АДВОКАТСКАЯ ПАЛАТА РОСТОВСКОЙ ОБЛАСТИ АДВОКАТ КРАКОВСКИЙ К.П.
То Soren Nielsen
Deputy Section Registrar
First Section
European Court of Human Rights
Application № 19589\02 PARKHOMOV v.
Application № 40642\02 Denisenkov v.
Dear Sir,
I am sending the translation of my observations from Russian into
English (two applicants)
Enclosed
-
observation (Parkhomov) - 20 pages
-
- observation (Denisenkov) - 18 pages
-
determination of the
Krakovskiy Konstantm
Advocate
Перевод на русский
вышеприведенного сопроводительного письма:
Сорену Нильсену, Секретаря (Грефье) Первой Секции ЕСПЧ
12 июля 2004
Сэр,
Высылаю Вам перевод на с русского на английский язык моих возражений (по двум заявителям):
- возражения по делу Пархомова – 20 страниц
- возражения по делу Денисенкова – 18 страниц
- копию определения Ростовского областного суда от 5 июля 2004 г. – 1 страница
Константин Краковский, адвокат
OF HUMAN RIGHTS
OBJECTIONS
TO THE MEMORANDUM
OF THE
on the complain № 40642/02 « Denisenkov v.
1.
The circumstances of the case:
On
Since
On the
1.
To recover from Municipal Social Security Service (further
- MSSS) of Pervomaisky district of
Rostov-on-Don (Муниципальное учреждение социальной защиты населения Первомайского района г. Ростова-на-Дону) the debt of the compensation for the period from 1 January 1999 till 1 November 1999 in
favor of Denisenkov V. N. – RUR 15,829.25.
2.
To oblige the MSSS of Pervomaisky district of Rostov-on-Don to make monthly payments in favour of Denisenkov V.N. as the
compensation of health hazard as the consequence of the emergency operations at the site of the Chernobyl nuclear plant
disaster at the rate of RUR 2,440.70 from
1 November 1999 till re-examination with the increase of the rate of compensation
in proportion to the increase of minimal
rate of payment.
On
On 27 June
2000 the Bailiff's Service of Pervomaisky district of
Rostov-ov-Don in reply to his require about the
non-execution of Court’s decisions answered that the Social Security Service
was underfunded.
On 15 February 2001 the law enforcement
officer notified the applicant that even though the proceedings to enforce the
judgment of 18 October 1999 were
pending, the payments to the applicant could not be made because the Social
Security Service was underfunded for the financing of these claims is not
executed by Department of Economy and Finance of Rostov Regional Ministry of
Labour (Управление Экономики и Финансов Министерства труда Ростовской области).
The only month
the compensation was completely paid is January 2000.
On 22 March 2001 the Bailiff's
Service returned the writ of execution №
2-3876 of 18 October 1999 referring to the regulation of the government of 22
February 2001 № 143 and delivered the enactment
about the end of the enforcement proceedings.
On
On
On 06
April 2001 the Chief Justice of Pervomaisky District Court of Rostov-ov-Don issued to the applicant the new writ of
execution №2-3876/99 and explained that
according to the Article 348 of
Code of Civil Procedure of RSFLR for the real execution of the Court’s decision of 18 October 1999
the writ of execution should be
delivered to the Bailiff's Service of Pervomaisky district of
Rostov-ov-Don.
After
the repeated delivery of all the
necessary documents to the DE it has notified
on 11 April 2001 that the personal
account of MSSC was not opened in DE of Pervomaisky district of Rostov-on-Don by
the Administration of the Regional Department of Exchequer of Ministry
of Finance of Russian Federation (Управление Федерального казначейства Минфина Российской Федерации по Ростовской области) and returned the
writ of execution and other documents.
On
On 22 October 2001 the Federal Court of Pervomaisky district of
Rostov-ov-Don reversed the decision of 11 May 2001 on appeal and recovered from the MSSS of
Pervomaisky district of Rostov-ov-Don the indexation of the amount of the untimely compensation for the period
from 01 November 1999 till 01 September 2001
at the rate of RUR 6,341.73 and the indexation of the amount of the compensation partially paid for the period from 01 November 1999 till 01 September 2001 at the rate RUR 8,505.47,
sum total RUR 14,847.20.
