FIRST SECTION
CASE OF ANDROSOV v.
RUSSIA
(Application no. 63973/00)
JUDGMENT
STRASBOURG
6 October 2005
This
judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Androsov v.
Russia,
The European Court of Human Rights (First
Section), sitting as a Chamber composed of:
Mr C.L.
Rozakis,
President,
Mr P.
Lorenzen,
Mrs N.
Vajić,
Mrs S.
Botoucharova,
Mr A.
Kovler,
Mrs E.
Steiner,
Mr K.
Hajiyev,
judges,
and Mr S.
Quesada,
Deputy Section
Registrar,
Having deliberated in private on 15 September
2005,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an application (no.
63973/00) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Nikolay Fedorovich
Androsov (“the applicant”), on 1 August 2000.
2. The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the Russian Federation at
the European Court of Human Rights.
3. The applicant alleged that non-enforcement
of a court judgment in his favour against the State and its subsequent quashing
by way of supervisory review were incompatible with Article 6 of the Convention
and Article 1 of Protocol No. 1. The applicant also complained that the
proceedings in his case lasted too long.
4. The application was allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
5. By a decision of 16 December 2003 the Court
declared the application admissible.
6. The Chamber having decided, after
consulting the parties, that no hearing on the merits was required (Rule 59 § 3
in fine),
the parties replied in writing to each other’s observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1948 and lives in
Zenzeli village, the Limanskiy District of the Astrakhan Region.
8. In 1986 the applicant took part in the
emergency operations at the site of the Chernobyl nuclear plant disaster. As a
result the applicant suffered from extensive exposure to radioactive emissions.
In 1996 and 1997 the applicant underwent medical examinations which established
the link between the applicant’s poor health and his involvement in the
Chernobyl events. The applicant was awarded compensation, to be paid monthly.
1. Initial proceedings
9. In 1999 the applicant brought proceedings
against the Welfare Office of the Limanskiy District of the Astrakhan Region (Отдел
социальной защиты населения Лиманского района Астраханской области - “the
defendant”) for an increase in the compensation, for backdating the increase and
recovering of the unpaid amount. The applicant considered that the amount of
compensation had been determined incorrectly.
10. On 3 November 1999 the Limanskiy District
Court of the Astrakhan Region established, upholding the applicant’s claim, that
the applicant was entitled to a monthly compensation of 5,045.73 roubles (RUR).
The court established that the debt accrued as a result of previous underpayment
was RUR 108,892.07. It also awarded the applicant RUR 60,000.00
as a penalty payment.
11. By a decision of 14 December 1999 the
Astrakhan Regional Court, acting on appeal, upheld the judgment as to the amount
of the monthly payment and the principal debt, but reversed the penalty award.
The judgment entered into force and enforcement proceedings were instituted.
Both parties lodged requests for supervisory review of the courts’ decisions.
2. Enforcement proceedings and the parties’
attempts to re-open the case by way of supervisory review
12. On 17 March 2000 the Astrakhan Regional
Court stayed the enforcement proceedings, pending the consideration of the
defendant’s request for supervisory review.
13. The defendant’s request for supervisory
review was refused by the Supreme Court of the Russian Federation on 13 April
2000.
14. On 22 May 2000 the Limanskiy District Court
of the Astrakhan Region resumed the enforcement proceedings.
15. By a decision of 15 August 2000 the
President of the Astrakhan Regional Court refused the applicant’s request for
supervisory review.
16. On 15 September 2000 the Limanskiy District
Court of the Astrakhan Region granted a request by the Astrakhan Regional Office
for Welfare Payments (Астраханский
областной
центр по начислению и выплате пенсий и пособий) to suspend the
enforcement proceedings. The enforcement was stayed until 1 December 2000 to
allow the authorities to “decide how to finance the court awards involving the
recalculation of compensation to the victims of the Chernobyl catastrophe”.
17. On 17 October 2000 the Supreme Court of the
Russian Federation refused the applicant’s request for supervisory review of the
suspension order.
3. Supervisory review proceedings
18. On an unspecified date, following a request
made by the Astrakhan Regional Office for Welfare Payments, the President of the
Astrakhan Regional Court brought an extraordinary appeal against the judgments
of 3 November 1999 and 14 December 1999.
