FIRST SECTION
CASE OF
GORFUNKEL v. RUSSIA
(Application no.
42974/07)
JUDGMENT
STRASBOURG
19 September 2013
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 Gorfunkel v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 27 August 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
42974/07) 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 an Israeli national, Mr Boris Abramovich Gorfunkel (“the
applicant”), on 22 August 2007.
The applicant was represented by Mr
N. Glazychev, a lawyer practising in the Pskov Region. The Russian
Government (“the Government”) were represented by Mr G. Matyushkin,
the Representative of the Russian Federation at the European Court
of Human Rights.
The applicant complained of the quashing in
supervisory-review proceedings of a binding and enforceable judgment delivered
in his favour.
On 2 December 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Judgment in the applicant’s favour and its quashing
on supervisory review
The applicant was born in 1928 and lives in Bene
Ayish, Israel.
In 1990 the applicant emigrated from the USSR to
Israel and thereby lost the USSR nationality. Prior to emigrating, he had been
receiving an old-age pension from the Soviet authorities. Once the
applicant left the USSR, the payments were discontinued in accordance with USSR
pensions law as applied at the material time.
In 2006 the applicant brought civil proceedings
against the Pension Fund of the Russian Federation (“the Pension Fund”) seeking
the restoration of the payment of his old-age pension.
On 26 May 2006 the Velikiye Luki Town Court
found in the applicant’s favour and ordered the Pension Fund to restore pension
payments to him as from 15 June 1998. The court found, inter alia,
that although the pension had initially been awarded in accordance with USSR
legislation, that legislation remained applicable in the Russian Federation.
The court interpreted the relevant legal provisions in the light of the
Constitutional Court’s judgment of 15 June 1998. On 1 August 2006,
the Pskov Regional Court upheld this judgment on appeal and it became final.
However, on 16 March 2007, following a
request lodged by the Pension Fund, the Presidium of the Pskov Regional Court
quashed the final judgment by way of supervisory review and rejected the
applicant’s claim. The Presidium relied on the following facts: the applicant
was not a Russian citizen, he did not reside in Russia, and no pension had been
awarded to him in the Russian Federation in accordance with its legislation.
The Presidium concluded that there was no basis under domestic law for pension payments
to be awarded to the applicant.
B. Judgment of the Court in respect of the applicant’s
wife
The applicant’s spouse, Mrs Lyubov Gorfunkel,
faced a legal problem identical to that raised by the applicant in the present
case: a judgment of the Velikiye Luki Town Court of 26 May 2006,
which ordered the Pension Fund to restore her pension payments, was upheld by a
final decision of the Pskov Regional Court on 1 August 2006. Both decisions
were quashed on supervisory review by a decision of the Presidium of the Pskov
Regional Court of 13 April 2007. Mrs Gorfunkel filed a complaint with
the Court, which joined her application with nineteen similar applications in
the case of Tarnopolskaya and Others v. Russia (nos. 11093/07
et al., 7 July 2009, final on 28 June
2010). The Court found a violation of Article 6 of the Convention
and of Article 1 of Protocol No. 1 to the Convention in respect of all twenty applicants on account of the quashing
of the judgments in their favour by way of supervisory review. Mrs Gorfunkel
did not claim any award in respect of pecuniary damage. The Court awarded each
applicant 3,000 euros (EUR) in respect of non-pecuniary damage.
The Court’s judgment in the case of Tarnopolskaya
and Others v. Russia served as a legal basis for the quashing of the
decision of the Presidium of the Pskov Regional Court of 13 April 2007 and
the reinstatement of the judgment of the Velikiye Luki Town Court of
26 May 2006.
C. Ruling of the Velikiye Luki Town Court of
26 January 2011 in respect of the applicant’s wife
On an unspecified date the Federal Bailiff
Service asked the Velikiye Luki Town Court to explain whether
Mrs Gorfunkel’s pension had to be recalculated in accordance with
amendments to pensions legislation.