On
On
The Bailiff's Service in
response to the inquiry of Denisenkov V. N.
of 03 December 2001 notified that “According to the Law of 7 August 2000
№ 122-FL “The order of determination of scholarships and social payments in RF”
starting from 1 January 2001 the amount
of the compensation of the damages was indexed
starting from the basic amount RUR 100
and make RUR 2,923.96 in total.
The new FL №
5-FL of
… Because of the fact you have not put in the
written request to the MSSS about the
payment of the monthly amount prescribed
before, MSSS of Pervomaisky
district of Rostov-on-Don MSSS since march 2001 began paying in your favour the fixed amount according to your group
of disablement”.
According
to the decision of the Federal Court of Pervomaisky district of Rostov-on-Don of
The
Court notified that this payment is social and has the other order of
indexation that is not connected with the minimal size of payment.
The
decision of Federal Court of Pervomaisky district of Rostov-ov-Don of
The
decision of Federal Court of Pervomaisky district of Rostov-on-Don of 6 March 2003 (according to the
application of MSSS of Rostov-on-Don)
the Court clarified the decision of Federal Court
of Pervomaisky district of Rostov-on-Don of 18 October
1999 particularly the court came to the
conclusion that “Monthly payments
awarded to Denisenkov V. N. as the compensation of health hazard in 1999 are
the social payments, and should be indexed not in the proportion to the minimal
size of payment in centralized order, but based upon the basic sum RUR 100,00.
We believe that in
fact the Court did not notify but changed
the core of the Court’s decision
of
- the law-definition “basic amount” did not exist
in 1999. It first appeared in July of 2000, that is, in 1999 court put in the decision the meaning,
that could not exist in principle.
-“basic amount” did
not cancel the existence of such a law-definition
as minimal size of payment determined in centralized order.
By introducing the
definition “basic sum” the definition minimal size of payment left independent as
well as the criteria of indexation of
civil payments for the recovery of damages (he was deprived from this
function from 29 November 2002 after the
introduction of alterations to the Civil Code of RF, at that moment the minimal
size of payment was RUR 450 a month)
Per se Pervomaisky
District Court delivered the new
decision without reversing the decision of 18 October1999. The court
retrained the monthly payment from the civil payment indexed according to minimal
size of payment into social payment, indexed according to the basic amount.
We believe that new
decision of the court may be delivered only on appeal of the decision of
-in the procedure
of supervision
-in the procedure
of newly-discovered evidence
In fact by the retrial of the decision of 18 October1999 Pervomaisky
District Court violated the principle of
legal confidence, the principle of “decided
case”, the principle of “res judicata”.
On the
So there are two
decision of Pervomaisky District Court
that came into effect: decision of
2. National legislation (extracts)
1.
Code of Civil
Procedure of RSFLR (
“Article 13. Obligation of legal act
Justice of the
Peace and federal courts adopt legal
acts in the form of legal court orders,
decrees, decisions.
Legal acts that
came into effect … of federal courts … are obligatory for all State Public
Authorities and Local Authorities without exception, …officials, private
persons and judicial persons and should be executed undeviatingly over the
whole territory of Russian Federation. Non-execution of these acts as well as
any other display of disrespect for the court should entail a responsibility
according to the federal law.”
“Article 208. Court decision’s coming into effect
The decision of
Justice of the Peace after the end of the term of an appeals
and the decision of the federal
court after the end of the term of an cassations come into effect, unless they
were appealed against. If appeal or cassation is filed the decision of Justice of the Peace or decision of the federal court unless
abolished come into effect after the hearing of the case in higher
court.
…
Each party in the
case has the right to claim the alteration of
payment’s rate and period after the courts decision, imposing recurrent payment, coming into effect
the conditions that influence the
determination of payment’s amount
and period change.
2.
Code of Civil
Procedure of RF 1964, valid from 1 of
February 2003.
“Article 13. Obligation of court act
1. Courts adopt
legal acts in the form of legal court orders,
decrees, decisions.
2. Legal acts that
came into effect that came into effect as well as court orders, requests,
instructions, subpoenas, adresses are obligatory for all State Public
Authorities and Local Authorities, associations, officials, private persons,
organizations without exeption and should be executed undeviatingly over the
whole
3. Non-execution of
court’s decision as well as any other display of disrespect for the court
should entail a responsibility according to the federal law.”
