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FINKOV v. RUSSIA - 27440/03 [2009] ECHR 1475 (8 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1475.html
Cite as:
[2009] ECHR 1475
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FIRST
SECTION
CASE OF FINKOV v. RUSSIA
(Application
no. 27440/03)
JUDGMENT
STRASBOURG
8 October
2009
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 Finkov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 17 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27440/03) 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 Yevgeniy Valentinovich
Finkov (“the applicant”), on 5 February 2001, 1 August
2003, 8 January 2004 and 27 January 2006.
The
Russian Government (“the Government”) were represented by
their Agents, Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights; Mr Savenkov, former
acting Representative of the Russian Federation at the European Court
of Human Rights; and Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
On
13 November 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Rostov-on-Don.
In 1986 the applicant took part in the cleaning-up
operation at the Chernobyl nuclear disaster site. He was subsequently
granted Category 2 disability status and became entitled to various
social benefits. The subjects of the present case are the disputes
concerning these benefits.
A. Proceedings in 1996
In
1996 the applicant lodged a complaint before the Proletarskiy
District Court of Rostov-on-Don alleging a failure of the authorities
to comply with the pension law. On 24 July 1996 the District Court
upheld the complaint, noting the authorities' unlawful inactivity.
B. Proceedings for compensation for health damage and
food allowance.
1. Judgment of 18 November 1997
On
18 November 1997 the Proletarskiy District Court upheld the
applicant's action against the authorities and awarded him monthly
payments of 2,495,023 Russian roubles (RUB) in compensation for
health damage and as food allowance. The District Court also awarded
him a lump sum of RUB 47,314,000 in outstanding compensation. The
judgment was not appealed against and became final. The authorities
did not pay the applicant the lump sum, and made the monthly payments
only until September 2000.
2. Quashing of the judgment of 18 November 1997 and
ensuing proceedings
On
15 March 2001 the Presidium of the Rostov Regional Court, by way of
supervisory-review proceedings, quashed the judgment of 18 November
1997 and remitted the case for re-examination to the Proletarskiy
District Court.
The
hearings were adjourned on 14 May 2001 and on 7 June 2001 due to the
authorities' failure to appear.
The
next hearing was fixed for 5 July 2001 when it was again postponed as
the applicant had amended his claims.
On
17 September 2001 the applicant lodged additional claims.
On
24 September 2001 the court granted the authorities' request for stay
in the proceedings on the grounds that there were pending related
proceedings in the Supreme Court of Russia and in the Constitutional
Court of Russia. The proceedings in the Constitutional Court had been
initiated by the applicant (see para. 60 below). The applicant
appealed against the decision to stay the proceedings, to no avail.
On
24 October 2002 the case was reopened and assigned for hearing for 21
November 2002.
On
21 November 2002 the authorities failed to appear and the proceedings
were adjourned.
On
10 December 2002 the Proletarskiy District Court accepted the
applicant's claims in part. It ordered that the Social Security
Services should pay him a lump sum of RUB 37,992.75 in compensation
for health damage, monthly payments of RUB 4,850 and a lump sum of
RUB 5,000 in compensation for damage caused by a delay in the payment
of monthly benefits. The District Court also noted that the amount of
monthly payments was to be index-linked in accordance with the law.
The judgment was upheld on appeal and became final on 7 May 2003.
3. Quashing of the judgment of 10 December 2002, as
upheld on 7 May 2003, and ensuing proceedings
In
2003 the authorities, as well as the applicant, requested reopening
of the proceedings by way of supervisory review.
On
13 November 2003 the Presidium of the Rostov Regional Court quashed
the judgments of 10 December 2002 and 7 May 2003 and sent the case
for a fresh examination. The Presidium held that the lower court had
not calculated the sums of compensation and adjustment of monthly
payments in accordance with the relevant law provisions, considering
it as mistakes in implementation of substantive, as well as
procedural, law.
On
18 December 2003 the authorities failed to appear in court and the
hearing was adjourned.
