аааааааааааа
OF
HUMAN RIGHTS
OBJECTIONS
TO
THE MEMORANDUM
OF
THE
application
╣7363/04 лMikryukov v.
The European Court of Human Rights (hereinafter Ц the
The European Court, acting pursuant to Rule 54 з 2(b)
of Rules of Court, made a decision to give notice of the application to the
Russian Federation authorities and also invited them to submit their
observations and answer the following questions.
1. Has the judgment of the Kirovskiy District Court of
Rostov-on-Don of
2. If this judgment has not been fully enforced, is
this fact compatible with Article 6 of the Convention (see Burdov v.
3. If this judgmentа
referred to above is not fully enforced,а
is its continuing non-enforcement compatible with the applicantТs right
toа Уpeaceful enjoyment of possessionsФ
within the meaning of Article of Protocol ╣ 1 to the Convention (see Burdov v.
The Representative of the Russian Federation at the
European Court of Human Rights submit in the Memorandum that the application of
Y.A. Mikryukov alleging violations, by the authorities of the Russian
Federation , ofа his right under Article
6 з 1 of the Conventionа and Article 1 of
the Protocol ╣ 1 to the Convention should be rejected by the European Court
under Article 35 зз 1 and 4 of the Convention.
I strongly disagree with the conclusion stated above
and arguments leading to this conclusion and consider it necessary to produce
my objections to the
1.
The circumstances of the case:
In 1986 the applicant andа my principal Yevgeniy Aleksandrovich
Mikryukov worked at the plant УRostovenergoremontФ (У╨юёЄют¤эхЁуюЁхьюэЄФ) in Rostov-on-Don.
On
On
а
Article 14 з 3 of the Law ╣
1244-1 Chernobyl NPS guarantees to Y.A. Mikryukov:
УOne time provision with well-equipped living
premises free regardless the period of permanent residence in this inhabited
locality within 3 months since filing the application subject to declaration
Еdestitute in improvementа of living
premisesФ.
аAt the same
time Article 5 part 1 of this Law establish:
УFinancing of the costs concerning the
realization of the Law is exercised by federal budget. The financing should be
for a specified purpose. Ф
Consequently it follows that the duty of financing of
costs concerning the provision of Y.A. Mikryukov with living premises is imposed not
on the bodies of self-government but on the State the
In 1993 Y.A.
Mikryukov lodged in the application to provide him
with living premises on the grounds of Article 14
з 3 of the Law ╣ 1244-1
In
1997 Y.A.
Mikryukov was offered to realize his rightа for provision with living premises using
registered state housing Certificate (шьхээющ уюёєфрЁёЄтхээ√щ цшыш∙э√щ ╤хЁЄшЇшърЄ).
Y.A. Mikryukov agreed to realize his rightа
for provision with living premises in this way.
On
On 25 August 1997 the aforesaid registered housing
Certificate was delivered to the finance department of Administration of Rostov
region for its further delivery to the Ministry of Finance of Russian
Federation for the purpose of compensation of the costs of the provided flat
under the Procedure of housing CertificateТs giving out and paying off approved
by the Decree of the Head of the Administration of Rostov Region of 03 March
1997 ╣ 67.а The purpose of its delivery
was money for receiving of living premises.
After theа
receiving of registered housing Certificate Y.A. Mikryukov was struck off the
register of destitute in improvement of living premises as it was considered that afterа theа
receiving of registered housing Certificate his right for providing him
with living premises at the expense of the State Russian Federation was
realized.
In July 1998 the Administration of Rostov region
informed Y.A. Mikryukov about giving funds by Ministry of Finance of
On
According to the terms of the contractа the Seller was covenant to sell the flat at
the price of 230,000.00 Rur (the very amount given by the State for the
financing of registered housing Certificate of Y.A. Mikryukov).
By the terms of the Contract the proprietary rights
forа the flat was transferred to Y.A. Mikryukov
after the receipt of money on the account ofа
the Seller.
It is necessary to explain that regardless the fact
that money allotted to Y.A.
Mikryukov according to the Certificate was assigned
for purchasing a house determined by the Law he could not dispose of it
including transferring himself money on the account ofа the Seller.
The procedure ofа
transferring money on the account ofа
the Seller was imposed directly on the Ministry of Finance of Russian
Federation through Department of
Exchequerа of Rostov Region that is
determined by зз 8 and 16 of the Decree of the Head of Administration
of Rostov region ╣ 67 of 3 March 1997 УThe provision with the housing
Certificates of the invalids of Chernobyl and the family members of the
invalids whoа were dead, destitute in
improvement of their living premisesФ
According to the aforesaid circumstances Y.A. Mikryukovа could not dispose of the money allotted to
him according to the Certificate for purchasing a house and transferring money
on the account ofа the Seller.
