AS TO THE ADMISSIBILITY OF
Application no. 59498/00
by Anatoliy Tikhonovich BURDOV
The European Court of Human Rights, sitting on 21 June 2001 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr A.B. Baka,
Mr G. Bonello,
Mrs V. Strážnická,
Mr P. Lorenzen,
Mr M. Fischbach,
Mr A. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 20 March 2000 and registered on 1 August 2000,
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 applicant, Anatoliy Tikhonovich Burdov, is a Russian national, born in 1952 and living in Shakhty, Russia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 1 October 1986 the applicant was called up by military authorities to take part in emergency operations at the site of the Chernobyl nuclear plant catastrophe. The applicant was engaged in the operations until 11 January 1987 and, as a result, suffered from extensive exposure to radioactive emission.
In 1991, following an expert opinion which established the link between the applicant’s poor health and his involvement in the Chernobyl events, compensation was awarded to the applicant.
In 1997 the applicant brought proceedings against the Shakhty Social Security Service (Управление социальной защиты населения по г. Шахты) as the compensation had not been paid. On 3 March 1997 the Shakhty City Court (Шахтинский городской суд) held in the applicant’s favour. It ordered payment of the money due and a penalty in respect of the delay.
On 9 April 1999 the Shakhty Bailiff’s Service (Служба судебных приставов г. Шахты) instituted enforcement proceedings for recovery of the penalty awarded on 3 March 1997.
In 1999 the applicant brought an action against the Social Security Service to challenge a reduction in the amount he received and to recover unpaid compensation. On 21 May 1999 the Shakhty City Court restored the original amount of the compensation. The court also ordered payment of outstanding moneys and indexation of the compensation payments.
On 30 August 1999 the Shakhty Bailiff’s Service opened enforcement proceedings in connection with the order of 21 May 1999.
On 16 September 1999 the Shakhty Bailiff’s Service notified the applicant that even though the proceedings to enforce the 3 March 1997 decision were pending, the payments to the applicant could not be effected due to lack of funding of the Social Security Service.
On 7 October 1999 the Rostov Regional Department of Justice (Главное управление юстиции Ростовской области) notified the applicant that the two judgments could not be honoured because the defendant did not have adequate funds.
Following the applicant’s complaint about the inefficient enforcement, on 12 November 1999 the Prosecutor of Shakhty informed the applicant that the Bailiff’s Service was following the established enforcement procedure but was hampered by lack of proper financing.
On 22 December 1999 the Rostov Regional Department of Justice informed the applicant that the funds for the purpose of payment of the Chernobyl compensations are allocated from the federal budget and that the payment would be effected upon receipt of an appropriate transfer from the Ministry of Finance of Russia.
On 26 January 2000 the Rostov Regional Prosecutor’s Office (Прокуратура Ростовской области) informed the applicant that there had been no fault of the Bailiff’s Service in the non-enforcement, and that the debts would be extinguished as soon as proper allocations were made from the federal budget.
On 22 March 2000 the Rostov Regional Department of Justice notified the applicant that compensation of Chernobyl victims would be financed from the federal budget.
On 11 April 2000 the Shakhty Bailiff service informed the applicant that it was impossible to enforce the judgments in his favour because the Rostov Regional Ministry of Labour and Social Development (Министерство труда и социального развития Ростовской области) was underfinanced.
On 16 May 2000 the Prosecutor of Shakhty informed the applicant that even though the Social Security Service had executed the judgement of 21 May 1999 and recalculated the amount of compensation due to the applicant, the payments were still not effected because of lack of financing.
On 9 March 2000 the Shakhty City Court ordered indexation of the amount of the penalty awarded on 3 March 1997, which had still not been paid to the applicant.
Following a decision taken by the Ministry of Finance, on 5 March 2001 the Shakhty Social Security Service paid to the applicant the outstanding debt in the amount of 113.040,38 roubles.
Under Articles 2, 13 and 17 of the Convention as well as Article 1 of Protocol No. 1 to the Convention the applicant complains that the Government do not discharge their obligations to him in respect of the compensation payments.
1. The applicant complains under Articles 2, 13 and 17 of the Convention and under Article 1 of Protocol No. 1 to the Convention that the compensation payments that he receives are not in accordance with the law. He also alleges the responsibility of the Government for substantial unjustified delays in the execution of the final judgments.
The Court has first examined the application as raising an issue under Article 6 of the Convention of non-enforcement of the judgments of the Shakhty City Court in the applicant’s favour and under Article 1 of Protocol No. 1 to the Convention.
Article 6 of the Convention, insofar as relevant, reads as follows:
“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 to the Convention reads as follows:
“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.”
The Government submit that they have paid to the applicant the outstanding debts in the amount of 113.040,38 roubles, including the sums awarded by the judgments of the Shakhty City Court of 3 March 1997, 21 May 1999 and 9 March 2000 and interest for the delays. The Government maintain that since the applicant’s pecuniary claims have been satisfied, it is no longer open to him to be considered as a victim of the alleged Convention violation and, therefore, the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention. The Government refer to budgetary constraints and suspended proceedings in one of the sets of litigation as the reasons for the delays in the execution. In addition, they observe that in the period between January 1999 and February 2001 the judgment of 21 May 1999 was partially enforced.
The applicant confirms the receipt of the payment of the debt in the amount of 113.040,38 roubles. He claims, however, that the regular compensation for the loss of health that he receives is nonetheless lower than it should be under the law. The applicant denies that there have been valid reasons for the lengthy non-enforcement. He contends that the Government only took proper action after the Court had intervened. In conclusion, the applicant asks the Court to find a violation of his Convention rights, to award just satisfaction and non-pecuniary damages, as well as oblige the Government to adjust the amount of the currently received compensation in accordance with the law.
According to Article 34 of the Convention, “the Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”
In its judgment of 25 June 1996 in the case of Amuur v. France the Court reiterated that “a decision or measure favourable to the 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” (Reports 1996-III, p. 846, § 36).
It is true that in this case the Government paid the debt. However, that extraordinary payment was not made until 5 March 2001, whereas the applicant had been unable to have the judgments enforced for at least two years before that date.
This does not constitute any acknowledgement, whether explicit or implicit, on the part of the national authorities that there had been a violation of the applicant’s rights under the Convention.
In these circumstances the Court considers that the applicant may still claim to be a victim of a violation of his rights protected by the Convention. It follows that the Government’s objection must be dismissed.
Having examined the applicant’s complaints under Article 6 the Convention and Article 1 of Protocol No. 1 to the Convention, the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application is therefore not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.
2. Insofar as the applicant complains under Articles 2, 13 and 17 of the Convention, that the amount of the compensation that he receives is lower than it should be under the law, the Court recalls that the Convention does not guarantee as such social benefits of any given kind and/or amount (cf. mutatis mutandis Müller v. Austria, no. 5849/72, dec. 1.10.75). Accordingly, the Court finds that this matter does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the issues of non-enforcement of the judgments (Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention);
Declares inadmissible the remainder of the application.
Erik Fribergh Christos Rozakis
BURDOV v. RUSSIA DECISION
BURDOV v. RUSSIA DECISION