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FIRST
SECTION
CASE OF NAYDENKOV v. RUSSIA
(Application
no. 43282/02)
JUDGMENT
STRASBOURG
7 June
2007
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 Naydenkov 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 N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43282/02) 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 Mikhail Igorevich
Naydenkov (“the applicant”), on 30 September 2002. He was
represented before the Court by Mr K.P. Krakovskiy, a lawyer
practising in the town of Rostov-na-Donu.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- On
4 February 2004 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 1966 and lives in the town of Taganrog, the
Rostov Region.
- In
the 1980s the applicant took part in a rescue operation on the site
of the Chernobyl nuclear disaster. As of the late 1990s the applicant
has been in receipt of social benefits in this connection.
A. First set of proceedings
- On
1 December 1998 the Taganrog Town Court (“the Town Court”)
granted the applicant's claim for unpaid social benefits and ordered
the pension authority to make him monthly payments of 1,850.55
Russian roubles (RUR
approximately 69 euros (EUR)) and a one-time payment of RUR 32,457
(approximately EUR 1,210). This judgment came into force on 17 April
1999. The sums due pursuant to the judgment of 1 December 1998 were
paid in full on 8 May 2002.
B. Second set of proceedings
- By
a judgment of 4 October 1999 the Town Court granted the applicant's
claim for other unpaid social benefits and ordered the authority to
pay him RUR 1,850.55 (approximately EUR 69) monthly and also to make
him a one-time payment of RUR 85,650 (approximately EUR 3,172).
- It
appears that the judgment was not appealed against by the parties and
came into force on 14 October 1999. The respective award was paid in
full on 8 May 2002.
C. Third set of proceedings
- On
29 August 2000 the Town Court examined and granted the applicant's
claim to index-link the social benefits in line with the minimum
monthly wage using coefficient “1,581”. It does not
appear that the parties challenged the judgment on appeal and on 8
September 2000 it came into force. It appears that the authority
disagreed with the judgment and refused to enforce it.
- On
6 March 2003 the Regional Court, acting by way of supervisory review
upon the application of the President of the Rostov Regional Court
under the old Code of Civil Procedure which, in its relevant part,
remained in force until 30 June 2003, set aside the judgment of 29
August 2000 and remitted it to the first instance court for a fresh
examination on the ground of a serious breach of substantive law.
- It
appears that on 5 May 2003 the domestic courts re-examined and
eventually rejected the applicant's claim. The respective judgment
came into force on 30 June 2003.
D. Fourth set of proceedings
- By
a judgment of 5 December 2002 the Town Court examined and granted the
applicant's claim for damages in respect of delays in the enforcement
of the judgment of 29 August 2000.
- The
court ordered the authority to make him a one-time payment of RUR
39,446.93 (approximately EUR 1,240) and monthly payments of
RUR 8,007.74 (approximately EUR 251) starting from 1 January
2003. This judgment was rectified by the Town Court decision of 29
January 2003 and later approved by the Rostov Regional Court on 19
February 2003.
- It
appears that eventually the authority was ordered to pay the
applicant RUR 43,102.62 (approximately EUR 1,353) one-time and
RUR 8,086.95 (approximately EUR 253) on a monthly basis.
- It
appears that the judgment was re-opened and quashed on the ground of
new circumstances by the Town Court on 10 October 2003. The court
considered that the quashing of the judgment of 29 August 2000
constituted a new relevant fact and quashed the judgment of 5
December 2002 accordingly. Subsequently, the court decided to reject
the applicant's claims.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF LENGTHY NON-ENFORCEMENT OF
COURT AWARDS IN THE APPLICANT'S FAVOUR
- The
applicant complained that the delay in enforcement of the judgments
of 1 December 1998 and 4 October 1999 violated
his rights under Article 6 § 1 of the Convention and his right
to the peaceful enjoyment of possessions as guaranteed in 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. Admissibility
- The
Government acknowledged that there was a delay in the enforcement of
the judgments in the applicant's favour, but argued that the
applicant is no longer a victim since the judgments were enforced.