By a ruling of 26 January 2011 the Velikiye
Luki Town Court explained that Mrs Gorfunkel’s pension was to be
calculated according to a method that would take into account all
recalculations and adjustments that had taken place after 15 June 1998 in
accordance with Russian law. In particular, the court found as follows:
“... during the period of time from 20 May 1990 until now the
amount of pension due to Mrs Gorfunkel, as well as to other pensioners,
has been repeatedly changed for various reasons, one of them having been
amendments to pensions legislation ...
... Restoration of pension payments
for Mrs Gorfunkel in the amount set in 1990 cannot meet the generally
recognised legal principles of equality and justice, and, with regard to the
position of the European Court of Human Rights based on the provisions of
Article 1 of Protocol No. 1 ..., would violate
Mrs Gorfunkel’s right to respect for her property.
Taking the above-mentioned [factors]
into consideration, the court deems it proper to explain that ... the writ of
execution [which orders the Pension Fund to restore pension payments to
Mrs Gorfunkel as from 15 June 1998], with due regard to the generally
recognised legal principles of justice and equality, provides for the necessity
of paying Mrs Gorfunkel a pension in the amount that would have been due
to her on 15 June 1998, taking into account the recalculations, indexation
and corrections that have been carried out since ... the pension was awarded to
her on 20 May 1990 ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
For the relevant provisions on the payment of
pensions to those who left the USSR and the Russian Federation, see Tarnopolskaya
and Others, cited above, §§ 18-26.
THE LAW
I. THE
GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE
CONVENTION
. On 26 March 2012
the Government informed the Court that they proposed to make a unilateral
declaration with a view to resolving the issue raised by the application. They therefore
requested that the Court strike out the application in accordance with
Article 37 of the Convention.
In that declaration the Government acknowledged
the violation of the applicant’s rights on account of the quashing of the
judgment of the Velikiye Luki Town Court of 26 May 2006 by way of
supervisory review. The Government undertook to pay the applicant EUR 3,000
in respect of non-pecuniary damage and 21,368.30 Russian roubles (RUB) as
compensation for pecuniary damage, plus any tax that may be chargeable on those
amounts.
According to the Government, the calculation of
pecuniary damage was carried out on the basis of the arrears resulting from the
non-enforcement of the judgment of the Velikiye Luki Town Court of
26 May 2006 prior to its quashing on 16 March 2007. This amount had constituted
RUB 13,866.53 and had been calculated on the basis of the monthly pension
payment of RUB 132 which was payable as of 15 June 1998. This sum had
been index-linked in line with inflation. Consequently, the total amount of compensation
for pecuniary damage offered by the Government
constituted RUB 21,368.30.
The rest of the declaration read as follows:
“The sum referred to above, which is to cover any pecuniary and
non-pecuniary damage as well as costs and expenses, will be free of any taxes
that may be applicable. It will be payable within three months from the date of
notification of the decision taken by the Court pursuant to Article 37 § 1 of
the European Convention on Human Rights. In the event of failure to pay this
sum within the said three-month period, the Government undertake to pay simple
interest on it from expiry of that period until settlement, at a rate equal to
the marginal lending rate of the European Central Bank during the default
period plus three percentage points.”
By letter of 26 April 2012 the applicant
agreed with the declaration with respect to non-pecuniary damage. As to
pecuniary damage, the applicant expressed the view that the sum proposed in the
Government’s declaration was unacceptably low and did not take into account
pension recalculations, indexations and adjustments which had taken place since
15 June 1998. According to the applicant’s calculations, the sum due
for pecuniary damage was RUB 159,763.21. The applicant argued that this
method of calculation was compatible with the Court’s case-law. In particular,
he relied upon the just satisfaction for pecuniary damage awarded in Tarnopolskaya
and Others, cited above.
The Court considers that, under certain
circumstances, it may be appropriate to strike out an application 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. It will, however, depend on whether the unilateral declaration
offers 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 (Article 37 § 1 in fine; see also Tahsin Acar v. Turkey (preliminary
issue) [GC], no. 26307/95, § 75, ECHR 2003-VI; Seleckis v. Latvia (dec.),
no. 41486/04, § 21, 2 March 2010; and the case-law cited therein).
