2009,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Aleksandr Petrovich Zabotin, is a Russian national who
was born in 1954 and lives in Kovrov, Vladimir Region. He is
represented before the Court by Mr S. Shenkman, a lawyer practising
in Kovrov. The Russian Government (“the Government”) are
represented by Mr G. Matyushkin, the Representative of the Russian
Federation at the European Court of Human Rights.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
9 February 2005 the applicant and his late wife sued the military
unit No. 55034 claiming compensation of non-pecuniary damage and
various costs resulting from serious bodily injuries caused to their
son during his military service in Chechnya and his ensuing death.
- On
25 October 2005 the Kovrov Town Court of the Vladimir Region granted
their claim in part. The defendant military unit was ordered to pay
the claimants a total of 58,465.80 Russian roubles (RUB) in
compensation of the non-pecuniary damage and funeral costs. On 11
November 2005 the judgment became final.
- Since
that time the claimants lodged repeated requests for enforcement of
the judgment with various State authorities including the commander
of the defendant military unit, the Ministry of Defense, the bailiffs
and the State Treasury. However, the judgment in their favour
remained unenforced.
- On
2 April 2009 the applicant’s wife died.
- On
an unspecified date the defendant military unit was dismantled and
the applicant reapplied to the Kovrov Town Court requesting an order
for the awarded sums to be paid by the Ministry of Defence.
- On
31 March 2010 the Kovrov Town Court ordered that the judicial awards
of 25 October 2005 be paid to the applicant by the Ministry of
Defense. The award of RUB 58,465.80 was credited to the applicant’s
bank account on 9 July 2010.
- The
applicant brought a claim seeking compensation for the lengthy
failure to enforce the judgment in his favour. On 22 November 2010
the Vladimir Regional Court ruled in favour of the applicant and
acknowledged a violation of his right to enforcement of the judgment
of 25 October 2005 within a reasonable time and his right to peaceful
possession of property. The Ministry of Finance was ordered to pay
RUB 80,000 (2011 euros (EUR)) in compensation and RUB 2,935.65 (EUR
73) in costs and expenses. The court took account of the enforcement
delay, the nature of the award, its significance for the applicant,
and the efforts made to obtain the payment.
- On
18 February 2011 the Supreme Court of the Russian Federation upheld
the judgment on appeal.
- The
compensation of EUR 2011 and costs and expenses of EUR 73 were
transferred to the applicant’s bank account on 3 March and 11
April 2011 respectively.
B. Relevant domestic law
- On 15 January 2009 the Court delivered the Burdov
(no. 2) v. Russia pilot judgment (no.
33509/04, ECHR 2009 (extracts)). It ordered the respondent State to
set up an effective domestic remedy which would secure adequate and
sufficient redress for non-enforcement or delayed enforcement of
domestic judgments.
- Federal
Law № 68-ФЗ of 30 April 2010 (“Compensation
Act”), which entered in force on 4 May 2010, was adopted in
response to the abovementioned judgment. It provides that in case of
a violation of the right to enforcement of a final judgment within a
reasonable time, the Russian citizens are entitled to seek
compensation of non-pecuniary damage in Russian courts. Federal Law №
69-ФЗ adopted on the same day introduced the relevant
changes in the Russian legislation.
- Section
6 § 2 of the Compensation Act provides that everyone who has a
pending application before the European Court of Human Rights
concerning a complaint of the nature described in the law has six
months to bring the complaint to a domestic court, provided the
European Court did not declare the application admissible or decide
it on the merits.
COMPLAINTS
- The
applicant complained under Articles 6 and 13 of the Convention and
Article 1 of Protocol No. 1 about the excessively long failure to
enforce the domestic judgment in his favour. The applicant in
addition contended that the new domestic remedy in force since 4 May
2010 was not capable of providing adequate redress in the specific
circumstances of his case.
THE LAW
- The
Government submitted that the applicant had lost his victim status as
a result of the judgment delivered on 22 November 2010 by the
Vladimir Regional Court in the applicant’s favour. In the
Government view, the judgment acknowledged the violation of the
applicant’s right and granted him adequate redress.
- The
applicant disagreed and maintained that the violation was not
adequately redressed.
- The
Court reiterates that for an applicant to be able to claim to be the
victim of a violation, within the meaning of Article 34 of the
Convention, not only must he have the status of victim at the time
the application is introduced, but such status must continue to
obtain at all stages of the proceedings. A decision or measure
favourable to an applicant is not in principle sufficient to deprive
him of his status as a “victim” unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (see Amuur
v. France, 25 June 1996, § 36, Reports of Judgments
and Decisions 1996 III, and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999 VI).
- The
Court notes that the Compensation Act had previously been found to be
capable of resolving the issue of lengthy failure to enforce domestic
judgments, in cases when the courts acknowledged existence of a
violation and provided adequate redress (see Balagurov v. Russia
(dec.), no. 9610/05, 2 December 2010, and Khalin v. Russia
(dec.), no. 24169/05, 2 December 2010).
- As
regards the present case, the Court observes that on 22 November 2010
the Vladimir Regional Court, having regard to the specific
circumstances of the case, acknowledged a violation of the
applicant’s rights by the delay in enforcement of the domestic
judgment and awarded the applicant a compensation of EUR 2011. The
judgment became final on 18 February 2011 and the award was paid
to the applicant on 3 March 2011.
- The
Court finds that the applicant successfully used the domestic remedy
which was made available to him by the Compensation Act. The Vladimir
Regional Court duly considered his case in line with the Convention
criteria, found a violation of his right to enforcement of the
judgment within a reasonable time and peaceful enjoyment of property
and awarded a compensation comparable with the Court’s awards
under Article 41 in similar cases. The Court furthermore notes
that the compensation was rapidly paid to the applicant as required
by the Convention (see Burdov (no. 2), cited above, §
99).
- The
Court concludes that the authorities acknowledged the breach of the
applicant’s rights under the Convention and granted him
adequate and sufficient redress. Accordingly, he may no longer claim
to be a victim of the violation.
- It follows that the application must be declared
manifestly ill founded within the meaning of Article 35 § 3
of the Convention and must be rejected pursuant to Article 35 §
4.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Nina Vajić
Deputy Registrar President
