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FIRST SECTION
CASE OF SILCHENKO v. RUSSIA
(Application no. 32786/03)
JUDGMENT
STRASBOURG
28 September 2006
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 Silchenko v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mr L. Loucaides,
Mrs F.
Tulkens,
Mrs N. Vajić,
Mr A.
Kovler,
Mr D. Spielmann,
Mr S.E. Jebens,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 7 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 32786/03)
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
Anatoliy Pavlovich Silchenko (“the applicant”), on 5
September 2003.
- The applicant was represented by Ms M. Voskobitova, a
lawyer practising in Moscow. The Russian Government (“the
Government”) were represented by Mr P. Laptev, the
Representative of the Russian Federation at the European Court of
Human Rights.
- On 22 February 2005 the Court decided to communicate
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1936 and lives in the village
of Mendeleyevo of the Moscow Region. In 1986 he took part
in the emergency operation at the site of the Chernobyl nuclear plant
disaster.
A. Action against the Fund and subsequent enforcement
proceedings
- On 23 December 1999 the Solnechnogorsk Town Court
accepted the applicant's action against the Solnechnogorsk town
branch of the Pension Fund of the Russian Federation (пенсионный
отдел по
городу
Солнечногорску
Пенсионного
Фонда
Российской
Федерации)
(hereafter – the Fund) and awarded him 217,941.58 Russian
roubles (RUR, approximately 8,073 euros) in arrears of monthly
pension for the period between 29 July 1996 and 31 December
1999. The court held that from 1 December 1999 the Fund should
pay the applicant RUR 9,236.05 as his monthly pension and should
subsequently adjust that amount to take account of increases in the
minimum monthly wage.
- The judgment of 23 December 1999 was upheld on appeal
on 24 April 2000 by the Moscow Regional Court.
- Enforcement proceedings were opened, but on 29 May 2001
the Moscow Regional bailiffs' service returned a writ of execution to
the applicant, noting that under the new procedure effective from 22
February 2001 the applicant had to submit the writ to the local
treasury.
- On 16 November 2001 the applicant submitted the writ of
execution to the bailiffs' service. The writ was returned to the
applicant and he was advised again to submit it to the local
treasury.
- According to the Government, the Social Security
Committee of the Solnechnogorsk Town Council asked the applicant to
provide it with the writ of execution with the view to enforcing the
judgment of 23 December 1999. The applicant responded that he did not
have the writ and asked to enforce the judgment.
- On 20 September 2004 the Social Security Committee
asked the Solnechnogorsk Town Court to issue it with a writ of
execution in respect of the judgment of 23 December 1999. The writ
was issued on 26 October 2004.
- On 23 May 2005 the applicant was paid RUR 217,941.58.
B. Proceedings concerning monthly pension payments
- The applicant alleged that the Fund had failed to
enforce the judgment of 23 December 1999 in the part concerning
monthly pension payments and had reduced those payments to RUR
467.54. On 27 February 2000 the applicant had complained to a court
about the Fund's actions.
- On 28 December 2000 the Solnechnogorsk Town Court held
that the Fund's actions had been unlawful and confirmed the operative
part of the judgment of 23 December 1999. The judgment of 28
December 2000 became final on 22 March 2001.
- The Fund, however, continued to underpay the
applicant.
C. Proceedings concerning adjustment of the monthly
pension awarded by the judgment of 23 December 1999
- The applicant sued the Fund seeking an adjustment of
the monthly pension awarded by the judgment of 23 December 1999,
to take account of increases in the minimum monthly wage.
- On 12 March 2001 the Solnechnogorsk Town Court held
that the Fund should adjust the applicant's monthly pension to take
account of increases in the minimum monthly wage. No specific amount
of increase was determined.
- The judgment of 12 March 2001 became final on 14 June
2001 when the Moscow Regional Court upheld it on appeal.
- According to the applicant, the Fund continued to pay
him non-adjusted pension.
