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FIRST
SECTION
CASE OF
SMIRNITSKAYA AND OTHERS v. RUSSIA
(Application
no. 852/02)
JUDGMENT
STRASBOURG
5 July
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 Smirnitskaya and Others 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,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 14 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 852/02) 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 three Russian nationals, Mrs Zoya Valeriyanovna
Smirnitskaya, Mrs Yelena Fedorovna Stolyarova and Mr Albert
Semenovich Stolyarov (“the applicants”), on 6 July 2001.
- The
applicants were represented by Mr I.V. Novikov, a lawyer
practising in Novosibirsk. The Russian Government (“the
Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicants alleged, in particular, that the domestic judicial
authorities had reconsidered a judgment given in their favour having
improperly used the procedure for reconsidering judgments on the
basis of newly discovered circumstances.
- By
a decision of 17 November 2005 the Court declared the application
partly admissible.
- The
Government, but not the applicants, filed further written
observations (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the applicants replied in writing
to the Government's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant was born in 1925, the second
applicant was born in 1933 and the third applicant was born in 1928.
They live in Novosibirsk.
- The
applicants receive old-age pensions. The Law of 21 July 1997 on the
Calculation and Upgrading of State Pensions (“the Pensions
Act”) introduced, from 1 February 1998
onwards, a new method for calculating pensions. The idea
behind this method, based on what is known as an “individual
pensioner coefficient”, was to link the pension to the
pensioner's previous earnings.
- The
authority in charge of the applicants' pension, the Pension Fund
Agency of the Zheleznodorozhniy District of Novosibirsk (“the
Agency”), fixed the applicants' coefficient at 0.525. The
applicants challenged the Agency's decision in the Zheleznodorozhniy
District Court of Novosibirsk. They argued that their coefficient
should be 0.7.
- On
13 August 1999 the District Court found for the applicants,
considering that the Agency had misinterpreted the Pensions Act. In
particular, it held as follows:
“The opinion of [the Agency] ... is unfounded
because Article 4 [of the 1997 Pensions Act] specifically indicates
that the individual pensioner coefficient ... is fixed at the rate of
0.7. [The Agency] has no grounds to interpret this provision of the
law arbitrarily or not to enforce it.”
The
District Court decided that the Agency was to recalculate the
applicants' pensions using a coefficient of 0.7 from 1 February 1998.
- The
Agency appealed against the judgment. On 19 October 1999 the
Novosibirsk Regional Court upheld the judgment, which became
enforceable on the same day. The judgment was never executed.
- On
29 December 1999 the Ministry of Labour and Social Development (“the
Ministry”) issued an Instruction on the “Application of
Limitations” established by the Pensions Act (“the
Instruction”). The Instruction clarified how to apply the
Pensions Act.
- Some
time thereafter a group of individuals challenged the Instruction
before the Supreme Court of the Russian Federation. On 24 April
2000 the Supreme Court dismissed the complaint. It found that,
contrary to what the complainants had suggested, the Ministry of
Labour had not acted ultra vires in issuing the Instruction,
and that the Ministry's interpretation of the Pensions Act had been
correct. On 25 May 2000 the Cassation Division of the Supreme Court
upheld this judgment on appeal.
- From
1 August 2000, following changes to the pension regulations, the
first applicant's pension was calculated based on a coefficient of
0.7125.
- On
30 August 2000 the Agency lodged an application
with the District Court for the reconsideration of the applicants'
case owing to newly discovered circumstances.
- On
7 February 2001 the District Court examined the
Agency's request. It noted that the Instruction had been
upheld by the Supreme Court and held as follows:
“As it can be seen from [the Instruction], the
decision of the RF Supreme Court of 24 April 2000 and the decision of
the Cassation Division of the RF Supreme Court of 25 May 2000, the
limiting coefficient of 0.7, which was established by [the Pensions
Act], ... does not apply to [an 'individual pensioner coefficient'].
The existence of the interpretation [of the Pensions
Act] by the Ministry of Labour constitutes a significant
circumstance.