They submitted that the applicant had been offered to conclude a
friendly settlement but declined.
- The
applicant maintained his complaints.
- The
Court notes that the mere refusal by the applicant to conclude a
friendly settlement may not serve as a basis for declaring his
complaint inadmissible. As to the applicant's alleged loss of victim
status, the Court reiterates that “a decision or measure
favourable to the applicant is not in principle sufficient to deprive
her of her status as a 'victim' unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention” (see Amuur v.
France, judgment of 25 June 1996, Reports of Judgments and
Decisions 1996-III, p. 846, § 36, Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999-VI, and Rotaru v.
Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when
these conditions are satisfied does the subsidiary nature of the
protective mechanism of the Convention preclude examination of an
application (see, for example, Jensen and Rasmussen v. Denmark
(dec.), no. 52620/99, 20 March 2003).
- In
the present case, the Court observes that the mere fact that the
authorities complied with the judgments after a substantial delay
cannot be viewed as automatically depriving the applicant of his
victim status under the Convention. The domestic authorities have not
acknowledged that the applicant's Convention rights were
unjustifiably restricted by the non-enforcement of the judgment and
until now no redress has been offered to the applicant for the
delays, as required by the Court's case-law (see, for example,
Petrushko v. Russia, no. 36494/02, § 16, 24 February
2005).
- Accordingly,
the Court rejects the Government's objection as to the loss of victim
status.
- The
Court observes that the applicant's complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
- The
parties' submissions on the merits of the complaint are similar to
those on the admissibility.
- The
Court notes that the judgment dated 1 December
1998 came into force on 17 April 1999
and remained without enforcement until 8
May 2002, i.e. for the period of three years and twenty-two
days. It further notes the judgment dated 4
October 1999 came into force on 14 October 1999 and remained without
enforcement until 8 May 2002, i.e. for the period of two years, six
months and twenty-four days.
- The
Court has found violations of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 in many cases raising issues similar
to the ones in the present case (see, among other authorities, Burdov
v. Russia, no. 59498/00, ECHR 2002-III; and, more recently,
Petrushko, cited above, or Poznakhirina v. Russia, no.
25964/02, 24 February 2005).
- Having
examined the material submitted to it, the Court notes that the
Government did not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court finds that by
failing for such substantial period to comply with the enforceable
judgments in the applicant's favour the domestic authorities
prevented him from receiving the money which he was entitled to
receive under the final and binding judgments.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF QUASHING OF COURT AWARDS IN
THE APPLICANT'S FAVOUR
- The applicant complained that the quashing under
supervisory review procedure of the judgment of 29
August 2000 and the consequent quashing of the judgment of 5 December
2002 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.
A. Admissibility
- The
Government submitted that on 6 March 2003 the
Presidium of the Rostov Regional Court acted in accordance with the
domestic law and procedure and quashed the court decisions in the
third set of proceedings because the first instance court had made
erroneous interpretations of the substantive domestic law. The
Government contended that the application for supervisory review had
been lodged in order to correct a judicial error and was, therefore,
in the interests of prevention of violations of the rights and legal
interests of other persons. As regards the judgment of 5 December
2002, the Government submitted that its quashing was justified by the
need to take into account the outcome of supervisory review
proceedings of 6 March 2003. Accordingly, the complaint was
unfounded.
- The
applicant contested the Government's submissions and maintained the
initial complaints.
- The Court notes that this 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
parties' submissions on the merits of the complaint are similar to
those on the admissibility.
1. Article 6 § 1 of the Convention
- The
Court first notes that the disputes regarding the debts owed to the
applicant by the authorities were of a pecuniary nature and
indisputably concerned a civil right within the meaning of Article 6
§ 1 of the Convention.
- 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.