19. On 27 December 2000 the Presidium of the
Astrakhan Regional Court examined the appeal and quashed both the judgment of
the Limanskiy District Court of the Astrakhan Region dated 3 November 1999 and
the judgment of the Astrakhan Regional Court dated 14 December 1999. The
Presidium decided that the subordinate courts had wrongly determined the amount
of monthly compensation. In particular, they had based all the calculations on
the applicant’s salary as of October 1986. The Presidium held that the
calculations should have been based on the applicant’s average earnings over the
12 months prior to the date on which the medical examination had established his
disability. The case was remitted to the same District Court for a fresh
examination.
20. On 27 February 2001 the Supreme Court of
the Russian Federation, in response to the applicant’s complaint, refused to
conduct a supervisory review of the decision of 27 December 2000.
4. Post-supervisory review proceedings and a
fresh determination of the applicant’s case
21. By a judgment of 23 April 2001 the
Limanskiy District Court of the Astrakhan Region, acting as a first instance
court, awarded the applicant the monthly payment of RUR 3,336.99 and established
that the debt accrued was RUR 114,466.01. No penalty was awarded.
22. On 24 July 2001 the Astrakhan Regional
Court acting as an appeal instance reversed the judgment of the Limanskiy
District Court of the Astrakhan Region of 23 April 2001. It pointed out that the
District Court had applied the calculation mode incorrectly and that the amounts
due had to be recalculated. The case was remitted to the same District Court for
a new decision.
23. On 23 September 2002 the applicant filed a
complaint with the Astrakhan Regional Court concerning the length of proceedings.
He complained in particular that no decision had been taken in his case since
24 July 2001.
24. In reply dated 27 September 2002, the
applicant was informed that on 22 November 2001, on his request, the proceedings
had been stayed pending the Constitutional Court’s decision in a similar case.
He was informed that the proceedings had been resumed after the Constitutional
Court’s ruling of 19 June 2002, and that a hearing had been fixed for 7 October
2002. He was also informed that the hearings had not been fixed until 2
September 2002 on the applicant’s request due to his counsel’s absence.
25. On 4 November 2002 the Limanskiy District
Court of the Astrakhan Region decided that the compensation payable to the
applicant by the welfare authorities was RUR 45,640.94. The applicant was also
awarded legal costs of RUR 1,300 and non-pecuniary damages of RUR 5,000.
26. The applicant appealed against this
decision. He challenged the principal amount, the amount of non-pecuniary
damages and the refusal of the penalty.
27. By an appeal decision of 14 January 2003
the Astrakhan Regional Court reversed the first instance judgment and remitted
the case for fresh examination by the same court.
28. On 3 March 2003 the Limanskiy District
Court of the Astrakhan Region awarded the applicant RUR 235,210.32 of the
principal debt, future monthly payments of RUR 4,727.96 and the legal costs of
RUR 500.
29. Both parties appealed against this judgment.
30. On 29 April 2003 the Astrakhan Regional
Court upheld the first instance judgment.
31. On 5 August 2003 the awarded sums were
transferred to the applicant’s bank account.
II. RELEVANT DOMESTIC LAW
1. Execution of a judgment
32. Section 9 of the Federal Law on Enforcement
Proceedings of 21 July 1997 provides that a bailiff’s order on the institution
of enforcement proceedings must fix a time-limit for the defendant’s voluntary
compliance with a writ of execution. The time-limit may not exceed five days.
The bailiff must also warn the defendant that coercive action will follow,
should the defendant fail to comply with the time-limit.
33. Under Section 13 of the Law, the
enforcement proceedings should be completed within two months of the receipt of
the writ of enforcement by the bailiff.
2. Supervisory review (Пересмотр в порядке
судебного надзора)
34. Under the Code of Civil Procedure of 1964,
which was in force at the material time, judgments became final as follows:
Article 208. Coming into force of judgments
“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. If the judgment is not quashed following a cassation appeal, it
shall become legally binding when the higher court delivers its decision...”
35. The only further means of recourse was the
special supervisory-review procedure that enabled courts to reopen final
judgments:
Article 319. Judgments, decisions and rulings
amenable to supervisory review
“Final judgments, decisions and rulings of all Russian
courts shall be amenable to supervisory review on an application lodged by the
officials listed in Article 320 of the Code.”
