Aleksandr Nikiforovich NIKIFOROV v Russia - 28310/06 [2011] ECHR 2320 (13 December 2011)

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The European Court of Human Rights (First Section), sitting on 6 December 2011 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having regard to the declaration submitted by the respondent Government on 29 August 2011 requesting the Court to strike the application out of the list of cases and the applicant’s successor’s reply to that declaration,

The applicant, Mr Aleksandr Nikiforovich Nikiforov, was a Russian national who was born in 1929 and lived in Novocherkassk, the Rostov Region.

On 5 February 2008 the applicant died. His widow, Mrs Lidiya Fedorovna Nikiforova, born in 1939 and living in Novocherkassk, expressed a wish to pursue the application in his stead.

For the sake of convenience, the Court will refer to Mr A. N. Nikiforov as “the applicant”.

He was represented before the Court by Mr P.V. Sedlyar, a lawyer practising in Novocherkassk, and so is Mrs Nikiforova. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 15 September 2004 the Novocherkassk Town Court awarded the applicant, a retired military serviceman, 228,932.61 Russian roubles (RUB) in pension arrears, to be paid by the military commissariat of the Rostov Region. The judgment was not appealed against and entered into force ten days later. It remained unenforced.

On 29 December 2005 the Presidium of the Rostov Regional Court quashed the judgment of 15 September 2004 by way of supervisory review and referred the case for a fresh examination by a different court. The applicant was neither present nor represented at the hearing. On 15 February 2006 he received a copy of the ruling by the Presidium.

On 9 March 2006 the Oktyabrskiy District Court of Rostov examined the applicant’s claim against the commissariat and rejected it as having no basis in domestic law.

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about non-enforcement of the judgment in his favour and its subsequent quashing by way of supervisory review.

He complained under Article 13 about a lack of the effective domestic remedies in respect of the above complaints.

The Court takes note of the applicant’s death and of the interest of his widow in pursuing the proceedings in his stead.

The Court reiterates that where an applicant dies during the examination of a case his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000 IX). Furthermore, in Streltsov and other “Novocherkassk military pensioners” cases concerning a similar set of facts, the Court recognised the right of the relatives of the deceased applicants to pursue the application (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, nos. 8549/06 et al., §§ 37-42, 29 July 2010).

The Court notes that the rights at stake in the present application are very similar to those at the heart of the case referred to above. The Government did not contend that the applicant’s widow had no standing to pursue the case. Therefore, the Court considers that the applicant’s widow has a legitimate interest in pursuing the application before the Court.

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

“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.”

By letter dated 29 August 2011 the Government submitted a unilateral declaration aimed at resolving the issues raised by the application. By this declaration the Russian authorities acknowledged a violation of the applicant’s rights as a result of the quashing of the judgment of 15 September 2004 by way of supervisory review.

“With reference to the European Court’s case-law in the similar case of Streltsov and other “Novocherkassk military pensioners” cases v. Russia, [cited above], the authorities of the Russian Federation are ready to pay Mrs Nikiforova Lidiya Fedorovna, pursuing the application in stead of Mr Nikiforov Aleksandr Nikiforovich, ex gratia the sums of 2,000 euros in respect of non-pecuniary damage and 228,932.61 Russian roubles as the pecuniary arrears under the judgment of the Novocherkassk Town Court of 15 September 2004 subsequently quashed by way of supervisory review, plus any tax that may be chargeable on that amount.

The authorities therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The sum referred to above, which is to cover any 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 from 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.

By letter of 29 August 2011 the Government submitted, in particular, that the judgment of 15 September 2004 had not been enforced due to its quashing on 29 December 2005 by way of supervisory review.

By letter of 24 September 2011 the applicant’s widow accepted the terms of the declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75 77, ECHR 2003 VI); WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).

Turning to the present case, the Court observes that in the above declaration the Government explicitly acknowledged a violation of the applicant’s rights in respect of the supervisory review complaint only. However, it transpires from the terms of the declaration that the Government expressed their readiness to pay the applicant’s widow the amount of the initial unenforced judgment debt. Furthermore, in their letter of 29 August 2011 accompanying the declaration they expressly acknowledged that the domestic judgment at stake had remained unenforced due to the quashing.

In these circumstances, the Court is satisfied that the alleged violations of the Convention and its Protocol on account of both supervisory review and non enforcement are acknowledged by the Government either explicitly or in substance. The Court also notes that the compensation offered in respect of the alleged violations is comparable with Court awards in similar cases (see, for example, Streltsov and other “Novocherkassk military pensioners” cases, cited above, §§ 84 98).

The Court therefore considers that it is no longer justified to continue the examination of the application in this part.

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic (see Streltsov and other “Novocherkassk military pensioners” cases, cited above), it is also satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) and the protocols thereto does not require it to continue the examination of the application in this part. Accordingly, the application in the part concerning the complaints of non-enforcement and supervisory review should be struck out of the list.

In any event, the Court’s present ruling is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the present application to the list of cases (see E.G. v. Poland (dec.), no. 50425/99, § 29, ECHR 2008 ... (extracts)).

The applicant further complained under Article 13 about the lack of an effective domestic remedy in respect of the non-enforcement and the supervisory review complaints.

As regards the alleged lack of an effective remedy in respect of the non-enforcement complaint, the Court takes cognisance of the existence of a new remedy against excessive length of proceedings introduced by the federal laws No. 68-ФЗ and No. 69-ФЗ on 4 May 2010 in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009 ...). On 23 September 2010 the Court decided that all new cases introduced after the Burdov pilot judgment and falling within the scope of the new domestic remedy had to be submitted in the first place to the national courts (see Fakhretdinov and Others, cited above, § 32). The Court also stated that its position may be subject to review in the future, depending in particular on the domestic courts’ capacity to establish consistent practice under the new law in line with the Convention requirements (ibid, § 33). Finally, the Court notes that the applicant’s successor will in any event receive pecuniary compensation in respect of the applicant’s grievance in accordance with the Government’s declaration examined above.

Having regard to these special circumstances, the Court does not find it necessary to continue a separate examination of the complaint under Article 13 in the present case (see also Pobudilina and Others v. Russia, nos. 7142/05 et al., 29 March 2011).

As regards the complaint about the lack of an effective domestic remedy against the quashing by way of supervisory review of a judgment in the applicant’s favour, the Court notes that Article 13 of the Convention does not, as such, guarantee the right to appellate remedies in respect of a decision taken by way of supervisory review (see Murtazin v. Russia, no. 26338/06, § 46, 27 March 2008). It follows that the complaint under Article 13 in this part is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 thereof.

Decides that Mrs Lidiya Fedorovna Nikiforova has a legitimate interest in pursuing the application in the applicant’s stead;

Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 are concerned;

Decides that there is no need for a separate examination of the applicant’s complaint under Article 13 about the lack of an effective remedy against the non-enforcement;

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