On
23 January 2004 the applicant specified his claim.
On
12 February 2004 the case was postponed as the authorities were not
properly informed about the hearing.
On
26 February 2004 the authorities failed to appear and the hearing was
adjourned.
On
4 March 2004 the examination of the case was postponed as the judge
was considering another case.
On
1 April 2004 the case was adjourned because of default in appearance
of the applicant.
On
22 April 2004 the Proletarskiy District Court dismissed the
applicant's action in full. The applicant appealed. However, on
29 April 2004 the District Court adjourned the examination
of the appeal because the applicant had only submitted a short
version of his appeal statement. On 7 June 2004 the Rostov Regional
Court quashed the decision of 29 April 2004 as unlawful.
The
applicant contested the accuracy of the minutes of the hearing of 22
April 2004. On 29 April 2004 the Proletarskiy District Court
dismissed the claim without consideration on the merits. The
applicant appealed and on 7 July 2004 the Rostov Regional Court
quashed the decision of 29 April 2004 and remitted the
matter for fresh consideration. On 2 September 2004 the
applicant's claim concerning the minutes was dismissed on the merits.
On
13 October 2004 the Rostov Regional Court, acting on appeal, quashed
the judgment of 22 April 2004 and remitted the case for a fresh
examination.
On
16 November 2004 the case was assigned to examination for 30 November
2004. On that date the applicant asked the court to request some
documents from the defendant. The hearing was adjourned to
21 December 2004.
Upon
the applicant's requests the subsequent hearings were adjourned until
16 February 2005.
On
16 February 2005 the case was adjourned due to the absence of a
prosecutor.
On
2 March 2005 the case was not tried again due to the applicant's
failure to appear.
On
24 March 2005 the District Court partly upheld the applicant's action
and awarded him a lump sum of RUB 45,919.02 in outstanding
compensation for health damage, monthly payments of RUB 3,857.94 in
compensation for health damage and RUB 6,000 in compensation for
damage caused by a delay in payment of monthly sums. Thus, as
compared with the quashed final judgment of 18 November 1997, the
court awarded a lesser lump sum but higher monthly payments.
On
7 July 2005 the Rostov Regional Court upheld the judgment on appeal.
As
to the enforcement of the judgment, the monthly payments were made
regularly and the lump sum was transferred to the applicant's account
by 30 November 2005.
4. Quashing of the judgment of 24 March 2005, as upheld
on 7 July 2005, and ensuing proceedings
On
15 February 2006 the Proletarskiy District Court of Rostov-on-Don
granted the applicant's request and quashed the judgment of 24 March
2005 as upheld on 7 July 2005 due to newly-discovered circumstances.
On
28 February 2006 and on 28 March 2006 the applicant unsuccessfully
requested suspension of the proceedings as the same claims were
considered by another court (see para. 46 below).
On
17 April 2006 the Proletarskiy District Court of Rostov-on-Don
discontinued the proceedings as the applicant failed to appear before
the court and did not request the case to be tried in his absence.
C. Proceedings concerning a delay in enforcement of the
judgment of 18 November 1997
In
August 2000 the applicant lodged an action against the Federal
Treasury complaining that the lump sum awarded under the judgment of
18 November 1997 had never been paid to him. He sought
compensation for pecuniary and non-pecuniary damage.
On
14 December 2000 the Leninskiy District Court stayed the proceedings
because the President of the Rostov Regional Court had lodged an
application for a supervisory review of the judgment of
18 November 1997.
The
decision of 14 December 2000 was quashed on appeal on 6 March
2001 and the proceedings were resumed.
On
4 June 2003 the Leninskiy District Court disallowed the applicant's
action against the Treasury. That decision was quashed on 9 July 2003
and the action was sent to the District Court for an examination on
its merits.