In accordance with ... Article 333 of [the CCivP] the
ground for reconsideration of judgments ... on the basis of newly
discovered circumstances shall be a significant circumstance which
was not and could not have been known to a complainant. ...
Therefore there are grounds for reconsideration of the
judgment of the district court of 13 August 1999 owing to newly
discovered circumstances.”
The
court noted that the Agency's application was not time barred.
- In
a decision of 7 February 2001 the District
Court granted the Agency's application, under Article
337 of the Code of Civil Procedure, and quashed the judgment of 13
August 1999, as upheld on 19 October 1999.
- As
a result of the fresh examination of the case the District Court
delivered a judgment of 27 February 2001 in which it relied on the
Instruction and rejected the applicants' claims
in full. The applicants appealed against the judgment.
- From
1 May 2001, following further changes to the pension regulations, the
applicants' coefficients were fixed at 0.9, 0.786 and 0.852
respectively.
- On
21 June 2001 the Novosibirsk Regional Court dismissed the applicants'
appeal and upheld the judgment of 27 February 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
Code of Civil Procedure of 1964 (“CCivP”), in force at
the material time, provided as follows:
Article 333. Grounds for reconsideration
“[Judgments] which have come into force may be
reconsidered on the basis of newly discovered circumstances. The
grounds for reconsideration ... shall be as follows:
1. significant circumstances which were not
and could not have been known to the party who applies for
reconsideration; ...
4. cancellation of a court [judgment] or of
another authority's decision which served as legal basis for the
[judgment] in question.”
Article 334. Lodging of application
“... [An application for reconsideration of a
[judgment] owing to newly discovered circumstances] shall be lodged
within three months after the discovery of the circumstances.”
Article 337. Court decision on reconsideration of a
case
“After examination of an application for
reconsideration of a [judgment] owing to newly discovered
circumstances, the court may either grant the application and quash
the [judgment], or dismiss the application.
The court decision by which an application for
reconsideration of a [judgment] owing to newly discovered
circumstances is granted shall not be subject to appeal. ...”
- On
2 February 1996 the Constitutional Court of the Russian Federation
adopted a ruling concerning certain provisions of the Code of
Criminal Procedure (“CCrP”). In that ruling the
Constitutional Court decided that Article 384 of the CCrP (“Grounds
for reconsideration of a [criminal] case on the basis of newly
discovered circumstances”, which was in many respects similar
to Article 333 of the CCivP) was
unconstitutional in that it limited the grounds for the reopening of
a criminal case to situations of “newly discovered
circumstances”. In that ruling the Constitutional Court
suggested that this provision of the CCrP prevented rectification of
judicial errors and miscarriages of justice. In its ruling of
3 February 1998 the Constitutional Court came to the conclusion
that Article 192 § 2 of the Code of Commercial Procedure
was unconstitutional in so far as it had served as a basis for the
dismissal of applications for reconsideration of judgments of the
Presidium of the Supreme Commercial Court, where the judgment had
been delivered as a result of a judicial error which had not been and
could not have been established earlier.
- The
Instruction of the Ministry of Labour and
Social Development of 29 December 1999 on the “Application of
Limitations” established by the Pensions Act was registered by
the Ministry of Justice on 31 December 1999 and became
binding in February 2000, ten days after its official publication.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL No. 1
- The
applicants complained that the State had reconsidered a final
judgment in their favour. The Court will examine this complaint under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
Article
6 § 1 of the Convention, as far as relevant, reads as follows:
“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 reads as follows:
“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. The parties' submissions
1. The Government
- The
Government submitted that the complaint was incompatible with the
Convention ratione materiae, as it did not concern “civil
rights and obligations” or “property” or,
alternatively, that there had been no breach of Article 6 § 1 or
Article 1 of Protocol No. 1 on account of the reconsideration of the
case concerning the applicants' pension.
(a) Applicability of Article 6 § 1
- The
Government stressed that the judgment of 13 August 1999 had not
determined any definite amount due to the applicants, but had rather
established how the pensions should be calculated. In their words,
“the subject-matter of the dispute was
not the applicants' claim to award [them] monetary sums, but the
matter of lawfulness ... of application of the Instruction”.
