AS TO THE ADMISSIBILITY OF
by Viktor Alekseyevich ZEMEROV
The European Court of Human Rights (First Section), sitting on 28 May 2009 as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 9 September 2003,
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 applicant, Mr Viktor Alekseyevich Zemerov, is a Russian national who was born in 1937 and lives in Moscow. The Russian Government (“the Government”) are represented by their Agent, Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 September 2000 the Lefortovskiy District Court of Moscow upheld the applicant’s action against the Ministry of Internal Affairs and awarded him a lump sum of 154,017.71 Russian roubles (RUB) in compensation for health damage and RUB 4,498.16 in monthly payments starting from 1 September 2000. The District Court also noted that monthly payments were to be adjusted to increases of the minimum statutory wage. The judgment was upheld on appeal and became final on 26 January 2001.
The lump sum was paid in one month and eight days after the judgment became final. The monthly payments were made on time. However, the adjustment the authorities made was wrong and the applicant brought a civil action for damages.
On 20 June 2003 the Moscow City Court, in the final instance, dismissed the applicant’s claims.
On 13 October 2003 the Lefortovskiy District Court of Moscow granted the applicant’s request for reopening of the proceedings due to newly discovered circumstances.
On 25 November 2003 the Lefortovskiy District Court upheld the applicant’s action against the Ministry of Internal Affairs, made an adjustment of the monthly payments the applicant asked for and awarded him a lump sum of RUB 101,272.78 representing arrears in monthly payments of compensation for damage for the period from 1 January 2001 to 30 November 2003 and RUB 9,625.78 in monthly payments from 1 December 2003. The District Court noted that monthly payments were to be adjusted to increases of the coefficient of the minimum subsistence level in Moscow. The judgment was not appealed against and became final.
The lump sum was paid one month and eight days after the judgment became final. The monthly payments were paid on time. The judgment was not enforced as regarded the adjustment and the applicant sued the authorities.
On 15 June 2004 the Lefortovskiy District Court found for the applicant and awarded him RUB 6,834.45 representing arrears in monthly payments for the period from 1 January to 31 May 2004 and RUB 10,992.64 in monthly payments to be increased accordingly. The judgment was not appealed against and became final on 28 June 2004.
The lump sum was paid one month and ten days after the judgment became final. The monthly payments were paid on time, but the authorities again failed to adjust the monthly payments and the applicant brought another action against them.
On 18 November 2005 the Lefortovskiy District Court awarded the applicant RUB 7,914.69 representing arrears in monthly payments for the period from 1 January to 31 September 2005 and RUB 11,872.05 in monthly payments to be increased according to the requirements of law. The judgment was not appealed against and became final on 28 November 2005. The lump sum was paid one month and twenty six days after the judgment became final. The monthly payments were paid on time.
The applicant complained under Article 6 § 1 of the Convention and, in substance, under Article 1 of Protocol No. 1 that the adjustment of the monthly payments had not been made on time. On 2 November 2007, after the communication of the application to the Government, he also complained that the civil proceedings were too long.
The applicant complained that the adjustment of the monthly payments had not been made on time and thus the judgments of 26 September 2000, 25 November 2003 and 15 June 2004 were not properly enforced. He refers to Article 6 of the Convention and, in substance, to Article 1 of Protocol No. 1, which, as far as relevant, read 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
“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.”
The Government argued that these complaints were inadmissible.
As to the allegedly delayed enforcement of the judgments in the applicant’s favour, the Government asserted that the judgments of the Lefortovskiy District Court of Moscow of 26 September 2000, 25 November 2003, 15 June 2004 and 18 November 2005 were executed in full and in due time (within the two-months period). As to the enforcement as regarded the adjustment, the Government noted that the relevant legislation was complex and variable and admitted that the authorities had made mistakes. However, the applicant had an effective remedy which allowed mistakes to be corrected. The applicant used the remedy and sued the authorities. The courts found for the applicant and the judgments were enforced without delay.
As to the length of the civil proceedings, even the maximum duration of it, as specified by the applicant, was one year and two months, which is reasonable.
The applicant disagreed with the Government and maintained his complaints.
The Court considers that the application is inadmissible for the following reasons.
Under Article 34 of the Convention the Court is entitled to receive applications from persons, non-governmental organisations or groups of individuals “claiming to be the victim of a violation” by a High Contracting Party of the rights contained in the Convention and its Protocols. 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). Accordingly, in principle, where domestic proceedings include an admission of the breach by the national authorities and the payment of a sum of money amounting to redress, the dual requirement established in Amuur is satisfied and the applicant can no longer claim to be a victim of a violation of the Convention (see Rechachi and Abdelhafid v. the United Kingdom (dec.), no. 55554/00, 10 June 2003).
On the facts, the Court observes at the outset that the lump sums and monthly payments awarded were paid to the applicant without delay and his only grievances related to modalities of enforcement of judgments of 26 September 2000, 25 November 2003 and 15 June 2004, in particular, to the alleged failure by the authorities to properly adjust the monthly payments to inflation. However, whenever the applicant sued the authorities on this account, the domestic courts granted his claims, acknowledging the delay or mistakes in such adjustments and ordered the respondent authority to pay additional compensation. The damages awarded were paid in full without delay.
While the adequacy of the compensation so awarded may, in principle, raise an issue under the Convention, the applicant appears to have agreed with the amount awarded in his case at the domestic level. Indeed, he did not appeal against the compensation awards and did not claim any further damage in domestic courts.
Having regard to the above, the Court finds that by the judgments of 25 November 2003, 15 June 2004 and 18 November 2005 the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention (see Moroko v. Russia, no. 20937/07, § 26, 12 June 2008; Nemakina v. Russia (dec.), no. 14217/04, 10 July 2007; or Klushina v. Russia (dec.), no. 44384/04, 12 October 2006).
It follows that the applicant can no longer claim to be a victim of a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, within the meaning of Article 34 of the Convention. This part of the application must therefore be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.
With regard to the applicant’s complaint concerning the length of the proceedings, the Court notes that these complaints were made after the communication of the application to the Government and hence fall outside the scope of the present case. In any event, the complaint would have been rejected as it was lodged more than six months after the latest of the proceedings had been finished.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis