AS TO THE ADMISSIBILITY OF
Application no. 30674/03
by Viktor Aleksandrovich GAVRILENKO
The European Court of Human Rights (First Section),
2 February 2006 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 K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 2 September 2003,
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, Viktor Aleksandrovich Gavrilenko, is a Russian national who was born in 1949 and lives in Bataysk. He is represented before the Court by Mrs O. Suprunova, a lawyer practising in Bataysk. The respondent Government are represented by Mr P. Laptev, the Reperesentative 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 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examination which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума).
At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability. Instead, he started to receive his pension in a fixed amount (2,500 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period.
2. First round of court proceedings
On 21 January 2003 the Bataysk Town Court of the Rostov Region rendered a decision ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region. In re-calculating the amount of the applicant’s pension the court applied the multiplier of 1.92, basing on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 5,376 Roubles. The court ordered the recalculation of the amount of the applicant’s pension as from 1 January 2002 and that he be compensated for previous underpayments.
On 16 April 2003 that judgment was upheld by the Rostov Regional Court. The enforcement proceedings were opened.
3. Supervisory review proceedings
On 13 May 2003 the defendant appealed to the Rostov Regional Court by way of supervisory review seeking to quash the decision of 21 January 2003, as upheld on 16 Aril 2003. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings.
On 14 July 2003 the defendant lodged a new supervisory complaint, now with the President of the Rostov Regional Court. They also requested that the enforcement proceedings be suspended pending the examination of the supervisory review appeal.
On 6 August 2003 the Rostov Regional Court requested the case-file from the court of first instance. On 24 October 2003 the Rostov Regional Court initiated the review of the decision of 21 January 2003, as upheld on 16 April 2003. The case was transferred to the Presidium of the Rostov Regional Court for the examination on the merits.
On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium.
On 4 December 2003 the Presidium quashed the decision of 21 January 2003 stating that the first instance court’s calculation of the minimal subsistence amount, based on the multiplier of 1.92, had not been supported by evidence. The Presidium also found that the first instance court had misinterpreted the domestic law. The Regional Prosecutor took part in the hearing supporting the defendant’s position. It appears from the text of the decision of the Presidium that the applicant did not take part in the proceedings. The case was remitted to the first instance court for a fresh examination.
4. Second round of court proceedings
On 25 December 2003 the Bataysk City Court examined the case anew. In the course of the proceedings the parties agreed that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted this multiplier
As a result, the court established that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937 Roubles per month. The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from 2004, pay him 3,937 Roubles monthly, with subsequent indexation.
On 14 January 2004 the Bataysk City Court rendered an additional decision in the above case aimed at correction of an arithmetic error in the calculation of the amount awarded to the applicant.
It appears that the above decisions of the City Court were not appealed against and became final. On 28 January 2004 the social security authorities transferred to the applicant’s account the amount awarded by the court for previous underpayments. Starting from 1 February 2004 the applicant receives 3,937 Russian Roubles per month, in accordance with the decision of the Bataysk City Court of 25 December 2003.
B. Relevant domestic law
On 1 February 2003 the Code of Civil Procedure of the Russian Federation (CCP) entered into force. It provides for three levels of jurisdiction: first instance, appeal and supervisory review.
Supervisory review complaints against the decisions of first instance or appeal courts can be lodged within the period of one year after the decision became effective by the parties to the case or a prosecutor (provided that a prosecutor took part in the original hearing).
A judge rapporteur appointed by the president of the court makes an initial assessment of a supervisory review complaint and decides in camera either to obtain the case-file or to refuse the complaint.
Pursuant to Article 381-6 the president of the court may reverse the refusal of the rapporteur and issue a decision to obtain the case-file. The CCP establishes no time-limit for taking such a decision by the president.
After having obtained the case-file, the judge rapporteur examines it and decides either to refuse or grant the reopening of the case. If the rapporteur decides to reopen the proceedings, the case is transferred to the higher court for examination on the merits. The refusal can be reversed by the president of the court.
