Постановление Европейского суда по правам человека от 12.02.2009 «Дело Нолан (Nolan) и K. против России» [англ.]

plus any tax that may be chargeable to him.

C. Default interest

124. 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

1. Holds by six votes to one that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit the document requested by the Court;
2. Holds unanimously that there has been a violation of Article 9 of the Convention;
3. Holds unanimously that it is not necessary to examine the complaint under Article 14 of the Convention, taken in conjunction with Article 9;
4. Holds unanimously that there has been a violation of Article 8 of the Convention in respect of the applicant and his son;
5. Holds unanimously that there has been a violation of Article 5 § 1 of the Convention;
6. Holds unanimously that it is not necessary to examine the complaint under Article 5 § 4 of the Convention;
7. Holds unanimously that there has been a violation of Article 5 § 5 of the Convention;
8. Holds by six votes to one that there has been a violation of Article 1 of Protocol No. 7 to the Convention;
9. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 810 (eight hundred and ten euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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.
10. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 12 February 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 partly dissenting opinion of Judge Kovler is annexed to this judgment.

C.L.R

S.N.

PARTLY DISSENTING OPINION OF JUDGE KOVLER

I share with some hesitation the conclusions of the Court concerning the alleged violations of Articles 9 and 8 and Article 5 § 1, as well as some of its other conclusions, but I am strongly opposed to the conclusions on the Article 38 and Article 1 of Protocol No. 7 issues.
The conclusion that there was a breach of Article 38 § 1 of the Convention is based on a very broad interpretation of the phrase "... the State concerned shall furnish all necessary facilities" in this Article. I would observe that in the recent Grand Chamber judgment Stoll v. Switzerland the Court accepted the idea of "a necessary discretion" for some confidential official documents of the member States (see Stoll v. Switzerland [GC], No. 69698/01, § 136, ECHR 2007-) and the need to preserve it. The document requested by the Court in the present case was the report of the Federal Security Service dated 18 February 2002 containing the factual grounds for the applicant's expulsion from Russia (see details in paragraph 51 of the judgment). The Court notes itself that the report was examined in the domestic proceedings and the applicant's representative in those proceedings was allowed to take cognisance of it

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