AS TO THE ADMISSIBILITY OF
Application no. 58830/00
by Yekaterina SARMINA and Vitaliy SARMIN
The European Court of Human Rights (Second Section),
on 22 November 2005 as a Chamber composed of:
Mr A.B. Baka, President,
Mr I. Cabral Barreto,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mr A. Kovler,
Mrs A. Mularoni,
Mrs E. Fura-Sandström, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 21 March 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant, Mrs Yekaterina Sarmina,
is the Ukrainian national who was born in 1944 and currently resides
in Kiev, Ukraine. The second applicant, Mr Vitaliy Sarmin, is the first
applicant’s son, born in 1980 and living in Moscow. 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.
1. The first applicant
(a) Decisions taken by way of the ordinary procedure
According to the first applicant, in 1989 she left her place of permanent residence in Yakutsk in the Republic of Sakha (Yakutiya), Russia, and moved to Kiev in Ukraine. In 1996 she unsuccessfully applied to the Yakutsk pension authority for an old-age pension. Her request was rejected on 16 May 1996 and, in January 1999, she brought court proceedings against the Yakutsk pension authority, claiming the assessment and payment of her old-age pension as of 1 February 1994. She also claimed damages for its non–payment since 1 February 1994.
On 15 February 1999 the Yakutsk Town Court dismissed the action on the ground that the first applicant was no longer living in Yakutsk and had not obtained “registration” (регистрация) there.
On 21 April 1999 the Supreme Court of the Republic of Sakha rejected the first applicant’s appeal.
(b) The first supervisory review procedure
Upon the first applicant’s requests (надзор), the Deputy Prosecutor General of the Russian Federation lodged an application for supervisory review (протест), requesting the Supreme Court of the Republic of Sakha to quash the above decisions on the ground that the case had been wrongly determined.
On 1 October 1999 the Supreme Court of the Republic of Sakha granted the prosecutor’s application, finding that the Russian Constitution and other statutes entitled the first applicant to receive her old-age pension from the age of fifty, i.e. as of 1 February 1994, regardless of her place of residence. The court reversed the decisions of 15 February 1999 and 21 April 1999, and ordered the Yakutsk pension authority to determine and pay the first applicant’s pension as from that date. The court rejected the first applicant’s claim insofar as she had requested an award of damages.
According to the Government, a writ of execution (исполнительный лист) in respect of the decision of 1 October 1999 did not reach the Bailiffs until 24 March 2000.
On 24 May 2000 the pension authority transferred the first applicant’s pension arrears of RUR 24,767 for the period between 1 February 1994 and 20 April 2000 to the Bailiffs. As of 1 August 2000 the authority calculated and paid the first applicant’s index-linked pension, transferring the money to her bank account. According to the Government, the enforcement proceedings in respect of the decision of 1 October 2000 were successfully terminated on 27 October 2000.
(c) The second supervisory review procedure
On 15 May 2001 the pension authorities in Moscow informed the first applicant that the Yakutsk pension authority had applied to the Supreme Court of the Russian Federation, requesting it to submit a further application for the “supervisory review” of the decision of 1 October 1999.
On 21 June 2001 the Deputy President of the Supreme Court of the Russian Federation lodged an application for the supervisory review against the decisions, requesting the Supreme Court of the Russian Federation to quash them on the ground that the substantive law had been applied incorrectly.
On 16 July 2001 the Supreme Court of the Russian Federation accepted the application, set aside the decisions of 15 February, 21 April and 1 October 1999, and returned the case for fresh examination at first instance. It found, among other things, that the lower courts had failed to take into account the provisions of the International Treaty of the Commonwealth of Independent States of 13 March 1992 (“the Treaty”) in relation to pensions and, as a result, had failed to establish all relevant facts. According to the court, the first applicant should have been paid her pension in the place of her permanent residence, pursuant to the Treaty. In returning the case for a fresh examination, the Supreme Court also ordered the lower courts to establish the first applicant’s nationality and the place of her permanent residence.
