AS TO THE ADMISSIBILITY OF
Application no. 7412/02
by Yuriy Ilyich CHERKASHIN
The European Court of Human Rights (First Section), sitting on 30 March 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 15 December 2001,
Having deliberated, decides as follows:
The applicant, Mr Yuriy Ilyich Cherkashin, is a Russian national who was born in 1928 and lives in the town of Rossosh, the Voronezh Region.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Deposit of savings and attempts to recover them
Between 1979 and 1992 the applicant and his wife, then residents of Grozny, Chechnya, opened several savings accounts with the Grozny branch of the Chechen Savings Bank, which was an integral part of the USSR Savings Bank. Under the terms of the agreements the State guaranteed that the deposits would be repaid on demand of account holder.
According to the applicant, in 1992 for a month he repeatedly applied to the Savings Bank of Russia, the successor of the USSR Savings Bank, intending to withdraw his deposits and leave Chechnya because of general insecurity. The bank refused the applicant’s requests by reference to the lack of cash reserves, but agreed to reimburse his travelling costs by a bank transfer.
The applicant then moved and settled in the town of Lukoyanov, the Nizhniy Novgorod Region, and was registered as an internally displaced person. Some time later he again requested the Saving Bank to re-pay his deposits. The latter refused, having stated that the managing body of the Savings Bank of Russia had banned any operations in respect of the deposits made with its Chechen Bank.
On 8 February 1998 the applicant’s wife died and he inherited her property, including her deposits.
On 5 May 1998 the Convention entered into force in respect of Russia.
The applicant’s repeated attempts to receive his savings proved unsuccessful. In particular, by letter of 23 June 2000 the Savings Bank of Russia notified the applicant that as a result of the events in the Chechen Republic, the Chechen Savings Bank had lost its official seals and primary documents, confirming the existence of the deposits, which could enable the falsification of claims concerning the reimbursement of the deposits. The letter continued that such reimbursement would only be possible after the situation in the Chechen Republic became stable.
On 9 February 2001 the Savings Bank again informed the applicant that in view of the social and political events in Chechnya and the loss by the Chechen Savings Bank of a considerable amount of blank savings books and official seals, the Savings Bank of Russia had suspended any transactions in respect of the deposits made in Chechnya, and then wound up the Chechen Savings Bank. Moreover, the Ministry of Finance did not allot monetary assets for the reimbursement of the deposits made in Chechnya, “in the absence of guarantees that those assets would be used for specified purposes”.
By letter of 4 December 2001 the Lukoyanov branch of the Savings Bank informed the applicant that his deposits and those of his late wife could not be reimbursed in view of the warfare in the Chechen Republic and the loss of all the documents relating to the deposits, and that all operations in respect of the deposits made with the Chechen Savings Bank had been stayed until further notice.
On 16 January 2002 the Ministry of Finance informed the applicant that all branches of the Savings Bank of Russia on the territory of Chechnya had been wound up, and therefore deposits made with them could not be reimbursed or transferred to its other branches. However, in the future a list of former depositors of the Chechen Savings Bank would be drawn up, and compensations would be paid to those included in this list.
2. First set of civil proceedings
In May 2000 the applicant issued civil proceedings against the Savings Bank of Russia and the Ministry of Finance in the Gagarinskiy District Court of Moscow, claiming damages for the fall in value of his savings and those of his deceased wife, default interest and compensation of the deposits and non-pecuniary damage.
By judgment of 16 January 2001 the Gagarinskiy District Court granted the applicant’s claims in part. The court confirmed the fact that between 1979 and 1992 the applicant and his wife had made deposits with the Grozny branch of the USSR Savings Bank and held that under governmental decree of 19 April 2000 no. 352 the applicant was eligible to compensation in the amount of 1,000 Russian roubles (RUR) for reimbursement of expenses for the burial of his wife. Accordingly, the court ordered the defendant to pay the applicant the said amount “from the funds allocated for that purpose in the State budget for the year concerned”. The court further noted that the remainder of the applicant’s claims had no basis in national law and rejected them accordingly.
On 4 July 2001 the Moscow City Court dismissed the applicant’s appeal brief and upheld the judgment of 16 January 2001. It noted, in particular, that there was no evidence that the Savings Bank of Russia misappropriated the applicant’s savings, as they had remained in its Grozny branch which had been wound up because of the warfare in the region. As regards the applicant’s argument that he had been unable to that date to withdraw his deposits made in the Chechen Savings Bank, the appeal court noted that this claim had not been submitted to the first instance, and therefore it had no competence to examine it either.
3. Enforcement proceedings
On 19 February 2001 the applicant was issued with a writ of execution in respect of the judgment of 16 January 2001.
According to the applicant, in November 2001 he submitted the said judgment and the writ of execution to the Lukoyanov branch of the Savings Bank for enforcement, but was refused. Thereafter he applied to the bailiffs’ service of the Nizhniy Novgorod Region.
On 7 January 2002 the applicant moved and settled in the Voronezh Region having notified the bailiffs of his new address.
On 15 January 2002 he received a letter from the Lukoyanov branch of the Savings Bank dated 9 January 2002, which invited him to receive in person the amount due pursuant to the judgment of 16 January 2001.
The applicant submits that he was unable to arrive at the Lukoyanov branch of the Savings Bank, as he lived 1,200 km away.
