Постановление Европейского суда по правам человека от 17.09.2009 «Дело Бородкин (Borodkin) против России» [англ.]

Convention

21. 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

22. The applicant claimed 90,000 United States dollars (USD) in respect of pecuniary damage and USD 50,000 in respect of non-pecuniary damage.
23. The Government submitted that no award should be made under Article 41 since the applicant's rights had not been violated. They challenged the claim in respect of pecuniary damage as unfounded and reiterated that in 2003 the applicant had already received 18,538.20 Russian roubles (RUB). They submitted that the claim for non-pecuniary damage was excessive.
24. With regard to pecuniary damage, the Court considers that the violation found is best redressed by putting the applicant in the position he would have been if the Convention had been respected. It is therefore appropriate to award the applicant the equivalent in euros of the sum that he would have received if the judgment of 30 June 2003 had not been quashed (see Bolyukh v. Russia, No. 19134/05, § 39, 31 July 2007). The Court awards EUR 3,382 under this head, plus any tax that may be chargeable.
25. The Court further considers that the applicant suffered distress and frustration because of the supervisory review of the judgment. Making its assessment on an equitable basis, it awards the applicant 2,000 euros (EUR) in respect of non-pecuniary damage and dismisses the remainder of the applicant's claims for just satisfaction.

B. Costs and expenses

26. The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head.

C. Default interest

27. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 1 of Protocol No. 1 concerning the quashing of the final judgment in the applicant's favour admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 3,382 (three thousand three hundred and eighty-two euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 17 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar

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