FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42180/02 
by Rozaliya GAVRIKOVA and Others 
against Russia

The European Court of Human Rights (First Section), sitting on 30 June 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 14 November 2002,

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 FACTS

The first applicant, Ms Rozaliya Shafigulovna Gavrikova, is a Russian national, who was born in 1962 and lives in the town of Zarechniy of the Sverdlovsk Region. The second and third applicants are her sons, Denis and Maksim, born in 1985 and 1996, respectively. They are represented before the Court by the first applicant. The respondent Government are 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 1984 the first applicant married Mr Igor Gavrikov. In 1985 she gave birth to their first son Denis (the second applicant).

On 25 May 1995 the first applicant formally divorced Mr Gavrikov. She explains that the divorce was motivated by the desire to improve their housing conditions. As a divorced person she became eligible for a separate flat which she received. But shortly thereafter they exchanged the two flats for one of a bigger surface and their family life resumed. They continued living together and in 1996 their second son Maksim (the third applicant) was born.

In the night from 3 to 4 July 2001 Mr Gavrikov died in an aeroplane crash. The plane was owned and operated by the public company “VladivostokAvia” (“the air carrier”).

The air carrier offered to pay compensation. However, the first applicant was not satisfied with the amount and sued the air carrier in tort, seeking compensation for pecuniary and non-pecuniary damage and payment of the insurance cover. She lodged the action on behalf of herself and her two sons.

On 13 March 2002 the Beloyarskiy District Court of the Sverdlovsk Region granted the applicants' action in part. The court held that their claim for pecuniary damage was covered through their entitlement to a lump-sum compensation and monthly payments from the local social security office as Mr Gavrikov had died while on a mission. As to the first applicant's claim for non-pecuniary damage, the court ruled as follows:

“The plaintiff's claims for compensation for non-pecuniary damage are substantiated by virtue of Article 151 of the Civil Code of the Russian Federation. Through the air carrier's fault the plaintiff lost her beloved person with whom she had been living for a long time and to whom she gave two children. It is natural that the news of a sudden death of their husband and father came as a strong nervous shock to her and her children. The plaintiff has also suffered mental anguish during the identification of her husband. The depressed mental state of the plaintiff following [her husband's] death is confirmed by medical certificates. At present she is still in a state of moral anguish because she has two underage children who need upbringing and education. It would have been easier for her to [bring them up] together with her husband. The defendant violated the plaintiff's right to have a full family with her husband and the children's right to have the father...”

The court ordered the air carrier to pay RUR 20,000 (EUR 800) to the first applicant and RUR 200,000 (EUR 8,000) to each son in compensation for non-pecuniary damage.

Both parties appealed against the judgment.

On 14 June 2002 the Sverdlovsk Regional Court quashed the judgment of 13 March 2002 in the part concerning the first applicant's claim for non-pecuniary damage:

“As it has been established by the [first-instance] court and supported by the materials in the case-file, in 1995 the plaintiff divorced Mr Igor Gavrikov. By law she has not been a relative of Mr Gavrikov who died in the crash. Therefore, the provisions on compensation for non-pecuniary damage in connection with the loss of a relative may not be applied to [the first applicant] and her mental trauma sustained as a result of her former husband's death is of no legal significance. On this ground [the court]... makes a new decision, according to which [the first applicant's] claim for non-pecuniary damage must be dismissed”.

The appeal court upheld the award of social security payments for all three applicants and compensation in respect of non-pecuniary damage for the second and third applicants.

On 27 August 2003 and 12 May 2004 the Sverdlovsk Regional Court refused the applications for institution of supervisory-review proceedings.

B.  Relevant domestic law

Article 151 of the Russian Civil Code provides that a court may award compensation for non-pecuniary damage (that is for mental anguish or physical suffering) to a person who sustained such damage as a result of a violation of his or her personal non-pecuniary rights. In order to determine the amount of compensation for non-pecuniary damage the court must have regard to the extent of fault on the part of the perpetrator and intensity of mental anguish or physical suffering, bearing in mind individual characteristics of the victim.

Article 1100 specifies that compensation for non-pecuniary damage shall be payable regardless of the perpetrator's fault in cases where, inter alia, the damage was caused to the life or health of an individual by a hazardous device owned by the perpetrator.

Article 1101 stipulates that compensation for non-pecuniary damage takes the form of an amount of money. The amount is determined by reference to requirements of reasonableness and fairness and with regard to the nature of physical suffering or mental anguish.