36. The power of officials to lodge an
application (protest)
depended on their rank and territorial jurisdiction:
Article 320. Officials who may initiate
supervisory review
“Applications may be lodged by:
1. The Prosecutor General – against judgments, decisions
and rulings of any court;
2. The President of the Supreme Court – against rulings
of the Presidium of the Supreme Court and judgments and decisions of the Civil
Chamber of the Supreme Court acting as a court of first instance;
3. Deputy Prosecutors General – against judgments,
decisions and rulings of any court other than rulings of the Presidium of the
Supreme Court;
4. Vice-Presidents of the Supreme Court – against
judgments and decisions of the Civil Chamber of the Supreme Court acting as a
court of first instance;
5. The Prosecutor General, Deputy Prosecutor General, the
President and Vice-Presidents of the Supreme Court – against judgments,
decisions and rulings of any court other than rulings of the Presidium of the
Supreme Court;
6. The President of the Supreme Court of an autonomous
republic, regional court, city court, court of an autonomous region or court of
an autonomous district, the Public Prosecutor of an autonomous republic, region,
city, autonomous region or an autonomous district – against judgments and
decisions of district (city) people’s courts and against decisions of civil
chambers of, respectively, the Supreme Court of an autonomous republic, regional
court, city court, court of an autonomous region or court of an autonomous
district that examined the case on appeal.”
37. The power to lodge such applications was
discretionary, that is to say it was solely for the official concerned to decide
whether or not a particular case warranted supervisory review.
38. Under Article 322 officials listed in
Article 320 who considered that a case deserved closer examination could, in
certain circumstances, obtain the case file in order to establish whether good
grounds for lodging an application existed.
39. Article 323 of the Code empowered the
relevant officials to stay the execution of the judgment, decision or ruling in
question until the supervisory review proceedings had been completed.
40. Courts hearing applications for supervisory
review had extensive jurisdiction in respect of final judgments:
Article 329. Powers of supervisory-review court
“The court that examines an application for supervisory
review may:
1. Uphold the judgment, decision or ruling and dismiss
the application;
2. Quash all or part of the judgment, decision or ruling
and order a fresh examination of the case at first or cassation instance;
3. Quash all or part of the judgment, decision or ruling
and terminate the proceedings or leave the claim undecided;
4. Uphold any of the previous judgments, decisions or
rulings in the case;
5. Quash or vary the judgment of the court of first or
cassation instance or of a court that has carried out supervisory review and
deliver a new judgment without remitting the case for re-examination if
substantive laws have been erroneously construed and applied.”
41. The grounds for setting aside final judgments were as
follows:
Article 330. Grounds for setting aside judgments
on supervisory review
“...
1. wrongful application or interpretation of substantive
laws;
2. significant breach of procedural rules which led to
delivery of unlawful judgment, decision or ruling...”
41. There was no time-limit for lodging an
application for supervisory review, and, in principle, such applications could
be lodged at any time after a judgment had become final.
THE LAW
I. THE GOVERNMENT’S REQUEST TO STRIKE OUT
THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
42. The Government, in their additional observations of
17 February 2004 following the Court’s decision as to the admissibility of the
application on 16 December 2003, informed the Court of the applicant’s refusal
to accept the settlement of the case on the terms proposed by the Government. By
reference to this refusal, the Government invited the Court to strike out the
application, in accordance with Article 37 of the Convention.
43. The applicant, in his written reply of 24 March
2004, asked the Court to reject the Government’s motion. In particular, he
disagreed with the calculations presented and used by the Government and also
noted that in any event the respective offer did not cover all his complaints.
44. The Court observes at the outset that the parties
were unable to agree on the terms of a friendly settlement of the case. The
Court recalls that under certain circumstances an application may indeed be
struck out under Article 37 § 1 (c) of the Convention on the basis of a
unilateral declaration by the respondent Government even if the applicant wishes
the examination of the case to be continued (see
Tahsin Acar v. Turkey
[GC],
no. 26307/95, § 76, ECHR 2003-...). It notes, however, that this procedure is an
exceptional one and is not, as such, intended to circumvent the applicant’s
opposition to a friendly settlement.
45. Furthermore, the Court observes that a distinction
must be drawn between, on the one hand, declarations made in the context of
strictly confidential friendly-settlement proceedings (Article 38 § 2 of the
Convention and Rule 62 § 2 of the Rules of Court) and, on the other hand,
unilateral declarations made by a respondent Government in public and
adversarial proceedings before the Court.