According to the Government, the dispute at issue was not a civil one
because “the determination of the order of calculation
of pensions belongs to the realm of public law”. They referred
to Schouten and Meldrum v. the Netherlands (judgment of 9
December 1994, Series A no. 304, § 50), Pančenko
v. Latvia, ((dec.), no. 40772/98, 28 October 1999) and
Kiryanov v. Russia ((dec.), no. 42212/02, 9 December 2004).
(b) Applicability of Article 1 of Protocol
No. 1
- The
Government contested that the pension awarded to the applicants by
virtue of the judgment of 13 August 1999 constituted their
“possession”. They noted that in the case of Pravednaya
v. Russia (no. 69529/01, 18 November 2004) the Court
had regarded a judicial award of that type as the applicant's
“possession”. In that case the Court had ordered the
restoration of the initial judgment in the applicant's favour and the
payment of the pension in the amount established by that judgment.
However, in the Government's view, such an approach created
confusion. If the sum awarded by a court was a pensioner's
“possession”, it should not be affected by any subsequent
increase in pension rates. Therefore, in Pravednaya the
applicant would have had to return the money “excessively”
paid to her by virtue of the later changes in the legislation on
State pensions. They concluded that in order to avoid such situations
the Court should not regard the pension amounts awarded by the
domestic courts as the claimants' “possessions” within
the meaning of Article 1 of Protocol No. 1.
(c) Merits of the complaint
- The
Government submitted that it was the Supreme Court's decision
upholding the Instruction which had constituted a newly discovered
circumstance and warranted the reopening of the case within the
meaning of Article 333 of the CCivP. This was a major difference with
the Pravednaya case (cited above). The Government explained
that to consider the Supreme Court's decision as a newly discovered
circumstance was in line with the position of the Constitutional
Court set out in its decisions of 2 February 1996 and 3 February
1998. In another decision of 14 January 1999 the
Constitutional Court had held that court judgments might be
reconsidered if relevant provisions of law had been found
unconstitutional.
- The
Government further submitted that the Instruction had been issued
after the initial judgment had become final, so the Agency could not
have relied on it in the appeal proceedings. This was another
difference with the Pravednaya case, where the Instruction had
been adopted while the proceedings were still pending. Therefore, the
Agency's request to reopen the case had not been an “appeal in
disguise” but a conscientious effort to make good a miscarriage
of justice.
- The
Government observed that the reopening of the case had been lawful
and complied with the procedure prescribed by law, the request having
been lodged within the statutory three-month time-limit.
- The
Government concluded that the reopening of the case had not infringed
the principle of legal certainty as guaranteed by Article 6 § 1
nor had it interfered with the applicants' property rights as
guaranteed by Article 1 of Protocol No. 1.
2. The applicants
- The
applicants disagreed with the Government's arguments. They pointed
out that the Instruction had not existed at the time when their case
had been examined in court and when the judgment of 13 August 1999
had been delivered. Therefore, neither the Instruction nor the
subsequent Supreme Court decision, which addressed the lawfulness of
the Instruction, could be considered a newly discovered circumstance
within the meaning of Article 333 of the CCivP. The Instruction
had had no retrospective effect and could not have applied to
situations which had arisen before its adoption. Furthermore, the
Agency had missed the time-limit for reopening a case: it had applied
to the court eight months after the Instruction had been issued,
instead of three months as required by the civil procedure.
Therefore, the applicants' case had been reopened in breach of the
domestic law. The Government's reference to the Constitutional
Court's decision of 14 January 1999 was irrelevant because the
Pensions Act had never been declared unconstitutional.
- The
applicants further noted that it was clearly established by the
European Court that Article 6 applied to court proceedings concerning
the right to a State pension. They referred to a number of judgments
and decisions including Francesco Lombardo v. Italy (judgment
of 26 November 1992, Series A no. 249-B), Androsov
v. Russia (no. 63973/00, 6 October 2005), Vasilyev v.
Russia ((dec.), no. 66543/01, 1 April 2004), and Pravednaya
v. Russia ((dec.), no. 69529/01, 25 September 2003). They
pointed out that in Pravednaya the dispute had concerned the
application of a specific pension law to the applicant's case, and
not the general system of pension calculation.
