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FIRST
SECTION
CASE OF GLUSHAKOVA v. RUSSIA
(Application
no. 38719/03)
JUDGMENT
STRASBOURG
12
April 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 Glushakova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr S.E. Jebens,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38719/03) 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 Valentina Viktorovna
Glushakova (“the applicant”), on 15 November 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
28 February 2005 the Court decided to give notice of 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. On 4 May 2006 the Court put
additional questions to the parties.
THE FACTS
- The
applicant was born in 1927 and lives in the town of Shakhty of the
Rostov Region.
A. Proceedings concerning payment of arrears and a
penalty
- In
the 1980s the applicant's son took part in the emergency operation at
the site of the Chernobyl nuclear plant disaster. Until March 1996
the Shakhty Town Social Security Service (hereafter - the Service)
made monthly payments to the son as a compensation for health damage.
- After
the Service stopped payments, the applicant's son sued it for arrears
and a penalty. On 28 February 1997 the Shakhty Town Court awarded him
30,640,341 Russian roubles (“RUR”) in arrears and the
same amount as the penalty.
- On
24 April 1997 the arrears, but not the penalty, were paid.
- After
the son's death, on 26 March 1999 a notary public issued the
applicant with an inheritance certificate certifying her right to one
half of the penalty awarded by the judgment of 28 February 1997. The
applicant's grandson was issued with a certificate confirming his
right to the second half of the penalty.
- As
the penalty had not been paid, the Shakhty Town Court, upon the
applicant's and her grandson's request, ordered the following
increases of the penalty to take account of the inflation:
- in
the judgment of 14 February 2000, by RUR 57,165.71;
- in
the judgment of 13 August 2001, by RUR 29,764.6; and
- in
the judgment of 29 March 2002, by RUR 17,254.96.
Those
judgments were not appealed against and became effective.
- On
30 May 2002 the Service paid the penalty in the original amount
established in the judgment of 28 February 1997, but not the
amounts awarded in the subsequent judgments.
- In
2003 the applicant and her grandson asked the Shakhty Town Court to
reconfirm their right to the sums awarded by the judgments of
14 February 2000, 13 August 2001 and 29 March 2002.
- On
14 March 2003 the Shakhty Town Court held that the applicant and her
grandson each should receive RUR 52,092.63 (approximately
1,540 euros), representing one half of the amounts awarded by
the judgments of 14 February 2000, 13 August 2001 and 29 March
2002. The judgment of 14 March 2003 was not appealed against and
became final.
- On
20 December 2004 the money due to the applicant and her grandson
under the judgments of 14 February 2000, 13 August 2001 and 29 March
2002, as pronounced by the judgment of 14 March 2003, were paid to
them in full.
B. First pension dispute
- On
11 November 2002 the Shakhty Town Court accepted the applicant's
action against the Service and awarded her RUR 23,619.55
(approximately 733 euros). That judgment was upheld on appeal on 23
July 2003 and enforced in full on 16 August 2004.
C. Second pension dispute
1. Dispute for payment of arrears and an increase of
pension
- In
2002 the applicant sued the Service and the Shakhty Town Council for
an increase of her pension, payment of arrears and compensation for
damage.
- On
8 May 2003 the Shakhty Town Court partly accepted her action and
ordered that the Service should adjust her pension to take account of
increases in the minimum subsistence level. The Town Court also
awarded her RUR 9,563.92 (approximately 271 euros) in arrears. The
judgment became final on 16 July 2003 after the Rostov Regional Court
upheld it.
- On
11 December 2003 the Service paid the applicant RUR 9,563.92, but it
did not increase her pension in line with the subsistence level.
2. The applicant's attempts to initiate a supervisory
review
- In
November 2003 the applicant asked the President of the Rostov
Regional Court to initiate a supervisory review in respect of the
judgment of 8 May 2003. On 30 April 2004 her request was disallowed.
3. Proceedings for clarification of the judgment of 8
May 2003
- In
2004 the applicant asked the Shakhty Town Court to clarify the
judgment of 8 May 2003. She complained that the judgment had not been
enforced in full because the monthly pension payments had not been
increased.
- On
15 November 2004 the Shakhty Town Court confirmed the applicant's
right to the pension in the increased amount. It held that from
1 January to 31 December 2002 the applicant should have been
paid RUR 2,255.65 per month and from 1 March 2003 she should
have been paid RUR 2,842.11 per month. The Town Court also ordered
that the Service should subsequently increase pension payments in
accordance with the law.
- According
to the Government, the judgment of 8 May 2003, as clarified by the
judgment of 15 November 2004, was enforced in full in December 2005.