46. On the facts, the Court observes that the Government
failed to submit with the Court any formal statement capable of falling into the
latter category and offering a sufficient basis for finding that respect for
human rights as defined in the Convention does not require the Court to continue
its examination of the case (see, by contrast, to
Akman v. Turkey
(striking out), no. 37453/97, §§ 23-24, ECHR 2001-VI).
47. This being so, the Court rejects the Government’s
request to strike the application out under Article 37 of the Convention and
will accordingly pursue its examination of the merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 IN RESPECT OF NON-EXECUTION OF THE
FINAL JUDGMENT IN THE APPLICANT’S FAVOUR
48. The applicant complained that the failure
on the part of domestic authorities to enforce the final judgment taken by the
Astrakhan Regional Court on 14 December 1999 violated his right to a fair trial
guaranteed by Article 6 § 1 of the Convention and his right to a peaceful
enjoyment of possessions under Article 1 of Protocol No. 1. These Articles, in
so far as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties.”
A. Arguments of the parties
49. The Government stated that the enforcement
proceedings could not be pursued in the absence of a final judgment. They made
no comments as to the non-execution of the judgment which entered into force
on 14 December 1999.
50. The applicant contended that there had been
a final and enforceable judgment in his case between 14 December 1999 and 27
December 2000 when this judgment was quashed.
B. The Court’s assessment
1. Article 6 § 1 of the Convention
51. The Court reiterates that Article 6 § 1
secures to everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it embodies the
“right to a court”, of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect. However,
that right would be illusory if a Contracting State’s domestic legal system
allowed a final, binding judicial decision to remain inoperative to the
detriment of one party. It would be inconceivable that Article 6 § 1 should
describe in detail the procedural guarantees afforded to litigants – proceedings
that are fair, public and expeditious – without protecting the implementation of
judicial decisions; to construe Article 6 as being concerned exclusively with
access to a court and the conduct of proceedings would be likely to lead to
situations incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the Convention.
Execution of a judgment given by any court must therefore be regarded as an
integral part of the “trial” for the purposes of Article 6 (see
Burdov v. Russia,
no. 59498/00, § 34, ECHR 2002-III, and
Hornsby v. Greece, judgment of 19 March 1997,
Reports
1997-II, p. 510, § 40).
52. The Court further observes that a delay in
the execution of a judgment may be justified in particular circumstances, but
the delay may not be such as to impair the essence of the right protected under
Article 6 § 1. The applicant should not be prevented from benefiting from the
success of the litigation on the ground of alleged financial difficulties
experienced by the State (see
Burdov v. Russia,
cited above, § 35).
53. Turning to the instant case, the Court
notes that the judgment of 3 November 1999 remained inoperative, that is between
the date of its entry into force on 14 December 1999 and the supervisory review
decision of 27 December 2000, in total a year and twelve days. No justification
was advanced by the Government for this delay. Taking into account what was at
stake for the applicant, the Court considers that by failing for such a
substantial period of time to take the necessary measures to comply with the
final judicial decisions in the present case, the Russian authorities deprived
the provisions of Article 6 § 1 of their useful effect.
54. There has accordingly been a violation of
Article 6 § 1 of the Convention.
2. Article 1 of Protocol No. 1 to the Convention
55. The Court reiterates that a “claim” can
constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if
it is sufficiently established to be enforceable (see
Burdov v. Russia,
cited above, § 40, and
Stran Greek
Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994,
Series A no. 301-B, p. 84, § 59). The judgment of 3 November 1999, as upheld on
14 December 1999, provided the applicant with an enforceable claim and not
simply a general right to receive support from the State. The judgment had
become final as no ordinary appeal was made against it, and enforcement
proceedings had been instituted. It follows that the impossibility for the
applicant to have this judgment enforced for a substantial period of time
constituted an interference with his right to peaceful enjoyment of his
possessions, as set forth in the first sentence of the first paragraph of
Article 1 of Protocol No. 1.