On 28 March 2002 the Yakutsk Town Court ordered
the Yakutsk pension authority to determine and pay the applicant’s
pension as from
1 January 1999. The court considered that the applicant’s entitlement to the old–age pension had started when she had first brought court proceedings against the pension authority, i.e. in January 1999. It also rejected as unsubstantiated the argument of the Supreme Court of the Russian Federation regarding the application of the Treaty of 13 March 1992 in this case.
The Yakutsk Town Court further noted that, on
17 July 2000, the judgment of 1 October 1999 had been enforced, and
the first applicant had been paid her pension in the amount of RUR 24,767.84
for the period from 1 February 1994 to 30 April 2000, and RUR 1,247.10
for the period from
1 May to 30 October 2000. The amount of the first applicant’s pension as from 1 November 2000 was set at RUR 623.55 per month.
This decision was upheld on appeal by the Supreme Court of the Republic of Sakha (Yakutia) on 22 April 2000.
(c) The third supervisory review procedure and court proceedings
On 9 December 2002 the Deputy President of the Supreme Court filed an application for supervisory review against the decisions of 28 March and 22 April 2000.
By a decision of 30 January 2003, the Supreme
Court of the Republic of Sakha (Yakutiya) accepted the application,
quashed the decisions of
28 March and 22 April 2000 and returned the case for a fresh examination at first instance.
According to the Government, the first applicant’s case was listed for trial three times, on 24 March, 8 April and 24 June 2003 respectively. Since the applicant failed to appear, on 24 June 2003 the Yakutsk Town Court disallowed the applicant’s claim without examining it on the merits.
On an unspecified date, the pension authority filed an application with a court to recover the money paid to the first applicant pursuant to the decisions of 28 March and 22 April 2002. By a decision of 25 March 2004, the Yakutsk Town Court granted the application and ordered the first applicant to reimburse RUR 61,013.12. The decision could be appealed to the Supreme Court of the Republic of Sakha (Yakutia) within ten days. The case file contains no indication as to whether the first applicant brought appeal proceedings in this connection, whether the decision has entered into force or whether it has been enforced.
2. The second applicant
In 1998 the second applicant arrived in Moscow from Yakutsk. He soon entered a higher education establishment and started living in his relative’s flat in Moscow. The second applicant’s application for registration at his relative’s address in Moscow was refused by the interior authorities. He brought a court action, claiming that the authorities’ refusal was unlawful.
On 14 January 1999 the Dorogomilovskiy District Court of Moscow rejected the action. The court found that he lived in Yakutsk where he was registered. By reference to the special governmental regulations of 1995, the District Court ruled that the second applicant could not be registered at the relative’s address in Moscow because inter alia he had failed to prove that he was a close relative. On 18 March 1999 the Moscow City Court rejected the second applicant’s appeal.
Upon the second applicant’s requests, on 27 October 1999 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review against the above decisions, claiming that there had been an unlawful interference with the applicant’s constitutional right freely to choose his place of residence.
On 18 November 1999 the Moscow City Court rejected the Deputy President’s application, upholding the previous court decisions in the case.
Upon the Deputy President’s further application for supervisory review, on 25 January 2000 the Supreme Court of the Russian Federation quashed the above decisions, finding that the authorities’ refusal of the second applicant’s “registration” in Moscow had been unlawful. By reference to the Constitution and the Right to Freedom of Movement and Choice of Residence Act, the Supreme Court stated that the fact of “registration”, or the absence thereof, had no legal consequences on the right of an individual freely to choose his place of residence. The Supreme Court held that the statutory “registration” procedures recorded information as to the individual’s actual place of permanent residence following his free choice thereof, and these procedures could not involve any restriction on the exercise of that freedom. According to the court, it was the authorities’ obligation, not their right, to register the second applicant as living permanently in Moscow, in accordance with the procedure established by the Right to Freedom of Movement and Choice of Residence Act. The Supreme Court ordered the Moscow interior authority to “register” the second applicant at his relative’s address in Moscow. That judgment was final.