In August 1998 an economic crisis happened and as a
result the prices for the real estateа in
The money had not been transferred on the account
ofа the Seller by the end of September
1998. As the result of the economic crisis the market-value of the flat Y.A. Mikryukov
had intended to buyа increased
appreciably. The Seller found out that the market-value of the flat became far
more then 230,000.00 Rur, money had not been transferred on his account and
refused from the sale of the flat on account of non-execution of the terms of
the contract by Y.A. Mikryukov.
On
According to the terms of the contractа the money allotted to Y.A. Mikryukov
according to the registered housing Certificate were to be transferred to
УRostoDonServiceФ Ltd. for theа building
of the flat that was afterwards transferred to Y.A. Mikryukov as his property.
The amount of money that were allotted according to
the registered housing Certificate was not enough for the flat with the
floor-space corresponding to the Law On standards of provision with living
premises. But Y.A. Mikryukov in addition to the new flat intendedа to privatize the flat he reside. In that case
total area of floor-space correspond to the regulations determined by the Law.
But the privatization of the old flat became impossible because of bankruptcy
of the organization theа house belonged
to.
Therefore in August 2000 Y.A. Mikryukov had to file the
application about the refusal from the building of the house and canceling a
contract ofа
In October 2000 Y.A. Mikryukov filed theа application that as long as the received
registered housing Certificate does not provide his housing right he has to
return the registered housing Certificate and asked to restore him in the registry
of invalids of Chernobyl, that have right for new flat in accordance with the
rulings established by the Law.
Y.A. Mikryukovа was to be restored in
the registry under the decree of the Mayor of the City of
аIn fact Y.A. Mikryukovа was nor restored in the registry.
Then he lodged with the application to the court
against the Administration of the Kirovskiy district of the City of
Kirovskiy District Court of the City of
This judgment of the Court was not appealedа against and came into effect on
In
other wordsа this judgment became final.
After his restoration in the registry Y.A. Mikryukovа lodged with the application to Kirovskiy
District Court of the City of Rostov-on-Don against the Administration of
Kirovskiy district of the City of Rostov-on-Don about his provision with a flat
on the grounds that Y.A. Mikryukovа was registered in
registry since 1993 and the Law ╣1244-1а
Chernobyl NPSа guarantees
providing him with living premises during 3 months.
On
DECIDED:
УTo oblige the Administration of Kirovskiy
district of the City of Rostov-on-Don to provide Yevgeniy Aleksandrovich
Mikryukov with another well-equipped living premises within 3 months from the
date of the judgmentТs coming into effect for the family of 5 members:а his wife R.I. Mikryukova, son E.E. Mikryukov,
daughter E.E. Mikryukova, mother R.I. Mikryukova and him.Ф
The judgment of the Court was not appealed against by
the parties and came into effect on
On
The
judgment of Kirovskiy District Court of the City of
II. National legislation
(extracts)
1.
Code of Civil Procedure of RSFSR (├Ёрцфрэёъшщ яЁюЎхёёєры№э√щ ╩юфхъё ╨╤╘╤╨) of 1964, valid up to
УArticle
13. Obligation of legal judgmentsа
Justice of the Peaceа
and federal courts adopt legal judgments in the form of legal court
orders,а decrees, decisions.
Legal judgments that came into effect Е of federal
courts Е are obligatory for all State Public Authorities and Local Authorities
without exception, Еofficials, private persons and judicial persons and should
be executed undeviatingly over the whole territory of Russian Federation.
Non-execution of these judgments as well as any other display of disrespect for
the court should entail a responsibility according to the federal law.Ф
УArticle
208. Coming into force of judgments
The decision of Justice of the Peace shall become
legally binding on the expiration of the time-limit for lodging a cassation
appeal if no such appeal has been lodged. Ifа
appeal or cassation is filedа the
decision of Justice of the Peaceа or
decision of the federal court unless abolished come intoа effectа
after the hearing of the case in higher court.Ф
2.
Code of Civil Procedure of RF, valid fromа
УArticle
13. Obligation of courtТs judgment
1. Courts adopt legal judgments in the form of legal
court orders, decrees, decisions.
2. Legal judgments that came into effect as well as
court orders, requests, instructions, subpoenas, addresses are obligatory for
all State Public Authorities and Local Authorities, associations, officials,
private persons, organizations without exception and should be executed
undeviatingly over the whole
3. Non-execution of courtТs judgment as well as any
other display of disrespect for the court should entail a responsibility
according to the federal law.Ф
УArticle
209. Coming into force of judgments
1. Court judgments shall become legally binding on the
expiration of the time-limit for lodging a cassation appeal if no such appeal
has been lodged.