“Article 209. Court decision’s coming into effect
1. The decision of
the court after the end of the term of
an appeals and cassations come into effect, if not appealed against.
If appeal is filed the decision of Justice of the Peace unless
abolished come into effect after the hearing of the case in district
court. In case district court reverse of amend
the decision of Justice of the Peace and the new decision was delivered
it comes into effect immediately.
If cassation
is filed the decision of the
Court unless abolished come into
effect after the hearing of the case in higher court…
3. Each party in
the case has the right to claim the alteration of payment’s rate and period after the courts
decision, imposing recurrent payment,
coming into effect the conditions that influence the determination of payment’s rate and period
change.
3.
Federal Law on
Enforcement Proceeding of
“Article 3. Organs of enforcement
1.
Enforcement of legal acts and acts of other organs in
“Article 5. Other organs and organization that execute
the requirements of legal acts and acts of other organs
1. The requirements
of legal acts and acts of other organs of the recovery of damages are executed by the Tax organs, Banks and
other Credit institutions, in cases provided by federal law.
2. The requirements
of legal acts and acts of other organs can be executed by the other organs,
organizations, officials and private citizens in cases provided by federal law.
3. The organs
provided by paragraphs 1,2 in the
present article should not be the organs of enforcement.
“Article 13. The terms of executive activity
1.
Executive actions should be implemented and the
requirements contained in writ of execution should be executed by the court
bailiff in two months term since the receipt of the writ of execution.
Legal nature of payment.
The legal nature of
payment awarded in favour of persons
suffered because of participation in emergency operations at the site of the
From our point of
view, in reply to the questions or
We believe that
point of issue between Denisenkov V. N. and the State in
Pervomaiski district Court of Rostov-on-Don in 1999 was:
- not the issue of
indexation
- not the issue of
social payment
- so, it was not
the issue that arise from public
relationships between Denisenkov V.N.
and the State.
The real point at issue between Denisenkov V. N. and
the State in 1999 was the issue of the
fact – what is a real amount of earnings lost as a consequence of disability as
a result of extensive
exposure to radioactive emissions received during
the emergency
operations at the site of the Chernobyl nuclear plant disaster.
So this was a
usual civil tort suit arisen from private relationships between Denisenkov V. N.
and the State.
3. The argumentation:
The
medical commission of experts determined to Denisenkov V. N. disability at the
rate of 80 % and established the link between the applicant's
poor health and the fact that he was sent by the State to take part in
emergency operations at the site of the
The Russian civil legislation
determine that, in case of disability as the consequence of harm done to
his health (as the result of the tort), the tortfeasor must compensate the damage to the victim
at the rate of his lost earnings that he had before the accident. The compensation
of the damage in consequence of the tort
is set for the whole period of the disability,
in case of stable disability - permanently.
According to the
But the Chernobyl Law
didn’t contain the rules of calculation of the lost earnings of invalid of
The law in the part
of determination of the rate of the lost earnings referred to the rules of
civil law, that regulates the compensation in case of damages during execution
of work, that is to rules of Chapter 59
of Civil Code of RF and ” Rules of compensation by employers the damage, caused
by the injury, professional disease or the other harm of the health, concerned with the execution of work”,
confirmed by the decision of Supreme Court of Russian Federation of 24 December 1992 № 4214-1(with changes of 24
November 1995 enacted by Federal Law №180-FL), that were valid at that time.
Several variants of
calculation of the rate of payment of
the lost earnings were set by rules of
CC (Civil Code) of RF and “ Rules of
compensation “, and it was stipulated that the right of choice between these
variants belong to the victim.
As
Denisenkov V. N. thought, during the
calculation of the lost earnings, the agency of social security used not the
most favourable way of calculation of the rate of the lost earnings and the
agency refused to recalculate the rate of the lost earnings voluntarily, on
ground of what Denisenkov V. N. in 1999 had
to appeal to the Court with civil tort
suit with the request to oblige the State to set him the higher rate of compensation of the lost
earnings, in comparison with the rate that was set by the agency of social service voluntarily.
So in 1999 the Court
considered the dispute between Denisenkov V. N. and
the State about the legal rate of the
lost earnings in consequence of tort.
Denisenkov V. N.
as well as the Commissioner of
the State, and the Court itself that considered his case in 1998-2000, regarded
his suit just as civil, originated from
the fort; the suit, that has the private legal essence, but not as a claim to
index the rate of social payment due to him, that has public-legal essence.
