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FIRST SECTION
CASE OF SUSLIN v. RUSSIA
(Application no. 34938/04)
JUDGMENT
STRASBOURG
23
October 2008
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 Suslin v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach,
Deputy
Section Registrar,
Having deliberated in private on 2 October 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 34938/04)
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
Nikolay Nikolayevich Suslin (“the applicant”), on 6
September 2004.
- The Russian Government (“the Government”)
were represented by Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- On 1 September 2006 the President of the First Section
decided to communicate the complaints concerning the non-enforcement
of a final judgment and the excessive length of proceedings 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Volgograd, Volgograd region.
A. First examination of the case
- According to the applicant, on an unspecified date in
March or April 1999 he brought a court action against a local Welfare
Office before the Traktorozavodskoy District Court of Volgograd (“the
District Court”). He claimed an increase in the rate of
disability allowance due to him as a Chernobyl victim, that the
increase should be backdated and that the unpaid amounts should be
recovered. The Government submitted that the applicant lodged his
claims on 16 August 1999.
- On 27 October 1999 the District Court rejected the
applicant's claims. On 14 January 2000 the Volgograd Regional Court
(“the Regional Court”) upheld that judgment.
B. Supervisory review and second examination of the
case
- On 21 May 2001 the Presidium of the Regional Court
quashed the judgment of 27 October 1999, as upheld on 14 January
2000, and remitted the case for fresh examination to the
first-instance court on the grounds that the lower courts had failed
to apply the appropriate substantive law.
- On 3 July 2001 the District Court granted the
applicant's claims. It determined a new rate of monthly disability
allowance and recovered the unpaid amounts. On 14 November 2001 the
Regional Court upheld that judgment.
C. Supervisory review and third examination of the case
- On 20 December 2002 the Presidium of the Regional
Court, in the presence of the applicant, quashed the judgment of 3
July 2001, as upheld on 14 November 2001, and remitted the case for
fresh examination to the first-instance court on the grounds that the
above decisions had been made in breach of procedural and substantive
law.
- On 25 December 2002 the judgment of 3 July 2001 was
enforced in so far as it had recovered the unpaid amounts.
- On 27 December 2002 the District Court received the
case for examination. Between 3 February and 1 September 2003 the
proceedings were suspended pending the examination by the Supreme
Court of the Russian Federation of a question relating to the
application by the courts of the legislation on social protection of
Chernobyl victims.
- On 8 September 2003 the District Court granted the
applicant's claims. On 29 October 2003 the Regional Court quashed
that judgment on appeal and remitted the case for fresh examination
to the District Court on the grounds that the latter had failed to
apply the appropriate law and had not complied with the ruling of the
Presidium of the Regional Court of 20 December 2002.
D. Fourth examination of the case
- On 12 January 2004 the District Court granted the
applicant's claims. It determined a new rate of monthly disability
allowance and recovered the unpaid amounts. On 24 March 2004 the
Regional Court upheld that judgment.
- In April 2004 the legislation governing the social
protection of Chernobyl victims was modified and established a new
rate of monthly disability allowance which was higher than that
determined by the judgment of 12 January 2004.
- On 16 March and 26 May 2005 the applicant received the
amounts awarded by the judgment of 12 January 2004.
- Subsequently, the applicant lodged several
applications for supervisory review of the judgment of 12 January
2004, as upheld on 24 March 2004. He considered that those
decisions were unlawful. However, the judicial authorities refused to
refer the case for examination on the merits to a supervisory review
court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE
JUDGMENT OF 12 JANUARY 2004
- The applicant complained that the judgment of 12
January 2004, as upheld on 24 March 2004, was not enforced in due
time. He referred to Article 6 of the Convention and Article 1 of
Protocol No. 1, which in their relevant parts 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 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 Government acknowledged that the delay in the
enforcement of the judgment of 12 January 2004 had not been
compatible with the requirements of Article 6 of the Convention and
Article 1 of Protocol No.1.
- The applicant confirmed that the amounts awarded to
him by the judgment of 12 January 2004 had been paid to him, but with
a substantial delay. He submitted that it was no longer necessary to
enforce the judgment of 12 January 2004 in so far as it had
established a certain rate of monthly disability allowance, because
the newly adopted legislation had increased that rate.
