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FIRST
SECTION
CASE OF ZYLKOV v. RUSSIA
(Application
no. 5613/04)
JUDGMENT
STRASBOURG
21 June
2011
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 Zylkov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou,
Mirjana Lazarova
Trajkovska, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5613/04) 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 Konstantin Zylkov
(“the applicant”), on 6 January 2004.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been denied access to
court.
- On
11 March 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Vilnius, Lithuania.
- The
applicant, a retired serviceman, considered himself eligible to
receive child allowance payable by the Russian Federation to parents
with minor children.
- On
15 January 2003 he applied for the allowance to the social
security division of the embassy of the Russian Federation in
Vilnius, Lithuania.
- On
20 January 2003 the social security division refused his
request. They noted that the applicant, being a permanent resident of
Lithuania, was not eligible to receive the allowance.
- On
an unspecified date the applicant challenged the decision of the
social security division. He lodged a complaint before the
Presnenskiy District Court of Moscow.
- On
29 April 2003 the District Court dismissed the applicant’s
complaint without consideration on the merits. In particular, the
court ruled as follows:
“This statement of claim cannot be admitted for
consideration by the Presnenskiy District Court of Moscow given that
it was submitted in contradiction of the rules of procedure on
jurisdiction ... Pursuant to the applicable legislation ..., the
claims are to be submitted to the court with jurisdiction over the
region where the claimant resides or where the State authority ...
whose action is challenged is located.
Pursuant to the [applicant’s] statement, the
respondent authority in the case is the social security division of
the Embassy of the Russian Federation in the Lithuanian Republic
whose registered address is in [Vilnius, Lithuania], that is, a
region outside the jurisdiction of the Presnenskiy District Court of
Moscow.
The applicant resides in [Vilnius, Lithuania], which is
also not within the jurisdiction of the Presnenskiy District Court of
Moscow.
Having regard to the fact that [the applicant] has no
ground to introduce his statement of claim before the Presnenskiy
District Court of Moscow and in compliance with Articles 24-27 and
254 § 2 of the Russian Code of Civil Procedure, the
court hereby
RULES
that the statement of the claims be returned to [the
applicant] and he be advised to lodge it before the relevant court in
Vilnius, Republic of Lithuania.”
- On
30 July 2003 the Moscow City Court upheld the decision of
29 April 2003 on appeal reiterating the reasoning of the
District Court.
II. RELEVANT DOMESTIC
LAW
- The
Russian Code of Civil Procedure (Article 254) provides that the
claim against a State authority should be submitted to a court with
territorial jurisdiction over the claimant’s place of residence
or the location of the State authority in question.
- The
Russian Code of Civil Procedure (Article 28) provides that the
claim against a legal entity should be submitted to a court with
territorial jurisdiction over the legal entity in question.
- The
Russian Civil Code (Article 54) defines the location of a legal
entity as the place of its incorporation which is to be indicated in
its founding documents.
- Pursuant
to the Regulations on the Embassy of the Russian Federation as
approved by Decree no. 1497 of the President of the Russian
Federation of 28 October 1996, the embassy of the Russian
Federation is to be established by the Decision of the Government of
Russia in accordance with the Decree of the President of Russia. The
embassy is a legal entity which forms part the system of the Ministry
of Foreign Affairs of the Russian Federation.
III. RELEVANT INTERNATIONAL DOCUMENTS
A. Vienna Convention on Diplomatic Relations
- As regards the immunity from jurisdiction of
diplomatic agents, the Vienna Convention on Diplomatic Relations
provides as follows:
Article 31
“1. A diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State. He
shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
(a) A real action relating to private immovable property
situated in the territory of the receiving State, unless he holds it
on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the
diplomatic agent is involved as executor, administrator, heir or
legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving State
outside his official functions.
Article 32
1. The immunity from jurisdiction of
diplomatic agents ... may be waived by the sending State.