Parties to the case must be notified of the supervisory review hearing, however, their attendance is not required. The hearing must be completed within one month. The parties to the case, a prosecutor and third parties can make submissions to the court. A supervisory review hearing concludes in a reasoned decision which must be notified to all parties to the case. The decision may uphold, quash, amend and/or remit the contested decision(s) of first instance, appeal and supervisory review courts in whole or in part. However, the quashing or amending of a decision of a lower court may only take place if a substantial violation of material or procedural law has been established. The supervisory review court is not limited by the arguments of the parties and can assess both factual and legal aspects of the case. The decision becomes effective immediately. The supervisory court’s interpretation of the domestic law is binding for the lower courts.
1. Under Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention the applicant complained about the non-enforcement of the court judgment in his favour of 21 January 2003, as upheld on 16 April 2003.
2. Under the same Convention provisions the applicant complains about the effects of the quashing of the judgment of 21 January 2003, as upheld on 16 April 2003, by the Presidium of the Rostov Regional Court.
1. The applicant first complained about the non-enforcement of the judgment in his favour. He referred to Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention, which, insofar as relevant, read 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 Court recalls that the delay in execution of a judgment in the applicant’s favour can be analysed in terms of an interference with his “right to a court”, derived from Article 6, and his “possessions” within the meaning of Article 1 of Protocol no. 1 to the Convention (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, § 40, and Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III). However, not every delay in the execution of a judgment constitutes an interference with the applicant’s rights under Article 6 § 1 of the Convention or Article 1 of Protocol no. 1 thereof (see, among recent authorities, Grishchenko v. Russia, (dec.), 8 July 2004, no. 75907/01). Turning to the present case the Court notes that the judgment in the applicant’s favour became enforceable on 16 April 2003. Before having been quashed on 4 December 2003, it had remained unenforced for seven months and nineteen days. In view of its previous case-law in cases concerning the delays in payments of the judgment debts (see Krapyvnitsky v. Ukraine (dec.), no. 60858/00, 17 September 2002; Denisov v. Ukraine (dec.), no. 18512/02 , 1 February 2005), the Court concludes that the delay which occurred in the present case does not in itself amount to an interference with the applicant’s “right to a court” or “possessions”, protected by Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention respectively.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4.
2. The applicant further complained about the effects of the quashing of the judgment in his favour by way of supervisory review. In his respect he also referred to Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, cited above.
The Government maintained that the judgment of 21 January 2003, as upheld on 16 April 2003, was not supported by appropriate evidence. Thus, in calculating the amount of pension due to the applicant, the courts wrongly applied the multiplier of 1.92, whereas the minimal subsistence amount in the Rostov Region for the relevant periods increased only by 1.25, - 1.26. Thus, the revision of the judgment was aimed at rectifying that error.
Further, under the Code of Civil Procedure of 2003 the revision of the lower court’s judgments by way of supervisory review constitutes an additional stage of the proceedings, to which all guarantees of Article 6 of the Convention fully apply. The decision to transmit the case to the supervisory review instance is taken by a judge. In case of the refusal of the judge to transmit the case to the supervisory review instance, the interested party may lodge an appeal with the President of the relevant court or with the Supreme Court of the Russian Federation. The rights of the parties to the proceedings are protected by the time-limits, established in the Code of Civil Procedure for examination of the supervisory review appeals: one month for the regional court and two months for the Supreme Court of Russia. The applicant was informed about the date and place of the hearing before the Presidium of the Regional Court and could have argued his case. Therefore, the examination of the case by the supervisory review instance was in accordance with the requirements of Article 6 § 1 of the Convention.
The applicant maintained his complaints, stressing that the supervisory review court’s assessment of facts and evidence was incorrect. After the referral of the case to the first instance court, he had to accept the multiplier proposed to by the defendant in order to obtain at least some increase of his pension, although it was less than the amount he was entitled to under the domestic law and pursuant to the court decision of 21 January 2003. He asserts that the quashing of the initial judgments in his favour, which defined the amount of pension due to him, constituted a violation of his rights under Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint concerning the quashing of the decision of 21 January 2003, as upheld on 16 April 2003;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
GAVRILENKO v. RUSSIA DECISION
GAVRILENKO v. RUSSIA DECISION