- The
Court finds that this case is similar to
the case of Ryabykh v. Russia, cited above, 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.”
- Furthermore, the Court has found in this respect in
the judgment Sovtransavto Holding v. Ukraine, no. 48553/99, §
77, ECHR 2002 VII:
“... 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...”
- Turning
to the facts of the present case, the Court notes that by two
judgments dated 29 August 2000 and 5 December
2002 respectively the domestic courts granted the applicant's
claims for unpaid social benefits and awarded him certain amounts.
After the judgment of 29 August 2000 in the applicant's favour had
become final and binding, the President of the Rostov Regional Court
brought an application for its supervisory review. On 6
March 2003 the Presidium of the Rostov Regional Court quashed
the said judgment on the ground of erroneous application of the
substantive law. Upon the fresh examination of the applicant's
claims, the domestic court rejected his claims in this case as
unfounded. Since the judgment of 5 December 2002 was based on
the findings made in the judgment of 29 August 2000, on 10
October 2003 the Town Court quashed the judgment of 5 December 2002
on the ground of new facts too and eventually rejected the
applicant's claims accordingly.
- Having
regard to the circumstances of the present case, 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 judgments given in
the applicant's cases.
2. Article 1 of Protocol No. 1
- 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).
- The
judgment of the Town Court of 29 August 2000
provided the applicant with an enforceable claim to receive an
increased amount of social benefits index-linked
in line with the minimum monthly wage using coefficient “1,581”.
As to the judgment of the Town Court of 5 December 2002, it awarded
the applicant RUR 43,102.62 one-time and RUR
8,086.95 on a monthly basis.
- The
Court finds that the decision of the Rostov Regional Court of 6 March
2003 and subsequent proceedings voiding the effect of the judgment of
29 August 2000 as well the decision of the Town Court of 10 October
2003 and subsequent proceedings voiding the effect of the judgment of
5 December 2002 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, § 74, ECHR 1999 VII, and Pravednaya
v. Russia, no. 69529/01, §§ 38-39, 18 November
2004).
42. While
the Court accepts that this measure was lawful and may have pursued
the public interest, its compliance with the requirement of
proportionality is open to doubt.
43. It
is true that a recalculation of one's social benefit
and its decrease does not, as such, violate Article 1 of Protocol No.
1 (Skorkiewicz v Poland (dec.), no. 39860/98, 1 June 1998).
However, 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 it held:
“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).”
- 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.
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 184,264.14 roubles (RUR)
(approximately 5,330 euros (EUR)) in respect of pecuniary and EUR
3,000 in respect of non-pecuniary damage.
- The
Government considered that the claims were excessive and
unreasonable. They made no specific comments as regards the
calculation of the applicants' alleged pecuniary losses.
- In
respect of the violation of Article 1 of Protocol No. 1 on account of
the quashing of court awards in the applicant's favour, the Court
considers it appropriate to award the applicant RUR 184,264.14,
representing the sum the applicant would have
received had the judgments dated 29 August 2000 and 5 December 2002
not been quashed, plus any tax that may be chargeable on that amount.
- 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 compensated by the mere finding of a violation.
Making its assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant the
sum of EUR 3,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed RUR 5,000 (approximately EUR 145) for legal costs.
- The
Government did not make any comments in this connection.
- Regard
being had to the information in its possession and the Government's
submissions, the Court finds it appropriate to grant the applicant
RUR 5,000 in respect of legal costs.
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 application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of
lengthy non-enforcement of the judgments dated 1
December 1998 and 4 October 1999;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of
quashing of the judgments dated 29 August 2000
and 5 December 2002 by way of supervisory review procedure;
- 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:
(i) RUR
184,264.14 (one hundred eighty-four thousand two hundred and
sixty-four roubles fourteen kopecks) in respect of pecuniary damage;
(ii) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable at the date
of settlement;
(iii) RUR
5,000 (five thousand roubles) 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.
Done in English, and notified in writing on 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