On
6 October 2003 the Leninskiy District Court dismissed the applicant's
action on the ground that the judgment of 18 November 1997 had been
quashed by way of supervisory review on 15 March 2001 and that on 10
December 2002 the applicant had obtained another judgment in his
favour. On 12 November 2003 the Rostov Regional Court upheld the
judgment of 6 October 2003.
D. First set of proceedings concerning indexation of
monthly payments
In
September 1999 the applicant brought proceedings against authorities
demanding adjustment of his monthly payments.
On
22 May 2000 the Leninskiy District Court of Rostov-on-Don dismissed
the applicant's action. The judgment was upheld on appeal and became
final on 11 October 2000.
On
13 February 2006 the applicant requested the case to be reopened due
to newly discovered circumstances.
On
30 March 2006 the Leninskiy District Court granted the claim and
quashed the judgment of 22 May 2000.
After
the resumption of the proceedings the applicant amended his claims
several times. Eventually he claimed damages for the delays in
payments and failures to adjust them, making the claims similar to
those considered in another case (see para. 35 above).
On
17 January 2007 the Leninskiy District Court granted the applicant's
claims in part. It made the relevant adjustments and awarded the
applicant compensation for the underpaid sums in the amount of
RUB 231,065.39, monthly payments of RUB 7,766.51 and yearly
payments of RUB 2,387.32.
On
14 May 2007 the Rostov Regional Court upheld the judgment on appeal.
The
monthly payments were made without delay. As to the lump sum, it was
received by the applicant in November 2007.
E. Second set of proceedings concerning indexation of
monthly payments
In
July 2000 the applicant lodged another action seeking adjustment of
his monthly payments to take account of increases of the minimum
monthly wage.
On
27 October 2000 the Leninskiy District Court upheld the action. That
judgment was quashed on appeal on 21 August 2002 and the case was
remitted for a fresh examination.
On
4 October 2002 the District Court dismissed the claims in full. On
25 December 2002 the Rostov Regional Court upheld the judgment.
F. Proceedings concerning the reduction of monthly
payments
In
September 2000 the authorities, by a unilateral decision, reduced the
amount of monthly payments to the applicant. Two months later he
lodged an action against the authorities complaining about the
reduction and seeking compensation for damage.
On
13 December 2000 the Pervomayskiy District Court of Rostov on-Don
held that the authorities the applicant sued were not the proper
respondent and disallowed the action against them. However, the
District Court ordered another authority, the local Social Security
Service, to join the proceedings as a respondent party and to resume
payments of monthly sums to the applicant in accordance with the
judgment of 18 November 1997.
On
28 January 2001 the Rostov Regional Court, acting on appeal, upheld
the judgment of 13 December 2000 in the part concerning the
disallowance but quashed the remaining part of the judgment and sent
the matter for a fresh examination.
On
15 November 2001, as a result of the re-examination, the District
Court dismissed the applicant's claims in full. The applicant did not
appeal.
G. First set of proceedings concerning provision of
information
The
applicant lodged an action before the Pervomayskiy District Court
asking for information to be disclosed about local judges who had not
been provided with housing premises in accordance with the law. By
the final judgment of 19 December 2001 the Rostov Regional Court
dismissed the action, noting that the information was confidential.
H. Second set of proceedings concerning provision of
information
In
2001 the applicant unsuccessfully asked the authorities to provide
him with information concerning the representation of their interests
in courts. He complained about the refusal to a court.
On
19 December 2001 the Rostov Regional Court, in the final instance,
dismissed the complaint, noting that the applicant's rights and
freedoms had not been infringed by the refusal.
I. Complaints to the Constitutional Court of the
Russian Federation
On
24 January 2001 the applicant brought proceedings before the
Constitutional Court of the Russian Federation claiming
unconstitutionality of some of the law provisions concerning payments
for disability caused by the Chernobyl nuclear disaster.
On
19 June 2002 the Constitutional Court found the provisions
constitutional, thus rejecting the applicant's claim. At the same
time it noted that by these norms the State took an obligation to
make the relevant payments within a specified period of time. It
underlined, with the reference to the practice of the European Court
of Human Rights, that when an award is made by a final judgment, it
should be enforced without delay.
