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Постановление Европейского суда по правам человека от 22.12.2009 "Дело "Сергей Смирнов (Sergey Smirnov) против Российской Федерации" [рус., англ.]





ay but of an unreasonable construction of a procedural requirement which prevented the applicant's claims being examined on the merits and thereby interfered with the very essence of his right of access to a court (cf. Miragall Escolano and Others v. Spain, Nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, §§ 36 and 37, ECHR 2000-I; and Canea Catholic Church v. Greece, 16 December 1997, § 41, Reports 1997-VIII). Such rigid application of a procedural rule, without considering particular circumstances, cannot be said to be compatible with Article 6 § 1.
33. Accordingly, there was a violation of Article 6 § 1 of the Convention.

II. Application of Article 41 of the Convention

34. 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."

A. Damage

35. The applicant claimed 118,965 euros (EUR) in respect of pecuniary damage. The amount represents the cost of a flat, plus the monetary value of a privatisation voucher, plus the approximate value of social benefits he would have received if he had had residence registration. He also claimed EUR 20,000,000 in respect of non-pecuniary damage.
36. The Government submitted that the claim for pecuniary damage is not related to the complaint declared admissible, while the claim for non-pecuniary damage is excessive.
37. The Court does not discern a causal link between the violation found and the claim for pecuniary damage.
38. The Court further considers that the applicant must have suffered distress and frustration resulting from the refusal of domestic courts to entertain his claims. In these circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated for by a mere finding of a violation. The particular amount claimed is however excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 for non-pecuniary damage, plus any tax that may be chargeable on the above amount.

B. Costs and expenses

39. The applicant claimed EUR 20,700 for his representation. His representative had spent 470 hours on the preparation of the observations and just satisfaction claims, and on the preparation of another related application on the applicant's behalf. The applicant and his representative had agreed that the representative's work would be remunerated at the rate of EUR 44 per hour.
40. The Government submitted that the applicant's claim was not supported by any documents. The applicant had not produced the legal fee agreement or documents showing that he had indeed paid the legal fee.
41. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Moreover, under Rule 60 of the Rules of the Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, "failing which the Chamber may reject the claim in whole or in part". The applicant failed to produce the legal fee agreement to which he referred. Nor did he submit any other documents supporting his claims for legal costs and expenses. The Court therefore rejects the applicant's claim in full.

C. Default interest

42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank,



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