D. Proceedings concerning indexation of the awards
under the judgment of 23 December 1999
- The applicant lodged an action seeking an increase of
his monthly pension and payment of arrears which the Fund had not
paid him in breach of the judgment of 23 December 1999. In the
meantime, in June 2002 the Fund began to pay the applicant RUR
22,035.37 in monthly pension.
- On 12 February 2003 the Solnechnogorsk Town Court
awarded the applicant RUR 464,010.80 (EUR 13,620) in arrears of
monthly pension for the period between 1 January 2000 and 31 December
2002. From 1 January 2002 the Fund was to pay the applicant RUR
26,839.08 (EUR 788) as monthly pension. That amount was to be
adjusted to take account of increases in the subsistence level.
- On 12 May 2003 the Moscow Regional Court upheld the
judgment of 12 February 2003 on appeal.
- In August 2003 the Fund began to pay the applicant RUR
26,839.08 in monthly pension.
- On 30 July 2004 the applicant received RUR 464,010.80
in pension arrears under the judgment of 12 February 2003.
E. Proceedings concerning arrears in monthly pension
- In 2003 the applicant sued the Fund, seeking recovery
of arrears in monthly pension. He claimed that the Fund had only
begun to pay him monthly pension in the amount established in the
judgment of 12 February 2003 in August 2003. He also claimed
adjustment of the awarded sum.
- On 23 December 2003 the Solnechnogorsk Town Court
awarded the applicant RUR 37,937.04.
- The judgment of 23 December 2003 was upheld on appeal
on 10 February 2004 and was enforced in full on 27 May 2004.
F. Other proceedings to which the applicant was a party
- Between 2000 and 2002 the applicant sued in tort the
Fund, its officials and the Solnechnogorsk town bailiffs' office.
- The final judgments in the proceedings were issued by
the Moscow Regional Court on 16 April 2001 and 6 June 2002 and by the
Solnechnogorsk Town Court on 2 October 2001.
- On 12 May 2003 the Moscow Regional Court, in the final
instance, dismissed two suits against the Solnechnogorsk town
administration and the Ministry of Justice of the Russian Federation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The applicant complained under Articles 3, 6 and 7 of
the Convention and Article 1 of Protocol No. 1 that the judgment of
23 December 1999, as upheld on appeal on 24 April 2000, the
judgment of 28 December 2000, as upheld on appeal on 22 March 2001,
the judgment of 12 March 2001, as upheld on appeal on 14 June 2001
and the judgment of 12 February 2003, as upheld on appeal on 12 May
2003, had not been enforced in good time. The Court considers that
this complaint falls to be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 (see Burdov
v. Russia, no. 59498/00, § 26, ECHR 2002 III). The
relevant parts of these provisions read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time... 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...”
A. Admissibility
- The Government informed the Court that the
Solnechnogorsk Social Security Service had attempted to secure a
friendly settlement which the applicant had refused to accept.
Referring to that refusal, to the fact that the judgments in the
applicant's favour had been fully enforced, and to the Court's
decision in the case of Aleksentseva and Others v. Russia (nos.
75025/01 et seq., 4 September 2003), the Government invited the Court
to strike the application out of its list of cases, in accordance
with Article 37 of the Convention.
- The applicant disagreed with the Government and
maintained his complaints. He claimed that the Government had not
offered compensation for the loss of value of the judgment debts. The
sums offered had not covered the pecuniary and non-pecuniary damage
he had sustained due to protracted non-enforcement of the judgments.
- The Court firstly observes that the parties were
unable to agree on the terms of a friendly settlement of the case.
Whilst under certain circumstances an application may indeed be
struck out of the Court's list of cases 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, this procedure is not, as such, intended to
circumvent the applicant's opposition to a friendly settlement (see
Tahsin Acar v. Turkey [GC], no. 26307/95, § 76,
ECHR 2003; Aleksentseva and 28 Others v. Russia (dec.), nos.
75025/01, 75026/01 et seq., 23 March 2006; and Androsov v. Russia,
no. 63973/00, § 44, 6 October 2005).
- Moreover, 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.
