SHEYMAN v. RUSSIA - 7873/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 542 (21 June 2016)

In the case of Sheyman v. Russia,

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

          Helena Jäderblom, President,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 31 May 2016,

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

PROCEDURE

1. The case originated in two applications (nos. 7873/09 and 8174/09) 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 two Israeli nationals, Mrs Khayka Grigoryevna Sheyman (“the first applicant”) and Mr Yuriy Petrovich Sheyman (“the second applicant”), on 29 December 2008.

2. Both applicants were represented by Mr R.A. Zarbeyev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation tо the European Court of Human Rights.

3. The applicants complained, inter alia, of the quashing of a binding and enforceable judgment in their favour by way of supervisory review procedure.

4. The applications were communicated to the Government on 12 May 2009 and 17 November 2009 respectively.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants, who are husband and wife, were born in 1932 and 1926, respectively, and live in Bat-Yam, Israel.

6. In 1990s the applicants emigrated from the USSR to Israel and obtained Israeli nationality. Before emigrating, they were receiving old-age pensions from the Soviet authorities. Once the applicants left the USSR, the payments were discontinued in accordance with the USSR pension law in force at the material time.

7. On 4 August 2006 the applicants brought civil proceedings against the competent regional department of the Pension Fund of the Russian Federation (Пенсионный Фонд Российской Федерации) (hereinafter “the Pension Fund”) seeking reinstatement of their right to the pension payments.

8. On 4 December 2006 the Kirovskiy District Court of Astrakhan found in the applicants’ favour and ordered the Pension Fund to set up monthly pension payments backdated to 15 June 1998.

9. On 12 January 2007 the Astrakhan Regional Court upheld the judgment on appeal and it became binding and enforceable.

10. On 10 July 2007 the Pension Fund lodged an application for supervisory review, seeking to have the judgments quashed. The application was addressed to the President of the Supreme Court.

11. On 27 July 2007 a judge of the Supreme Court requested the case file from the District Court and subsequently suspended enforcement of the judgment of 4 December 2006.

12. On 4 December 2007 another judge of the Supreme Court sent the case for supervisory review to the Astrakhan Regional Court.

13. On 22 January 2008 the Astrakhan Regional Court dismissed the supervisory review application and endorsed the judgment of 4 December 2006, as upheld on 12 January 2007.

14. On 8 April 2008 the Pension Fund lodged another application for supervisory review, again addressed to the President of the Supreme Court.

15. On 24 June 2008 a judge of the Supreme Court sent the case for supervisory review by the Civil Chamber of the Supreme Court.

16. On 1 August 2008 the Civil Chamber of Supreme Court quashed the judgment of 4 December 2006, as upheld on 12 January 2007, and rejected the applicants’ claims.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Domestic provisions on supervisory review procedure

17. The relevant domestic law governing the supervisory review procedure between 1 February 2003 and 7 January 2008 is summed up in the Court’s judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007). At that time, a supervisory review application could be lodged within one year of the date when the challenged judgments became binding and enforceable.

18. As regards the supervisory review procedure in force since 7 January 2008, the relevant domestic provisions are summed up in the Court’s decision in the case of Martynets v. Russia ((dec.), no. 29612/09, 5 November 2009). In particular, the new provisions reduced the time-limit for challenging binding and enforceable judgments by way of supervisory review from one year to six months.

19. On 16 December 2008, in its decision no. 1054-O-П, the Constitutional Court of the Russian Federation clarified the fact that the new provisions of the Russian Code of Civil Procedure introducing the six-month time-limit for lodging a supervisory application did not prevent the supervisory-review courts from examining on the merits supervisory review applications lodged outside of this time-limit concerning judgments which had become binding prior to 8 January 2008 and had been introduced before the expiry of the one-year time-limit in force at that time (but in any event not later than 8 July 2008).

B. Practice of domestic courts concerning reopening of proceedings in similar cases

20. On 21 July 2011 the Presidium of the Rostov Regional Court examined Mrs Shinkova’s application. The application had been lodged following the judgment delivered in the case of Eydelman and other “Emigrant pensioners” v. Russia, (nos. 7319/05, 9992/07, 10359/07, 13476/07, 3565/08, 10628/08, 33904/08, 33918/08, 40058/08, 42112/08, 42115/08, and 60792/08, 4 November 2010) in which the Court had found violations of Article 6 of the Convention and Article 1 of Protocol 1 to the Convention on account of the quashing of domestic judgments regarding the applicants’ entitlement to a pension despite their living abroad. The Presidium found that the quashing of a domestic judgment in the applicant’s favour had not been justified. It reversed the judgment and accordingly reinstated her entitlement to a pension.