After a further refusal on documentary grounds, on 29 February 2000 the second applicant was finally registered in Moscow.
B. Relevant domestic law and practice
The Russian Constitution (Article 390) and the State Pensions Act entitle every citizen to an old-age pension, the amount of which depends on the record of the individual’s employment and related activities.
The International Treaty of the Commonwealth of Independent States in the field of pensions of 13 March 1992 (Article 6 § 1) provides that the pensions of citizens of the Commonwealth of Independent States are calculated and paid at the place of their permanent residence.
Article 27 § 1 of the Constitution and the Right to Freedom of Movement and Choice of Residence Act guarantee to everyone lawfully within the territory of the State the right freely to move and choose the place of residence in Russia. “Registration” at a particular address, by way of a special seal in the individual’s passport, is considered to be one’s place of permanent residence for the purposes of Russian law.
Section 6 of the Act provides that an individual must present to the interior authorities documents certifying his or her identity and place of residence in order to have the “registration” entered or changed.
1. Under Article 6 of the Convention and Article
1 of Protocol No. 1 to the Convention, the first applicant complained
of a violation of her property rights and the absence of an effective
remedy in connection with the
non-enforcement of the court decision of 1 October 1999. She further complained that the quashing on 16 July 2001 of this decision as a result of a second “supervisory review” procedure was incompatible with the above provisions.
2. Under Articles 1, 2, 3 and 13 of the Convention and Article 2 of Protocol No. 4 to the Convention, the second applicant complained that he had been denied registration of his residence in Moscow for almost two years. He claimed that he had been thus deprived of his freedom of movement and the choice of residence in his own country. Under the above provisions, the second applicant also complained of being unable to find employment in Moscow.
1. The first applicant complained about the non-execution of the decision of 1 October 1999 and about the “supervisory review” of that decision, as result of which it had been quashed. She alleged violations of Article 6 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows:
Article 6 of the Convention
“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 ... .”
The Government argued that the first applicant
had abused her right of individual petition by submitting inaccurate
and untrue information concerning her nationality and residence in the
Republic of Yakutia between 1982 and 1989 to the national authorities
and the Court. In particular, they alleged that the first applicant
was not and had never been a Russian national since she had neither
resided in Russia permanently on
6 February 1992 (in which case she would have acquired Russian nationality without any formalities), nor had she applied to any competent authorities in this connection. Also, according to the Russian Ministry of the Interior, she had left Yakutia in 1982, not 1989 and, according to the Ukrainian Ministry of Foreign Affairs, the first applicant has been issued with a Ukrainian passport and is therefore a Ukrainian and not a Russian national. As regards the complaint about lengthy non-enforcement, the Government submitted that the first applicant had not appealed in court against the Bailiffs’ alleged inaction and had thus failed to exhaust domestic remedies in her case, and that, in any event, the decision of 1 October 1999 had been eventually enforced, albeit with delays. As regards the supervisory review of the decision of 1 October 1999, the Government submitted that the decision had been erroneous in that the court had wrongly applied the law in the case and, consequently, had failed to take account of such important and relevant factors as Mrs Sarmina’s nationality and place of residence, and that the Convention, as interpreted in the Ryabykh judgment, did not oppose the correction of judicial mistakes (Ryabykh v. Russia,
no. 52854/99, ECHR 2003-IX).
In reply, the first applicant referred to her Soviet passport issued in 1972 and averred that the Russian Federation was the successor to the Soviet Union for all legal purposes, including nationality, and that, consequently, she ought to be considered a Russian national. On the merits, she fully maintained her complaints and insisted that her rights had been breached on account of both the lengthy non-enforcement and the subsequent quashing of the decision of 1 October 1999.