- On the facts, the Court observes that the Government
failed to submit any formal statement capable of falling into that
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, Akman
v. Turkey (striking out), no. 37453/97, §§ 23-24, ECHR
2001-VI).
- As regards the Government's argument that the
judgments in question have already been enforced, the Court considers
that the mere fact that the authorities complied with the judgments
after a substantial delay cannot be viewed in this case as
automatically depriving the applicant of his victim status under the
Convention (see, e.g., Petrushko v. Russia, no. 36494/02,
§ 16, 24 February 2005).
- In the light of the above considerations, the Court
rejects the Government's request to strike the application out under
Article 37 of the Convention.
- The Court notes that the complaint 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
- The Government argued that the judgments in the
applicant's favour had been fully enforced. The applicant had
contributed to the delay in the enforcement of the judgment of 23
December 1999 because he had failed to follow the instructions of the
bailiffs' service. In any event, the enforcement had been impeded by
the following circumstances: difficulties of budgetary arrangements
between State bodies, scarcity of financial resources and the
complexity of the enforcement proceedings.
- The applicant claimed that he could not be blamed for
the complexity of the enforcement proceedings and delays caused by
frequent changes in the domestic procedure of enforcement.
- The Court observes that on 23 December 1999 the
applicant obtained the judgment by which the Fund, a State body, was
to pay him a lump sum in pension arrears and monthly payments in a
particular amount. The Fund was also to adjust the monthly payments.
The judgment became enforceable on 24 April 2000, when it was upheld
on appeal. On 28 December 2000 and 12 March 2001 the
Solnechnogorsk Town Court issued two judgments, confirming the
operative part of the judgment of 23 December 1999. These
judgments contained a mere restatement of the findings of the same
court of 23 December 1999 and did not change the scope or amount
of the award. Thus, the Court considers it unnecessary to examine
separately whether the judgments of 28 December 2000 and
12 March 2001 had been enforced in good time.
- The parties disagreed on the date when the judgment of
23 December 1999, as upheld on 24 April 2000, had been enforced
in full. The contentious point was the exact date when the Fund had
begun to pay the applicant monthly pension in the amount established
by that judgment. The applicant indicated that it had occurred in
August 2003 and the Government claimed that it had happened earlier,
without specifying the date. The Court does not need to settle that
issue. Irrespective of the date when the applicant began to receive
monthly pension in the amount set in the judgment of 23 December
1999, the lump sum awarded by the same judgment was only paid to him
on 23 May 2005. The parties did not dispute that date. Thus, the
Court considers that the judgment of 23 December 1999, as upheld
on 24 April 2000, was fully enforced on 23 May 2005 when the sum of
the arrears was credited to the applicant's account. It thus remained
unenforced for approximately five years and one month.
- The Court also observes that on 12 February 2003 the
Solnechnogorsk Town Court issued another judgment by which the
applicant was to receive a lump sum in pension arrears and monthly
pension in a particular amount from 1 January 2002. That judgment
became enforceable on 12 May 2003. It was not disputed that in August
2003 the Fund had begun to pay the applicant monthly pension in the
amount established by that judgment. It appears that on 27 May 2004
the Fund paid the applicant pension arrears for the period from 1
January 2002 to August 2003. Finally, the lump sum of pension arrears
awarded by that judgment was credited to the applicant's account on
30 July 2004. Thus the judgment of 12 February 2003, as upheld
on 12 May 2003, was enforced in full on 30 July 2004. It thus
remained unenforced for approximately fifteen months.
- The Court has frequently found violations of Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1 in cases
raising issues similar to the ones in the present case (see Burdov
v. Russia, no. 59498/00, § 19 et seq., ECHR 2002 III;
Gizzatova v. Russia, no. 5124/03, § 19 et seq.,
13 January 2005; Gerasimova v. Russia,
no. 24669/02, § 17 et seq., 13 October 2005).