J. Proceedings for revision of the judgment of 15
November 2001
The
applicant, relying on the decision of 19 June 2002 of the
Constitutional Court, asked the Pervomayskiy District Court to review
its final judgment of 15 November 2001 due to newly discovered
circumstances.
On
18 February 2002 the District Court dismissed the request. That
decision became final on 7 May 2003 when the Rostov Regional Court
upheld it on appeal.
II. RELEVANT DOMESTIC LAW
Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months.
The
relevant domestic law governing the supervisory review procedure in
the material time is summed up in the Court's judgment in the case of
Sobelin and Others v. Russia (nos. 30672/03, 30673/03,
30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03,
30779/03, 32080/03 and 34952/03, §§ 33 42, 3 May
2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF
NON-ENFORCEMENT
The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 that the judgment of 18 November 1997 in his favour
had not been enforced. Insofar as relevant, these Articles read as
follows:
Article 6 § 1
“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
Government contested that argument.
They
argued that this complaint had been incompatible with the Convention
ratione temporis in the part concerning non-enforcement of the
judgment of 18 November 1997 because the Convention had entered into
force in respect of Russia only on 5 May 1998. Besides, the documents
concerning the enforcement since 1997 until 1999 had been destroyed
and no details of the proceedings were available. They noted that the
judgment had been executed partially till September 2000 and that
after 15 March 2001 there had been no obligation to enforce the
judgment as it had been quashed by way of supervisory review. They
also mentioned that the applicant had failed to submit the writ of
execution to the Ministry of Finance of the Russian Federation.
A. Admissibility
With
regard to the compatibility ratione temporis, the Court notes
that on the date of introduction of the complaint concerning
non enforcement (5 February 2001), the judgment of 18 November
1997 remained unenforced, and the Court is hence competent to examine
this complaint (see Grigoryev and Kakaurova v. Russia, no.
13820/04, § 26, 12 April 2007).
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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 an unreasonably long delay in the enforcement
of a binding judgment may breach the Convention (see Burdov
v. Russia, no. 59498/00, ECHR
2002 III). To decide if the delay was reasonable, the Court will
look at how complex the enforcement proceedings were, how the
applicant and the authorities behaved, and what was the nature of the
award (see Raylyan v. Russia,
no. 22000/03, § 31, 15 February 2007).
As
to the period to be taken into consideration, the Government
suggested that the period of enforcement should run from the moment
when the applicant submitted a writ of execution to a competent
authority.
The
Court notes in this respect that where a judgment is against the
State, the State must take the initiative to enforce it (see Akashev
v. Russia, no. 30616/05, §§ 21–23, 12
June 2008). Accordingly, in respect of the judgment of 18 November
1997, the period started on 5 May 1998, the date when the Convention
entered into force in respect of Russia.
Consequently, the period of non-enforcement of that
judgment lasted no less than two years, 10 months and 11 days, before
it was quashed by way of supervisory review on 15 March 2001.
Taking into account that the judgment was not
difficult to enforce as it required only bank transfers and the
applicant did not obstruct the enforcement, this period is sufficient
to find a violation of the Convention.
There has, accordingly, been a violation of Article 6
§ 1 of the Convention and of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF
SUPERVISORY REVIEW
In
the letter of 8 January 2004 the applicant complained under Article 6
of the Convention that the judgment of 10 December 2002, as upheld on
7 May 2003, had been quashed on a supervisory review on
13 November 2003. The Court will examine this complaint under
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 (cited above).
The
Government contested that argument.
