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FIRST SECTION
CASE OF AGAPONOVA AND OTHERS v. RUSSIA
(Application no. 34439/04)
JUDGMENT
STRASBOURG
7 February 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 Agaponova and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Christos Rozakis,
President,
Loukis
Loucaides,
Nina
Vajić,
Anatoli
Kovler,
Elisabeth
Steiner,
Sverre
Erik Jebens,
Giorgio
Malinverni, judges,
and Søren Nielsen,
Section Registrar,
Having deliberated in private on 17 January 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 34439/04)
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 three Russian nationals,
Ms Valentina Sergeyevna Agaponova (“the first applicant”),
Ms Tatyana Matveyevna Kanshina (“the second applicant”)
and Mr Aleksey Ivanovich Leonov (“the third applicant”),
on 16 July 2004.
- The applicants were represented by Ms S. Poznakhirina,
an NGO expert practising in Novovoronezh.
- 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 31 May 2006 the Court decided to communicate the
application 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 applicants were born in 1941, 1952 and in 1951
respectively. They live in the town of Novovoronezh in the Voronezh
Region.
- The
applicants are Chernobyl pensioners. They brought court actions
against the Welfare Office of Novovoronezh seeking to recover the
unpaid allowances.
A. Judgments in favour of the first applicant
- On
16 June 2003 the Novovoronezh Town Court of the Voronezh Region (“the
Town Court”) awarded the first applicant 26,623.96 Russian
roubles (RUB). On 11 September 2003 the Voronezh Regional Court (“the
Regional Court”) upheld the judgment. It was fully enforced on
7 June 2005.
- On
17 February 2004 the Town Court awarded the first applicant RUB
23,109.10 in arrears relating to a disability allowance and rejected
her claims for an increase of the disability allowance. On 1 April
2004 the Regional Court quashed the judgment of 17 February 2004 in
so far as it had rejected the first applicant's claim for an increase
of the allowance and held that as of 1 January 2004 she was entitled
to a monthly disability allowance of RUB 9,267.76, to be index-linked
in future. The Regional Court upheld the remaining part of the
judgment of 17 February 2004 concerning the arrears. The judgment of
17 February 2004, as modified on 1 April 2004, was enforced in
full on 4 August 2005.
- On
16 March 2004 the Town Court recovered in the first applicant's
favour RUB 4,329.72 in arrears relating to a food allowance and
RUB 643.85 in arrears relating to an annual disability
allowance. The judgment acquired legal force on 26 March 2004. It has
not been enforced to date.
B. Judgments in favour of the second applicant
- On
7 December 2000 the Town Court awarded the second applicant RUB
6,744.70 in arrears relating to a disability allowance. On
27 November 2002 the judgment was enforced in full. On 17
February 2003 the Presidium of the Voronezh Regional Court quashed
the judgment of 7 December 2000, by way of supervisory review, and
remitted the case for a fresh examination to the first instance
court. On 9 April 2003, after a fresh examination, the Town Court
ordered the second applicant to return the sum awarded to her by the
judgment of 7 December 2000. The court furthermore decided that she
was entitled to a food allowance in the amount of RUB 860.18. The
parties did not appeal against the judgment and it entered into force
on 19 April 2003. It has not been enforced to date.
- On
9 June 2003 the Town Court awarded the second applicant
RUB 24,197.28. On 10 July 2003 the Regional Court upheld the
judgment. It was fully enforced on 17 December 2004.
- On 17 February 2004 the Town Court allowed the second
applicant's claim for recovery of RUB 21,002.82 in arrears relating
to a disability allowance and dismissed her claim for an adjustment
of the allowance. On 6 April 2004 the Regional Court upheld the
judgment of 17 February 2004 in so far as it concerned the arrears
but quashed the judgment in so far as it had rejected the claim for
an adjustment of the allowance and held that as of 1 January 2004 the
second applicant was entitled to a monthly disability allowance in
the amount of RUB 6,532.34. The judgment of 17 February 2004, as
modified on 6 April 2004, was fully enforced on 25 August 2005.
- On 15 March 2004 the Town Court awarded the second
applicant RUB 4,329.72 in arrears relating to her food allowance and
RUB 643.85 in arrears relating to her annual disability allowance.
The judgment entered into force on 25 March 2004. It has not been
enforced to date.
- On 17 May 2004 the Town Court awarded the second
applicant RUB 11,894.20 in arrears relating to her disability
allowance. The court furthermore held that as of 1 April 2004 she was
entitled to a monthly disability allowance in the amount of RUB
7,096.60, to be index-linked in future. The judgment entered into
force on 27 May 2004. It was fully enforced on 23 November 2005.
C. Judgments in favour of the third applicant
- On 17 June 2003 the Town Court awarded the third
applicant RUB 19,315.50. On 14 August 2003 the Regional Court
upheld the judgment. It was fully enforced on 17 December 2004.
- On 16 March 2004 the Town Court awarded the third
applicant RUB 4,329 in arrears relating to his food allowance
and RUB 643.85 in arrears relating to his annual disability
allowance. The judgment acquired legal force on 26 March 2004. It has
not been enforced to date.