56. Not having found any justification for such
an interference (see paragraph 53 above), the Court concludes that there has
been a violation of Article 1 of Protocol No. 1 to the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 IN RESPECT OF THE SUPERVISORY REVIEW
CONDUCTED IN THE APPLICANT’S CASE
57. The applicant also complained that the quashing of
the final judgment in his favour by the Presidium of the Astrakhan Regional
Court on 27 December 2000 violated his right to a fair trial guaranteed by
Article 6 § 1 of the Convention and his right to the peaceful enjoyment of his
possessions guaranteed by Article 1 of Protocol No. 1 to the Convention.
A. Arguments of the parties
58. The Government alleged that the judgment
was quashed by the Presidium of the Astrakhan Regional Court for the applicant’s
benefit. They contended that the judgment of 14 December 1999 was reversed with
a view to correct a judicial error which had “influenced the extent of the
compensation to be awarded to [the applicant] and, as a consequence, violated
his right to a fair trial”. The Government argued, in addition, that the
applicant’s right to compensation had never been contested. The remittance of
the case for a new examination was aimed at ensuring the applicant’s right to
fair trial and his right to peaceful enjoyment of his possessions.
59. The Government also referred to the fact
that the applicant’s dispute about his allowance increase was a part of a
complex general problem caused by the vagueness of the Law “On Social Protection
of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power
Station Explosion”. The ambiguity had to be eliminated by reference to the
Constitutional Court, which clarified the matter by its ruling of 19 June 2002.
All similar disputes were resolved in accordance with this ruling thereafter.
60. The applicant contested the Government’s
allegation that the quashing had been for his benefit. He claimed that the
principal debt and the monthly payments payable under the 14 December 1999
decision satisfied him, and he only had sought supervisory review to claim
penalty. He recalled that his petition had been refused, before the opposite
request solicited by the State authorities had been granted. He also insisted
that the calculation method used in the second set of proceedings had been
incorrect and less advantageous to him, while the one used before quashing had
yielded the right result.
B. The Court’s assessment
1. Article 6 of the Convention
61. The Court first notes that the dispute as
to the increase of the applicant’s social payments in connection with his
disability and participation in the emergency operations at the site of the
Chernobyl nuclear plant disaster was of a pecuniary nature and indisputably
concerned a civil right within the meaning of Article 6 § 1 of the Convention
(see
Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no.
263, p. 17, § 46;
Massa v.
Italy, judgment of 24 August 1993, Series A no. 265-B, p. 20, § 26;
Süßmann v.
Germany, judgment of 16 September 1996,
Reports of
Judgments and Decisions 1996-IV, p. 1170, § 42 and, as a recent
authority,
Tričković v. Slovenia, no. 39914/98, § 40, 12 June 2001).
62. The Court observes that the issue of the present
case is whether the supervisory review procedure permitting a final judgment to
be quashed can be considered compatible with Article 6 and, more specifically,
whether on the facts of the present case the principle of legal certainty was
respected.
63. The Court finds that this case is similar
to the case of
Ryabykh v.
Russia (no. 52854/99, ECHR 2003-IX), where it was said, in so far as
relevant to the instant case:
“51. ... the Court reiterates that the right to a fair
hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must
be interpreted in the light of the Preamble to the Convention, which declares,
in its relevant part, the rule of law to be part of the common heritage of the
Contracting States. One of the fundamental aspects of the rule of law is the
principle of legal certainty, which requires, among other things, that where the
courts have finally determined an issue, their ruling should not be called into
question...
54. The Court notes that the supervisory review of the
judgment ... was set in motion by the President of the Belgorod Regional Court –
who was not party to the proceedings ... As with the situation under Romanian
law examined in Brumărescu, the exercise of this power by the President was not
subject to any time-limit, so that judgments were liable to challenge
indefinitely.
55. The Court reiterates that Article 6 § 1 secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way it embodies the
“right to a court”, of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect. However,
that right would be illusory if a Contracting State’s domestic legal system
allowed a final, binding judicial decision to remain inoperative to the
detriment of one party. It would be inconceivable that Article 6 § 1 should
describe in detail procedural guarantees afforded to litigants – proceedings
that are fair, public and expeditious – without protecting the implementation of
judicial decisions; to construe Article 6 as being concerned exclusively with
access to a court and the conduct of proceedings would be likely to lead to
situations incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the Convention (see
Hornsby v. Greece,
judgment of 19 March 1997,
Reports of Judgments
and Decisions 1997-II, p. 510, § 40).