During the delivery
of the decision of the 18 October 1999,
the Court referred to legal grounds of Court’s decisions on Article 1085 CC RF
(p. 4 of the Court’s decision) and Articles 11, 13 “Rules of compensation by
employers the damage, caused by the injury, professional disease or the other
harm of the health, concerned with the
execution of work”(page 3 of the Court’s decision).
Just on the grounds
of this regulations of civil law, the court agreed with Denisenkov V. N. that the State really made a mistake in
determination of the lost earnings.
Just
on grounds of it the Court obliged the State to pay to Denisenkov V. N. the
compensation of the lost earnings every month, in consequence of the fort on
the other variants, more profitable for Denisenkov V. N., that is RUR 2,440.7 a
month for October 1999.
So,
the decision of 18 October, final and obligatory for the execution between Denisenkov V. N. and the State Russia has
established the private-legal relationships, it means the legal
relationships of two equal in rights persons, but not the relationships between
Payer (The State) and Receiver (Denisenkov V.N..) some social payment.
As there were established the private-legal
relationships between the State and Denisenkov V. N. by the Court, so finally
the Court obliged the State to increase the awarded monthly payment in proportion
to increasing of the size of minimal rate of payments in centralized order, as
it was specified by the articles 318 and 1091 CC RF and by the article 11 ”
Rules of compensation by employers the damage, caused by the injury,
professional disease or the other harm of the
health, concerned with the execution of work”.
So
the attempt of the authorities of Russian Federation to present in Memorandum
the argue between Denisenkov V. N. and the State, on which the decision of the
Court of 18 October was delivered, as the argue, arising from the public-legal
relationships about the incorrect indexation of the social payment, has the
purpose to rehabilitate the State for non-execution of the Court’s decisions,
delivered by tort suit.
The
point is that the monthly payment awarded to Denisenkov V. N. was
indexated only once – from
This
coefficient is not the coefficient of increasing of minimal rate of the payment
(minimal rate of payment from
Trying
to pay to Denisenkov V. N., the awarded monthly payment at the rate of RUR
2,440.7 as a social payment, the authorities of
-
Denisenkov V. N. was awarded social payment by the decision of the Court of 18.10.1999
as he required.
- the Court pointed that this social payment is to be indexed in future
- and the State has indexed this social payment
from the
So
they suppose that the decision of the court in the part of consequent
indexation is completely executed.
In
fact, as it is mentioned above, the court awarded in favour of Denisenkov V. N. not a Social payment, but civil compensation
of damages as the consequence of the tort. According to the decision of the
court the following indexation is to be done not in the order established for
the social payment but in the order established
for the indexation of civil payments. The court provided the concrete order
in it’s decision – the awarded monthly payment
should be increased in future in proportion to the increasing of minimal rate of payment.
From
1999 the monthly payment awarded to Denisenkov V. N. has never been increased
in proportion to the increasing of
minimal rate of payment.
And
this prove that the decision of Pervomaisky District Court of Rostov-on-Don
of 18 October 1999 in the part of the
future indexation of monthly payments in favour of Denisenkov V. N. in
proportion to the increasing of minimal
rate of payment in centralized order is not completely executed.
4. The Court’s decisions and their real execution
(non-execution).
I. The decision of Pervomaisky
District Court of Rostov-on-Don of 18 October 1999, that was not appealed against and came into effect from
- one-time payment
– RUR 15,829. 25
- monthly payment at
the rate of RUR 2,440.7 from
- monthly payment
for the future at the rate of RUR 2,440.7, that must be increased in proportion
to the increasing of minimal rate of
payment in centralized order.
The execution of this decision:
- The recovered one time amount at the rate of RUR 15,829.25
(the debt for the previous period of time before the delivery of the court’s
decision) was paid to Denisenkov V. N. 31 May 2002, that is in 2 years, 7 months and
2 days after the decision of the Court came into effect.