Relevant factors in this respect include the
nature of the complaints made, whether the issues raised are comparable to
issues already determined by the Court in previous cases, the nature and scope
of any measures taken by the respondent Government in the course of the
execution of judgments delivered by the Court in any such previous cases, and
the impact of these measures on the case at hand. Whether the facts are in
dispute between the parties may also be important, and, if they are, to what
extent, and what prima facie evidentiary value is to be attributed to the
parties’ submissions on the facts. In that connection, whether the Court has
already taken evidence in the case for the purposes of establishing the facts will
be of significance. Other relevant factors may include the question of whether
in their unilateral declaration the respondent Government have made any
admission(s) in relation to the alleged violations of the Convention and, if
so, the scope of such admissions and the manner in which they intend to provide
redress to the applicant. As to the last-mentioned point, in cases in which it
is possible to eliminate the effects of an alleged violation (as, for example,
in certain categories of property cases) and where the respondent Government
declare their readiness to do so, the intended redress is more likely to be
regarded as appropriate for the purposes of striking out the application - the
Court, as always, retaining its power to restore the application to its list as
provided in Article 37 § 2 of the Convention and Rule 44 § 5 of the Rules
of Court (see Tahsin Acar, cited above, §76).
The foregoing list is not intended to be
exhaustive. Depending on the particular circumstances of each case, it is
conceivable that further considerations may come into play in the assessment of
a unilateral declaration for the purposes of Article 37 § 1 (c) of the
Convention (see Melnic v. Moldova, no. 6923/03, §§ 24 and 25,
14 November 2006).
The Court also observes, as it has previously
stated (see Tahsin Acar, cited above, §§ 74-77), that a
distinction must be drawn between, on the one hand, declarations made in the course
of strictly confidential friendly-settlement proceedings and, on the other,
unilateral declarations - such as the present declaration - made by a
respondent Government in public and adversarial proceedings before the Court,
as in the present case. The Court will therefore proceed to examination of the
Government’s unilateral declaration in the light of the applicable Convention
principles set out above (see paragraphs 20-22).
The Court observes, on the one hand, that the
Government explicitly acknowledged a violation of the Convention on account of
the quashing of the binding and enforceable judgment in the applicant’s favour.
In consequence, they offered a sum of compensation for non-pecuniary damage
which is in line with Court’s awards in the similar case of Tarnopolskaya
and Others, cited above, § 57.
On the other hand, as the applicant pointed out,
the amount of compensation for pecuniary damage proposed by the Government is
not compatible with the amounts of compensation for pecuniary damage awarded to
the applicants by the Court in similar comparable cases (see Tarnopolskaya
and Others, cited above, § 54, and Eydelman and other “Emigrant
pensioners” v. Russia, nos. 7319/05 et al., § 46, 4 November 2010). The
applicant disagreed with the Government’s calculation of compensation for pecuniary
damage on the basis of his monthly pension as of 15 June 1998, which was RUB 132.
He contended that the total amount should have been calculated taking into
account all recalculations and adjustments that had taken place between
15 June 1998 and 16 March 2006 in accordance with Russian law.
The Court notes that
whereas in Tarnopolskaya and Others the Government did not object to the
method of calculation of the amounts of compensation for pecuniary damage suggested
by the applicants (see §§ 48 and 54), it came up with a radically
different method of calculation in the present case. In these circumstances,
and given in particular that the applicant’s method of calculation has already
been upheld by the Court’s final judgments cited above, it is difficult for the
Court to accept a radical difference in treatment between the applicant in the
present case and those in other similar cases.
The Court’s doubts
about the adequacy of the compensation offered by the Government in respect of
pecuniary damage are further supported by the ruling of the Velikiye Luki Town
Court delivered on 26 January 2011 in the applicant’s wife’s case (see
paragraph 13 above). In that case, the domestic court upheld her method for the
calculation of pecuniary damage arising from the pension arrears. The position
taken by the domestic court in the case of Mrs Gorfunkel, which is very similar
to the present case, weighs heavily in the Court’s assessment.