56. The Court considers that the right of a litigant to
a court would be equally illusory if a Contracting State’s legal system allowed
a judicial decision which had become final and binding to be quashed by a higher
court on an application made by a State official.”
64. Furthermore, the Court has found in this
respect in its above-mentioned judgment
Sovtransavto
Holding v. Ukraine, § 77:
“...judicial systems characterised by the objection (protest)
procedure and, therefore, by the risk of final judgments being set aside
repeatedly, as occurred in the instant case, are, as such, incompatible with the
principle of legal certainty that is one of the fundamental aspects of the rule
of law for the purposes of Article 6 § 1 of the Convention, read in the light of
Brumărescu
...”
65. Turning to the facts of the present case,
the Court notes that on an unspecified date in 2000 the President of the
Astrakhan Regional Court lodged a protest against the judgments of 3 November
and 14 December 1999 in the applicant’s favour that had become final and binding,
and in respect of which enforcement proceedings had been commenced.
On 27 December 2000 the Presidium of the Astrakhan Regional Court quashed the
judgment of 3 November 1999 and the decision
of 14 December 1999 as erroneous and remitted the case for a fresh consideration
at first instance.
66. The Court does not find any reason for
departing from its aforementioned judgments and considers that there has been a
violation of Article 6 § 1 in respect of the quashing of the final and binding
judgment given in the applicant’s case.
2. Article 1 of Protocol No. 1 to the Convention
67. The Court reiterates first that the
Convention does not guarantee, as such, the right to an old-age pension or any
social benefit in a particular amount (see, for example,
Aunola v.
Finland (dec.), no. 30517/96,
15 March 2001). However a “claim” - even concerning a pension or a social
benefit - can constitute a “possession” within the meaning of Article 1 of
Protocol No. 1 if it is sufficiently established to be enforceable (see
Stran Greek
Refineries v. Greece, judgment of 9 December 1994, Series A no. 301, §
59).
68. The judgment of the Limanskiy District
Court of 3 November 1999 as upheld by the Astrakhan Regional Court on 14
December 1999 provided the applicant with an enforceable claim to receive an
increased monthly compensation of RUR 5,045.73 and the arrears of RUR
108,892.07. This judgment became final after it had been upheld on appeal.
69. The Court finds that as a result of the
decision of the Astrakhan Regional Court of 27 December 2000 and subsequent
proceedings reducing the amount of the applicant’s initial award constituted an
interference with the applicant’s right to the peaceful enjoyment of possessions
guaranteed by Article 1 of Protocol No. 1 (see
Brumărescu v.
Romania [GC],
no. 28342/95, § 77, ECHR 1999-VII and
Pravednaya
v. Russia,
no. 69529/01, §§ 38-39, 18 November 2004).
70. While the Court accepts
that this measure was lawful and pursued the public interest (such as, for
example, a harmonisation of the Chernobyl welfare payments),
its compliance with the requirement of proportionality is questionable.
71. In particular, while it
is true that recalculation of one’s social benefit and its decrease do
not, as such, violate Article 1 of Protocol No. 1 (Skorkiewicz
v Poland (dec.), no. 39860/98, 1 June 1998), backdating the recalculation
with the effect that the awarded sums already transferred (or overdue) are
reduced involves an individual and excessive burden for the applicant and is
thus incompatible with Article 1 of the Protocol.
In this respect, the Court
recalls the aforementioned
Pravednaya judgment, where, in respect of a somewhat similar set of
facts, it was said:
“40. ... The “public interest” may admittedly include
an efficient and harmonised State pension scheme, for the sake of which the
State may adjust its legislation.
41. However, the State’s possible interest in ensuring a
uniform application of the Pensions Law should not have brought about the
retrospective recalculation of the judicial award already made. The Court
considers that by depriving the applicant of the right to benefit from the
pension in the amount secured in a final judgment, the State upset a fair
balance between the interests at stake (see,
mutatis mutandis
Pressos Compania
Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series
A no. 332, § 43).”
72. The Court does not find any reason to
depart from its conclusions in that judgment and finds that there has been a
violation of Article 1 of Protocol No. 1 in the present case too.
IV. ALLEGED VIOLATION OF ARTICLE 6 IN
RESPECT OF THE OVERALL LENGTH OF PROCEEDINGS
73. The applicant further complained that the
overall length of civil proceedings in his case exceeded the reasonable time in
breach of Article 6 § 1 of the Convention.