As for the monthly
payments, in fact instead of RUR 2,440.7 he was paid:
instead of 2440, 7
he was monthly paid :
- from November
1999 till December 2000 the amount RUR 1,370.44 a month (the only exclusion – January 2000-it
was paid the prescribed amount that is RUR 2,440.7)
- for January 2001 –
RUR 1,641.71
- for February 2001
– RUR 2,070.9
- for the period from
March 2001 till July 2002 – RUR 2,500.00 a month
- from August 2001
till July 2002 – RUR 2,500.00 a month
- from August 2002
– RUR 2,923.96 a month, the amount he receives at the present time
At the time of the
delivery of the court’s decision of
-
RUR 132.00 from
-
RUR 200.00 from
-
RUR 300.00 from
-
RUR 450.00 from
-
RUR 600.00 from
Neither of these
increasing of minimal size of payment was applied for the increasing of
the monthly payment at the rate of RUR 2,440.7 awarded in favor of Denisenkov
V. N.
Therefore on the question of the European Court (1.a.) – whether the
amount awarded by the decision of 18.10.1999
at the rate of RUR 15,829.25 was paid totally and in proper time we answer that by this time this amount was paid
completely but not at the proper
time with 2 years, 5 months and 2 days
delay in comparison with legal terms of
payment.
On the question of the
- before March 2001
he received monthly payment below the
rate he was awarded by the decision of 18.10.1999 and only after March 2001 the rate of this
payment was slightly increased.
On the
question of the European Court (1.c.) – whether the indexation of payments
at the rate of RUR 2,440.7 in proportion to the minimal size of payment in
centralized order as it was awarded by
the decision of 18.10.1999 was carried
out completely and in proper time we answer that after the delivery of the
decision of the Court the minimal size
of payment was increased in centralized order
for the first time from 1 July 2000, 1 January 2001, 1 July 2001, 1 May
2002, 1 October 2003.
The monthly payment awarded by the decision of 18.10.1999 at the rate of RUR 2,440.7 has never been
increased in proportion to the minimal size of payment till now.
Instead of this the State has indexed this payment only once - in January 2001 in 1,198 times (according
to the coefficient determined for the increasing of social payment, but not for
the increasing of minimal size of payment in centralized order).
Therefore in our opinion the decision of the Court of 18.10.1999 concerning
the following indexation of the
payment awarded in proportion to the increasing minimal size of payment in centralized order is not still executed. The delay of execution of the Court’s
decision in this part is 3 years and 11 months ( since
Legitimate (awarded by the decision of the Court of
-from
-from
-from
-from
-from
Consequently
instead of legitimate monthly
payment awarded by the decision of the Court of 18 October 1999 that increase
in proportion to minimal size of payment and amounts to
the rate of RUR 17,533.66 a month (from 1 October 2003) Denisenkov V.N.
receive at the present moment only RUR 2,923.96
a month, that is only
one sixth of the legitimate amount.
II. The decision on appeal of Pervomaisky District
Court of Rostov-on-Don of
The Federal
Court of Pervomaisky District of
Rostov-on-Don as a Court of Appeal reversed
the decision of the Justice of the Peace
of
-the indexation of
debts for the untimely payment of the compensation of damages (awarded by the decision
of the Federal Court of Pervomaisky District Court of
Rostov-on-Don) from 1 November 1999 till 1 September 2001 at the rate of RUR 6,341.73 and indexation of compensation of damages in view
of their partial payment for the period
from 1 November 1999 till 1 September
2001 at the rate of RUR 8,505.47,
one-time sum total 14847,2.
The execution of this Court’s decision:
Awarded one-time payment at the rate of RUR 14,847.2 was paid to Denisenkov V.N.
On the question of the
5. Our arguments are the following
It is asserted in
the Memorandum, that the claim of my principal
as well as the claims of other five
applicants on this “united case”
is evidently groundless by implication
of p. 3 Article 35 of the Convention.
The stated
paragraph read as follows “The Court shall declare inadmissible any individual
application…which it considers incompatible with the provisions of the
Convention or the protocols thereto, manifestly ill-founded…” Regarding the
definition “manifestly ill-founded” there is a wide practice of the European
Commission and European Court of Human Rights. Corresponding case law at the
present time verify that the claim
is considered manifestly ill-founded in case no violation of rights and freedoms prima facie according to Convention is
found during it’s consideration.(See
№524/19, Dec.19.12.60.-Yearbook 3 p. 322(336-338); № 2689/65, Dec.
