European Court of Human Rights

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27522/02
by Aleksandra Lavrentyevna NOVIKOVA
against Russia

The European Court of Human Rights (First Section), sitting on 3 July 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 1 July 2002,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

A.  The circumstances of the case

The applicant, Ms Aleksandra Lavrentyevna Novikova, is a Russian national who was born in 1933 and lives in Klin, a town in the Moscow Region. She is represented before the Court by Mr A. Novikov, a lawyer practising in Klin. The Russian Government are represented by Mr P. Laptev and then by Mrs V. Milinchuk, the Representatives of the Russian Federation at the European Court of Human Rights.

The circumstances of the case, as submitted by the parties, may be summarised as follows.

As a child, the applicant was imprisoned by the Nazis. In the 1990s she hoped to receive compensation from the “Foundation for Mutual Understanding and Reconciliation”, a charity set up by the Russian and German Governments.

The Foundation refused compensation, and the applicant brought an action against it. On 20 December 2000 the Klinskoy District Court of the Moscow Region ordered the Foundation to:

“[M]ake payments to [the applicant] in accordance with the Government’s Decree No. 899 of 2 August 1994 “On the adoption of the Rules on the conditions and procedure of the payment of compensation to victims of the Nazis”.”

On 3 January 2001 the judgment became binding, but was not immediately enforced because at that time the Foundation lacked funds.

On 24 January 2005 the Foundation informed the applicant that it was going to pay her the equivalent 649.34 euros converted into Russian roubles, and asked the applicant for her bank details. The applicant contested this offer, alleging that the amount was too small, and that currency conversion would make it even smaller.

The applicant applied for a clarification of the judgment, but on 16 November 2005 the District Court rejected this request having found that the judgment was worded clearly. The applicant did not appeal against this decision.

B.  Relevant domestic law

The Foundation for Mutual Understanding and Reconciliation operates on the basis of the Government Order no. 899 of 2 August 1994. According to section 10 of this Order, the amount of compensation is determined by the Foundation’s Experts’ Board. The Board’s decision may be appealed against to the Foundation’s Appeal Commission, whose decision shall be final.

COMPLAINT

The applicant complained that the non-enforcement of the district court’s judgment and the miscalculation of compensation breached Article 6 of the Convention and Article 1 of Protocol No. 1.

THE LAW

The applicant complained that the non-enforcement of the district court’s judgment and the miscalculation of compensation breached Article 6 of the Convention and Article 1 of Protocol No. 1, which, as far as relevant, read as follows:

Article 6

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1.  Arguments of the parties

The Government argued that this complaint was inadmissible.

First, it was incompatible with the Convention ratione materiae, because the judgment awarded no definite amount of money, and hence was not a “possession” within the meaning of Article 1 of Protocol No. 1. Besides, the applicant’s litigation with the Foundation was not “civil” within the meaning of Article 6.

Second, it was incompatible with the Convention ratione personae, because the Foundation was financed by Germany; hence Russia was not responsible for the late payment.

Third, the applicant had not exhausted all domestic remedies, as Article 35 § 1 of the Convention required, because she had failed to appeal against a court order that had refused to clarify the initial judgment.

The applicant argued that her complaint was admissible.

First, her judgment was a “possession” because it was sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301 B, § 59). Her litigation with the Foundation was “civil”, because it concerned compensation of a personal injury (see Burdov v. Russia, no. 59498/00, §§ 33–38, ECHR 2002 III).

Second, Russia was responsible for the Foundation’s lack of funds, because the Government had connived at the funds’ embezzlement by private banks. Besides, even though the funds had originally come from Germany, Russian authorities had operative control over them.

Third, she could not exhaust domestic remedies because under domestic law the court’s refusal to clarify the initial judgment could be appealed against only within one year.

2.  The Court’s assessment

Under Article 35 § 1 of the Convention, the Court may deal with an application only after all domestic remedies have been exhausted. This rule gives the State a chance to put matters right inside the State, before complaints reach the Court (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996 IV, § 65).

In the case at hand, to obtain the enforcement of the judgment it was necessary to have the amount of the compensation specified. The applicant did initiate such a procedure when she asked the District Court to clarify its judgment. However, once the District Court had refused, the applicant failed to appeal against this refusal.

Furthermore, insofar as the enforcement of the judgment was made impossible by the Foundation’s alleged miscalculation of the compensation, the applicant could have appealed to the Foundation’s Appeal Commission (see section “Relevant domestic law” above).

By failing to pursue these two remedies, the applicant has deprived the State of a chance to put matters right internally.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President