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FIRST
SECTION
CASE OF ALEKSANDR PONOMAREV v. RUSSIA
(Application
no. 8235/03)
JUDGMENT
STRASBOURG
6
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Aleksandr Ponomarev
v. Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Anatoly Kovler,
Linos-Alexandre
Sicilianos, judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8235/03)
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, Mr Aleksandr Vasilyevich Ponomarev (“the
applicant”), on 27 January 2003.
2. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- On
30 September 2005 the President of
the First Section decided to give notice of the application to
the Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in
Rozhdestvenskoye, Kostroma Region.
- The
applicant is disabled following his participation in the emergency
clean-up operations at the site of the Chernobyl nuclear plant
disaster and receives compensation for health damage.
- On
30 April 1999 he brought proceedings against the Welfare Office of
the town of Sharya of the Kostroma Region (Отдел
социальной
защиты
населения
г. Шарьи
Костромской
Области),
in which he sought increase of his monthly compensation and recovery
of the arrears.
- The
first hearing was scheduled for 30 August 1999. Between 30 August
1999 and 30 November 2000 four hearings were held by the court, while
seven hearings had to be rescheduled due to the lack of attendance by
the respondent or a third party, two hearings did not take place due
to the applicant’s default in appearance, and one hearing was
cancelled for the judge’s illness.
- By
a judgment of 30 November 2000 the Sharya Town Court of the Kostroma
Region (“the Town Court”) rejected the applicant’s
claims.
- On
31 January 2001 the Kostroma Regional Court (“the Regional
Court”) quashed the judgment of 30 November 2000 on the
applicant’s appeal for erroneous application of the material
law and ordered to re consider the case.
- By
a decision of 15 February 2001 the Town Court stayed the proceedings
waiting for the outcome of the proceedings pending before the
Constitutional Court of Russia, which were relevant to the
determination of the applicant’s case.
- On
19 June 2002 the Constitutional Court delivered its decision on the
issue pending before it, and the proceedings in the applicant’s
case were resumed on 18 November 2002.
- By
a decision of 26 December 2002 the Town Court granted the applicant’s
challenge of the judge and assigned the case to a different judge.
- Between
14 July and 9 December 2003 the court repeatedly requested that the
applicant submit information about his earnings during certain
periods of time. Overall, in the second round of the proceedings, two
hearings were held as scheduled, two of them did not happen as the
applicant did not appear, and one was postponed due to the
respondent’s default in appearance.
- By
a judgment of 9 December 2003 the Town Court allowed the applicant’s
claims in part. However, that judgment was set aside by the Regional
Court on both parties’ appeal on 2 February 2004.
- After
one hearing in the new round of the proceedings, on 16 April
2004 the Town Court again granted the applicant’s claims in
part. The court ordered the Welfare Office to recalculate the
compensation payments and awarded the applicant 6,936 Russian roubles
(RUB) to be paid monthly and to be adjusted in accordance with the
legislation. The court also recovered the debt in the amount of RUB
259,818 and reimbursement of the legal costs in the amount of RUB
12,051.
- On
16 June 2004 the Regional Court upheld the judgment on appeal.
- The
amount of RUB 259,818 was paid to the applicant on 12 August
2005, and RUB 12,051 was paid on 30 December 2005. Following the
delay in the payment of the lump-sum amounts awarded on 16 April
2004, the applicant obtained compensation for the depreciation of the
awards in the amount of RUB 31,084 on 18 November 2005 and RUB 1,617
on 17 March 2006. The amount of RUB 31,084 was paid to the
applicant on 28 September 2006.
- By
a decision of 10 March 2006 the Town Court adjusted the applicant’s
monthly payment in line with the consumer prices index to RUB 7,900.
It appears from the applicant’s observations that this
decision, as well as the decisions taken in the subsequent years, has
been enforced with a delay or not enforced altogether.
II. RELEVANT DOMESTIC LAW
- Federal
Law № 68-ФЗ “On
Compensation for Violation of the Right to a Trial within a
Reasonable Time or the Right to Enforcement of a Judgment within a
Reasonable Time” of 30 April 2010 (in force as of 4 May
2010) provides that in case of a violation of the right to trial
within a reasonable time or of the right to enforcement of a final
judgment, the Russian citizens are entitled to seek compensation of
the non-pecuniary damage. Federal Law № 69-ФЗ
adopted on the same day introduced the pertinent changes in the
Russian legislation.