7.2.67.-Yearbook 10, p. 238 (278)
The given conclusion of the Memorandum contradict not only Convention but the foregone text of the Memorandum. Without
direct answer to the question put to
Authorities of the Russian Federation by
the European Court of the Human Rights
“Whether the decisions of the
Court delivered in favour of the applicants were executed completely and in
proper time” they (authorities) replied evasively that “at the present
time the decisions of the Court
delivered in favour of the applicants were executed”. (p.3)
The following
description of the Court decision’s execution order in Memorandum, 2-4 years
after the delivery, as well as the facts of the offers of amicable agreement on
terms of 3000 payment to each of
applicants by the Russian Federation for the delay of execution is, in our
opinion, the confession by the authorities of Russian Federation de facto
the violation of Article 6 and
Article 1 of the Protocol of the Convention (from the standpoint of decision
“Burdov v. Russia”)
The order of
calculation of the compensation and the rate of the compensation for the delay of
the compensation (as it was written in
amicable agreement with one of the
applicants of this case Leonov O.N.) with the reference to the case Burdov v.
Russia marginally confirm the confession
by the authorities of Russian Federation the similar violation of the
Convention.
In the Memorandum
the delay of payments is explained by “the procedural actions on appeal the
decisions of the Court, as well as the absence in 1998-2001 in the federal budget the funds for the execution of such decisions”. However the
Article 6 § 1 of the
Convention.
It was pointed out in the judgment of European Court “Burdov v. Russian
Federation”: “Article 6 § 1 secures to everyone the right to have any claim
relating to his civil rights and obligations brought before a court or
tribunal; in this way it embodies the “right to a court”, of which the right of
access, that is the right to institute proceedings before courts in civil
matters, constitutes one aspect. However, that right would be illusory if
a
Consequently, the absence
for a long time active actions
from the authorities of Russian Federation
towards the execution of Court’s decisions awarding the compensation in favour of Denisenkov V.N/Parkhomov
A.A. on the grounds of the loss of the health
that came into effect contradict to the Article
6 § 1 of the Convention; this “inactivity deprived it from positive effect”, similarly
to the case of Burdow.
Article 1 Protocol
1 of the Conventiont is said about “peaceful enjoyment of his
possessions”. It presumes that the obstruction of the article 1 can take place in case when the property or belongings was not damaged but was not
given the possibility of freely using of
this property in the Article 1 Protocol
1 of the Convention (that is the violation one of the three rulings logically containing
in Article 1 of the Protocol 1 of the Convention (see, Case “Sporrong and
Lonroth v. Sweden”//A52(1982)
By it’s inactivity,
that continued for a long time regarding real execution of the delivered
court’s decisions the State changed the right of property on the amount due to
my applicant into the fiction. That is per se it has deprived him from this right, made it useless,
and in consequence this right may be considered alienable.
The violated
right of
demand from the court’s decisions
is considered by the European Court of Human Rights a violation of the right of property. The
State broke it’s positive obligations towards the proprietor by not
undertaking actions towards of the Court’s decisions execution, that
awarded the recovery of fixed sum of money in favour of private person.
So it should be
admitted, that in this case there is the violation of Article 1 of the
Protocole 1 of the Convention by
The application of Article 41 of the Convention.
Article 41 of the Convention notify: “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”.
Compensation by the decision of the Court.
According to the
rule 60 of the Regulations of
European Court any requirement of just recovery should be itemed and delivered
in writing along with the
appropriate sustaining documents.
We point out to the Court, that the
applicant bore not only direct but
non-property (moral) damages as a result of violation of the Convention by
The calculation of just compensation.
-for the delay of
execution of the court’s decision of 18
October1999 in the payment of awarded one
time amount we request you to deliver
the decision that Russian Federation should pay
the compensation of moral damages at the rate of EUR 3,000
-for the delay of
execution of the court’s decision of
- for the
non-execution of the court’s decision of
-to compensate to
Denisenkov V.N. direct damages at the
rate of RUR 346,052.03 according to the calculation, that comes with.
-to pay monthly to
Denisenkov V.N. from
The possibility of amicable adjustment.
● it is
asserted in the Memorandum that Denisenkov V.N. was offered to conclude an
amicable agreement on conditions that he would be compensated damages for the untimely
execution of the court’s decisions on the basis of EUR 1,500 for a year.
Allegedly Denisenkov V.N. refused from
the conclusion of an agreement and laid down counter conditions that were not based on the decisions of the court or the
legislation of
● we were
very surprised by such statement of negotiations about the
possibility of amicable settlement of the issue.