B. The Court's assessment
1. Applicability of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1
- The
Court notes that the dispute as to the increase of the applicants'
old-age pension entitlement was one of a pecuniary nature and
undeniably 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).
- It
reiterates that Article 1 of Protocol No. 1 does not guarantee, as
such, the right to an old-age pension or to 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 – 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 Zheleznodorozhniy
District Court of 13 August 1999, which became final after it had
been upheld on appeal by the Novosibirsk Regional Court on 19 October
1999, provided the applicants with an enforceable claim to receive an
increased pension based on a coefficient of 0.7.
- The
Court notes that the objections and arguments put forward by the
Government were rejected in the earlier similar case of Bulgakova
v. Russia (no. 69524/01, §§ 27-32, 18
January 2007) and sees no reason to reach a different conclusion in
the present case.
- Accordingly,
the Court considers that in the present case the applicants' dispute
concerned a civil right within the meaning of Article 6, and that the
applicants had a “possession” within the meaning of
Article 1 of Protocol No. 1.
2. Alleged violation of Article 6 § 1
- 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, in
its relevant part, declares 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 (see
Brumărescu v. Romania, judgment of 28 October 1999,
Reports 1999 VII, § 61). This principle underlines
that no party is entitled to seek a review of a final and binding
judgment merely for the purpose of obtaining a rehearing and a fresh
determination of the case. Review by higher courts should not be
treated as an appeal in disguise, and the mere possibility of there
being two views on the subject is not a ground for re-examination. A
departure from that principle is justified only when made necessary
by circumstances of a substantial and compelling character (see
Ryabykh v. Russia, no. 52854/99, § 52, ECHR
2003-IX).
- The
Court examined the quashing of a final judgment on the ground of
newly discovered circumstances in Pravednaya (cited above), a
case with a similar set of facts, where it held:
“27. The procedure for quashing of a
final judgment presupposes that there is evidence not previously
available through the exercise of due diligence that would lead to a
different outcome of the proceedings. The person applying for
rescission should show that there was no opportunity to present the
item of evidence at the final hearing and that the evidence is
decisive. Such a procedure is defined in Article 333 of the CCivP and
is common to the legal systems of many member States.
28. This procedure does not by itself
contradict the principle of legal certainty in so far as it is used
to correct miscarriages of justice. ...”
- In
the case of Pravednaya the Instruction of the Ministry of
Labour had been issued between the first-instance and appeal
judgments. The relevant pension agency had not relied on the
Instruction in the appeal proceedings but had only done so later, in
their request for the judgment, then final, to be set aside owing to
“newly discovered circumstances”. The Court considered
that the agency's request had been an “appeal in disguise”
and found that by granting it the court had infringed the principle
of legal certainty and the applicant's “right to a court”
under Article 6 § 1 of the Convention (see Pravednaya,
cited above, §§ 29-34).
- The
present case differs from Pravednaya in that the Instruction
of the Ministry of Labour was issued after the first-instance
judgment had been upheld on appeal. The Court's task is to determine
whether, on the facts of the present case, the quashing of the
judgment was exercised in a manner compatible with Article 6. To do
so it will examine the reasons adduced by the Zheleznodorozhniy
District Court for the quashing of the judgment (see paragraph 15
above).
- The
Zheleznodorozhniy District Court held that the interpretation of the
Pensions Act by the Ministry of Labour, which had been upheld by the
Supreme Court, was a “newly discovered circumstance”.
Therefore, the District Court decided that the Agency's request
should be granted and the judgment be quashed.
- The
Court first notes that the Instruction and the
Supreme Court's decision upholding it did not exist during the
examination of the applicants' case. They were adopted after the
judgment had been upheld on appeal. In the Court's view, the
above-mentioned Instruction and decision were new legal acts and did
not constitute newly discovered circumstances as considered by the
District Court (see Article 333 of CCivP, paragraph 20 above).
