AS TO THE ADMISSIBILITY OF
Application no. 15193/03
by Albert Kharisovich KHAZIYEV
The European Court of Human Rights (First Section),
on 10 November 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 9 March 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Albert Kharisovich Khaziyev, is a Russian national who was born in 1950 and lives in the town of Izhevsk. He is represented before the Court by Mr R. I. Mukhametshin, a lawyer practising in Izhevsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In the 1980s the applicant took part in a rescue operation on the site of the Chernobyl nuclear disaster. As of an unspecified date the applicant has been in receipt of social benefits in this connection.
1. First set of proceedings
a. Court proceedings
On an unspecified date the applicant brought court proceedings against the social security authority (Отдел пенсий и пособий Администрации Первомайского района г. Ижевска, “the authority”) for unpaid social benefits.
On 17 May 1999 the Pervomayskiy District Court of the town of Izhevsk granted the claim and ordered the authority to re-calculate the amount of the applicant’s social benefits. It appears that the judgment indicated the specific amounts due by the authority.
Having examined the authority’s appeal on 1
February 2000, the Supreme Court of the Republic of Udmurtiya upheld
the judgment of
17 May 1999 with minor amendments. In particular, it replaced the specific amounts with a general indication that the authority ought to have
re-calculated the applicant’s social benefits using index “6”.
b. Enforcement proceedings
On 22 February 2000 the first instance court issued the writ of execution in respect of the judgment of 17 May 1999.
It appears that thereafter the applicant sent the writ to the bailiffs and on 20 March 2000 they opened the enforcement proceedings.
Having received a letter from the authority confirming the compliance with the judgment, on 27 March 2000 the bailiff terminated the enforcement proceedings. The letter of the authority stated that the amount due for the period between 21 August 1996 and 31 January 2000 (150,763.95 RUR) was requested from the Ministry of Finance, that the re-calculated monthly payment for period as of February 2000 was of 5,401.44 RUR and that it was paid in full.
2. Second set of proceedings
a. Court proceedings
It appears that the payment allegedly due for the period from 21 August 1996 to January 2000 was not paid to the applicant and on an unspecified date the applicant brought court proceedings against the authority in this connection. He also sought higher amount of social benefits and damages.
By judgment of 23 December 2002 the Industrialnyy District Court of the town of Izhevsk partly granted the claim and ordered the authority to pay RUR 96,097.75 as a principal debt in respect of past payments and RUR 30,733.38 as damages in respect of inflation losses in the applicant’s favour. The court clarified the judgment of 17 May 1999 and the decision of 1 February 2000, having ruled that the authority ought to have re-calculated the applicant’s monthly payments for the period from March 1999 onwards and not from 21 August 1996 as indicated by the authority earlier.
The judgment of 23 December 2002 was upheld on appeal by the Supreme Court of the Republic of Udmurtiya on 23 January 2003.
b. Enforcement proceedings
The Government submits that the money due pursuant to the judgment of 23 December 2002 and the decision of 23 January 2003 was paid to the applicant in full on 22 May 2003.
B. Relevant domestic law
A special law adopted in 1995 entitles the participants of the liquidation of the consequences of the Chernobyl nuclear accident to additional social benefits, including monthly payments.
Section 9 of the Federal Law on Enforcement Proceedings
21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that a coercive action will follow, should the defendant fail to comply with the time-limit.
Under Section 13 of the Law, the enforcement proceedings should be completed within two months upon receipt of the writ of enforcement by the bailiff.
Under Articles 3, 4, 6, 13 14 and 17 of the Convention
and Article 1 of Protocol No. 1 the applicant complained that the authorities
failed to enforce timely and properly the judgment of 17 May 1999 and
the decision of
1 February 2000, that the amounts awarded by the said court decisions and the amount of his social benefits were insufficient and discriminatory, that the proceedings were generally unfair and that the courts erroneously applied the domestic law in his cases.
1. By reference to various Convention provisions
the applicant complained about the authority’s failure to enforce
the judgment of
17 May 1999 and the decision of 1 February 2000. The Court will examine these complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 which, insofar as relevant, provide as follows:
“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 submitted that the applicant had refused to conclude a friendly settlement and therefore abused his right of individual petition. They invited the Court to declare the complaint inadmissible accordingly.
The applicant disagreed with the Government and maintained his complaints. In particular, the applicant stated that the court decisions in question were not enforced properly and timely and that he disagreed with the way in which the domestic authorities, and in particular the courts, interpreted the judgment of 17 May 1999 and the decision of 1 February 2000.
The Court finds that it is not necessary to examine
the arguments presented by the parties as the complaint about non-enforcement
of the judgment of 17 May 1999 and the decision of 1 February 2000 is
in any event inadmissible for the following reasons. Under Article 34
of the Convention the Court is entitled to receive applications from
non-governmental organisations or groups of individuals “claiming to be the victim of a violation” by a High Contracting Party of the rights contained in the Convention and its Protocols. In situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of “victim”, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846,
On the facts, the Court observes that the judgment of 17 May 1999, as upheld by the decision of 1 February 2000, remained without enforcement in part relating to the period prior to February 2000 at least until December 2002. The applicant then sued the authority for unpaid sums and damages and by the judgment of 23 December 2002, as upheld on appeal on 23 January 2003, the domestic courts granted his claim, acknowledging the delay and ordering the authority to pay him RUR 96,097.75 as a principal debt and RUR 30,733.38 in damages for inflation losses. Both sums were paid to the applicant on 22 May 2003 which is 3 months and 27 days after the entry into force of the judgment of 23 December 2002. Having regard to the content of the judgment and the fact that it was enforced within a relatively short period of time, the Court finds that the national authorities have acknowledged and then afforded redress for the alleged breach of the Convention.
It follows that the applicant can no longer claim
to be the victim of a violation of the Convention within the meaning
of Article 34 of the Convention, (see, e.g., Rytsarev v. Russia, no. 63332/00, 21 July 2005) and that the
application is to be rejected, pursuant to Articles 34
and 35 §§ 3 and 4.
2. Insofar as the remainder of the applicant’s complaints are concerned, the Court recalls that, in principle, it is not called upon to examine the alleged errors of law and fact committed by the domestic judicial authorities, insofar as no unfairness of the proceedings can be detected (see, e.g., Daktaras v. Lithuania (dec.), no. 42095/98, 11.01.2000). In the proceedings at issue the domestic courts at two levels of jurisdiction carefully examined the materials in their possession and reached reasoned conclusions as to the merits of the applicant’s claim. Throughout the proceedings the applicant was fully able to state his case and contest the evidence that he considered false. Moreover, the Court observes that, in principle, it cannot substitute itself for the national authorities in assessing or reviewing the level of financial benefits available under a social assistance scheme (see Pancenko v. Latvia (dec.), no. 40772/98, 28.10.1999 and Larioshina v. Russia (dec.), no. 56869/00, 23.04.2002).
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Accordingly, it must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
Søren Nielsen Christos Rozakis
KHAZIYEV v. RUSSIA DECISION
KHAZIYEV v. RUSSIA DECISION