Last Updated on October 2, 2020 by LawEuro
THIRD SECTION
CASE OF LVIN v. RUSSIA
(Application no. 43301/07)
JUDGMENT
(Revision)
STRASBOURG
22 September 2020
This judgment is final but it may be subject to editorial revision.
In the case of Lvin v. Russia (request for revision of the judgment of 4 December 2018),
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,
Having deliberated in private on 1 September 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 43301/07) 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 a Russian national, Mr Mikhail Yevgenyevich Lvin (“the applicant”), on 6 September 2007.
2. In a judgment delivered on 4 December 2018, the Court held that there had been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non‑enforcement of the judgment of 9 April 2007 in the applicant’s favour. The Court held that the respondent State had to secure without delay and by appropriate means the enforcement of the domestic judgment of 9 April 2007 in the applicant’s favour. The Court further decided to award the applicant 6,000 euros (EUR) for non-pecuniary damage and dismissed the remainder of the claims for just satisfaction.
3. On 20 August 2019 the Government informed the Court that on 22 June 2019 they had learned from a letter by Ms Yelena Vadimovna Lvina that the applicant ‒ her husband ‒ had died on 9 May 2018, and that she wished to maintain the case in his stead. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.
4. On 17 September 2019 Ms Lvina informed the Court of the applicant’s death and expressed a wish to maintain the application in his stead.
5. On 19 November 2019 the Court considered the Government’s request for revision and decided to give the applicant’s widow an opportunity to submit any observations by 11 February 2020. Those observations were received on 13 January 2020. The Government submitted their comments in reply on 31 March 2020.
THE LAW
I. THE REQUEST FOR REVISION
6. The Government requested revision of the judgment of 4 December 2018, which they had been unable to execute because the applicant had died before the judgment had been adopted. They noted, first, that the applicant’s widow or any other next of kin had failed to either inform the Court of the applicant’s demise or to provide any plausible explanation for their failure to do so. Secondly, they argued that for several reasons Ms Lvina would be unable to inherit the Court’s award under the domestic law. Accordingly, they asked the Court either to strike the application out of the lists or, alternatively, to exclude both the order to pay compensation of non‑pecuniary damage to the applicant and the obligation to enforce the domestic judgment in the late applicant’s favour from the relevant parts of the judgment.
7. Ms Lvina argued in reply that she wished to maintain the case in her late husband’s stead. She noted that the original domestic judgment obliged the authorities to provide a housing certificate to the applicant but also to his family members, Ms Lvina and their son with the applicant Mr A.V. Lvin, and therefore determined her rights. She submitted a certificate attesting to her status as the deceased applicant’s heir. She asked the Court to revise the judgment so that the award in respect of the non-pecuniary damage be allocated to her, and that the domestic judgment of 9 April 2007 “in [her] and [her] son Mr A.V. Lvin’s favour” be enforced.
8. The Court notes that the documents submitted to it indicate that Ms Lvina was the wife of the deceased applicant, that she is one of his two heirs (the second one being the applicant’s adult son), and that the applicant’s daughter made a disclaimer of inheritance for the benefit of Ms Lvina. The Court further notes that the applicant’s son has never contacted the Court, let alone expressed an interest in maintaining the application in his late father’s stead.
9. As regards the Government’s submissions concerning Ms Lvina’s failure to inform the Court of the applicant’s death, the Court has on several occasions rejected similar arguments finding that the failure to inform had not hampered its examination of the case (see Gülbahar Özer and Others v. Turkey (revision), no. 44125/06, § 9, 10 June 2014; Benzer and Others v. Turkey (revision), no. 23502/06, § 13, 13 January 2015; and Hagiescu and Others v. Romania (revision), no. 7901/02, § 10, 15 November 2016). The Court does not see any reason to depart from this approach in the present case.
10. On the other hand, the Court accepts the Government’s argument that the applicant’s death had a decisive influence on the outcome of the judgment within the meaning of Rule 80 of the Rules of Court, namely the allocation of the amount awarded under Article 41 of the Convention.