- Further,
the judgment of 13 August 1999 was a result of the District
Court's interpretation and application of the Pensions Act to the
applicants' case. As it transpires from the decision of 7 February
2001, the fact that the Ministry's interpretation of that Act in an
Instruction, a subordinate legal instrument, differed from the
court's findings, with the effect that it would have led to a
different outcome of the proceedings, was considered by the District
Court a sufficient reason to quash the judgment and reconsider the
case. The Court finds that this reason as such could not justify the
reopening of the case after a final and binding judgment.
- The
Court notes the Government's argument that the reopening was
necessary to make good a miscarriage of justice. However, other than
referring to the Ministry's interpretation of the law as a reason for
the reopening, the District Court said nothing in its decision to
explain why its original findings were to be considered a
“miscarriage of justice” such as to justify the
reopening.
- The
Court finds that by granting the Agency's request to reconsider the
applicants' case and setting aside the final judgment of 13 August
1999, as upheld on 19 October 1999, the domestic authorities
infringed the principle of legal certainty and the applicants' “right
to a court” under Article 6 § 1 of the Convention.
- There
has accordingly been a violation of that Article.
3. Alleged violation of Article 1 of Protocol No. 1
- The
Court notes that the “possession” in this case was the
applicants' claim to a pension based on a coefficient of 0.7 from
1 February 1998, in accordance with the judgment of the
Zheleznodorozhniy District Court of 13 August 1999, upheld on 19
October 1999.
- The District Court did not determine the date until
which this method of calculation should have been maintained. When
delivering its judgment it applied the statutory pension regulations
which were in force at the time. Those regulations, however, “are
liable to change and a judicial decision cannot be relied on as a
guarantee against such changes in the future” (see Sukhobokov
v. Russia, no. 75470/01, § 26, 13 April 2006).
Thus the Court observes that, as a result of such changes, the
coefficient for the calculation of the first applicant's pension
changed to 0.7125 from 1 August 2000 and again to 0.9 from 1 May
2001. The coefficient of the other two applicants changed to 0.786
and 0.852 respectively from 1 May 2001.
- The
Court notes that the applicants' concern under Article 1 of Protocol
No. 1 was the loss of their entitlement to a pension based on a
coefficient of 0.7 for the period between 1 February 1998 and
1 August 2000 for the first applicant and for the period
between 1 February 1998 and 1 May 2001 for the other two
applicants, as opposed to the pension calculated and actually paid.
However, the Court further notes that before those periods ended on 1
August 2000 or 1 May 2001, the Instruction had removed the ambiguity
of the Pensions Act with the effect that the applicants' dispute over
the coefficient had been resolved, at the level of the statutory
regulations, in favour of the Agency. The Court considers that it was
until the moment when the Instruction became binding in February
2000, and apparently changed the legislative framework relevant to
the applicants' dispute, that the applicants' claim – and
“possession” under Article 1 of Protocol No. 1 –
had been secured by the judgment.
- The
effect produced by the decision of the Zheleznodorozhniy District
Court of 7 February 2001, by which the application for
reconsideration was granted, was that the applicants became deprived,
retrospectively in respect of the above-mentioned period from
February 1998 to February 2000, of the right to receive the pension
in the amount initially determined by the court or, in other words,
deprived of their possessions within the meaning of the second
sentence of the first paragraph of Article 1 of Protocol No. 1. The
taking of property, in the light of this rule, can only be justified
if it is shown, inter alia, to be “in the public
interest” and “subject to the conditions provided for by
law” (see Pravednaya, cited above, §§ 39-40).
- While
assuming that it was in the public interest to ensure a uniform
application of the Pensions Act, the compliance of the
reconsideration of the applicants' case with the “lawfulness”
requirement is questionable (see paragraph 42 above). Even assuming
that the court's interpretation of the domestic procedural law was
not arbitrary (see the Government's argument concerning the
Constitutional Court's decisions and the relevant domestic law in
paragraphs 27 and 21 above), it still remains to be established
whether the interference was proportionate to the legitimate aim
pursued.
- In
this connection the Court reiterates its finding in Pravednaya
that “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”
(Pravednaya, cited above, § 41). Having regard to
the fact that the reconsideration of the case resulted in the full
dismissal of the applicants' claim that had been granted in the
initial judgment, the Court finds no reason to depart from that
conclusion in the present case.