D. Other proceedings against the Service
- On
11 and 29 June, 23 August, 2 and 22 September 2004 the Shakhty Town
Court accepted the applicant's actions against the Service for the
adjustment of various unrelated judgment awards made in her favour in
1997, 1999, 2000 and 2003 and awarded her RUR 720.5 (approximately
EUR 21), RUR 11,628.63 (approximately 331 euros), RUR 7,545.76
(approximately EUR 210), RUR 5,803.24 (approximately 162 euros),
RUR 6,183.69 (approximately 172 euros), and RUR 2,524.42
(approximately 70 euros). The judgments were not appealed against and
became final.
- The
judgments were enforced in full on 2 November 2005 when the sums were
credited to the applicant's account.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF PROTRACTED NON-ENFORCEMENT
OF THE JUDGMENTS
- The
applicant complained under Articles 6 and 14 of the Convention and
Article 1 of Protocol No. 1 that the final judgments of 14 February
2000, 13 August 2001, 29 March and 11 November 2002, 14 March
and 8 May 2003, 11 and 29 June, 23 August, 2 and 22
September 2004 had not been enforced in good time. The Court
considers that this complaint falls to be examined under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 (see Burdov
v. Russia, no. 59498/00, § 26, ECHR 2002 III). The
relevant parts of these provisions read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... 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
- The Government informed the Court that the Service had
attempted to secure a friendly settlement which the applicant had
refused to accept. Referring to that refusal, to the fact that the
judgments in the applicant's favour had been fully enforced, and to
the Court's decision in the case of Aleksentseva and Others v.
Russia (nos. 75025/01 et seq., 4 September 2003), the
Government invited the Court to strike the application out of its
list of cases, in accordance with Article 37 of the Convention.
- The
applicant disagreed with the Government. She claimed that the
Government had not offered compensation for the loss of the value of
the judgment debts. The sum offered had not covered the pecuniary and
non-pecuniary damage she had sustained due to protracted
non-enforcement of the judgments.
- The
Court observes that it has already on a number of occasions examined
the same argument by the Russian Government and rejected it (see
Silchenko v. Russia, no. 32786/03, §§ 33-37, 28
September 2006; Kazartsev v. Russia, no. 26410/02, §§
11-15, 2 November 2006, etc.). The Court does not find any reason to
depart from that finding in the present case and dismisses the
Government's request to strike the application out under Article 37
of the Convention.
- The
Court notes that the 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 claimed that the judgments had remained unenforced because
it had taken the debtor, a State body, “a certain period of
time for performance of the procedures... for unconditional financial
maintenance of execution of such judicial decisions”.
- The
applicant maintained her complaints.
- The
Court observes that on 14 February 2000, 13 August 2001 and
29 March 2002 the applicant obtained judgments in her favour by
which she was to be paid certain sums of money by the Shakhty Town
Social Security Service, a State body. The judgments were not
appealed against and became final and enforceable. On 14 March 2003
the Shakhty Town Court, by the final judgment, confirmed the
applicant's right to receive the money under the abovementioned
judgments. The judgments of 14 February 2000, 13 August 2001 and
29 March 2002, as pronounced on 14 March 2003, were fully
enforced on 20 December 2004 when the sums were credited to the
applicant's account. Thus, the judgments remained unenforced for
several years.
- The Court further observes that on 8 May 2003 the
Shakhty Town Court issued the applicant with a judgment under which
the Service was to pay her a lump sum in pension arrears and was to
adjust her pension to take account of increases in the minimum
subsistence level. The judgment became final on 16 June 2003 when the
Rostov Regional Court upheld it on appeal. The lump sum was paid to
the applicant in December 2003. However, the adjustment of monthly
payments was not effected. On 15 November 2004 the Town Court
clarified its judgment of 8 May 2003, prescribing particular amounts
of monthly pension payments due to the applicant. The judgment of 8
May 2003, as clarified on 15 November 2004, was enforced in full
in December 2005.
- On 11 November 2002 the applicant obtained another
judgment by which the Service was to pay her a certain sum of money.
The judgment became final on 23 July 2003. It was enforced in full on
16 August 2004. The Court further notes that on 11 and 29 June, 23
August and 22 September 2004 the Shakhty Town Court issued
judgments in the applicant's favour by which the Service was to pay
the applicant certain sums of money. The judgments were not appealed
against, became final and were enforced on 2 November 2005.
- The
Court observes that the final judgments in the applicant's favour
indicated in paragraphs 32 and 33 above remained unenforced for more
than a year.