- Section
6.2 of the Federal Law № 68-ФЗ
provides that everyone who has a pending application before the
European Court of Human Rights concerning a complaint of the nature
described in the law has six months to bring the complaint to the
domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
- The
applicant complained that the proceedings in his
case had taken too long, breaching the requirement of Article 6 §
1 of the Convention, which in the relevant part reads 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 (a) 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 denied that the length of the proceedings in
the applicant’s case had been unreasonable. They asserted that
the parties had protracted the proceedings to a certain extent
exercising their procedural rights, but their behavior could not be
imputed to the authorities. The Government also drew the Court’s
attention to the fact that a significant delay had occurred due to
the stay of the proceedings pending the outcome of an inquiry with
the Constitutional Court.
- The
applicant contended that on a few occasions the court had failed to
duly summon the parties to the hearings, as a result of which they
had not been able to attend. The court had also failed to verify the
respondent’s and third party’s reasons for failure to
appear or requests for postponement of the hearings and had not
disciplined them.
- The
Court reiterates 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 observes that the proceedings in the instant case lasted from
30 April 1999 to 16 June 2004. During this time, which amounts
approximately to five years and two months, the case was examined
three times at two levels of jurisdiction.
-
The Court further observes that in the three rounds of the
proceedings the trial court held a total of eight hearings as
scheduled, whereas an equal number of hearings were cancelled due to
the respondent’s or third party’s default in appearance.
It also notes that aside from several warnings, the trial court did
not discipline the defaulting parties.
- At
the same time, the Court observes that the proceedings were stayed
for one year and nine months pending decision of the Constitutional
Court on an issue relevant to the applicant’s case. It notes
that the hearings were scheduled regularly. It also does not lose
sight of the role of the applicant who contributed to the length of
the proceedings by having the case re-assigned to a different judge
and refusing to submit requested information. While 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, 8
June 1995, § 66, Series A no. 319-A), the resulting
delays cannot be attributed to the authorities. The Court also notes
that the applicant did not present any evidence in support of his
allegations that the trial court had failed on a few occasions to
duly summon the parties to the hearings.
- Regard
being had to the above, the Court considers that in this case the
authorities complied with the requirement of expedition. Accordingly,
there has been no breach of Article 6 § 1 of the Convention on
account of the length of the proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF
NON ENFORCEMENT
- Without
referring to any particular provision of the Convention, the
applicant complained that the authorities had
delayed the enforcement of the judgment of 16 April 2004 in respect
of the lump-sum payments and had failed to adjust the amount of the
monthly payment in breach of the trial court’s order. The
Court will examine this complaint under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which read in the
relevant part as follows:
Article 6
“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.”
- The
Government acknowledged that the delayed payment of the reimbursement
of legal costs had breached the Convention but disagreed with the
rest of the complaint.
- The
applicant maintained his complaint, adding in his observations a
complaint of delayed enforcement of the court decisions adopted in
2006 and later.
A. Admissibility and scope of the case
- The
Court notes that the applicant’s complaint of non-enforcement
of the court decisions delivered in 2006 and later was first raised
in his observations and was not communicated to the Government for
comments. The complaint in this part accordingly falls outside of the
scope of this case and will not be considered by the Court on the
merits.
- The
Court further notes that the remainder of the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
- The
parties’ arguments are summarised in paragraphs 31-32 above.
- The
Court reiterates that an unreasonably long delay
in the enforcement of a binding judgment may breach the Convention
(see Burdov v. Russia,
no. 59498/00, ECHR 2002 III).
- The
Court observes that the judgment of 16 April 2004 concerned three
awards, including a monthly compensation and obligation to adjust it
in line with the legislation, the arrears, and reimbursement of the
legal costs. It further observes that the arrears and reimbursement
of the legal costs were paid to the applicant approximately one year
and two months and one year and six months, respectively, after the
judgment became final.