- The Court observes that on 12 January 2004 the
applicant obtained a judgment by which the Welfare Office was to pay
him substantial amounts in social benefits. That judgment became
enforceable on 24 March 2004. However, the full amount of money
awarded by the court was paid to the applicant on 26 May 2005, i.e.
in one year and two months after the judgment had acquired legal
force. In so far as the judgment of 12 January 2004 established a
certain rate of monthly payments, the Court takes into account the
applicant's submissions and considers that it is no longer necessary
to enforce that part of the judgment.
- The Court 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 Burdov
v. Russia, no. 59498/00, ECHR 2002 III, and Svitich v.
Russia, no. 39013/05, 31 July 2007).
- Having examined the materials submitted to it, the
Court notes that the Government have acknowledged that the delay in
the enforcement of the judgment of 12 January 2004, as upheld on 24
March 2004, was not compatible with the requirements of Article 6 of
the Convention and Article 1 of Protocol No. 1. The Court finds no
reason to hold otherwise. Thus, by failing for a long period of time
to comply with the enforceable judgment in the applicant's favour the
domestic authorities impaired the essence of his right to a court and
prevented him from receiving the money he had legitimately expected
to receive.
- There has accordingly been a violation of Article 6 of
the Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE EXCESSIVE LENGTH OF THE PROCEEDINGS
- The applicant complained that his claim against the
Welfare Office had not been determined within a reasonable time,
contrary to Article 6 § 1 of the Convention, which provides, as
far as relevant, as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
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
1. Period to be considered
- According to the Government, the proceedings commenced
on 16 August 1999 and ended on 24 March 2004 with the decision
of the Regional Court.
- The applicant admitted that he had not put a date on
his statement of claim, but he insisted that he had lodged it in
March or April 1999. He argued that the final decision in his case
had still not been adopted, because his case should have been
re-examined by way of supervisory review.
- The Court observes that the date on which the
proceedings commenced is in dispute between the parties. It notes
that the Government gave an exact date on which the claim had been
lodged, whereas the applicant was not sure even about the month.
Therefore, the Court will consider that the proceedings commenced on
16 August 1999.
- The Court recalls that only those periods when the
case was actually pending before the domestic courts, i.e. the
periods when there was no effective judgment in the determination of
the merits of the applicant's dispute and when the authorities were
under an obligation to pass such a judgment should be taken into
account (see, for example, Skorobogatova v. Russia,
no.33914/02, § 39, 1 December 2005 with further references).
Therefore, the proceedings were pending during the following periods:
(a) between 16 August 1999 and 14 January 2000 (four
months and 29 days);
(b) between 21 May and 14 November 2001 (five
months and 25 days);
(c) between 20 December 2002 and 24
March 2004 (one year, three months and 4 days).
- Furthermore, the Court has previously held that
enforcement proceedings must be regarded as a second stage of
proceedings (see Di Pede v. Italy, judgment of 26 September
1996, Reports of Judgments and Decisions 1996-IV, § 24)
and that the execution of a judgment given by a court must be
regarded as an integral part of the “trial” for the
purposes of Article 6 (see Hornsby v. Greece, judgment of 19
March 1997, Reports 1997-II, § 40). Therefore, the
periods when the authorities were under obligation to enforce the
judgments of 3 July 2001 and of 12 January 2004 have to be taken into
account. The first period started on 14 November 2001, when the
judgment of 3 July 2001 became enforceable, and ended on 20
December 2002, when the Regional Court
quashed it by way of supervisory review (one year, one month and six
days). The second period started on 24 March 2004, when the
judgment of 12 January 2004 became enforceable, and ended on 26 May
2005, when it was fully enforced (one year, two months and two days).
- Taking into account the above, the Court considers
that the period to be considered is of approximately four
years and five months.
2. 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 were factually
complex, the applicant and the defendant had contributed to the
length of the proceedings by appealing against the decisions of lower
courts. The domestic authorities were not responsible for any
important delays in the examination of the case. The hearings had
been scheduled regularly; the court examined the case on the merits
several times.