In view of the above
elements the Court is not satisfied that the compensation offered by the
Government in respect of pecuniary damage constitutes adequate and sufficient
redress for the violations of the applicant’s rights under the Convention. It
follows that the Government’s declaration, while acknowledging the violations
of the Convention, fails to ensure respect for human rights as defined in the
Convention and thus compels the Court to continue its examination of the
application.
This being so, the
Court rejects the Government’s request to strike the application out under
Article 37 of the Convention and will examine the admissibility and merits of
the case.
II. ALLEGED
VIOLATION OF ARTICLE 6 AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE
QUASHING OF THE JUDGMENT IN THE APPLICANT’S FAVOUR
The applicant complained that the quashing by
way of supervisory review of the binding and enforceable judgment in his favour
had violated the principle of legal certainty and, therefore, his “right to a
court” guaranteed by Article 6. He also complained in substance that Article 1
of Protocol No. 1 had also been violated. The relevant provisions read as
follows:
Article 6 § 1
“In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public 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 Court notes that the application 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 legal certainty, which
is one of the fundamental aspects of the rule of law, presupposes respect for
the principle of res judicata, that is, the principle of the finality of
judgments. A departure from that principle is justified only when made
necessary by circumstances of a substantial and compelling character (see Brumărescu v. Romania
[GC], no. 28342/95, § 61, ECHR 1999-VII, and Ryabykh v. Russia,
no. 52854/99, §§ 51-52, ECHR 2003-IX), such as the need to
correct a fundamental error (see Protsenko v. Russia, no. 13151/04,
§§ 31-33, 31 July 2008).
The Court has to assess whether the quashing of
the final judgment by way of supervisory review was indeed justified by such
circumstances (Kuzmina v. Russia, no. 15242/04, § 23, 2 April
2009).
In the present case the final judgment was
quashed on the grounds that the lower court had erred in law. According to the
Court’s settled case-law, the fact that the Presidium disagreed with the
interpretation of substantive law made in the lower court’s final judgment was
not, in itself, an exceptional circumstance warranting the quashing of the
binding and enforceable judgment and a reopening of the proceedings on the
applicant’s claim (see Kot v. Russia, no. 20887/03, § 29, 18 January
2007). No other reasons for the quashing of the final judgment were relied upon
by the higher court (see paragraph 9 above).
The foregoing considerations are sufficient to
enable the Court to conclude that in the present case there were no
circumstances justifying a departure from the principle of legal certainty.
The Court further reiterates that the binding
and enforceable judgment, though it did not indicate the sums to be paid,
unconditionally ordered the Pension Fund to restore the pension payments which
had previously been made. The judgment was thus specific enough to create an
asset within the meaning of Article 1 of Protocol No. 1 (see Vasilopoulou
v. Greece, no. 47541/99, § 22, 21 March 2002, and Malinovskiy
v. Russia, no. 41302/02, § 43, ECHR 2005-VII (extracts)). The quashing
of this judgment in breach of the principle of legal certainty frustrated the
applicant’s reliance on a binding judicial decision and deprived him of an
opportunity to receive a judicial award he had legitimately expected to receive
(see Dovguchits v. Russia, no. 2999/03, § 35, 7 June 2007).
There has accordingly also been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
III. ALLEGED
VIOLATION OF ARTICLE 2 §§ 2 AND 3 OF PROTOCOL No. 4 TO THE CONVENTION
The applicant also complained under
Article 2 §§ 2 and 3 of Protocol No. 4 to the
Convention that the authorities had restricted his right to leave his own
country by holding that his right to receive a pension depended on his place of
residence. Article 2 §§ 2 and 3 of Protocol No. 4 provide as follows:
“2. Everyone shall be free to leave any country,
including his own.
3. No restrictions shall be placed on the exercise
of [this right] other than such as are in accordance with law and are necessary
in a democratic society in the interests of national security or public safety,
for the maintenance of ordre public, for the prevention of crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others ...”