- 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, § 19 et seq., ECHR 2002 III;
Gizzatova v. Russia, no. 5124/03, § 19 et seq.,
13 January 2005; Gerasimova v. Russia,
no. 24669/02, § 17 et seq., 13 October 2005).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Court finds that by failing for years to comply with the
enforceable judgments in the applicant's favour the domestic
authorities impaired the essence of her right to a court and
prevented her from receiving the money she 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
- Lastly,
the applicant complained under Articles 6, 13 and 14 of the
Convention and Article 1 of Protocol No. 1 that the proceedings
concerning an increase of her pension had been unfair, in that the
Town Court had made incorrect calculations and discriminated against
her, that her request for a supervisory review had been dismissed and
that it had taken the President of the Regional Court almost a year
to make a decision on her request for a supervisory review.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence ratione materiae, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols. 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.
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 RUR 578,366 in respect of pecuniary damage, of
which RUR 122,627 represented inflation losses resulting from the
lengthy non-enforcement and interest on the judgment awards at the
marginal interest rate of the Russian Central Bank and RUR 455,739
represented the amounts which, in her view, should have been paid to
her under the judgment of 8 May 2003, taking into account inflation
rates and various coefficients established under the Russian law for
pension payments. The applicant further claimed EUR 39,915 in respect
of non-pecuniary damage.
-
The Government argued that the applicant had failed to exhaust
domestic remedies in respect of her claims for compensation for
pecuniary damage. As to the claims in respect of non-pecuniary
damage, they were unsubstantiated and unreasonable.
- The
Court reiterates, firstly, that an applicant cannot be required to
exhaust domestic remedies to obtain compensation for pecuniary loss
since this would prolong the procedure before the Court in a manner
incompatible with the effective protection of human rights (see
Papamichalopoulos and Others v. Greece (Article 50), judgment
of 31 October 1995, Series A no. 330-B, § 40, and
Gridin v. Russia, no. 4171/04, § 20, 1 June 2006).
Nor is there a requirement that an applicant furnish any proof of the
non-pecuniary damage he or she sustained.
- As
to the applicant's claims in respect of the sums she had expected to
receive under the judgment of 8 May 2003, the Court observes that on
15 November 2004 the Town Court clarified the judgment indicting
sums of monthly pension payments due to the applicant. Those sums
were paid to the applicant in full in December 2005. The Court notes
that the applicant's right to receive higher amounts was not upheld
in the domestic proceedings and the applicant did not claim
separately any interest for the period that lapsed between the
original award and the Court's judgment. The Court therefore rejects
this claim.
- As
regards the remaining claims in respect of pecuniary damage, the
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 in that the awards in the applicant's favour had not been paid
to her in good time. It recalls that the adequacy of the compensation
would be diminished if it were to be paid without reference to
various circumstances liable to reduce its value, such as an extended
delay in enforcement (see Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005; Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). Having
regard to the materials in its possession and the fact that the
Government did not furnish any objection to the applicant's method of
calculation of compensation, the Court awards the applicant RUR
122,627 in respect of pecuniary damage, plus any tax that may be
chargeable.
- The
Court further considers that the applicant must have suffered
distress and frustration resulting from the State authorities'
failure to enforce the judgments in her favour. The Court takes into
account the relevant aspects, such as the length of the enforcement
proceedings and the nature of the awards, and making its assessment
on an equitable basis, awards the applicant EUR 3,900 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed EUR 100 and RUR 840.40 for the costs and
expenses incurred before the Court, of which RUR 840.40 represented
postal expenses and expenses for preparation of documents and EUR 100
represented expenses for presentation of her case before the Court
without legal assistance.
- The
Government argued that RUR 840.40 should only be granted to the
applicant because those expenses were reasonable.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his 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. The Court notes that the
applicant was not represented in the Strasbourg proceedings. However,
she must have incurred expenses in providing her written pleadings
(see Lauko v. Slovakia, judgment of 2 September 1998,
Reports of Judgments and Decisions 1998 VI, § 75).
The Court further observes that the applicant provided receipts and
vouchers to substantiate her expenses for preparation of documents
and sending them to the Court. Regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 125 covering costs under all
heads, 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 complaint concerning the protracted
non-enforcement of the judgments in the applicant's favour 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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts, to be converted, where appropriate, into Russian roubles at
the rate applicable at the date of settlement:
(i) RUR
122,627 (one hundred twenty-two thousand six hundred and twenty-seven
Russian roubles) in respect of pecuniary damage;
(ii) EUR
3,900 (three thousand and nine hundred euros) in respect of
non-pecuniary damage;
(iii)
EUR 125 (one hundred and twenty-five euros) in respect of costs and
expenses;
(iv) any
tax that may be chargeable on the above amounts;
(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 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
