European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF KONOVALOVA v. RUSSIA

 

(Application no. 23304/05)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

8 March 2016

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of Konovalova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helen Keller, President,
          Johannes Silvis,
          Alena Poláčková, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 9 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 23304/05) 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, Ms Polina Aleksandrovna Konovalova (“the applicant”), on 13 April 2005.

2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3.  The applicant complains of the lengthy non-enforcement of a judgment in her favour.

4.  On 1 October 2009 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1941 and lives in Murmansk.

6.  The applicant sued the local office of the Pension Fund, claiming that her monthly pension had been miscalculated.

7.  On 12 September 2003 the Pervomayskiy District Court of Murmansk granted her claim and ordered that the pension due to the applicant be recalculated and increased. No appeal was lodged against that judgment and on 23 September 2003 it became final and enforceable.

8.  On 11 August 2005 the Pervomayskiy District Court of Murmansk quashed the judgment of 12 September 2003 and reopened the proceedings after an application by the respondent authority on the grounds that new circumstances had come to light.

9.  On 23 August 2005 the same court rejected the applicant’s pension recalculation claim.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

10.  Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained of the non-enforcement of the judgment of 12 September 2003 in her favour, prior to its quashing. The Court will consider these complaints in the light of the aforementioned provisions, which in so far as relevant, 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

11.  The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

12.  The Government argued that the relevant judgment could not be executed on account of its quashing on the basis of newly discovered circumstances.

13.  The applicant maintained her claim. She pointed out that the judgment should have been executed immediately and that she had not been at fault as regards the delayed execution of the court awards.

14.  The Court reiterates its established case-law to the effect that the subsequent quashing of a final and enforceable domestic judgment does not constitute a valid reason for the prolonged non-enforcement of this judgment (see Velskaya v. Russia, no. 21769/03, § 18, 5 October 2006). It further notes that the judgment of 12 September 2003 delivered in the applicant’s favour remained unexecuted for almost two years prior to its quashing. The Court has already found that such a situation gives rise to a violation of the Convention (see Kulkov and Others v. Russia, nos. 25114/03 et al., § 35, 8 January 2009, with further references). It does not see any reason to reach a different conclusion in the present case.

15.  There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the instant case.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

16.  Lastly, the applicant complained under Article 13 of the Convention about the lack of a domestic remedy against the non-enforcement of the judgment of 12 September 2003.

17.  As regards the non-enforcement of the authorities’ monetary obligations (paragraphs 14 and 15 above), the Court notes that on 4 May 2010 a new domestic remedy was introduced by the federal laws № 68-FZ and № 69-FZ in the wake of the Burdov (no. 2) pilot judgment (see Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009) and that it was also made available to all applicants, whose applications were lodged with the Court before its delivery. Given those special circumstances, the Court decided in a number of cases involving violations on account of lengthy non-enforcement of judgments that although admissible it was not necessary to proceed to a separate examination of the applicants’ complaints under Article 13 of the Convention (see Krasnov v. Russia, no. 18892/04, §§ 32-35, 22 November 2011). The Court will fo llow the same approach in the present case.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  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.  The parties’ submissions

19.  The applicant claimed 40,487 Russian roubles (RUB) (1,025 euros (EUR)) in respect of pecuniary damage, representing arrears in monthly pension payments for the period between 2009 and 2010, and EUR 5,000 in respect of non-pecuniary damage.

20.  The Government disputed the applicant’s method of calculation as regards pecuniary damage and considered that the sum claimed in respect of non-pecuniary damage was excessive and unreasonable.

2.  The Court’s assessment

(a)  Pecuniary damage

21.  The Court reiterates that the most appropriate form of redress in respect of the violations found would be to put the applicant as far as possible in the position she would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court considers that this principle should apply in the present case, as it has done in many similar cases decided in the past (see Dovguchits v. Russia, no. 2999/03, § 48, 7 June 2007).

22.  The Court therefore finds it appropriate to award the applicant the amount she would have received in accordance with the domestic judgment in her favour. The Court notes in this connection that the judgment of 12 September 2003, which became final on 23 September 2003, awarded the applicant RUB 2,060 (EUR 52) for pension arrears and legal expenses, but that this amount was never paid to her. It therefore awards the applicant the above amount in respect of pecuniary damage.

23.  As regards additional damage the applicant claimed to have suffered, the Court observes that the domestic court did not award the applicant any specific sum in respect of monthly pension payments, merely ordering the local office of the Pension Fund to recalculate her pension. It therefore cannot assume the role of the national authorities in calculating the sums due as a result of the quashed judgment and dismisses the rest of the applicant’s claims under this head (see Lenchenkov and Others v. Russia, nos. 16076/06 et al., § 37, 21 October 2010).

(b)  Non-pecuniary damage

24.  The Court finds that as a result of the violations it has found the applicant has suffered non-pecuniary damage which cannot be compensated for by the mere finding of a violation. In these circumstances and having regard to the principles developed in its case-law on determination of compensation in similar cases and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

25.  The applicant also claimed RUB 2,503 (EUR 63) for costs and expenses.

26.  The Government did not contest this claim.

27.  Having regard to the material in its possession, the Court decides to grant the applicant’s claim.

C.  Default interest

28.  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.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the judgment of 12 September 2003, final on 23 September 2003;

 

3.  Holds that there is no need to examine separately the applicant’s complaint under Article 13 of the Convention about the lack of a domestic remedy against the non-enforcement of the same judgment;

 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the responded State at the rate applicable at the date of settlement:

(i)  EUR 52 (fifty-two euros) plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 63 (sixty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                                      Helen Keller
Deputy Registrar                                                                       President