Ifа appeal is
filedа the judgment of Justice of the
Peace unless abolished come intoа force
after the hearing of the case in district court. In case district court reverse
or amendа the judgment of Justice of the
Peace and the new judgment was delivered it comes into effect immediately.
Ifа
cassationа is filedа the judgment of the Court unless abolished
come intoа effectа after the hearing ofа the case in higher courtЕ
2.
Federal Law On Enforcement of Court Judgments Process of 21а July 1997, ╣119-FL.
УArticle
3. The bodies of enforcement
1.
The authorities of
enforcement of legal judgment and acts of other bodies in
УArticle
13. The terms of executive activityа
1.
Executive actions should be
implemented and the requirements containing in writ of execution should be
executed by the court bailiff in two months term since the receipt of the writ
of execution.
III. Objections to the
arguments stated in Memorandum of the Representative of the Russian Federation
at the Europeanа Court of Human Rights.
1. It is asserted in the Memorandum, that the claim of
my principalа should be rejected under
Article 35 зз 1 and 4 of the Convention.
Article 35 з1 of the Convention note:
УThe Court may only deal with the
matter after all domestic remedies have been exhausted, according to the
generally recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.Ф
There is practice of the European Comission and
European Court of Human Rights regarding the termа Уfinal judgment of the caseФ. The precedent
law confirm thatа the final judgment of national
instance is the judgment of the court of first instance that was not appealed
against by the parties orа the judgment
of theа cassational instance if the
judgment of the court of first instance was appealed against by the parties.
Y.A. Mikryukovа complain of the long
non-execution of the judgment of Kirovskiy District Court of the City of
Rostov-on-Don of 19 December 2001 that was notа
appealed by way of cassation and therefore became final sinceа 4 January 2002,
obligatory for the executionа and the
enforcement was initiated on 24 January 2002.
Consequently the conclusion of the Memorandumа that Y.A. Mikryukovа still does not have the final judgmentа in his case contradict not only the
Convention but the text of the Memorandum. The Representative of the Russian
Federation at the European Court of Human Rights confirm himself in з 2 page 2
of the Memorandum that the judgment of
the Kirovskiy District Court of the City of Rostov-on-Don of 19 December 2001
has not been executed yet.
I cite Ц
УAccording to
information communicated by Chief Court Bailiff of the Rostov Region, the
judgment of the Kirovskiy District Court of the City of Rostov-on-Don of 19
December 2001 ordering theа
administration of Kirovskiy district of the City of Rostov-on-Don to
provide the applicantТs family comprising five members with well-equipped
living premises within three months after the entry of the judgmentа into force remain unenforcedа to date.Ф
At the same time he appeal to the fact,
I cite Ц
УThis is due to
the factа that for the period of time
from
First of all I draw your attention to the fact that
actually the Administration of the Kirovskiy district of the City of
Rostov-on-Don provide different categories of people who have right for living
premises free of charge with living premises not only becoming unoccupied but also new
living premises that are being build in the City Rostov-on-Don, that is
confirmed by з1 page 2 of the Memorandum - УЕdecree of the Head of the Administration of the City of Rostov-on-Don
of 28 October 2004 ╣ 1781 (a copy of the decree is attached herewith)Е
Consequently the argument of the Representative of the
Russian Federation at the European Court of Human Rights for the impossibility
of the provision with a flatа within
stated period of time is based on the selective source of information Ц
Уregistry of reports on vacated living premises in the district Ф,а that does not show complete information about
vacated living premisesа and building
living premisesа in the City of
Rostov-on-Don. In support of the aforesaid I cite the information about the
available living premises (attached herewith).
2.
Has the new civil dispute emerged in October 2004 in case of Y.A.
Mikryukov?
The authorities of
In support of this statement the authorities refer to
the fact thatа on
Y.A. Mikryukov did not consent to the application of the Court BailiffsТ
Service and offered his version of the execution of the judgment of the Court
in response.
The Kirovskiy District Court of the City of
The Administration of the City of
The Court of Rostov region as the cassational court by
its finding of
Rejecting the finding of Kirovskiy District Court of
the City of Rostov-on-Don of 1 December 2004 the cassational court stateа that the court of the first instance left
undecided the question where the plaintiffТs wife T.V. Mikryukova should live
by obliging to provide Y.A.