21. On 27 July and 3 August 2011 the Presidium of the Moscow Regional Court delivered a similar judgment in respect of other applicants in the case of Eydelman and other “Emigrant pensioners”, cited above.

THE LAW

I. THE GOVERNMENT’S REQUEST TO STRIKE OUT APPLICATION No. 8174/09 UNDER ARTICLE 37 OF THE CONVENTION

22. On 7 July 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application lodged by the second applicant. They therefore requested that the Court strike out the application in accordance with Article 37 of the Convention.

23. In their declaration the Government acknowledged the violation of the second applicant’s rights on account of the quashing by way of supervisory review of the judgment of the Kirovskiy District Court of Astrakhan of 4 December 2006, upheld on 12 January 2007 by the Astrakhan Regional Court. The Government undertook to pay the applicant 3,000 euros (EUR) in respect of non-pecuniary damage and 19,639.50 Russian roubles (RUB) (EUR 488.3) by way of compensation for pecuniary damage, plus any tax that might be chargeable on those amounts.

24. According to the Government, the calculation of the pecuniary damage had been carried out on the basis of the arrears resulting from the non-enforcement of the above judgment prior to its quashing on 1 August 2008. This amount had constituted RUB 16,046.66 (EUR 399) and had been calculated on the basis of the monthly pension payment of RUB 132 (EUR 3.3), which was payable as of 15 June 1998. This sum had been index-linked in line with inflation. Consequently, the total amount of compensation for pecuniary damage offered by the Government constituted RUB 19,639.50 (EUR 488.3).

25. The rest of the declaration read as follows:

“The sum referred to above, which is intended to cover all pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months of the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”

26. The second applicant did not react to the Government’s unilateral declaration.

27. The Court observes, on the one hand, that the Government explicitly acknowledged a violation of the Convention on account of the quashing by way of supervisory review of the binding and enforceable judgment in the applicant’s favour. In consequence, they offered a sum of compensation for non-pecuniary damage which is in line with Court’s awards in similar cases (Tarnopolskaya and Others v. Russia, nos. 11093/07 et seq., § 57, 7 July 2009).

28. On the other hand, the amount of compensation for pecuniary damage proposed by the Government differs substantially from the amounts of compensation for pecuniary damage awarded to applicants by the Court in virtually identical cases (see Tarnopolskaya and Others, cited above, § 54, and Eydelman and other “Emigrant pensioners”, cited above, § 46). Although the second applicant did not comment on a unilateral declaration submitted by the Government, in his prior submissions concerning just satisfaction he based his calculation on the method previously upheld by the Court in the final judgments referred to above.

29. The Court cannot therefore accept that the compensation offered by the Government in respect of pecuniary damage constitutes adequate and sufficient redress for the violations of the second applicant’s rights under the Convention (see Gorfunkel v. Russia, no. 42974/07, §§ 15-29, 19 September 2013). It follows that the Government’s declaration, while acknowledging the violations of the Convention, fails to ensure respect for human rights as defined in the Convention and thus compels the Court to continue its examination of the application.

30. This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention and will examine the admissibility and merits of the case.

II. JOINDER OF THE APPLICTIONS

31. In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to consider the applications in a single judgment, given their similar factual and legal background (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03 et al., § 15, 14 January 2010).

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

32. The applicants complained of a violation of Article 6 of the Convention on account of the quashing of binding and enforceable judgments in their favour by way of supervisory review. They further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to these same facts:

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

33. The Government argued that the applicants had abused their right of individual petition by submitting inaccurate and untrue information concerning their nationality. They referred to the case of Sarmina and Sarmin v. Russia ((dec.), no. 58830/00, 22 November 2005).

34. The Court notes that, unlike in the Sarmina and Sarmin case (cited above) in which it established that the applicants had knowingly based their complaint on untrue information regarding their nationality, the applicants in the present case stated from the beginning that they were Israeli nationals. Consequently, it sees no reasons to conclude that there was a deliberate attempt by the applicants to mislead the Government.

35. The Court further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

36. The Government argued that the supervisory review proceedings resulting in the quashing of the judgments delivered in the applicants’ favour had been lawful: they had been initiated by the defendant authorities within the time-limits provided for by domestic law. The Supreme Court quashed the lower courts’ judgments on account of the erroneous application of substantive law, thus correcting flagrant injustice and erasing dangerous precedents.

