Last Updated on April 14, 2022 by LawEuro
The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 December 2005. The applicant complained of the delayed enforcement of domestic decision and of the lack of any effective remedy in domestic law.
THIRD SECTION
CASE OF BESEDA v. RUSSIA
(Application no. 60699/11)
JUDGMENT
STRASBOURG
14 April 2022
This judgment is final but it may be subject to editorial revision.
In the case of Beseda v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Peeter Roosma, President,
Andreas Zünd,
Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 10 March 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 December 2005.
2. The Russian Government (“the Government”) were given notice of the application.
THE FACTS
3. The applicant’s details and information relevant to the application are set out in the appended table.
4. The applicant complained of the delayed enforcement of domestic decision and of the lack of any effective remedy in domestic law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL No. 1 to the convention
5. The applicant complained principally of the delayed enforcement of the domestic decision in his favour and of the lack of any effective remedy in domestic law. He relied, expressly or in substance, on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read, in so far as relevant 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. Judgments of 25 April and 22 December 2006
6. As regards the allegedly delayed enforcement of the judgments rendered in the applicant’s favour by the Rostov-on-Don Garrison Military Court on 25 April and 22 December 2006, the Court notes that when notice of this part of the application was given to the parties, they were invited to answer a specific question raised by the Court. The applicant made no submissions or any plea in relation to that issue. Furthermore, it appears that while mentioning the two judgments in his application form, he did not truly intend to complain about these judgments, as they appear to have been enforced.
7. In such circumstances, the Court considers that the applicant no longer wishes to pursue this part of the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the applicant’s complaints related to the judgments of 25 April 2006 and 1 January 2007 (compare Yakovlev v. Russia [Committee], no. 44240/12 and 2 others, §§ 97-102, 17 December 2019).
8. In view of the above, it is appropriate to strike this part of the application out of the list.
B. Judgment of 14 June 2001
9. As to the alleged delayed enforcement of the judgment rendered in the applicant’s favour by the Rostov-on-Don Garrison Military Court on 14 June 2001, the Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997 II).
10. In the leading case of Gerasimov and Others v. Russia (nos. 29920/05 and 10 others, 1 July 2014), the Court has already found a violation in respect of the issues similar to those in the present case.
11. Having regard to the nature of the judicial award in the applicant’s favour (see the appended table for further detail), the Court considers that the applicant had, by virtue of this judgment, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.
12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decision in the applicant’s favour.
13. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
14. The applicant also complained about the lack of an effective domestic remedy in respect of the non-enforcement of the judgment in his favour in contravention of Article 13 of the Convention, which reads as follows:
“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.”
15. The Court has already acknowledged the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the Gerasimov and Others pilot judgment by Federal Law No. 450-FZ amending the Compensation Act of 2010. That statute, which entered into force on 1 January 2017, enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments ordering the domestic authorities to fulfil various obligations in kind (see Kamneva and Others v. Russia (dec.), nos. 35555/05 and 6 others, 2 May 2017). The Court has found that the amended Compensation Act in principle meets the criteria set out in the Gerasimov and Others pilot judgment and provides the applicants with a potentially effective remedy for their non-enforcement complaint (see Shtolts and Others v. Russia (dec.), nos.77056/14 and 2 others, §§ 87-116 and § 123, 30 January 2018).
16. The Court further observes that the applicant made use of the existing domestic remedy. The fact that the outcome was not favorable for him does not mean that the remedy was in principle ineffective. Compliance with Article 13 does not depend on the certainty of a favorable outcome for an applicant (Ramirez Sanchez v. France [GC], no. 59450/00, § 159, ECHR 2006-IX). That said, having regard to the facts of the case and in the light of all the material in its possession, as well as its findings under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the Court considers that the complaint is admissible but that there is no need to give a separate ruling on it (see, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references; and, for similar approach, Korotyayeva and Others v. Russia, nos. 13122/11 and 2 others, §§ 36-40, 27 June 2017; Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no. 44387/04 and 11 others, §§ 21-24, 25 October 2011).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. 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.”
18. Regard being had to the documents in its possession and to its case‑law (see, in particular, Gerasimov and Others, §§ 187-200, cited above), the Court considers it reasonable to award the sum indicated in the appended table.
19. The Court further 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to strike out of its list the applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the delayed enforcement of the judgments of 25 April and 22 December 2006;
2. Declares the complaints concerning the delayed enforcement of the judgment of 14 June 2001 and the lack of any effective remedy in domestic law admissible;
3. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the delayed enforcement of the judgment of 14 June 2001;
4. Holds that it is not necessary to give a separate ruling on the applicant’s complaint under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State 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 14 April 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Peeter Roosma
Acting Deputy Registrar President
_________
APPENDIX
Application raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1
(non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law)
| Application no. Date of introduction |
Applicant’s name Year of birth |
Relevant domestic decision | Start date of non-enforcement period | End date of non-enforcement period Length of enforcement proceedings |
Domestic order (in euros) | Compensation proceedings Name of the court Date of the judgment Award |
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[i] |
| 60699/11 20/12/2005 |
Vladislav Vasilyevich BESEDA 1957 |
Rostov-on-Don Garrison Military Court, 14/06/2001 | 24/06/2001 | 30/08/2018 17 year(s) and 2 month(s) and 7 day(s) |
(a) declare a decision of 25/12/2000 unlawful in the part concerning striking of the applicant’s name out of the lists of the military personnel; (b) reinstate his name in the lists and pay him 17,185.29 Russian roubles (RUB) in compensation (c) pay a relocation allowance; (d) reimburse his family’s travel expenses for 1999 and 2000; (e) grant him unused leave days for 2000 and issue travel documents; (f) after the reinstatement in the lists, pay in 2001 a monetary allowance for the period until his subsequent exclusion from the lists, compensation in respect of food allowance, health allowance and rent expenses; issue a document certifying his entitlement to various social benefits; (g) grant him leave for 2001; and (h) provide the applicant and his family with living premises. (05/06/2012 the Housing Provision Department of the Ministry of Defence declared legal successor; 21/08/2018 judgment enforced in part- housing subsidy paid). |
08/04/2019 North Caucasus Circuit Military Court RUB 100,000 |
6,700 |
[i] Plus any tax that may be chargeable to the applicant.
Leave a Reply