Mikryukov and his 2 children with concrete living
premisesа and leaving the plaintiffТs
wife T.V. Mikryukova at the previous one.аа
On account of the judgment of the court of 19 December 2001 she should
be provided with another living premises (not the one she had lived in before
the delivery of the judgment of the court of 19 December 2001 and live in at
the present moment),а thus the court of the first instance
changed the essence of the judgment, that is in factа delivered the new judgment of the case that
had been already decided.
The cassational instance remanded the case for a new
investigation and gave imperative instruction for the court of the first
instance that it would be necessary to take into consideration the
aforesaid,а the procedural enforcement
should be correct and the court should decide of the merits at the next trial.
In the Memorandum the authorities of the Russian
Federationа considerа the fact of the delivery of the applications
about the changing the method of and the procedure for the execution of the
judgment of 19 December 2001 as the emerging of a new civil dispute in Y.A. MikryukovТs
case and consider on that ground that my principal still does not have the
final judgment of the Russian Court of his case.
In
fact this is not the case.
The Court BailiffsТ Service applied to the court with
the request to change the method of and the procedure for the execution of the
judgment of that Court of 19 December 2001 on the account of the fact that for
some years the authorities of the Russian Federationа refused to execute the judgment of the court
about the providing Y.A. Mikryukov with living premises. Therefore The Court BailiffsТ Service
applied to the court with the request to change the method of and the procedure
for the execution of the judgment of that court by providing him not
with living premises (as the court decided in 2001) but money equivalent.
It is the Court BailiffsТ
ServiceТs opinion that such kind of judgment is more likely to be executed then
the previous one about the provision of Y.A. Mikryukov with living
premises.
3.
Evenа the Representative of the Russian Federation
explain that it was not the new civil dispute that emerged in case of Y.A. Mikryukov
butа the search forа presumably more favourable versions, leading
to fast execution of the judgment of 19 December 2001. He refers to the Article
18 Federal Law On Enforcement of Court
Judgments Process of 21 July 1997 ╣119-FL.
The representative of
So new civil
dispute can not emerge from legal
proceedings that purpose the acceleration
of procedure of enforcement of the final judgment of the Court that came
into force. Finallyа the cassational
court confirmed it in the finding of
At last we draw the attention ofа the European Court that request of the Court
BailiffsТ Service to change the method of and the procedure for the execution
of the judgment of that Court of 19 December 2001 to the Kirovskiy District
Court took place practicallyа at
onceа after MikryukovТs application about
non-execution of the aforesaid judgment of the Kirovskiy District Court of the
City of Rostov-on-Don to European Court was communicated toа the Russian Federation authorities.аааааа
аааааааааааааааааа
In our opinion it is the communicating ofа MikryukovТs application to the
а3. Isа
the intention ofа the authorities
to provide Mikryukov Y. A.а with
three-rooms flat on
The authorities inform (quoting the Memorandum):
аааааааааааааааааа
УЕthe Russian Federation authorities deemа it necessary to note that in accordance with
theа decree of the Head of the
Administrationа of the City of Rostov-on-Don
of 28 October 2004а no. 1781а (a copy of the decree is attached herewith)
applicantТsа family of four members was
provided aа three-rooms flat of theа total floor-space 81.7 sq. m.а in a house on
ааааааааааааааааааа
This information represents the facts but on this occasionа we want to informа the High Court of the following:
ааааааааааааааааа
The intention to provide Y. A Mikryukov and his family of four members
with living premises in the house on Blagodatnaya street in the City ofа Rostov-on-Don doesnТt correspond with the
execution of the judgment of 19 December 2001 because Y. A Mikryukov was
provided with living premisesа for family
of four members under the judgment ofа
the Kirovskiyа Districtа Court of the City ofа
аааааааааааааааааа
The Russian Federation authorities inform as self-evident that they
decided to provide Y. A. Mikryukov with a flat for a family of four members on
Blagodatnaya street in the City of Rostov-on-Don assuming that when Y. A.а Mikryukov move to this flat the judgment of
theа Kirovskiyа Districtа
Court of the City ofа
аааааааааааааааааа In our opinion this is not
the case.ааа
ааааааааааааааааа
аааааааа ааааааааааThe authorities refer to the fact of
death ofа Mikryukov Сs motherа on
ааааааааааааааааааа
From his part my principal considers thatа this position ofа theа
ааааааааааааааааааа At that we issue from the
following considerations:
a) Weа
remindаа to the High Court that Y.
