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NIKOLAY ZHUKOV v. RUSSIA - 560/02 [2007] ECHR 557 (5 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/557.html
Cite as:
[2007] ECHR 557
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FIRST
SECTION
CASE OF
NIKOLAY ZHUKOV v. RUSSIA
(Application
no. 560/02)
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 Nikolay Zhukov 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. 560/02) 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 Nikolay Vasilyevich
Zhukov (“the applicant”), on 28 November 2001.
The
applicant was 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
applicant alleged, in particular, that the domestic judicial
authorities had reconsidered a judgment given in his 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
admissible.
The
Government, but not the applicant, 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 applicant replied in writing to the Government's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1928 and lives in
Novosibirsk.
The
applicant receives an old-age pension. 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 applicant's pension, the Pension Fund
Agency of the Sovetskiy District of Novosibirsk (“the Agency”),
fixed the applicant's coefficient at 0.525. The applicant challenged
the Agency's decision in the Sovetskiy District Court of Novosibirsk.
He argued that his coefficient should be 0.7.
On
26 August 1999 the District Court found for the applicant,
considering that the Agency had misinterpreted the Pensions Act. In
particular, it held as follows:
“... the vague wording of the Article [Article 4
of the 1997 Pensions Act] permits the law to be interpreted in two
ways, and this has resulted in the unfounded reduction of calculated
pensions and in pensioners' complaints.”
The
District Court decided that the Agency was to recalculate the
applicant's pension using a coefficient of 0.7 from 1 February 1998.
The
Agency appealed against the judgment. On 11 November 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.
On
24 January 2000 the Agency lodged an
application with the District Court for the reconsideration of the
applicant's case owing to newly discovered circumstances. They asked
the court to take account of the Instruction, which supported their
arguments that had been rejected by the court during the initial
examination of the case. They pointed out that the Ministry was
empowered to give an official interpretation of laws.
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
applicant's pension was calculated based on a coefficient of 0.7125.
After 1 May 2001 the coefficient was fixed at 0.9.
On
6 June 2001 the District Court examined the
Agency's request. The Agency submitted at the hearing that the
Instruction had been upheld by the Supreme Court. The applicant
argued that the Instruction was subordinate to the Pensions Act, that
it was not a newly discovered circumstance and that the Agency had
missed the statutory time-limit for requesting the reconsideration.
The
District Court noted that the Instruction had been issued after the
judgment in the case had become enforceable, that the Pensions
Act itself had not changed and that the Instruction had been required
because of the “different interpretation of the [Pensions]
Act's provisions by claimants, officials and the RF Pension Fund”.
The court further noted that the Instruction had been upheld by the
Supreme Court. It held as follows:
“When delivering its judgment on 26 August 1999
the court interpreted the provisions of the [Pensions] Act on its
own. The newly discovered circumstances in this case are the official
interpretation of the [Pensions] Act in the Instruction of the RF
Ministry of Labour and the case-law of the RF Supreme Court”.
The
court noted that the Agency's application had reached the court on
24 January 2000 and that, therefore, it was not time barred.
In
a decision of 6 June 2001 the District
Court granted the Agency's application, under Article
337 of the Code of Civil Procedure, quashed the judgment of 26 August
1999, as upheld on 11 November 1999, and
ordered a fresh examination of the case. It stated that its decision
was final and not subject to appeal.
As
a result of the fresh examination of the case the District Court
delivered a judgment of 21 June 2001 in which it relied on the
Instruction and rejected the applicant's claims
in full. The applicant appealed on the grounds, inter alia,
that the court had unlawfully reopened the case and quashed the
judgment of 26 August 1999. On 11 September 2001 the
Novosibirsk Regional Court dismissed the applicant's appeal and
upheld the judgment of 21 June 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
applicant complained that the State had reconsidered a final judgment
in his 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 applicant's pension.
(a) Applicability of Article 6 § 1
The
Government stressed that the judgment of 26 August 1999 had not
determined any definite amount due to the applicant, but had rather
established how the pension should be calculated. In their words,
“the subject-matter of the dispute was
not the applicant's claim to award [him] 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 applicant by
virtue of the judgment of 26 August 1999 constituted her
“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 both the Instruction and the ensuing
decision of the Supreme Court, which had confirmed its lawfulness,
constituted newly discovered circumstances which had 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 applicant's property rights as
guaranteed by Article 1 of Protocol No. 1.
2. The applicant
The
applicant disagreed with the Government's arguments. He pointed out
that the Instruction had not existed at the time when his case had
been examined in court and when the judgment of 26 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 sixteen months after the Instruction had been issued,
instead of three months as required by the civil procedure.