- On 24 March 2004 the Town Court recovered in the third
applicant's favour RUB 16,765.50 in arrears relating to his
disability allowance. The judgment entered into force on 5 April
2004. It was fully enforced on 3 August 2005.
- On
6 May 2004 the Town Court awarded the third applicant RUB 9,494.52
in arrears relating to his disability allowance. The court
furthermore held that as of 1 April 2004 he was entitled to a monthly
disability allowance in the amount of RUB 5,664.84, to be
index-linked in future. The judgment acquired legal force on 17 May
2004. It was enforced in full on 11 November 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The applicants complained under Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention about
the lengthy non enforcement of the final judgments in their
favour. These Articles, 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 ... 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 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
- As
regards the first applicant, the Government submitted that the
judgments of 16 June 2003 and 17 February 2004 had been fully
enforced; the judgment of 16 March 2004 had not been enforced. The
Government further submitted that the judgments of 9 June 2003, 17
February and 17 May 2004, in favour of the second applicant, had
been fully enforced; the judgments of 9 April 2003 and of 15 March
2004 had not been enforced. As regards the third applicant, the
Government submitted that the judgments of 17 June 2003, 24 March and
6 May 2004 had been fully enforced; the judgment of 16 March 2004 had
not been enforced. The Government acknowledged that the lengthy
non-enforcement of the final judgments infringed the applicants'
rights guaranteed by Article 6 of the Convention and Article 1 of
Protocol No. 1.
- The applicants did not contest the Government's
submissions as regards the enforcement of the judgments in their
favour. However, they stressed that some judgments had not been
enforced.
- The Court observes that in 2003 and 2004 the
applicants obtained several judgments by which the Welfare Office of
Novovoronezh, a state body, was to pay them substantial amounts in
social benefits. Some of those judgments were enforced in full with
substantial delays varying from one year and
four months to one year and eight months. The judgment of
16 March 2004 in favour of the first applicant, the judgments of
9 April 2003 and 15 March 2004 in favour of the second applicant and
the judgment of 16 March 2004 in favour of the third applicant have
not been enforced.
- 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 Baygayev v.
Russia, no. 36398/04, 5 July 2007).
- Having examined the materials submitted to it, the
Court notes that the Government have not put forward any fact or
argument capable of justifying the lengthy non-enforcement of the
judgments in the applicants' favour. It finds that by failing, for
long periods of time, to comply with the enforceable judgments in the
applicants' favour the domestic authorities impaired the essence of
their right to a court and prevented them from receiving the money
they 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
second applicant complained that the judgment of 7 December 2000 had
been quashed by way of supervisory review and that as a result of a
fresh examination of the case on 9 April 2003 she had to return the
sum initially awarded to her.
- As
regards the quashing of the judgment of 7 December 2000, 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 or the Presidium of the Supreme Court
of the Russian Federation. In absence of an
effective remedy the Court concludes that it was the very act of
quashing of the judgment of 7 December 2000 that triggered the
start of six-month time limit for lodging this part of the
application to the Court. In the present case the final judgment was
quashed by the Presidium of the Voronezh Regional Court on 17
February 2003 and the second applicant lodged her application on 16
July 2004. Nothing in the second applicant's submissions indicates
that she was not immediately aware of the ruling. It follows that
this complaint is introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the
Convention.
- In
so far as the second applicant complains about the results of the
re-examination of the case on 9 April 2003, the Court notes that she
did not appeal against the judgment of 9 April 2003. It follows that
this complaint must be rejected under Article 35 §§ 1 and 4
of the Convention for non exhaustion of domestic remedies.
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
applicants claimed 6,000 euros (EUR) to be paid to each of them in
respect of non pecuniary damage.
- The
Government submitted that having regard to the nature of the awards
in the present case, the amount of compensation for non-pecuniary
damage should be determined in accordance with the Court's practice
in similar cases.
- The Court firstly notes that the State's obligation to
enforce the judgments, which have not been enforced in full, is not
in dispute in the present case. The Court therefore considers that
the Government shall secure, by appropriate means, the
enforcement of the awards made by the domestic court (see paragraph
23 above).
- The Court further considers that the applicants must
have suffered certain distress and frustration resulting from the
authorities' failure to enforce the final judgments in their favour.
However, the amounts claimed appear to be excessive. Taking into
account the length of the enforcement proceedings, the number of the
awards in favour of each applicant and their nature and making its
assessment on an equitable basis, the Court awards the followings
amounts in respect of non-pecuniary damage, plus any tax that may be
chargeable on those amounts: EUR 2,700 to the first applicant, EUR
3,500 to the second applicant and EUR 2,700 to the third applicant.
B. Costs and expenses
- The applicants did not make any claim for costs and
expenses incurred before the domestic courts and before the Court.
Accordingly, the Court makes 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
non-enforcement of the final judgments admissible and the remainder
of the application inadmissible;
- Holds 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 judgments in the applicants' favour;
- Holds
(a) that the respondent State, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, shall secure, by appropriate
means, the enforcement of the judgment of 16 March 2004 in favour of
Ms Agaponova, the judgments of 9 April 2003 and 15 March 2004 in
favour of Ms Kanshina and the judgment of 16 March 2004 in favour of
Mr Leonov;
(b) that
the respondent State, within the same period, is to pay the following
amounts in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR
2,700 (two thousand seven hundred euros) to Ms Agaponova;
(ii) EUR
3,500 (three thousand five hundred euros) to Ms Kanshina;
(iii) EUR
2,700 (two thousand seven hundred euros) to Mr Leonov;
(iv) any
tax that may be chargeable on the above amounts;
(c) 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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