A. Mikryukov wasаа to beаа providedаа
withаа the otherааа well-equipped living premises for the family of five members under the
judgmentаа ofаа theа
Kirovskiyа Districtа Courtаа
ofаа the City ofа
а
b) The judgmentаа
ofаа theа Kirovskiyа
Districtа Court of the City
ofа
c) Mother of Y. A. Mikryukov died on
d) Evidently ifаа
theааа judgment of the court
hadаа been enforcedааа within the term establishedаа byа
theа Kirovskiyа Districtа
Courtа orаа atаа
leastа reasonable timeа Y. A. Mikryukov. withаа his familyа
wouldаа have beenа living inаа
the flatаа providedа forа
familyаа ofаа five members now.
e)а In our opinion this behavior of the State
the Russian Federationа is unfair and
obviously doesnТt correspond to guarantees of Article 6а з 1 and Article 1 of theаа Protocol No. 1 to the European Convention of
Human Rights.
f)аа In addition
we want to inform the High Court that this flat on
ааааа I draw
your attention to the fact that the social standard of provision with living
quarters is 18 sq. m. of the total floor-spaceа per person.а
But the flat provided for him with three-rooms on Blagodatnaya street
ofа the total floor-spaceа 81.7 sq. m. can not be considered as the
execution of the judgment ofа theа Kirovskiyа
Districtа Courtа of the City of Rostov-on-Donа of 19 December 2001 because theа Legislation of the Russian Federation has a
number ofа additional clausesа for provision with living premises as
individual rooms for children of different sexes more than 9 years old. This
presume availability of three-rooms (two children of different sexes more than
9 years old). It should be taken into considerationа the additional living quarters in the form of
separate room that is established forа
invalids of the
аааааааа So the intention of the authorities to
provide Mikryukov Y. A with three-rooms flat on Blagodatnaya street in the City
ofа Rostov-on-Don is not the full
execution of the judgment ofа theа Kirovskiyа
Districtа Courtа of the City of Rostov-on-Donа of 19 December 2001.
4.
Is the responsibility to provide Mikryukov Y. A and his family of 5
membersа (according to the judgment of 19
December 2001) with living premises duty of the State Russian Federation or
duty of the body of local self-government not included in the system of Russian
organs of public authority?
ааааа The
authorities draw the attention of the European Court that the Kirovskiyа Districtа
Courtа of the City of
Rostov-on-Don obliged the Administration
of the Kirovskiy district of the City of Rostov-on-Don to provide Mikryukov
Y. A. and his family of 5 members with living premises by the judgmentа of 19 December 2001 within 3 months from the
day of coming the judgment into effect.
ааааааааа
Referring toа Article 12 and
Article 132 of theа Constitution of the
аааааааааа We
can not agree with this statement of the authorities on the groundа of the following :
a) Article 14 з 3 of
the Law ╣ 1244-1 CNPS guarantees to Y.A. Mikryukov:
УOne time provision with well-equipped living
premises free regardless the period of permanent residence in this inhabited
locality within 3 months since filing the application subject to declaration
Еdestitute in improvementа of living
premisesФ.
аAt the same
time Article 5 part 1 of this Law establish:
УFinancing of the costs concerning the
realization of the Law is exercised by federal budget. The financing should be
for a specified purpose. Ф
Consequently it follows that the duty of financing of
costs concerning the provision of Y.A. Mikryukov with living premises is imposedа on the
State
b) Functions of body of local self-government (for
Mikryukov Y. A. it is the Administration of the Kirovskiyа District of the City of Rostov-on-Don)
include: taking MikryukovТs application about provisionа with living premises, checkingа ifа he
comes within criteriaТs specified by the Lawа
and if he really has right for receipt ofа living premisesа he will be registered as citizen who has the
right of provision with free living premises within 3 months from day of filing
of the application under the Law ╣ 1244-1 CNPS .
c) Either the Administration of the Kirovskiyа District of the City of
d) Ifа it had
been that the Administration of the Kirovskiyа
District of the City of
e) But the Administration of the Kirovskiyа District of the City of Rostov-on-Donа did not lodge with such an application in
legal procedure or during procedure of enforcementа of the judgment of the Kirovskiyа District Court of the City of Rostov-on-Don
of 19 December 2001 because it understoodа
thatа the responsibility imposed
on her about provision with living premises under the Law and the judgmentа was financed according to the part 1 Article
5 ofа theа
Law ╣ 1244-1 CNPS in pursuance of the part 2 Article 132 of the
Constitution of Russian Federation ,а the state institution Ц the Ministry of
Finance ofа the Russian Federation.
f)а Regarding
the absence of analogy ofа MikryukovТs
case with the case УBurdov v. RussiaФа we
remind that the object ofа BurdovТs
appeal to European Court of Human Rights was the fact of non-execution of the
judgment of Shakhty City Court of 3 March 1997, 21 May 1999 and 9 March 2000 by
Russian Federation during long time (see УBurdov v. RussiaФ, з 36 ).