Therefore, the applicant's 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
applicant 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. He 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). He 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 applicant's
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 Sovetskiy District Court of
26 August 1999, which became final after it had been upheld on appeal
by the Novosibirsk Regional Court on 11 November 1999, provided the
applicant 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 applicant's dispute
concerned a civil right within the meaning of Article 6, and that the
applicant 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 Sovetskiy District
Court for the quashing of the judgment (see paragraph 16 above).
The
Sovetskiy District Court noted that the Pensions Act was interpreted
differently by claimants, “officials” and the Federal
Pension Fund, and that this situation had called for the Instruction
to be issued. It further stated that it was its own interpretation of
the Pensions Act which had led to the findings in its judgment of 26
August 1999. It held that the “official” interpretation
of the Pensions Act, in the Ministry of Labour's Instruction and the
Supreme Court's decision which upheld it, were “newly
discovered circumstances” as had been suggested in the Agency's
request for reopening. Therefore, the District Court decided that the
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 applicant's 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 19 above).
Further,
the judgment of 26 August 1999 was a result of the District
Court's interpretation and application of the Pensions Act to the
applicant's case. As the decision of 6 June 2001 suggests, the fact
that the “official” 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 “official” 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
applicant's case and setting aside the final judgment of 26 August
1999, as upheld on 11 November 1999, the domestic authorities
infringed the principle of legal certainty and the applicant's “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
applicant's claim to a pension based on a coefficient of 0.7 from 1
February 1998, in accordance with the judgment of the Sovetskiy
District Court of 26 August 1999, upheld on 11 November 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 applicant's pension changed to 0.7125 from 1
August 2000 and again to 0.9 from 1 May 2001.
The
Court notes that the applicant's concern under Article 1 of Protocol
No. 1 was the loss of his entitlement to a pension based on a
coefficient of 0.7 for the period between 1 February 1998 and 1
August 2000, as opposed to the pension calculated and actually paid.
However, the Court further notes that before that period ended on 1
August 2000, the Instruction had removed the ambiguity of the
Pensions Act with the effect that the applicant's 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 applicant's dispute, that the applicant's claim – and
“possession” under Article 1 of Protocol No. 1 –
had been secured by the judgment.
The
effect produced by the decision of the Sovetskiy District Court of 6
June 2001, by which the application for reconsideration was granted,
was that the applicant 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 his possession 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 applicant's case with the “lawfulness”
requirement is questionable (see paragraph 41 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 26 and 20 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 applicant's 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
applicant 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
The
applicant claimed 440.60 euros (EUR) in respect of pecuniary damage.
This amount represented the underpayment of his pension between 1
February 1998 and 1 August 2000 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 applicant's residence.
The
Government submitted that no just satisfaction should be awarded to
the applicant because there had been no violation of his 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 applicant 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 pension calculated with a
coefficient of 0.7 and the pension actually paid would be negative
and the applicant would owe the State 34.50 roubles.
The
Court considers it appropriate to award the applicant, in respect of
the violation of Article 1 of Protocol No. 1, the sum he would have
received had the reduction of the pension 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 sum calculated by the
applicant was based on official certificates which confirm the
amounts of the pension actually paid and the rates of inflation.
However, the sum to be awarded by the Court should not take account
of the coefficient linked to the region of the applicant's residence,
as that claim was not secured by the judgment of 26 August 1999,
upheld on 11 November 1999, having been rejected by the
first-instance court (see the facts in the Zhukov v. Russia
admissibility decision of 17 November 2005). Nor should it cover
the whole period between 1 February 1998 and 1 August 2000. The
period relevant to the violation of Article 1 of Protocol No. 1 is
indicated in paragraph 48 above. Those adjustments being made, the
Court awards the applicant EUR 77 in respect of pecuniary damage.
2. Non-pecuniary damage
The
applicant further claimed EUR 5,000 in respect of non-pecuniary
damage. He submitted that the pension was his only means of
subsistence. Because of the underpayment of his pension he could not
afford to buy basic foodstuffs or medication, and this had caused him
psychological suffering. He further submitted that during the court
proceedings the facts had been misinterpreted, his right to a fair
hearing had been infringed and he had been subjected to humiliation.
The
Government submitted that the claim was “wholly ill-founded,
unsubstantiated and unreasonable”.
The
Court considers that the applicant has 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 the applicant EUR 2,000.
B. Costs and expenses
The
applicant claimed EUR 19.80 for postal expenses incurred in
connection with his application to the Court, together with EUR 9.60
that he had paid to obtain official information on rates of inflation
for the preparation of his claim in respect of pecuniary damage.
The
Government agreed with the claim.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. Having regard to the information in its possession, the
Court awards the applicant EUR 29.40 in respect of 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
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 applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
77 (seventy-seven euros) in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) EUR
29.40 (twenty-nine euros forty cents) 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;
Dismisses the remainder of the applicant's 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