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FIRST
SECTION
CASE OF SHIRYKALOVA v. RUSSIA
(Application
no. 26307/02)
JUDGMENT
STRASBOURG
27 March 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 Shirykalova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren Nielsen, Section Registrar,
Having
deliberated in private on 6 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26307/02) 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, Mrs Rimma Vasilyevna
Shirykalova (“the applicant”), on 11 June 2002.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights.
- On
28 April 2005 the Court decided to communicate the complaint about
the alleged non-execution of the judgments of 23 December 1999 and 18
June 2003 to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in the Sverdlovsk Region.
- In
1987 she took part in emergency operations at the site of the
Chernobyl nuclear plant disaster. As a result she suffered from
extensive exposure to radioactive emissions.
- In
1996 the applicant underwent medical examinations which established
the link between her poor health and the involvement in the Chernobyl
events. She was awarded a monthly allowance, to be increased on a
regular basis in line with the minimum subsistence amount.
- In
1999 the applicant sued the local social security authority
(Управление
социальной
защиты
населения
г. Заречного
– “the defendant”) requesting to increase her
monthly allowance and backdate the increase. The applicant considered
that the amount of the allowance had been determined incorrectly.
A. First judgment in the applicant's favour
- On
23 December 1999 the Beloyarsk District Court of the Sverdlovsk
Region granted the applicant's claim and ruled that her monthly
allowance had been wrongly calculated. The court did not specify the
exact amount of the monthly allowance to be paid to the applicant
form then on. However, it ordered the defendant to recalculate the
allowance due to the applicant and gave instructions on the
recalculation. The judgment was not appealed against and became final
on 3 January 2000. The enforcement proceedings commenced.
- On an unspecified date in the beginning on 2000 the
defendant recalculated the applicant's allowance and backdated the
increase. According to the defendant's calculations, the monthly
allowance due to the applicant pursuant to the judgment of
23 December 1999 amounted to 4,175 Russian roubles (RUB)
and the underpayments of the allowance for the period of July
1996-February 2000 amounted to RUB 149,173.25.
- In
March-August 2000 the applicant was receiving RUB 4,175 per month.
However, starting form September the monthly allowance paid to the
applicant was reduced to RUB 2,500.
- On
10 July 2000 the bailiff notified the defendant that the judgment of
23 December 1999 was not enforced in full since the applicant
had not yet received RUB 149,173.25 (the underpayments). In their
reply of 25 July 2000 to the bailiff the defendant referred to the
lack of funding.
- According
to the Government, in August 2002 RUB 202,611.27 were transferred to
the local social security authority to make the payments to the
Chernobyl victims. In September 2002 the applicant received
RUB 6,731.51 from the defendant.
B. Second judgment in the applicant's favour
- In
2003 the applicant brought proceedings against the defendant
complaining that the monthly allowance paid to her after September
2000 was lower than stipulated in the judgment of 23 December 1999.
She also sought to increase the allowance in line with the minimum
subsistence amount and to recover the arrears due to her.
- On
18 June 2003 the Zarechniy District Court of the Sverdlovsk Region
awarded the applicant RUB 302,655.77 as underpayments for the period
of July 1996-May 2003. It also held that the allowance payable to the
applicant starting form June 2003 should amount to RUB 13,144.56. On
30 September 2003 the judgment was upheld on appeal.
- On
23 December 2004 the applicant received RUB 60,644.56 on account of
the enforcement of the judgment of 18 June 2003. In June 2005 she
started receiving monthly allowance in the amount indicated in the
judgment. On 6 July 2005 the applicant received RUB 473,341.53. That
amount covered the rest of the judgment debt and the underpayments of
the allowance which was in January 2004-June 2005 lower than
established in the judgement.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained about the prolonged non-enforcement of the
judgments of 23 December 1999 and 18 June 2003. The Court will
examine this complaint under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention. These Articles,
in so far as relevant, provide 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 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. Admissibility
- The
Government informed the Court that the authorities of the Sverdlovsk
Region had attempted to secure a friendly settlement of the case and
that the applicant had refused to accept the friendly settlement on
the terms proposed by the authorities. By reference to this refusal,
to the acknowledgment of the violation by the authorities and to the
fact that, in any event, the judgments in the applicant's favour had
been finally enforced, the Government asserted that the applicant was
no longer a victim of the alleged violations. Accordingly, they
invited the Court to strike the application out of the list of cases.
- The
applicant disagreed with the Government's arguments and maintained
her complaints.
- The
Court firstly observes that the parties were unable to agree on the
terms of a friendly settlement of the case. The Court recalls that
under certain circumstances an application may indeed be struck out
of its list of cases under Article 37 § 1 (c) of the Convention
on the basis of a unilateral declaration by the respondent Government
even if the applicant wishes the examination of the case to be
continued (see Tahsin Acar v. Turkey [GC], no. 26307/95,
§ 76, ECHR 2004 III). The Court notes, however, that
this procedure is an exceptional one and is not, as such, intended to
circumvent the applicant's opposition to a friendly settlement.