g) The money was recovered in favour of Burdov as the
invalidа of
h) Shakhty City Court levied in BurdovТsа favour these amount of moneyа fromа the Administration ofа Social
Security Service of City of Shakhty (see УBurdov v. RussiaФ, з 9 andа з 11).
i)а Theа organs on which the Russian courts on the
grounds of the Law ╣ 1244-1 CNPS imposed the executionа of judgments of Nationalа Courtsа
as in case of Burdov and the case of Mikryukov are the bodies of local
self-government . In City ofа
j) Soа
Burdovа and Mikryukov Y. A.а realize the rightsа established by the Law ╣ 1244-1 CNPSа through the bodies of local self-government.
But it doesnТt mean that realization of these rights is the obligation of the
bodies of local self-government to Burdovа
and Mikryukov Y. A.а
k) As a matter of factа
the bodies of local self-government register the citizens who haveа rights to receiveа monthly payments according to the Law ╣
1244-1 CNPS and to receive provisions with the living premises. Then they send
the applications for them to the Ministry of Finance of
l) We are quoting з 36 and 37 ofа the Resolution of the European Court of Human
Rights of
У36. The Court notes that the Shakhty City CourtТs
decisions of 3 March 1997, 21 May 1999 and 9 Marchа 2000 remained unenforced wholly or in part at
least until 5 March 2001, when the Ministry of Financeа took the decision to pay in full the debt
owed to the applicant. The Court also notes that this last payment took lace
only after the application had been communicated to the Government.
37.а Byа failing for years to take the necessary
measures to comply with the final judicialа
decisionsа in the present case,
the Russia Authorities deprived the provisions of Article 6а з 1а of
the Convention of all useful effect.Ф
m) As we see in case of Burdov notwithstanding the
fact that Shakhty City Court recovered in BurdovТsа favour the payments fromа the Administration ofа Social Security Service of City of Shakhty,а as a
matter of fact the judgment was executed by the Ministry of Finance of Russian
Federationа because it isа not the obligation of theа body of local self-government ofа City of Shakhty but obligation ofа the State ofа Russian Federation according to the Law ╣
1244-1 CNPS.
n) In much the same way regarding the living premises
that were awarded to Mikryukov Y. A.а by
the judgment of the Kirovskiy District Court of the City of
o)
On the grounds ofа stated above we
suppose that the statement ofа theа Representative of the Russian Federation at
the European Court of Human Rights aboutа
the responsibilityа of provision
of Mikryukov Y. A.а with living premises
awarded to him by the judgment of the Kirovskiy District Court of the City of
Rostov-on-Don is notа responsibility of
the State Russian Federation but responsibility of theа body of local self-government is wrong and doesnТt represent
the facts.
p)
Therefore in our opinion the legal position stated inа the Resolution of the Europeanа Courtаа
ofаа Humanаа Rightsаа
to case УBurdovаа v.а
IV.
Answersа toаа questionsаа
ofаа theаа
Question
ofа theа
Answer:
thisа judgment
has not been enforced in spite of the fact that more thanа 3 years have passed after the delivery.
Question
ofа theа
Europeanа Courtаа (2) -а If thisа judgment has not
beenа fully enforced is this fact
compatible withа Article 6 of the
Conventionа (see Burdov v. Russia, no.
59498/00, ECHR 2002-III).
Answer:
this fact is not аcompatible withа Article 6 of the Conventionа .
Question
ofа theа
Europeanа Courtаа (3) Ц Ifа the judgment referred to above is not fully
enforced, is its continuing non-enforcement compatible withа the applicantТs right toа Уpeaceful enjoyment of possessionsФа within the meaning of Article 1 of Protocol
No.1 to the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III).
Answer:
this fact is not аcompatible with applicantТs right toа Уpeaceful enjoyment of possessionsФа within the meaning of Article 1 of Protocol
No.1 to the Convention.
Our
arguments are the following
Article
1 of the Protocol ╣ 1 to the Convention
аIn Article 1 of
the Protocol ╣ 1 to the Convention is said about Уpeaceful enjoyment of his
possessionsФ.а Itа presumes that the obstructionа of the article 1 can take placeа in case when the propertyа or belongings was not damaged but was not
given the possibilityа of freely using of
this property in the Article 1 Protocolа
1 of the Convention (that is the violationа one of the three rulings logically containing
in Article 1 of the Protocol 1 of the Convention (see, Case УSporrong and Lonroth v. SwedenФ//A52(1982)
It is evident that the State Russian Federation
considers the claim of my principal about the provision of the flat as the
УpropertyФ within the meaning of Article 1 of the Protocol 1 to the Convention.