They
argued, inter alia, that the supervisory review had been
compatible with the Convention because it had been lawful under
domestic law and had been intended to correct mistakes in
implementation of law. The reasons cited by the supervisory-review
court had justified the quashing. In fact, the new judgment of 24
March 2005, made after the review, was more favourable to the
applicant that the quashed one.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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 for the sake of legal certainty implicitly
required by Article 6, final judgments should generally be left
intact. They may be disturbed only to correct fundamental errors (see
Ryabykh v. Russia, no. 52854/99, §§ 51–52,
ECHR 2003 IX). To answer this complaint the Court will hence
have to determine if the grounds for the quashing of the applicant's
judgment fell within this exception (see Protsenko v. Russia,
no. 13151/04, § 29, 31 July
2008).
In
the case at hand, none of the grounds cited by the Presidium of the
Rostov Regional Court were fundamental (see para. 17 above). All of
these grounds concerned different interpretation of the substantive,
not procedural, law, which cannot be considered as an exceptional
circumstance warranting the quashing of a binding and enforceable
judgment and a reopening of the proceedings on the applicant's claims
(see Kot v. Russia, no. 20887/03, § 29, 18 January 2007).
The
Government's argument that the judgment of 24 March 2005 was more
favourable to the applicant than the judgment of 10 December 2002 is
not convincing. Indeed, in situations where an alleged violation has
already occurred, subsequent events can give rise to a loss of the
status of “victim”, provided that the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (see, among
other authorities, Amuur v. France, 25 June 1996, § 36,
Reports of Judgments and Decisions 1996-III).
However,
in the present case the domestic courts never referred to
unlawfulness of the quashing of 13 November 2003 and the subsequent
judgments were not intended to correct it. It follows that there was
no acknowledgement that the quashing constituted a violation of the
Convention.
As
to the redress, the judgment of 10 December 2002 awarded the
applicant RUB 4,850 in monthly payments, whereas the judgment of
24 March 2005 – only RUB 3,857.94 (see paras. 15 and 31
above).
Therefore
there was neither acknowledgment nor redress of the alleged violation
and the applicant could still claim to be a victim in respect of the
quashing.
There
has accordingly been a violation of Article 6 of the Convention and
of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF LENGTH OF PROCEEDINGS
The
applicant complained of the length of the proceedings concerning
damages. He alleged a violation of Article 6 § 1 of the
Convention, which, as far as relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
The
Government contested that argument.
The
Court notes that the applicant may be understood to complain about
four sets of proceedings. One of them concerns compensation for
health damage and food allowance (see paras. 7-36 above), two concern
adjustment of monthly payments (paras. 42-52) and last one is about
compensation for reduction of monthly payments (paras. 53-56). Though
each of them concern the same social benefits, the proceedings were
different and were tried by different courts. Therefore the length of
each set of proceedings should be separately examined (Gjonbocari
and Others v. Albania, no. 10508/02, § 59, 23 October
2007).
A. Admissibility
As
to the proceedings for compensation for health damage and food
allowance (paras. 7-36) and the first set of proceedings concerning
indexation of monthly payments (paras. 42-49), the Court notes that
these complaints are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that
they are not inadmissible on any other grounds. They must therefore
be declared admissible.
As
to the second set of proceedings concerning indexation of monthly
payments (paras. 50-52) and the proceedings concerning the reduction
of monthly payments (paras. 53-56), the relevant complaints were
lodged on 1 August 2003. There is no indication in the submissions
that the applicant had not been immediately aware of the final
judgments. Therefore the complaints were lodged out of time, as more
than six months elapsed since the final decisions of the domestic
authorities and must be declared inadmissible pursuant to
Article 35 §§ 1 and 4.
B. Merits
1. General principles
The
Court firstly considers that the periods during which the domestic
courts decided whether or not to re-open the case should be excluded
since Article 6 does not apply to such proceedings (see, for example,
Markin v. Russia (dec.), no. 59502/00, 16 September 2004;
Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001;
Petersen v. Denmark, no. 28288/95, Commission
decision of 16 April 1998). Therefore the periods between final
judgments and decisions to reopen the proceeding should not be taken
into account.
Secondly,
the periods of pure non enforcement should not be taken into
account in respect of the complaint concerning the length if the
Court has already considered these periods when assessing the
complaint about the non-enforcement (see Malama v. Greece,
no. 43622/98, § 34, ECHR 2001 II; Androsov v.