- As
to the obligation to adjust the monthly payments, the Court notes
that in this part the judgment had not been executed until on 10
March 2006 the applicant obtained a new judicial decision adjusting
his monthly compensation. The length of the delay thus amounted
approximately to one year and nine months.
- Having
regard to the length of the delays in the enforcement of the judgment
of 16 April 2004, the Court finds that they were sufficiently long to
impair the applicant’s right to a court.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 that he had not had an
effective remedy in respect of the length of the proceedings in his
case. The relevant provision reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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
Court takes cognisance of the existence of a new remedy introduced by
the federal laws № 68-ФЗ
and № 69-ФЗ in the
wake of the pilot judgment adopted in the case of Burdov v. Russia
(no. 2) (no. 33509/04, ECHR
2009 ...). These statutes, which entered into force on 4 May
2010, set up a new remedy which enables those concerned to seek
compensation for the damage sustained as a result of unreasonable
length of the proceedings or delayed enforcement of court judgments
(see paragraph 19 above).
- The
Court observes that in the present case the parties’
observations in respect of Article 13 arrived before 4 May 2010 and
did not contain any references to the new legislative development.
However, it accepts that as of 4 May 2010 the applicant has had
a right to use the new remedy (see paragraph 20 above).
- The
Court recalls that in the pilot judgment cited above it stated that
it would be unfair to request the applicants whose cases have already
been pending for many years in the domestic system and who have come
to seek relief at the Court to bring again their claims before
domestic tribunals (Burdov (no. 2), cited above, §
144). In line with this principle, the Court decided to examine the
present application on its merits and found a violation of the
substantive provision of the Convention.
- However,
the fact of examination of the present case on its merits should in
no way be interpreted as compromising the Court’s possible
future assessment of the quality of the new remedy (see Fakhretdinov
and Others v. Russia (dec.), nos. 26716/09 et al, § 33,
23 September 2010). It will examine this question in other cases more
suitable for this analysis. It does not consider it appropriate to
make any further assessment in this respect in the present case,
particularly in view of the fact that the parties’ observations
were made with account of the situation that had existed before the
introduction of the new remedy.
- Having
regard to these special circumstances, while the Court considers this
complaint admissible, it does not find it necessary to continue its
separate examination in the present case (see Utyuzhnikova v.
Russia, no. 25957/03, § 52, 7
October 2010).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that the length of the
proceedings in his case had amounted to torture in the meaning of
Article 3 of the Convention.
- Having
regard to all the material in its possession, and in so far as this
complaint falls within its competence, the Court finds that there is
no appearance of a violation of the rights and freedoms set out in
these provisions in that respect. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
V. 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
- In
respect of pecuniary damage the applicant
claimed 51,548 Russian roubles (RUB) (approximately 1,240 euros
(EUR)) calculated as the sum of the awards made to him to cover the
inflation losses following delay in the enforcement of the original
judgment (see paragraphs 17 and 18 above). Those amounts remained
unpaid at the moment of his lodging of the claim for damages. He also
claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government disputed the claim for pecuniary damage, arguing that the
principal debt under the judgment of 16 April 2004 had been paid to
the applicant. They also found the claim for non-pecuniary damage
excessive, referring to the amounts awarded by the Court under this
head in the cases of Gorokhov and Rusayev v. Russia (no.
38305/02, 17 March 2005) and Yemanakova v. Russia (no.
60408/00, 23 September 2004) as reasonable.
- As
to pecuniary damage, the Court notes that the judicial awards were
paid to the applicant in full (see paragraph 17 above). Furthermore,
the applicant has not submitted an itemised claim for possible
pecuniary loss arising from delays in the payments. In these
circumstances the Court rejects the claim for pecuniary damage in
full.
- As
regards non-pecuniary damage, deciding on an equitable basis, the
Court awards the applicant EUR 2,400 under this head.
B. Costs and expenses
- The
applicant did not submit any claim for costs and
expenses.
- The
Court will therefore make 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 length of the
proceedings, non enforcement and lack of an effective remedy
admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention on account of the length of the
proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 on
account of the delayed enforcement of the judgment of 16 April 2004;
- Holds that there is no need for separate
examination of the complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months, EUR 2,400 (two thousand four 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 the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Mirjana Lazarova
Trajkovska
Deputy Registrar President