37. The applicants reiterated their complaints.

38. The Court notes that the judgments in the applicants’ favour were set aside by the Civil Chamber of the Supreme Court of Russia almost one year and seven months after they had become binding and enforceable. Although the quashing took place after the entry into force of the 2008 reform which reduced the time-limit for lodging of a supervisory review application to six months, this was made possible because the judgments in the applicants’ favour were delivered before the entry into force of the new amendments. They consequently remained open to challenge in accordance with the one-year time-limit in force at the moment of their delivery and whose laxity had been repeatedly criticised by the Court in its previous judgments (see, for instance, Kulkov and Others v. Russia, nos. 25114/03, 11512/03, 9794/05, 37403/05, 13110/06, 19469/06, 42608/06, 44928/06, 44972/06 and 45022/06, § 31, 8 January 2009). This problem is also illustrated by the circumstances of the present case, in which the delay was not only due to the laxity of this time-limit but was further aggravated by the repeated examinations of the applicants’ case at various levels of supervisory-review adjudication (compare with Kulkov and Others, cited above).

39. In these circumstances, the Court cannot but reiterate its previous practice whereby it has found violations of the Convention on account of the quashing by way of supervisory review of binding and enforceable judgments concerning benefits to the pensioners who had emigrated from the USSR to Israel (see Tarnopolskaya and Others, cited above, § 35, and Eydelman and other “Emigrant pensioners”, cited above, §§ 31 and 32).

40. The Court accordingly concludes that the quashing by the Supreme Court of Russia of the binding and enforceable judgment of 4 December 2006, upheld on 12 January 2007, amounts to a breach of the principle of legal certainty in violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

41. The applicants relied on Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, claiming that they had been initially unlawfully deprived of their pension and that this deprivation had occurred for political reasons because they had left the USSR for a “capitalist country”, whereas citizens who had left for a “socialist country” had retained their pensions.

42. It should first be noted that the initial withdrawal of the applicants’ pension rights was an instantaneous act, which did not give rise to any possible continuous situation of a violation of the Convention. This withdrawal was triggered by their emigration to Israel, which took place prior to 5 May 1998 when the Convention entered into force in respect of Russia. The Convention only governs facts subsequent to its entry into force with regard to that Party (see Jovanović v. Croatia (dec.), no. 59109/00, ECHR 2002-III). It follows that the complaints under Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention are incompatible ratione temporis (see Tarnopolskaya and Others, cited above, § 39).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. The applicants claimed in respect of pecuniary damage 674,028 Russian roubles (RUB) (EUR 15,732) and RUB 1,310,155 (EUR 30,580), which are the sum totals of their pension entitlements from the date indicated in the final judgment up until 31 December 2009. They also asked for the payment of their pensions to be reinstated. Finally, each applicant claimed EUR 10,000 in respect of non-pecuniary damage.

45. As regards the claims submitted by the first applicant, the Government asserted that the judgment in her favour had not been enforced on account of her failure to provide the necessary documents. They made no specific comment on the method of calculation of pecuniary damage employed by the applicants. As regards the second applicant, the Government contested his claims in full but indicated that, should the Court award him pecuniary damage, it should do so only up until 1 August 2008, that is to say the date on which the domestic judgment was quashed. They further reiterated the method of calculation of pecuniary damage they had employed, as presented in their unilateral declaration.

46. Having regard to the principles developed in its case-law and in virtually identical cases in particular (see Tarnopolskaya and Others, cited above, §§ 48 and 54), the Court awards the applicants EUR 13,551 and EUR 22,786, respectively, corresponding to the pension they should have received in accordance with the judgment of 4 December 2006, upheld on 12 January 2007, prior to its quashing, in respect of pecuniary damage.

47. As far as non-pecuniary damage is concerned, the Court accepts that the applicants must have suffered non-pecuniary damage as a result of the violations found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the case and making its assessment on an equitable basis, the Court awards each applicant the sum of EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

48. The applicants submitted no claims in respect of costs and expenses. The Court thus makes no award in this regard.

C. Default interest

49. 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. Rejects the Government’s request to strike the application no. 8174/09 out of its list of cases;

2. Decides to join the applications;

3. Declares the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the quashing by way of supervisory review of domestic final judgments in the applicants’ favour admissible and the remainder of the applications inadmissible;

4. 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 quashing by way of supervisory review of domestic final judgments in the applicants’ favour;

5. Holds, unanimously,

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

(i) EUR 13,551 (thirteen thousand five hundred and fifty-one euros) to the first applicant and EUR 22,786 (twenty two thousand and seven hundred eighty six euros) to the second applicant plus any tax that may be chargeable in respect of pecuniary damage;

(ii) EUR 3,000 (three thousand euros) to each applicant plus any tax that may be chargeable in respect of non-pecuniary damage;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Helena Jäderblom
Registrar President

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