Russia, no. 63973/00, § 76, 6 October 2005; Alekseyev v.
Russia (dec.), no. 5836/05, 13 November 2008;
Lukyanchenko v. Ukraine, no. 17327/02, § 33, 15 May
2008; Kabkov v. Russia, no. 12377/03, § 49, 17 July
2008; and Veretennikov v. Russia,
no. 8363/03, § 31, 12 March 2009).
The Court finally reiterates that the reasonableness
of the length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, the conduct of the applicant
and the relevant authorities and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
2. Application of the above principles in the present
case
(a) Proceedings for compensation for
health damage and food allowance
i. Periods to be taken into account
The
Court firstly notes that the period before the final judgment of 18
November 1997 cannot be included into the period of length ratione
temporis, as the Convention entered into force in respect of
Russia only on 5 May 1998.
The
Court further notes that as the period of non-enforcement was already
assessed above and should not be included in the length of
proceedings (see paras. 74 and 94), the first period to be taken into
consideration lasted from 15 March 2001, when the
proceedings were reopened by way of supervisory review, until 7 May
2003, when the judgment of 10 December 2002 became final (see paras.
8-15 above).
The
second period started on 13 November 2003 with the quashing of the
final judgment, and lasted until 7 July 2005, the date of another
final judgment (see paras. 16-33 above).
The
third period began on 15 February 2006, when the proceedings were
reopened again, and ended on 17 April 2006 with their discontinuation
(see paras. 34-36 above).
The
total length to be assessed is thus three years, 11 months and 16
days. There were three levels of jurisdiction.
ii. Reasonableness of the length of
proceedings
The Government submitted that the length of
proceedings in the present case complied with the “reasonable
time” requirement of Article 6. The proceedings had been
factually complex. The applicant had contributed to the delay in the
proceedings by submitting additional claims, a request before the
Constitutional Court and by his occasional failure to appear for the
hearings. The domestic authorities had not been responsible for any
important delays in the examination of the case. The hearings had
been scheduled regularly; the court had examined the case on the
merits several times.
The applicant maintained his complaint.
The
Court considers that the case was not particularly difficult to
determine. There was no need to hear witnesses or to have expert
opinions in the case. There is nothing to suggest that the volume of
written evidence was excessive. There was no other reason for the
hearings to be lengthy.
As
concerns the applicant's conduct the Court notes that the applicant
should not be held responsible for amending his claims and asking to
adjourn hearings in order to obtain additional evidence. It
has been the Court's constant approach that an applicant cannot be
blamed for taking full advantage of the resources afforded by
national law in the defence of his interests (see Skorobogatova v.
Russia, no. 33914/02, § 47, 1 December 2005).
The Court further considers negligible the delays caused by the
applicant's failure to attend several hearings.
On
the other hand, the applicant was one of those who initiated the
proceedings before the Constitutional Court and the supervisory
proceedings which led to quashing of the final judgment in 2003.
Moreover, the proceedings were reopened on 15 February 2006 upon the
applicant's request (see paras. 16, 34, 60 above). Thus the periods
of the consequent proceedings cannot be attributable on the State,
unless they are unreasonably long.
As
to the authorities' conduct, there were several short delays
attributable to them (see paras. 9, 14, 18, 20-22, 29). The overall
length of these delays was about six and a half months, which does
not seem excessive.
There
also was a suspension for about 13 months due to the proceedings in
the Constitutional Court. However, they were conducted without any
unnecessary delay (see paras. 60 and 61).
The
hearings were scheduled at regular intervals. The courts of three
levels of jurisdiction were involved in the applicant's case. The
domestic courts examined the merits of the case several times and did
not idle (see Antonov v. Russia (dec.), no. 38020/03, 3
November 2005; Kravchuk v. Russia (dec.), no. 72749/01,
1 February 2005; Pronina v. Russia (dec.), no.
65167/01, 30 June 2005).
