its enforcement. The authorities had not been responsible for the building enterprise's slow construction of the apartment house. As the judgment had been given against the Town Authority, there had been no legal possibility to urge the enterprise to comply with the judgment.
11. The applicant maintained his application. He pointed out that the judgment could have been enforced because in 1999 the Town Authority had suggested that the house would be built in 2000.
The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
12. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, No. 59498/00, ECHR 2002-III). To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what the nature of the award was (see Raylyan v. Russia, No. 22000/03, § 31, 15 February 2007).
13. The Court recalls that its original finding of a violation in respect of non-enforcement of judgments in Russia concerned debts of pecuniary nature (see Burdov, cited above, § 34). This finding was later extended to include debts related to assets, e.g. flats (see, for example, Sladkov v. Russia, No. 13979/03, § 20, 18 December 2008).
14. It would hence appear logical at first sight to read the present case in the light of the aforementioned case-law. There exists, however, one crucial difference that sets the present case apart. The judgment of 24 November 1997 entitled the applicant not to a fungible good, e.g. money or a property of generic characteristics that the State may be expected to have in sufficient supply, but to an individual thing - a flat in a specific apartment house. Since the building enterprise had never completed the construction of the house, there apparently was no way for the bailiffs or the Town Authority to provide the applicant with the flat.
15. In view of these considerations, the Court concludes that there has been no violation of Article 1 of Protocol No. 1.
FOR THESE REASONS, THE COURT
1. Declares the application admissible unanimously;
2. Holds by six votes to one that there has been no violation of Article 1 of Protocol No. 1 of the Convention.
Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Malinverni is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE MALINVERNI
(Translation)
I am unable to join the conclusion reached by my colleagues that there has not been a violation of the Convention in this case.
Admittedly, as correctly stated in the judgment, "since the building enterprise had never completed the construction of the house, there was... no way for the bailiffs or the Town Authority to provide the applicant with the flat" (see paragraph 14).
However, I would like to point out that the building enterprise that had undertaken to build an apartment block was a municipal enterprise and therefore a public one ("enterprise of the Kropotkin Town Authority" - see paragraph 5). That public enterprise had entered into a contractual undertaking with the applicant's military unit. Failure to execute
> 1 2 ... 3 4 5 6
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