11. The Court considers that the judgment of 4 December 2018 should be revised pursuant to Rule 80 of the Rules of Court, the relevant parts of which provide:
“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court … to revise that judgment.
…”
12. The Court accordingly decides to award Ms Lvina the amount it previously awarded to the deceased applicant, namely EUR 6,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.
13. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
14. The Court further reiterates that it held that the respondent State was to ensure, by appropriate means, the enforcement of the judgment of 9 April 2007, as follows:
« 42. The Court notes that it has found a violation of the Convention on account of the non-enforcement of the judicial award as specified in the operative part of the final judgment of 9 April 2007. Accordingly, any outstanding aspects of the applicant’s right to housing, including the evolution of his personal situation and any subsequent entitlement to additional housing, fall outside the scope of the present case. The Court further observes that the judgment in the applicant’s favour has not been enforced and also notes the Government’s acknowledgment of their obligations under the Gerasimov and Others pilot judgment and their intention to deploy all means to enforce the judgment which had remained without execution or resolve the issue by any appropriate means (see paragraph 20 above). Indeed, in so far as the judgment of 9 April 2007 remains in force, the Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been in had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). Having regard to the violation found, the Court finds that in the present case this principle applies as well. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment of 9 April 2007.
43. In this connection, the Court points out that its judgments are essentially declaratory in nature. In general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention (see Shofman v. Russia, no. 74826/01, § 53, 24 November 2005, with further references). By finding a violation of Article 6 § 1 and Article 1 of Protocol No. 1 in the present case, the Court has established the Government’s obligation to take appropriate measures to remedy the applicant’s individual situation, that is to ensure compliance with the applicant’s enforceable claim under the judgment of 9 April 2007 (see, for instance, Humbatov v. Azerbaijan, no. 13652/06, § 38, 3 December 2009, with further references). The decision on appropriate measures to enforce the judicial award, or, if this proves impossible, granting the applicant reasonable compensation, or a combination of these and other measures, falls to the respondent State (see, mutandis mutadis, Tarverdiyev v. Azerbaijan, no. 33343/03, § 66, 26 July 2007). The Court, however, emphasises that any measures adopted must be compatible with the conclusions set out in the Court’s judgment (see Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004‑II, with further references).
15. In view of its findings in paragraphs 10-11 above, the Court considers that § 43 of the judgment in fine should be revised and should read as follows.
“43. In this connection, the Court points out that its judgments are essentially declaratory in nature. In general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention (see Shofman v. Russia, no: 74826/01, § 53, 24 November 2005, with further references). By finding a violation of Article 6 § 1 and Article 1 of Protocol No. 1 in the present case, the Court has established the Government’s obligation to take appropriate measures to remedy the applicant’s individual situation, that is to ensure compliance with the applicant’s enforceable claim under the judgment of 9 April 2007 (see, for instance, Humbatov v. Azerbaijan, no. 13652/06, § 38, 3 December 2009, with further references). The decision on appropriate measures to enforce the judicial award, or, if this proves impossible, granting the applicant’s heir Ms Yelena Vadimovna Lvina reasonable compensation, or a combination of these and other measures, falls to the respondent State (see, mutandis mutadis, Tarverdiyev v. Azerbaijan, no. 33343/03, § 66, 26 July 2007). The Court, however, emphasises that any measures adopted must be compatible with the conclusions set out in the Court’s judgment (see Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II, with further references).”
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to revise its judgment of 4 December 2018 in so far as it concerns the claims made by the applicant under Article 41 of the Convention;
accordingly,
2. Holds that the respondent State must secure without delay and by appropriate means the enforcement of the domestic judgment of 9 April 2007 or, in the alternative, if the enforcement is no longer possible, granting the applicant’s heir Ms Yelena Vadimovna Lvina reasonable compensation, or a combination of these and other measures;
3. Holds
(a) that the respondent State is to pay to Ms Yelena Vadimovna Lvina, the applicant’s heir, within three months, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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 22 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President
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