2. Waiver must always be express...”
B. Agreement between the
Government of the Russian Federation and the Government of the
Lithuanian Republic On provision of social guarantees to retired
servicemen who are nationals of the Russian Federation residing
permanently in the Lithuanian Republic
- Pursuant to the Agreement entered into by the Russian
Federation and Lithuanian Republic on 18 November 1993
(Article 2), it is for the social security division of the
Russian embassy in Lithuania to deal with the questions pertaining to
the payment, recalculation and entitlement to pension and social
benefits for retired Russian servicemen. The relevant funding shall
be effected through the Russian embassy in Lithuania.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had been denied access to court because the Moscow courts had
refused to examine his claims. Article 6 in the relevant part
provides as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument. They submitted that it had been
impossible for them to verify in full the applicant’s argument
because the case file had been destroyed after the expiry of the
statutory period for its storage. In any event, they considered that
the applicant had not been eligible to receive the child allowance as
provided for by Federal Law No. 81-FZ On State Allowance to the
Persons with Children of 19 May 1995. Referring to the Russian
Code of Civil Procedure and the treaty between Russia and Lithuania
on mutual legal assistance, the Government submitted, in particular,
as follows:
“...[the applicant] submitted his claim ... to the
social security division of the Embassy of the Russian Federation in
the Republic of Lithuania, which is an independent legal entity, as
set forth in the Regulations on the Embassy of the Russian Federation
approved by Decree no. 1497 of the President of the Russian
Federation of 28 October 1996.
Pursuant to Article 28 of the Russian Code of Civil
Procedure, claims against a legal entity should be submitted to a
court with territorial jurisdiction over the legal entity in
question. Pursuant to Article 54 § 2 of the Russian
Civil Code, the location of the legal entity is defined as the place
of its incorporation. The place of the incorporation and the actual
location of the social security division of the Embassy of the
Russian Federation in the Republic of Lithuania is the Republic of
Lithuania.
Having regard to the above and in accordance with
Article 254 § 2 of the Russian Code of Civil
Procedure that stipulates that [the claimant] may submit his claims
against [the State authority] to the court with [territorial]
jurisdiction over his place of residence or the location of the State
authority in question, [the District Court] has dismissed the
applicant’s claims without consideration on the merits.
In view of the fact that the respondent State authority
in the present case was the social security division of the Embassy
of the Russian Federation in the Republic of Lithuania which is
located in [Vilnius, Lithuania], that is, in a region outside the
jurisdiction of the Presnenskiy District Court of Moscow, and that
the applicant also resides in [Vilnius, Lithuania], on 29 April
2003 the Presnenskiy District Court of Moscow decided to return the
statement of claim to [the applicant] and advised him to apply to a
relevant court in Vilnius.
The decision of the Presnenskiy District Court of Moscow
of 29 April 2003 was upheld on appeal by the Moscow City Court
on 30 July 2003.
In view of the above, the applicant has applied to a
Russian court in contravention of the rules of territorial
jurisdiction and his claims have been lawfully dismissed without
consideration on the merits.”
- The
applicant maintained his complaint.
A. Admissibility
- In
so far as the Government may be understood to argue that the
applicant had no right or entitlement to the child allowance sought
by him and that his complaint was therefore incompatible ratione
materiae with the Convention in this regard, the Court notes the
national courts did not dismiss the applicant’s claims as
lacking any basis in law. While it is true that his claims were
rejected, the Russian courts merely suggested that they were outside
their jurisdiction. The Court considers that against such a
background the applicant could claim to have a right on arguable
grounds (see, mutatis mutandis, Vilho Eskelinen and Others v.
Finland [GC], no. 63235/00, § 41, ECHR 2007 IV).
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- 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, that
provision embodies the “right to court”, of which the
right of access, that is, the right to institute proceedings before a
court in civil matters, constitutes one aspect only; however, it is
an aspect that makes it possible to benefit from the further
guarantees laid down in paragraph 1 of Article 6 (see Sergey
Smirnov v. Russia, no. 14085/04, § 25, 22 December
2009, and Teltronic-CATV v. Poland, no. 48140/99, § 45,
10 January 2006).
- The
“right to court” is not absolute but may be subject to
limitations. The Court must be satisfied that the limitations applied
do not restrict or reduce the access afforded to the individual in
such a way or to such an extent that the very essence of that right
is impaired. Furthermore, the Court underlines that a limitation will
not be compatible with Article 6 § 1 unless it pursues a
legitimate aim and there is a reasonable relationship of
proportionality between the means employed and the legitimate aim
sought to be achieved (see Sergey Smirnov, cited above, §§
26-27; Jedamski and Jedamska v. Poland, no. 73547/01, §
58, 26 July 2005; and Kreuz v. Poland, 19 June 2001, no.