The Court observes that the measure complained
of was not a restriction “placed on the exercise of” the applicant’s right to
leave his country. The applicant left Russia voluntarily in 1990, and there is
nothing in the case file suggesting that he encountered any practical or legal
difficulties in emigrating. Rather, the measure in issue represented a
consequence of the exercise of the right to leave one’s own country. Therefore, in the light of all the material in its possession, and in so
far as the matter complained of is within its competence, the Court finds that
it does 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 is manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
IV. 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 159,763.21 Russian roubles
(RUB) in respect of pecuniary damage. According to his calculation, this was the
sum of arrears of pension payments that should have been paid for the period from
15 June 1998 to 16 March 2007 in accordance with the domestic
judgment of the Velikiye Luki Town Court dated 26 May 2006, which had been
quashed in violation of the Convention. The method of calculation used by the
applicant took into consideration all amendments to pensions legislation that had
taken place after 15 June 1998.
The amount of compensation offered by the
Government for pecuniary damage in its unilateral declaration was substantially
lower than that claimed by the applicant. They offered the applicant RUB 21,368.30,
plus any tax that might be chargeable on that amount. This sum was calculated
on the basis of the pensions legislation in force as of 15 June 1998, and
was index-linked in line with inflation without taking account of the
amendments to pensions legislation enacted after 15 June 1998.
The Court reiterates that in general the most appropriate
form of redress in respect of violations found is to put applicants as far as
possible in the position they would have been in if the Convention requirements
had not been disregarded (see Piersack
v. Belgium (Article 50), 26 October 1984, § 12,
Series A no. 85; and, mutatis
mutandis, Gençel v. Turkey,
no. 53431/99, § 27, 23 October 2003; and also Dovguchits,
cited above, § 48).
In the instant case, the Court has found a
violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 arising
from the fact that the judgment in the applicant’s favour was quashed by way of
supervisory review. Insofar as the applicant did not receive the money he had
legitimately expected to receive under this final judgment in the period until
it was quashed, there is a causal link between the violations found and the
applicant’s claim in respect of pecuniary damage. The parties
agree on the fact that the violations of the Convention took place, and the
pecuniary damage sustained should be compensated. However, they dispute the
amount of compensation to be paid and the method to be used for its calculation.
The Court observes that the applicant’s method
of calculation of the pension arrears is in line with the Court’s judgments in
similar cases (see paragraph 25 above). This method, which takes into account
all amendments to Russian pensions legislation, was used by the applicants in those
similar cases and gave rise to no objections from the Government (see Tarnopolskaya
and Others, cited above, §§ 48 and 54). In the present case, the
Government changed their position and suggested a radically different method of
calculation without any convincing explanation as to why it should be
considered preferable. The Court is not prepared to accept the Government’s
position and therefore accepts the applicant’s submissions on this point for
the reasons outlined above (see paragraphs 25-28 above).
Therefore, the Court awards the applicant the
equivalent of RUB 159,763.21 claimed by the applicant, namely 3,717 euros
(EUR) in respect of pecuniary damage.
As far as non-pecuniary damage is concerned, the
applicant claimed EUR 3,000 in this respect. The Court
notes that the same amount was offered by the Government to compensate
non-pecuniary damage in its unilateral declaration. The Court accepts that
the applicant must have suffered non-pecuniary damage as a result of the
violations found which cannot be compensated by the mere finding of a
violation. Having regard to the circumstances of the case and making its
assessment on an equitable basis, 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 did not claim any award in respect
of costs and expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT,UNANIMOUSLY,
1. Rejects the Government’s request to strike
the application out of its list of cases;
2. Declares the complaint regarding the
quashing of the judgment of the Velikiye Luki Town Court of 26 May 2006 admissible
and the remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 6 of the Convention and of Article 1 of Protocol No. 1;
4. 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,
(i) EUR 3,717 (three thousand seven hundred and seventeen euros) in respect of pecuniary
damage, and
(ii) EUR 3,000 (three thousand euros) in
respect of non-pecuniary damage, plus any tax that may be chargeable on this
amount;
(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.
Done in English, and notified in writing on 19 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