Section 2 of Practice Directions of the Plenary Session of the Supreme Court of the Russian Federation no. 10 of 20 December 1994 “Certain issues arising out of application of provisions on compensation for non-pecuniary damage” provides as follows:

“The notion of non-pecuniary damage shall be understood as mental anguish or physical suffering caused by the acts (failures to act) encroaching on non-material goods that belong to an individual by virtue of his/her birth or by operation of law (life, health, dignity of a person, professional reputation, inviolability of private life, personal and family secret, etc.)...

Non-pecuniary damage may, in particular, include emotional anxiety in connection with the loss of relatives...”

COMPLAINTS

The first applicant complains under Article 8 of the Convention that the decision of the appeal court refusing her compensation for non-pecuniary damage amounted to disrespect for her private and family life.

All three applicants complain under Article 6 of the Convention that the awards in respect of non-pecuniary damage were too small to compensate for their suffering.

THE LAW

1.  The first applicant complained that the domestic judgments refusing her compensation for non-pecuniary damage in connection with the death of her husband were in breach of Article 8 of the Convention. The Court has also considered this complaint from the standpoint of Article 1 of Protocol No. 1, read alone or in conjunction with Article 14 of the Convention. The above provisions read as follows:

Article 8

“1.  Everyone has the right to respect for his private and family life...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

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.”

A.  The Government's objection as to the exhaustion of domestic remedies

The Government submit that the first applicant has failed to exhaust the domestic remedies because she did not avail herself of the opportunity to apply for supervisory review of the contested judgments.

The applicants refer in response to the Court's case-law that the supervisory-review procedure governed by the RSFSR Code of Civil Procedure which was effective at the time the judgment of 14 June 2002 was given, was not a remedy to be exhausted (Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999). As regards the possibility of applying for supervisory review after the entry into force of the new Russian Code of Civil Procedure, the applicant could not be normally required to avail herself of a new transitional remedy for the purpose of re-opening the proceedings which had been brought to an end by a final decision (AO “Uralmash” v. Russia (dec.), no. 13338/03, 4 September 2003).

The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it (see Znamenskaya v. Russia (dec.), no. 77785/01, 25 March 2004; Baumann v. France, no. 33592/96, § 47, 22 May 2001). The request for supervisory review, as it existed at that time, was not considered to be an “effective” remedy for the purpose of Article 35 § 1 (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001). In the present case the Court is not required to decide whether the procedure for supervisory review provided for in the new Code of Civil Procedure is an effective remedy because it only became available on 1 February 2003, i.e. after the present application was lodged. The Court therefore considers that the domestic remedies have been exhausted (see Znamenskaya, cited above; Timishev v. Russia (dec.), nos. 55762/00 and 55974/00, 30 March 2004). The Government's objection must be dismissed.

B.  Admissibility of the complaint

The Government submit that the appeal court's conclusion as to the first applicant's non-eligibility for compensation in respect of non-pecuniary damage has been erroneous. Under Article 151 of the Civil Code, the granting of compensation in respect of non-pecuniary damage is not conditional on the existence of ties of blood or marriage. Practice Directions no. 10 of the Supreme Court of the Russian Federation mentioned the loss of a relative as one example rather than as the only possible situation in which the death of a person causes non-pecuniary damage. The Directions do not contain an exhaustive list of persons whose death can cause non-pecuniary damage to an individual; that assessment depends on the particular circumstances of the case. As regards the particular case of the first applicant, the approach of the first-instance court was correct and she should have been granted compensation for non-pecuniary damage in connection with the loss of her partner and father of her children.

The applicants take note of the Government's acknowledgment that the first applicant should have been eligible for compensation for non-pecuniary damage irrespective of whether she had been officially married to Mr Gavrikov. However, a mere acknowledgement is not sufficient as she was not offered any redress.

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.

2.  The applicants complained under Article 6 of the Convention that the awards made by the domestic courts had been insufficient. Article 6 provides:

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

Insofar as the applicants' complaint may be understood to concern the determination of the amount of awards, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, e.g., Cekic and Others v. Croatia (dec.), no. 15085/02, 9 October 2003). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

Turning to the facts of the present case, the Court finds that there is nothing to indicate that the domestic courts' evaluation of the facts and evidence presented in the applicants' case was contrary to Article 6 of the Convention. The applicants were fully able to present their case and challenge the evidence of the other party, public hearings were held and the courts' decisions were satisfactorily reasoned. Having regard to the facts, as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.

It follows that this part of the application manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the first applicant's complaint concerning the domestic courts' refusal of compensation in respect of non-pecuniary damage in connection with the death of the person to whom she was not married;

Declares the remainder of the application inadmissible.

Santiago Quesada Christos Rozakis 
 
Deputy Registrar President

GAVRIKOVA AND OTHERS v. RUSSIA DECISION


GAVRIKOVA AND OTHERS v. RUSSIA DECISION