- Having examined the materials submitted to it, the
Court notes that the Government have not put forward any fact or
argument capable of justifying the delay in enforcement of the
judgment of 23 December 1999, as confirmed by the judgments of
28 December 2000 and 12 March 2001, and the judgment of 12
February 2003. The judgments were not enforced because the debtor did
not have financial recourses. However, the Court reiterates that it
is not open to a State authority to cite the lack of funds, as an
excuse for not honouring a judgment debt (see Plotnikovy v.
Russia, no. 43883/02, § 23, 24 February 2005). The same
principle applies to difficulties experienced by the State
enforcement services and the complexity of the budgetary arrangements
between State bodies (see, for example, Wasserman v. Russia,
no. 15021/02, § 38, 18 November 2004).
- The Court finds that by failing for years to comply
with the enforceable judgments in the applicant's favour the domestic
authorities impaired the essence of his right to a court and
prevented him from receiving the money he had legitimately expected
to receive.
- There has accordingly been a violation of Article 6 of
the Convention and Article 1 of Protocol No. 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant also complained under Articles 6, 7, 13
and 46 of the Convention that the domestic courts had incorrectly
applied the law and assessed the facts and that the outcome of the
proceedings which ended with the final judgments of 16 April and 2
October 2001, 6 June 2002 and 12 May 2003 was unfair. In his
observations of 31 August 2005 he also, for the first time,
complained about non-enforcement of the judgment of 23 December
2003. However, having regard to all the materials in its possession,
and in so far as these complaints fall within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The applicant claimed 791,177.40 Russian roubles (RUR)
in respect of pecuniary damage, of which RUR 330,760.93 represented
the judgment debts adjusted for the inflation rate from 2000 to 2005
and RUR 460,416.47 represented the penalty at the marginal interest
rate of the Russian Central Bank in the same period. The applicant
also claimed compensation in respect of non-pecuniary damage, leaving
determination of the sum to be awarded to the discretion of the
Court.
- The Government argued that the applicant did not wish
to receive just satisfaction as he had turned down the
friendly-settlement offer. They insisted that the application should
be struck out.
- The Court does not consider it necessary to address
the Government's request to strike the application out of the list of
cases as it has already been examined and dismissed (see paragraphs
35-38 above).
- The Court reiterates that in the present case it has
found a violation of Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 in that the awards in the applicant's favour had
not been paid to him in good time. It recalls that the adequacy of
the compensation would be diminished if it were to be paid without
reference to various circumstances liable to reduce its value, such
as an extended delay in enforcement (see Gizzatova
v. Russia, no. 5124/03, § 28, 13 January 2005;
Metaxas v. Greece, no. 8415/02, § 36, 27 May
2004). Having regard to the materials in its possession and the fact
that the Government did not furnish any objection to the applicant's
method of calculation of compensation, the Court awards the applicant
EUR 13,000 in respect of pecuniary damage, plus any tax that may be
chargeable.
- The Court further considers that the applicant must
have suffered distress and frustration resulting from the State
authorities' failure to enforce the judgments in his favour. The
Court takes into account the relevant aspects, such as the length of
the enforcement proceedings and the nature of the awards, and making
its assessment on an equitable basis, awards the applicant EUR 4,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The applicant also claimed EUR 600 for the costs and
expenses incurred before the Court.
- The Government did not comment.
- 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 were reasonable as to quantum. In the present case, the
applicant did not submit any materials to substantiate his claim.
Thus the Court rejects the claim for costs and expenses.
C. Default interest
- 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
- Declares the complaint concerning the delay in
enforcement of the judgment of 23 December 1999, as upheld on
appeal on 24 April 2000, the judgment of 28 December 2000, as upheld
on appeal on 22 March 2001, the judgment of 12 March 2001, as upheld
on appeal on 14 June 2001 and the judgment of 12 February 2003, as
upheld on appeal on 12 May 2003, admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1;
- 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 the settlement:
(i) EUR 13,000 (thirteen thousand euros) in respect of the pecuniary
damage;
(ii) EUR 4,000 (four thousand euros) in respect of non-pecuniary
damage;
(iii) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 28 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