By itТs inactivity, that continued for a long time
regarding real execution of the delivered courtТs 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 fromа this
right, made itа useless,а and in consequence this right may be
considered alienable.
The violated rightа
ofа demand from the courtТs
decisionsа is considered by the European
Court of Human Rightsа a violation of the
right of property. The State broke itТs positive obligations towards the
proprietor by not undertakingа actions
towardsа of the CourtТs decisions
execution, that awarded the recovery of fixed sum of money in favour of private
person or the provision of property.
Article
6 з 1 of the Convention
The
The delay for more than 3 years in the execution of
the judgment of the court about the provision with a flat can not be justified,
it does not have any reasonable explanations.
The
By itТs inactivity, that continued for a long time
regarding real execution of the delivered courtТs judgment of the provision of
Mikryukov Y. A. and his family with a flatа
contradict Article 6 з 1 of the Convention, this inactivity has
Уdeprived him fromа effectФ, as it was in
the case of Burdov.
The situation when the State suspendsа the provision with property on the grounds of
Law or suspends the payment it was to make to private persons is inadmissible
inа law-based state the
So
it should be admitted, thatа in this
caseа there is the violation ofа the Article 1 of the Protocol ╣1 to the
Conventionа by the Russian Federation.
The
application of Article 41а of the
Convention.
Article 41а of
the Convention notifies: УIf 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 partyФ.
Compensation
by the decision of the Court.
According to the rule 60 of theа Regulationsа
ofа European Court anyа requirementа
of just recoveryа should be itemed
andа deliveredа in writingа
along with the appropriate sustaining documents.
Weа point out to
the Court, that the applicantа bore not
only direct but non-property (moral) damages as a result of violationа of the Conventionа by
Our
proposals about just compensation
A. COMPENSATION OF PECUNIARY DAMAGE
ааааа In the
resolution of the case Poznakhirina v.
УЕ
A. pecuniary damage
33.а The Court notes that the StateТs outstanding
obligation to enforce the judgment at issue is not in dispute. Accordingly, the
applicant is still entitled to recover the principal amount f the debt in the
course of domestic proceedings. The Court recalls that the most appropriate
form of redress in respect of a violationа
of Article 6 is to ensure that the applicant as far as possible is put
in the position he would have been had the requirements of Article 6 not been
disregarded (see: Piersack v. Belgium
(Article 50), judgment of 26 October 1984,а
Series Aа no. 85, p. 16, з 12 and, mutatis mutandis, Gencel v. Turkey 27,
application 53431|99 з27,а 23 October
2003).
The Court finds that in the present case this principle applies as well, having
regard to the violations found. It therefore considers that the Government
shall secure, by appropriate means, the enforcement of the award made by the
domestic courts. For this reason the Court does not find it necessary to make
an award for pecuniary damage in so far as it relates to the principal amount.Ф
ааааааа In the resolutive part of this Resolution
of the European Court of Human Rights of case of Poznakhirina v.
УFOR THESE
REASONS, THE COURT UNANIMOUSLY
1.аа Declares the application admissibly;
аааа
2.аа Holds that there has been a
violation of Article 6 з 1 of the Convention;
ааа 3.аа
Holds that there has been a violation of Article 1of Protocol No. 1
toа the Convention;
ааа 4.а
Holds:
a)
that the respondent State, within three months from the date on which the
judgment becomes final according to Article 44 з 2 of the Convention, shall
secure, by appropriate means,а theа enforcement of the award made by the domestic
court, and in addition pay the applicant 3,132 rurа (three thousands one hundred and thirty two
roubles) in respect of pecuniary damage, plus any tax that may be chargeable;Ф
аааа
аааа I. e., the
European Court in the case УPoznakhirina v. RussiaФ determined that the
possibility of execution of the judgmentа
for the applicant Poznakhirina was not lost and according to the Russian
legislation didnТt recover pecuniary damage inflictedа to the applicant Poznakhirina by
non-execution of the national judgment from the State Russian Federation, but
decided that the State Russian Federation had
to enforce the judgment of national
instance within 3 months from day when the Resolution ofа the European Court of her case would become
final according to Article 44 за 2 of the
Convention.
аааа We suppose that thisа precedent may be used to define just compensation regarding the compensation of pecuniary damage and in MikryukovТs case.