The Court recalls that an application may only
be rejected as abusive within the meaning of Article 35 § 3 of the
Convention in extraordinary circumstances, for instance if it was deliberately
grounded on a description of facts omitting or distorting events of
central importance (see, e.g., Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments
and Decisions 1996-IV, p. 1206, §§ 53-54;
Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; Assenov and Others v. Bulgaria, Commission decision of 27 June 1996, Decisions and Reports (DR) 86-B, p. 54). The Court further observes that on 9 December 2003 it invited the first applicant to specify whether she was a Russian or Ukrainian national and when she had obtained or changed her nationality. In reply, the first applicant averred that she was a Russian national and that “she had never changed her nationality”.
The Court finds however that, from the documents and extracts of domestic legislation submitted by the respondent Government, it is clear that the first applicant has never been a Russian national. Moreover, the Court takes note of a letter of the Ukrainian Ministry of Foreign Affairs of 31 August 2005, submitted to the Court by the respondent Government, certifying that the first applicant is a Ukrainian national and holds a Ukrainian passport issued on 12 April 2005. In view of the above, the Court cannot but conclude that the first applicant has knowingly based her complaint to the Court on untrue information as to her nationality. This is not simply an omission or the withholding of information, but a deliberate attempt to mislead (see, by contrast, Al-Nashif v. Bulgaria, no. 50963/99, § 89, 20 June 2002). Having regard to the importance of that information for the proper determination of the present case, the Court finds that such conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.
It thus constitutes an abuse of the right of petition, within the meaning of Article 35 § 3 of the Convention, and the application, insofar as it relates to the first applicant, must be rejected pursuant to paragraph 4 of that Article, there being no need for the Court to examine the rest of the Government’s inadmissibility arguments.
2. The second applicant complained under Articles 1, 2, 3 and 13 of the Convention and Article 2 of Protocol No. 4 that he had been unable to obtain registration of his residence in Moscow for almost two years. He also complained under these provisions that he had been unable to obtain employment in Moscow. These provisions, insofar as relevant, read as follows:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... .”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
Article 2 of Protocol No. 4
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
To the extent that the second applicant complains
that he has been unable to obtain “registration” in Moscow, the
Court observes that “registration” status in Russia constitutes
a formal recognition of one’s permanent residence. An arbitrary denial
of “registration” in a place of one’s choice may thus violate
the individual’s liberty of movement and his freedom to choose his
residence enshrined in Article 2 of Protocol No. 4. However, in the
present case, as a result of the court proceedings brought by the second
applicant, he obtained “registration” in Moscow. It has not been
established that the second applicant’s alleged inability to find
employment in Moscow resulted from his temporary inability to obtain
“registration”, or that there has been any other interference with
his liberty of movement and his freedom to choose his residence. The
Court finds, therefore, that the alleged violation of Article 2 of Protocol
No. 4 has been remedied, and the second applicant may no longer claim
to be a victim of a violation of this provision, pursuant to Article
34 of the Convention (see, mutatis mutandis,
Pancenko v. Latvia (dec.), no. 40772/98, 28 October 1999).
Furthermore, given that the second applicant’s case was reviewed by the courts at several instances, thereby providing him with an adequate remedy, the present case does not disclose any appearance of a violation of Article 13 of the Convention (see, mutatis mutandis, Hilal v. the United Kingdom, no. 45276/99, 6.3.2001, §§ 75-77, ECHR 2001-II). It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
To the extent that the second applicant complains about his inability to find employment in Moscow, the Court recalls that the Convention does not guarantee, as such, socio-economic rights, including the right to work (see, among other authorities, the Pancenko v. Latvia decision cited above). In any event, there is no evidence that the alleged inability of the second applicant to find employment may have amounted to an interference with any of his rights guaranteed by the Convention. It follows that this aspect of the case is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.
It follows that the application, insofar as it has been brought by the second applicant, must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. Dollé A.B. Baka Registrar President
SARMINA & SARMIN v. RUSSIA DECISION
SARMINA & SARMIN v. RUSSIA DECISION