- The applicant maintained his complaint.
- The Court recalls 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).
- The Court considers that the proceedings at issue were
of a certain complexity. However, the Court cannot accept that the
complexity of the case, taken on its own, was such as to justify the
overall length of proceedings.
- As regards the applicant's conduct, the Court is not
convinced by the Government's argument that the applicant should be
held responsible for lodging appeals. It has been the Court's
constant approach that an applicant cannot be blamed for taking full
advantage of the resources afforded by the national law in the
defence of his interests (see, mutatis mutandis, Yağcı
and Sargın v. Turkey, judgment of 8 June 1995, Series A
no. 319-A, § 66). The Court considers that the applicant was not
responsible for any substantial delays in the proceedings.
- As regards the conduct of the judicial authorities,
the Court notes the Government's argument that during the period
under consideration the domestic authorities examined the case in
four rounds of proceedings. The Court observes in this respect that
on two occasions the supervisory review court quashed the decisions
of the lower courts on the grounds that they had not properly applied
substantive and procedural law. During the third examination of the
case the first-instance court failed to implement the instructions
given by the supervisory review court and as a result the Regional
Court set the judgment aside. The Court considers that the shifting
of the case between several levels of
jurisdictions several times was the main reason for the
lengthy examination of the case. Those delays are entirely
attributable to the domestic authorities and their failure to examine
the case properly. The fact that the domestic courts heard the case
several times did not absolve them from complying with the reasonable
time requirement of Article 6 § 1 (see Litoselitis v. Greece,
no. 62771/00, § 32, 5 February 2004).
- Finally, the Court observes that an important interest
was at stake for the applicant in the present case, as the
proceedings were aimed at determining the rate of his monthly
disability allowance. The Court is of the opinion that the nature of
the dispute called for particular diligence on the part of the
domestic courts.
- In the light of the criteria
laid down in its case-law and having regard to all the circumstances
of the case, the Court considers that in the instant case the length
of the proceedings was excessive and failed to meet the “reasonable
time” requirement. There has accordingly been a breach of
Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention about the
quashing, by way of supervisory review, of the judgment of 3 July
2001. The Court recalls that the quashing of a final judgment is an
instantaneous act, which does not create a continuing situation, even
if it entails a reopening of the proceedings as in the present case
(see Sardin v. Russia (dec.), no. 69582/01, 12 February
2004 and Khanyan v. Armenia (dec.), no. 19065/05, 5 July
2007). The Court further recalls that, in accordance with Article 35
§ 1 of the Convention, it may only examine complaints in respect
of which domestic remedies have been exhausted and which have been
submitted within six months from the date of the “final”
domestic decision. If there is no adequate remedy against a
particular act, which is alleged to be in breach of the Convention,
the date when that act takes place is taken to be “final”
for the purposes of the six months' rule (see, for example, Valašinas
v. Lithuania (dec.), no. 44558/98, 14 March 2000).
- The
Court notes that at the material time the Russian law of civil
procedure did not provide for any ordinary appeal
against a ruling adopted by way of supervisory review by the
Presidium of a regional court. In the absence
of an effective remedy the Court concludes that it was the very act
of quashing the judgment of 3 July 2001 that triggered the
start of the six month time-limit for lodging this part of the
application to the Court. In the present case the judgment of 3 July
2001 was quashed by the Presidium of the Regional Court on 20
December 2002 in the applicant's presence, whereas the application
was lodged on 6 September 2004. It follows that this part of the
application was introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
- The
applicant also complained under Article 14 about discrimination
against him on the ground of his disability status. The Court
considers that the facts as submitted do not disclose any appearance
of discrimination against the applicant. It follows that this part of
the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. 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 10,000 euros (EUR) in respect of non pecuniary
damage caused by the lengthy examination of his case and EUR 5,000
in respect of non-pecuniary damage sustained as a result of the
lengthy non-enforcement of the judgment of 12 January 2004. He also
claimed the payment of the amounts awarded by the judgment of 3 July
2001 and EUR 4,000 in respect of non-pecuniary damage caused by the
quashing of that judgment.
- The
Government contested the applicant's claims.