● indeed in April 2004 Denisenkov V.N. was invited to the meeting to the Municipal Social Security
Service of Pervomaisky district of Rostov-on-Don . He was not informed of the
purpose of the meeting, that’s why the lawyer of the applicant Krakovsky K.P.
was not invited.
● indeed Denisenkov V.N. was offered to conclude an
amicable agreement on conditions aforesaid, that is – he was offered one time
compensation of moral (non-property) damages at the rate of EUR 3,000 on
conditions that he would entirely withdraw his claim from the
● in response
Denisenkov V.N. stated that he regard the possibility of amicable adjustment of
the dispute on his
claim to the European Court very positively, but he has a lawyer and he would like to discuss the conditions
of amicable adjustment with his participation. Denisenkov V.N. asked
to hand him over the offers of amicable adjustment in writing
and the draft of an amicable agreement for him to deliver it to his
lawyer. But he was turned down. During the negotiations Denisenkov V.N. made a
sound recording using Dictaphone, the representatives of State (officials) did
not object. The recording of the
negotiations of
● on 12 of
April 2004 Denisenkov V.N. filed to the Municipal Social Security Service of
Pervomaisky district of Rostov-ov-Don his offers of the conditions of amicable adjustment in writing
with the enclosure of detailed
calculation, and he filed them not as an ultimatum, but as the offers to
discuss.
● on 15 of
April Denisenkov V.N. received the
answer in writing to his offers from 12 of April 2004. In this answer he was
informed, that:
“1. MSSS of
Pervomaisky district of Rostov-on-Don does not participate in the case of claim
you filed to the European Court of Human
Rights, consequently it does not have
due authority to consider your offers of amicable adjustment.
2.
MSSS of Pervomaisky district of Rostov-on-Don is not
entitled to manage the budgetary funds. It is the final phase in the cash flow
and it can not change the purpose or influence the distribution. Our establishment
is not competent to settle a question of
paying the sums you offered.
● on
● the
applicant and his lawyer informed the
Secretariat of European Court about the content and result of these
negotiations, therefore I will repeat in brief - during the discussion of the conditions
of amicable adjustment the
representatives of the State declared there
are entitled to discuss the possible
payment of moral damages compensation as the consequence of the delay of
execution of the court’s decision of 18
October1999 and 22 October 2001.
● on our
direct question – whether they are entitled
to discuss all the questions put by the European Court, the
representatives of the State answered that they are not.
● on our
direct question – whether the question of the moral damages compensation can be
settled separately from the other questions put by the European Court, the
representatives of the State answered that they offer free-will compensation of
moral damages at the rate of 3000 in exchange for unconditional refusal from
the appeal to the European Court of Human Rights.
● on our direct question – what is their
evaluation of offers filed by Denisenkov V.N. in writing the representatives of
the State again answered that they are not entitled to discuss anything beyond
the questions of the moral damages.
● we
expressed regret, that the authorities of the representatives of the State keep
from the discussion of all the questions
put by the
● also we informed
them, that we looked forward to one more meeting during which we would be able to discuss all
the questions put by
● on
● on 22 April
2004 Denisenkov V.N. one more time filed the proposals of the amicable
adjustment in writing on the claim filed to the European Court, to the Ministry
of Labor and Social Development of Rostov region
● Denisenkov V.N.
was informed by the letter from Ministry of Labor and Social Development of
Rostov region № МП/677 of
On the grounds of the mentioned above, we believe that
the amicable adjustment was not
concluded between Denisenkov V.N. and
the State
As far as we are concerned, Denisenkov V.N. and me, his lawyer, we are
sure that there was such possibility.
Besides we declare that we are ready to discuss with
the representatives of the State the possibilities of reasonable conditions of
amicable adjustment of the claim filed to the
On such conditions we believe that the Statement of
9.04.2004 about the fact that Denisenkov V.N. refused from the possibility to
reach amicable adjustment of the claim filed to the
On the grounds of
aforesaid, I request European Court of Human
Rights to:
1.
Consider Denisenkov V.N. the victim of the violation
of Article 6 par. 1 of the European Convention and Article 1 of the Protocol
№ 1 of the Convention by the State.
2.
Consider the appeal of Denisenkov V.N. to the
3.
Deliver according to the Article 41 of the European
Convention the resolution that oblige
4.