- Based
on the above considerations, the Court finds that by depriving the
applicants of the right to benefit from the pension in the amount
secured in a final judgment, the State upset the fair balance between
the interests at stake.
- There
has, accordingly, been a violation of Article 1 of Protocol No. 1.
II. 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
1. Pecuniary damage
- As
regards pecuniary damage, Mrs Smirnitskaya claimed 610 euros
(EUR), Mrs Stolyarova claimed EUR 724.12 and Mr Stolyarov
claimed EUR 532.59. These amounts represented the underpayment of
their pensions between 1 February 1998 and
1 August 2000 in Mrs Smirnitskaya's case and between
1 February 1998 and 1 May 2001 in Mrs Stolyarova's and Mr
Stolyarov's case, and the relevant inflation-related losses. The
difference in pension was based on an “individual pensioner
coefficient” of 0.7 and a coefficient linked to the region of
the applicants' residence.
- The
Government submitted that no just satisfaction should be awarded to
the applicants because there had been no violation of their rights
under the Convention. Alternatively, the finding of a violation in
itself would constitute sufficient just satisfaction. As regards the
claim in respect of pecuniary damage, it should be rejected because
it was open to the applicants to request a re-trial, which would be
the most appropriate form of redress in this case. The Government
further asserted that, as regards the period from February 1998 to
December 2001, the difference between the pensions calculated with a
coefficient of 0.7 and the pensions actually paid would be 942.27
roubles (RUR) in respect of Mrs Smirnitskaya, RUR 1,219.66
in respect of Mrs Stolyarova and RUR 1,152.28 in respect of Mr
Stolyarov.
- The
Court considers it appropriate to award the applicants, in respect of
the violation of Article 1 of Protocol No. 1, the sums they would
have received had the reduction of the pensions as a result of the
reconsideration of the case not been backdated (see, mutatis
mutandis, Vasilyev v. Russia, no. 66543/01, § 47,
13 October 2005). The Court notes that the sums calculated by the
applicants were based on official certificates which confirm the
amounts of the pensions actually paid and the rates of inflation.
However, the sums to be awarded by the Court should not take account
of the coefficient linked to the region of the applicants' residence,
as that claim was not secured by the judgment of 13
August 1999, upheld on 19 October 1999, having been
rejected by the second-instance court (see the facts in the
Smirnitskaya and Others v. Russia
admissibility decision of 17 November 2005). Nor should it
cover the whole periods taken by the
applicants. The period relevant to the violation of Article 1 of
Protocol No. 1 is indicated in paragraph 49 above. Those
adjustments being made, the Court awards EUR 199 to Mrs Smirnitskaya,
EUR 247 to Mrs Stolyarova and EUR 78 to Mr Stolyarov in
respect of pecuniary damage.
2. Non-pecuniary damage
- Each
applicant further claimed EUR 5,000 in respect of non-pecuniary
damage. They submitted that the pension was their only means of
subsistence. Because of the underpayment of her
pension, according to Mrs Smirnitskaya, she
could not afford to buy basic foodstuffs or clothing or to repair her
flat. The applicants further submitted that the violation of
their rights by the domestic judicial authorities had caused them
psychological suffering and deterioration of their health.
- The
Government submitted that the claim was “wholly ill-founded,
unsubstantiated and unreasonable”.
- The
Court considers that the applicants have sustained non-pecuniary
damage as a result of the violations found and that this cannot be
made good merely by the Court's finding of a violation. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards each applicant EUR 2,000.
B. Costs and expenses
- The
applicants did not make any claims for the costs and expenses
incurred before the domestic courts and the Court.
- Accordingly,
the Court does not award anything under this head.
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
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, 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
199 (one hundred and ninety-nine euros) to Mrs Smirnitskaya, EUR
247 (two hundred and forty-seven euros) to Mrs Stolyarova and
EUR 78 (seventy-eight euros) to Mr Stolyarov in respect of
pecuniary damage;
(ii) EUR
2,000 (two thousand euros) to each applicant 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 5 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