- The
Court observes that the issue of the non-enforcement of the judgment
of 3 July 2001 was not examined in the present case and the complaint
about the quashing of that judgment was declared inadmissible.
Therefore the Court rejects the applicant's claims in so far as they
related to the judgment of 3 July 2001.
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the State authorities' failure to
determine his claim within a reasonable time and to enforce the
judgment of 12 January 2004 in due time. However, the amount claimed
appears excessive. The Court takes into account the nature of the
award at stake in the present case, namely a benefit linked to the
applicant's disability as a Chernobyl victim, the length of the
proceedings and other relevant aspects. Making its assessment on an
equitable basis, it awards the applicant EUR 3,500 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not claim reimbursement of his costs and expenses
incurred before the domestic authorities and the Court. Accordingly,
the Court considers that there is no call to award him any sum on
this account.
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
- Declares unanimously the complaints concerning
the non-enforcement of the judgment of 12 January 2004 and the length
of proceedings admissible and the remainder of the application
inadmissible;
- Holds unanimously that there has been a
violation of Article 6 of the Convention and Article 1 of Protocol
No. 1 on account of the lengthy non-enforcement of the judgment of 12
January 2004;
- Holds by six votes to one that there has been a
violation of Article 6 of the Convention on account of the
unreasonable length of proceedings;
- Holds by six votes to one
(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
3,500 (three thousand five hundred 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
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 23 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the dissenting
opinion of Ms Vajić is annexed to
this judgment.
NAV
AMW
PARTLY DISSENTING OPINION OF JUDGE VAJIĆ
In
numerous cases against Russia the Court has previously held that a
failing over a long period of time to comply with an enforceable
judgment may lead to finding of a violation of both Article 6 and
Article 1 of Protocol No. 1 to the Convention. The same approach
obtains in the present case.
In
the present case, however, the majority has decided to adopt a novel
technique. This consists in examining separately the non-enforcement
of the domestic judgment and the overall length of the proceedings.
This results in a duplication of part of the violation under Article
6 and a further duplication of the non-pecuniary damage under Article
41 of the Convention – in both instances by calculating twice
the same period of non-enforcement of the judgment.
I
disagree with such an approach on the grounds of consistency in the
Court's case-law and of clarity in the judgment itself. It is the
Court's long-established case-law that the execution of a judgment
given by a court is to be regarded as an integral part of the “trial”
for the purposes of Article 6 (see Hornsby v. Greece,
19 March 1997, § 40, Reports of Judgments and Decisions
1997 II).
The
period during which the authorities are under an obligation to
enforce a judgment creating or confirming a property right may thus
give rise to both a violation of Article 6 and of Article 1 of
Protocol No. 1. In the present case, the Court has found a violation
on these grounds, taking into account the lengthy non-enforcement
(the “second part” of the “trial”).
Subsequently
the Court proceeded also to examine the global length of the
proceedings, that is, the entire “trial” (four years and
four months for two levels of jurisdiction, see paragraph 32 of the
judgment). In order to do so it had to take into account not only the
“judicial stage” of the proceedings but also - and for a
second time - the period of non-enforcement.
In my
opinion, it was not necessary to find two separate violations of the
reasonable-time requirement in this case. It would have been
sufficient to concentrate on only one period, namely that during
which the delays were more significant. It was for the Court to
determine which period that was. Such a solution would have been in
line with its reasoning in other cases (see, for example,
Lukyanchenko v. Ukraine, no. 17327/02,
§§ 33-34, 15 May 2008; Androsov v.
Russia, no. 63973/00, §§ 73-76, 6 October 2005).
At
the same time, the approach outlined above would also have made it
easier to read the judgment. Given the difficulties in calculating
the periods to be taken into account in Russian length of proceedings
cases (paragraph 30 of the judgment), and the duplication of the
non-enforcement period (paragraphs 21 and 31 of the judgment), as it
currently stands the judgment may appear overly complicated.
For
the reasons set out above I am also unable to agree with the approach
taken in awarding non-pecuniary damage in this case, as it simply
adds together the two amounts normally awarded in such cases, namely
the award in respect of the total length of the proceedings (four
years) and that in respect of the non-enforcement period (14 months).