ааааа Our arguments:
аааааа аThe judgment of the Kirovskiy District Court
of the City of
аааааа Therefore
we suggestа as compensation of theа pecuniary damage inflictedа to Mikryukovа
Y. A.а by non-execution of the
judgment of the Kirovskiy District Court of the City of
аааааааа -аа to
suggest to the State
B. THE COMPENSATION OFа
MORAL DAMAGE
а
ааааааа Being
the responsible citizen and becoming aware of the scale of the disaster myа applicant voluntarily took part in
liquidationа of consequences of the
Chernobyl NPSТsа disaster,а he was injured by radioactive emissions.
аааааааа The
state admitted its guilt regarding the health hazardа and for execution of duties of
indemnification guaranteed by Articles 42 and 53 of the Constitution of Russian
Federation andа according to the part
3а Article 40 of the Constitution of
Russian Federation guarantying to provide not only indigent butа the broad section of persons who have
executedа or executing important for the
state constitutional duties with living premises, obligedа to provide family ofа Mikryukovа
Y. A. with well-equipped living premisesа
including additional living floor-space as separate room within three
months from the day of filing of application according to Legislation.
аааааааааа To
the prejudice ofа health , having done
his civil dutyа Mikryukovа Y. A. became disablement and was hoping for
conscientious attitude toward the duties from the organs of all branches of
authority concerning his constitutional and civilа rights.
ааааааааааа
However it is more than 11 years he can not receive guaranteed by the
Law ╣ 1244-1 CNPS the right for a flat from the State including more than 3
years under the delivered judgment.
аааааааааааа In
situation when organs created byа the
State and paid by taxpayers including Mikryukovа
Y. A. donТtа execute duties
imposed byа society ,а my principal feels himself notа protectedа
from arbitrariness of authorityаа
and feelsа moral sufferings
because of disfranchised existence when all his efforts are broken by
inactivity of authoritative official persons as my principal considersа thinking only about interest ,а in souls and brainsа there are authoritarianism and servility and
they donТt have elementary idea ofа
rights of other people.
аааааааааааааа
Mikryukovа Y. A. hadа suffered from non-execution of duties imposed
on the State, including established by the judgment. Mikryukovа Y. A.а
evaluates the compensation of damage guided by the compensations awarded
in similar situationа by the
аааааааааааааа
Taking into consideration vastly corruptibility and bail and
irresponsibility prevailing into authoritative structures, but hoping that they
will execute international duties at least regarding the compensation of moral
sufferings by arbitrariness to citizens, myа
principalа appealed to the
Proletarskiy District Court of the City of Rostov-on-Don with demand of
compensation of obvious moral damage as a result of non-execution of judgment
referring to the moral principals of the European Court used in cases ofа violation of Article 6 of the Convention and
Article 1 of theа Protocol No. 1 to the
Convention.
ааааааааааааааа
By the judgment of the Proletarskiy District Court of the City of
Rostov-on-Donа of 5 April 2004 and the
finding ofа cassational instance of court
chamber of the Court of Rostov Region of 2 June 2004а (attached with the answer of the Court
BailiffsТ service about impossibility ofа
reprimand ofа penalties fromа the respondent),а Mikryukovа
Y. A.а was refused in allowance of
declared claims.
ааааааааааааааа
Actuallyа bothа court instances accepted:
╖
аааabsenceа
of any sufferingsа withinа long non-execution ofа judgment;
╖
ааааimpossibility of expansion of rules of
theаа Convention toааа concerned relations;
So instead of compensation of moral expenses caused by
non-execution ofа the court
judgmentsа my principal received two
moralаа blows such as two judgments of
the courtа which in my principalТs
opinion are showing degradation of legal, mental and ethical principlesа of court system of the
In the present situationа Mikryukovа
Y. A. isаа discouragedа by the upcoming unwillingness of the
My principal as far as possible is aspiringа recognition of his rights by the
It is evident thatа
the refusalа of court organs of
the
Summingа the above-stated I ask the
1.а To
declareа Mikryukovа Y. A.а
a victim of violation of Article 6а
з 1 of the Protocol No. 1 to the Conventionа by
2. To make a decision about admissibility of appeal
ofа Mikryukovа Y. A. according to Article 29 of theа European Convention.
3.а To
induceаа the authorities of Russian
Federation in order of execution of the judgment of the Kirovskiy District
Court of the City of Rostov-on-Don to provide him and his family with flat for
five persons.
4. To deliver the judgment according toа Articleа
41 of the Convention to oblige Russian Federation to pay off the just
pecuniary compensation for the caused moral damages to my principal at the rate
of 8,000.000 Eur (3,000.00+5,000.00).
5.аа To solve
the question ofа the compensation by the
State services of the legal adviser of the applicant.
Legal adviserааааааааааааааааааааааааааааааааааааааааааааааааааааааааааааааааааа
аK. P.
Krakovskiy