Furthermore, the Court observes that a distinction must be drawn
between, on the one hand, declarations made in the context of
strictly confidential friendly-settlement proceedings (Article 38 §
2 of the Convention and Rule 62 § 2 of the Rules of Court) and,
on the other hand, unilateral declarations made by a respondent
Government in public and adversarial proceedings before the Court
(see Androsov v. Russia, no. 63973/00, § 45, 6 October
2005). On the facts, the Court observes that the Government failed to
submit with the Court any formal statement capable of falling into
the latter category and offering a sufficient basis for finding that
respect for human rights as defined in the Convention does not
require the Court to continue its examination of the case (see, by
contrast, Akman v. Turkey (striking out), no. 37453/97, §§
23 and 24, ECHR 2001-VI).
- As
regards the Government's argument that the judgments in question have
already been enforced, the Court considers that the mere fact that
the authorities complied with the judgments after a substantial delay
cannot be viewed in this case as automatically depriving the
applicant of her victim status under the Convention (see, for
example, Petrushko v. Russia, no. 36494/02, § 16, 24
February 2005).
- In
the light of the above considerations, the Court rejects the
Government's request to strike the application out under Article 37
of the Convention.
- The
Court notes that the application 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 Government in their observations alleged that the
judgment of 23 December 1999 was enforced in full on 29 August
2002. They produced a document stating that on that date RUB
202,611.27 were transferred to the local social security authority to
make the payments to the Chernobyl victims. However, they
acknowledged that lengthy non-enforcement of the above judgment
violated the applicant's right to fair trial and to peaceful
enjoyment of her possessions. On the other hand, while commenting on
the applicant's just satisfaction claims, the Government contended
that the judgment of 23 December 1999 did not contain any
reference to pecuniary award to be made to the applicant, but simply
ordered the recalculation of her monthly allowance. As regards the
judgment of 18 June 2003, the Government submitted that it was
enforced.
- The
applicant disagreed with the Government's arguments. She claimed that
following the transfer of 29 August 2002 she had received RUB
6,731.51 which had not been enough to cover the debt of the judgment
of 23 December 1999 as recalculated by the local social security
authority (see paragraph 9 above). She further contended that both
judgments in her favour were enforced in full on 6 July 2005. She
submitted copies of banking receipts as evidence in this respect.
- As
regards the judgment of 23 December 1999, the Court observes that it
did not specify a particular amount or amounts to be paid to the
applicant. However, the defendant, and subsequently the court in the
judgment of 18 June 2003 acknowledged that the applicant was entitled
to receive RUB 149,173.25 in arrears under the judgment of 23
December 1999. The Court further notes that the payment of August
2002 was destinated to a number of Chernobyl victims, and the
applicant received only a part of it. The full amount of judgment
debt was paid to the applicant only on 6 July 2005. Therefore, the
judgment of 23 December 1999 was not fully executed for over five
years and six months.
- As
to the judgment of 18 June 2003, as upheld on appeal on 30 September
2003, the Court notes that it was also fully enforced on 6 July 2005.
The delay thus amounted to one year, nine months and six days.
- The
Court recalls that it has frequently found violations of Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1 in
cases raising issues similar to the ones in the present case (see,
among other authorities, Burdov v. Russia, no. 59498/00,
ECHR 2002-III; and, more recently, Petrushko, cited above, or
Poznakhirina v. Russia, no. 25964/02, 24 February 2005).
- Having
examined the material submitted to it, the Court notes that the
Government did not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court finds that by
failing for years to comply with the enforceable judgments in the
applicant's favour the domestic authorities prevented her from
receiving the money she could reasonably have expected to receive.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained that the lengthy non-enforcement of the
judgments in her favour violated her rights to effective domestic
remedies under Article 13 of the Convention.
- The
Court considers that this complaint is linked to the above issues of
non-enforcement to such an extent that it should be declared
admissible as well. However, having regard to the finding relating to
Article 6 § 1 (see paragraph 29 above), the Court
considers that it is not necessary to examine whether, in this case,
there has been a violation of Article 13.
III. 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 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that the applicant was no longer a victim of the
violations alleged and thus should not be awarded compensation. They
suggested that would the Court find a violation of the applicant's
rights, such finding would by itself constitute sufficient just
satisfaction.
- The
Court accepts that the applicant suffered distress because of the
State authorities' failure to enforce the judgments in time. However,
the amount claimed in respect of non-pecuniary damage appears
excessive. The Court takes into account the nature and the amount of
the awards, the delays before the enforcement and other relevant
aspects. Making its assessment on
an equitable basis, it awards
EUR 3,900 to the applicant in respect of non pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 33,343.68 Russian roubles (RUB) for the costs
and expenses incurred before the Court, of which RUB 23,000 was for
lawyer's fees and the rest was for the expenses related to
translation of the correspondence with the Court. The Government did
not submit any comments on the applicant's claim of costs and
expenses.
- According
to the Court's case-law, the applicant is entitled to reimbursement
of her 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. In the present case, regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the applicant EUR 930 for the
proceedings before the Court plus any tax that may be chargeable on
that amount.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 to the
Convention;
- Holds that there is no need to examine the
complaint under Article 13 of 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, EUR
3,900 (three thousand nine hundred euros) in respect of non-pecuniary
damage and EUR 930 (nine hundred and thirty euros) for costs and
expenses, to be converted into Russian roubles at the rate applicable
at the date of settlement, plus any tax that may be chargeable to the
applicant;
(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 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