Solve the question of the compensation by the State services of the legal
adviser of the applicant.
Legal adviser
K.P. Krakovsky
Appendix:
THE CALCULATION
OF DIRECT
DAMAGES,
beared by Denisenkov V.N., on account of non-execution
of the Court,s decision of
(the appendix to
objections to Memorandum of RF Authorities)
|
Month and year |
The legal amount of the monthly payment, rub. |
Paid , rub. ( here are
pointed not the sums paid in time but the sums, paid for the corresponding
month taking into consideration later
additional payment for this month) |
Underpaid, rub. |
|
July 2000 |
3,858,75 |
2440,7 |
1418,05 |
|
August 2000
|
3,858,75 |
2440,7 |
1418,05 |
|
September 2000 |
3858,75 |
2440,7 |
1418,05 |
|
October 2000 |
3858,75 |
2440,7 |
1418,05 |
|
November 2000 |
3858,75 |
2440,7 |
1418,05 |
|
December 2000 |
5846,01 |
2440,7 |
1418,05 |
|
January 2001 |
5846,01 |
2923,96 |
2922,04 |
|
February 2001 |
5846,01 |
2923,96 |
2922,04 |
|
March 2001 |
5846,01 |
2923,96 |
2922,04 |
|
April 2001 |
5846,01 |
2923,96 |
2922,04 |
|
May 2001 |
5846,01 |
2923,96 |
2922,04 |
|
June 2001 |
5846,01 |
2923,96 |
2922,04 |
|
July 2001 |
8769,02 |
2923,96 |
5845,06 |
|
August 2001 |
8769,02 |
2923,96 |
5845,06 |
|
September 2001 |
8769,02 |
2923,96 |
5845,06 |
|
October 2001 |
8769,02 |
2923,96 |
5845,06 |
|
November 2001 |
8769,02 |
2923,96 |
5845,06 |
|
December 2001 |
8769,02 |
2923,96 |
5845,06 |
|
January 2002 |
8769,02 |
2923,96 |
5845,06 |
|
February 2002 |
8769,02 |
2923,96 |
5845,06 |
|
March 2002 |
8769,02 |
2923,96 |
5845,06 |
|
April 2002 |
8769,02 |
2923,96 |
5845,06 |
|
May 2002 |
13153,53 |
2923,96 |
10229,57 |
|
June 2002 |
13153,53 |
2923,96 |
10229,57 |
|
July 2002 |
13153,53 |
2923,96 |
10229,57 |
|
August 2002 |
13153,53 |
2923,96 |
10229,57 |
|
September 2002 |
13153,53 |
2923,96 |
10229,57 |
|
October 2002 |
13153,53 |
2923,96 |
10229,57 |
|
November 2002 |
13153,53 |
2923,96 |
10229,57 |
|
December 2002 |
13153,53 |
2923,96 |
10229,57 |
|
January 2003 |
13153,53 |
2923,96 |
10229,57 |
|
February 2003 |
13153,53 |
2923,96 |
10229,57 |
|
March 2003 |
13153,53 |
2923,96 |
10229,57 |
|
April 2003 |
13153,53 |
2923,96 |
10229,57 |
|
May 2003 |
13153,53 |
2923,96 |
10229,57 |
|
June 2003 |
13153,53 |
2923,96 |
10229,57 |
|
July 2003 |
13153,53 |
2923,96 |
10229,57 |
|
August 2003 |
13153,53 |
2923,96 |
10229,57 |
|
September 2003 |
13153,53 |
2923,96 |
10229,57 |
|
October 2003 |
17533,66 |
2923,96 |
14609,7 |
|
November 2003 |
17533,66 |
2923,96 |
14609,7 |
|
December 2003 |
17533,66 |
2923,96 |
14609,7 |
|
January 2004 |
17533,66 |
2923,96 |
14609,7 |
|
February 2004 |
17533,66 |
2923,96 |
14609,7 |
|
March 2004 |
17533,66 |
2923,96 |
14609,7 |
|
Total underpaid ( |
346,052.03 |
||
The calculation of
underpaid:
1,418.05*6 months +2,922.04* 6 months+ 5,845.06* 10 months + 10,229.57* 17 months + 14,609.7*
6 months= 8,508.3+17,532.24+58,450.6+173,902.69+87,658.2 = RUR 346,052.03