“In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
A. Arguments of the parties
74. The Government submitted that the overall
length of proceedings in the present case had not been excessively long given
the complexity of the case. In support of their statement they referred to the
proceedings before the Constitutional Court the opinion of which had to be
sought to resolve ambiguity of the interpretation of the legislation applicable
in the dispute. They acknowledged no periods of inactivity attributable in the
authorities dealing with the applicant’s case. They stated that on 22 November
2002, following the applicant’s request, the proceedings were stayed pending the
Constitutional Court’s ruling relevant to his dispute. After it was pronounced
on 19 June 2002 the proceedings were resumed. No hearing was scheduled before 2
September 2002, as the applicant notified the court of his counsel’s absence.
Thereafter the hearings were conducted without undue intervals, and the case was
finally resolved on 29 April 2003. The Government also contended that the
applicant had contributed to the length of proceedings by repeatedly changing
his claim and putting forward claims “which in the set contradict the
legislation”.
75. The applicant maintained that the
proceedings had not been expeditious enough. He contested the statement that he
had been repeatedly changing his claim and explained that he only had updated
the calculations to add up the arrears accruing during the proceedings. He also
alleged that the Government’s reference to the complexity of the case was
unsubstantiated.
B. The Court’s assessment
76. Having regard to the
conclusions reached in paragraphs 54 and 56 above, the Court does not consider
it necessary to examine the complaint about the overall length of proceedings
separately.
V. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
77. 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
78. The applicant claimed RUR 732,697.03 as a
principal debt (the sum representing an underpayment for the period between 1
August 1996 and 1 February 2004), RUR 25,605.37 as the amount of underpayment
in respect of monthly payments starting from 1 February 2004,
RUR 3,736,931.57 as penalty payments and RUR 2,000,000 in respect of
non-pecuniary damage.
79. The Government considered this claim to be
excessive, unreasonable and unsubstantiated.
80. The Court does not discern any causal link between
the violations found and the extensive pecuniary damage alleged. However, in
respect of the violation of Article 1 of Protocol No. 1 by the supervisory
review procedure conducted in the applicant’s case, the Court considers it
appropriate to award the applicant EUR 853 representing the sum the applicant
would have received, had the reduction of the award ordered by the judgment of 3
March 2003, as upheld by the decision of 29 April 2003, not been backdated, plus
any tax that may be chargeable on that amount.
81. As regards the non-pecuniary damage, the Court finds
that the applicant has suffered some non-pecuniary damage as a result of the
violations found which cannot be made good by the Court’s mere finding of a
violation. Nevertheless, the amount claimed is excessive.
82. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the applicant the sum
of EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be
chargeable on the above amount.
B. Costs and expenses
83. The applicant claimed RUR 1,339.50 in
respect of postal expenses, RUR 541.18 in respect paid fax services, RUR 500 in
respect of legal costs and RUR 2,000 in respect of translation services.
84. The Government did not submit any comments on the
applicant’s claims.
85. According to the Court’s case-law, an applicant is
entitled to reimbursement of the costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and were
reasonable as to quantum. Regard being had to the information in its possession
and the above criteria, the Court finds it appropriate to grant the applicant
EUR 50 in respect of costs and expenses, plus any tax that may be chargeable on
the above amount.
C. Default interest
86. 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. Rejects
the Government’s request to strike the application out under Article 37 of the
Convention;
2. Holds
that there has been a violation of Article 6 of the Convention and Article 1 of
Protocol No. 1 in respect of the delay in enforcement of the final judgment in
the applicant’s favour;
3. Holds
that there has been a violation of Article 6 of the Convention and Article 1 of
Protocol No. 1 in respect of the supervisory review of the final judgment in the
applicant’s favour;
4. Holds
that there is no need to examine the complaint about the overall length of
proceedings under Article 6 of the Convention;
5. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes final
according to 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 853 (eight hundred fifty-three euros) in
respect of pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros)
in respect of
non-pecuniary damage;
(iii) EUR 50 (fifty euros) in respect of costs and
expenses;
(iv) any tax that may be chargeable on the above
amounts;
(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;
6. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6
October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Christos
Rozakis
Deputy Registrar President