28249/95, §§ 54-55, ECHR 2001-VI).
- Finally,
the Court further reiterates that it is not its task to take the
place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation. The Court’s role is
confined to ascertaining whether the effects of such an
interpretation are compatible with the Convention (see
Société Anonyme Sotiris and Nikos Koutras Attee
v. Greece, no. 39442/98, § 17, ECHR 2000-XII).
- In
the present case the applicant attempted to challenge in court a
decision by a social security division of the Russian Embassy in
Vilnius, Lithuania, concerning his entitlement to child allowance
under Russian law. The Presnenskiy District Court in Moscow refused
to consider the claim lodged by the applicant, a Russian national,
against a Russian State authority, incorporated under the laws of
Russia, suggesting that the matter be subject to the jurisdiction of
a court in Lithuania.
- The
Court notes from the outset that the Government have not suggested
that the applicant wrongly interpreted the applicable rules of
procedure on jurisdiction and that he should have lodged his
complaint with another court in Russia. It is the position of the
Government that the dispute over entitlement to a social benefit as
set forth in the Russian legislation should have been decided by a
court in Lithuania.
- The
Court is not convinced by the Government’s line of reasoning
that a Lithuanian court did in fact have jurisdiction over a dispute
between a Russian national and a Russian diplomatic legal entity
governed by Russian law. In this connection, it observes that, when
absolving itself from the consideration of the dispute, the Russian
courts failed to refer to any law binding on the Lithuanian courts to
be competent to resolve the matter. Nor did they proffer any view on
how their position that the matter was to be considered by a foreign
court complied with the principles of international law on State
immunity, and, in particular, with the principle par in parem non
habet jurisdictionem. A referral to the domestic jurisdictional
rules in force within the Russian Federation or the treaty on mutual
legal assistance between Russia and Lithuania is of no significance,
in the circumstances of the case. The Court finds it striking that
the Russian judicial authorities advised the applicant to apply to a
foreign court without even considering whether such an act would be
feasible in view of the relevant provisions of the Vienna Convention
on Diplomatic Relations or the agreement between Russia and Lithuania
(see paragraphs 16 and 17 above).
- In
the Court’s view, such a situation amounts to a denial of
justice which impaired the very essence of the applicant’s
right of access to court secured by Article 6 § 1
of the Convention. There has, accordingly, been a violation of that
provision.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION
- The
applicant complained under Article 1 of Protocol No. 1 that
the Russian authorities had refused to pay him the child allowance.
- Having
regard to all the material in its possession, the Court finds that
the complaint reiterates in substance the applicant’s
grievances under Article 6 § 1 and does not raise
any separate issue related to the peaceful enjoyment of his
possessions. It follows that this part of the application must be
rejected 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 1,500 euros (EUR) in respect of non pecuniary
damage.
- The
Government contended that, given that the applicant’s rights
under the Convention had not been infringed, his claims for damages
should be rejected in full. Alternatively, they proposed that a
finding of a violation would constitute sufficient just satisfaction
for any such violation. In any event, they considered that the
applicant had failed to prove the causal link between the violation
alleged and the damaged claimed.
- The
Court considers that the applicant must have suffered distress and
frustration as a result of the refusal of the domestic courts to
entertain his claims. In these circumstances, the Court considers
that the applicant’s suffering and frustration cannot be
compensated for by a mere finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant the
amount sought, namely, EUR 1,500 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 250 for the costs and expenses incurred
before the Court.
- The
Government noted that the applicant had failed to demonstrate that he
had actually incurred those expenses and proposed that the
applicant’s claim should be dismissed.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, 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 domestic
courts’ refusal to consider the applicant’s claim on the
merits admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