As
to what was at stake for the applicant, the Court observes that the
applicant is a partially disabled person (see para. 5 above) and the
proceedings concerned compensation for the caused health damage and
food allowance. The proceedings were therefore important for the
applicant.
Nonetheless,
regard being had to all the circumstances of the case, the Court
considers that the “reasonable time” requirement has been
complied with.
Hence
there was no violation of Article 6 § 1 in that respect.
(b) First set of proceedings concerning
indexation of monthly payments
i. Periods to be taken into account
In
this case the first period started in September 1999 when the
applicant sued the authorities and ended on 11 October 2000 with the
first final judgment.
The
second period began on 30 March 2006 when
the court reopened the case due to newly discovered circumstances and
ended on 14 May 2007 with another final judgment (see paras.
45-48 above).
The
total length is therefore approximately two years and two months.
ii. Reasonableness of the length of
proceedings
The
subject of the case was the same as in the proceedings considered
above (see para. 103 above), not particularly difficult.
As
to the applicant's conduct, the Court notes that it was the applicant
who initiated the reopening of the proceedings in 2006.
As
to the authorities' conduct, there were no considerable periods of
inertia attributable to the State. The case was heard several times
in two instances.
As
to what was at stake for the applicant, like in the proceedings
considered above (see para. 109), the case was important for him as
it concerned the adjustment of monthly payments for compensation of
his health damage (see paras. 42 and 47 above).
Under
these circumstances the period of approximately two years and two
months cannot raise an issue under the Convention. Hence there
was no violation of Article 6 § 1 in respect of length these
proceedings, either.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained under Article 13 of the Convention that he had
no effective domestic remedy against the alleged violations,
including, it appears, delayed enforcement of the judgment of
18 November 1997. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
The
Court notes that this complaint in respect of non-enforcement of the
judgment of 18 November 1997 is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
As
to the rest of the complaints under this Article, they should be
declared inadmissible.
B. Merits
The
Court reiterates that it earlier concluded that there was no
effective domestic remedy in Russia, either preventive or
compensatory, that allows for adequate and sufficient redress in the
event of violations of the Convention on account of prolonged
non-enforcement of judicial decisions delivered against the State or
its entities (see Burdov v. Russia (no. 2),
no. 33509/04, § 117, 15 January 2009).
The
present case contains no element that would alter the above
conclusion. Indeed, the applicant was denied redress for
non-enforcement of the judgments in his favour at the domestic level
(see paras. 37-41 above).
There
was accordingly a violation of Article 13 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also lodged several other complaints concerning the above
proceedings, referring to Articles 6, 10, 13, 14 of the Convention
and to Article 1 of Protocol No. 1.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do 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 §§ 1, 3 and 4 of
the Convention.
VI. 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 72,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested this claim.
As
to pecuniary damage, there should be no award as there was no
relevant claim made by the applicant.
As
to non-pecuniary damage, the Court considers that the applicant must
have suffered distress and frustration resulting from the
authorities' failure to enforce the judgment of 18 November 1997 and
from the quashing of the final and binding judgment of 10 December
2002, as upheld on 7 May 2003. However, the amount claimed
appears excessive. Making its assessment on an equitable basis, the
Court awards the applicant EUR 3,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant made no claims under this head. Accordingly, the Court will
make no award 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
Declares the complaints concerning the
supervisory review proceedings, non-enforcement and length of
proceedings admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of
Articles 6 and 13 of the Convention and of Article 1 of Protocol No.
1 in respect of non-enforcement of the judgment of 18 November 1997;
Holds that there has been a violation of Article
6 of the Convention and of Article 1 of Protocol No. 1 in respect of
the quashing by way of supervisory review of the final judgment in
the applicant's favour of 10 December 2002, as upheld on 7 May
2003;
4. Holds that there has been no violation of Article 6 §
1 of the Convention on account of the length of the proceedings;
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 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(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 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