On 13 February 2002 the bailiffs’ service of the Nizhniy Novgorod Region returned the execution documents to the applicant. They also enclosed a letter of the Lukoyanov branch of the Savings Bank dated 11 February 2002 which stated that in connection with the warfare in the Chechen Republic and the loss of the documents relating to the deposits made there, the Savings Bank of Russia had taken a decision to terminate any operations on the deposits made with the Chechen Savings Bank until further notice. It continued that a list of former depositors of the Chechen Savings Bank was being drawn up at the moment, and that compensation would be paid to those registered in that list after the Government of Russia had taken a decision to that effect, and the Savings Bank of Russia reached agreement with the Ministry of Finance. The letter concluded that the compensation would be paid to the applicant after the aforementioned documents were adopted. By reference to this letter the bailiffs discontinued the enforcement proceedings and invited the applicant to request a branch of the Savings Bank in the vicinity of his domicile to put him on the list of the former depositors of the Chechen Savings Bank.
The applicant submits that he applied to a local branch of the Savings Bank in the town of Rossosh, the Voronezh Region, where he then lived. The bank refused to comply with the writ of execution, stating that the Ministry of Finance had not allocated any funds for that purpose.
The applicant then submitted his execution documents to the bailiffs of the Voronezh Region, who refused to institute enforcement proceedings stating that the central office of the defendant bank was located in Moscow, i.e. outside the territory of the Voronezh Region.
According to the applicant, the judgment of 16 January 2001 remains unenforced up to date.
4. Further developments
In the meantime the applicant kept requesting the Savings Bank of Russia to pay back his money.
By letter of 5 February 2003 the bank informed the applicant that he had been put on the list of the former depositors of the Chechen Savings Bank, and that the payment of the deposits to those included in the list would be made after the Government took a decision to that effect, in accordance with the Law on State Budget for the year 2003, and on the basis of an agreement that would be reached between the bank and the Ministry of Finance.
By letter of 3 April 2003 the Rossosh branch of the Savings Bank of Russia notified the applicant that as of 15 April 2003 the bank would commence re-paying the savings deposited with the Chechen Savings Bank prior to 20 June 1991 and compensation, as provided by governmental decree of 19 February 2003 no. 117. It next stated that due to the denomination of 1998 the remainder of deposits would be recalculated and reduced by factor of 1,000.
On 5 and 7 May 2003 the Rossosh branch of the Savings Bank of Russia paid the applicant the remainder of his deposits and those of his late wife, made prior to 1991, with interest as well as compensation in the amount of RUR 2,000 per deposit, totalling in RUR 10,317.26. He also withdrew savings with interest from one of the accounts opened in 1992, which after the denomination amounted to RUR 21.31. The applicant also submitted the execution documents in respect of the judgment of 16 January 2001, but the bank refused to comply, having referred to the fact that the writ of execution prescribed “to recover from the Savings Bank of Russia [in the applicant’s favour] compensation in the amount of RUR 1,000 from the funds allocated for that purpose in the State budget for the year concerned”. In the bank’s view, “the year concerned” meant the year 2001, when the writ of execution was issued, whereas the applicant sought the enforcement of his court award in 2003, when no funds for that purpose had been allocated in the State budget.
In a letter of 23 June 2003 the Rossosh branch of the Savings Bank stated that it had fully paid compensation in respect of the deposits made by the applicant’s wife. In particular, given that under national law only deposits made prior to 20 June 1991 could be compensated, the bank paid compensation as regards the deposits made before that date and returned the deposit made in 1992 without compensation.
5. Second set of civil proceedings
On 9 August 2003 the applicant brought a claim against the Savings Bank of Russia and its Rossosh branch, seeking damages in connection with the bank’s refusal to re-pay his savings between 1992 and 2003 and the enforcement of his award pursuant to the judgment of 16 January 2001.
On 12 August 2003 the Rossosh Town Court of the Voronezh Region (“Town Court”) declined to examine the applicant’s claim, having stated that the dispute had already been resolved in 2001 and that in any event the applicant should file his action at the location of the defendant, i.e. in Moscow.
On 23 September 2003 the Voronezh Regional Court quashed the above decision upon the applicant’s appeal and ordered the first instance to examine the applicant’s claim on the merits.
On 31 March 2004 the Town Court found that the Savings Bank had fully paid the applicant the compensation provided for in national law in respect of the deposits made prior to 20 June 1991, and therefore his claims could not be granted. The court also noted that the judgment of 16 January 2001 should be enforced in a manner prescribed by relevant legislation on enforcement procedure, and that no new judgment on this matter was required. Besides, the Rossosh branch had submitted evidence to the effect it had already paid the applicant the amount due on a voluntary basis. The court did not specify what the evidence was, and when the payment had been effected. In view of the above, the court dismissed the applicant’s claims in their entirety.
On 29 April 2004 the Voronezh Regional Court upheld the above judgment in so far as it related to the applicant’s claims about his savings deposited prior to 20 June 1991. The court then ruled that the first instance had not examined the applicant’s claims relating to his deposits made in 1992, quashed the judgment in that part and remitted the case for a new examination.
On 7 October 2004 the Town Court delivered a judgment similar to that of 31 March 2004, having dismissed the applicant’s claims by reference to the fact that he had already received the compensation due under national law in respect of the deposits made prior to 20 June 1991.
On 30 November 2004 the Voronezh Regional Court held that the first instance had disregarded the decision of the Regional Court dated 29 April 2004 by which it had been ordered to examine the applicant’s claims concerning his deposits made in 1992. Instead the Town Court ruled on the applicant’s claims relating to the savings deposited prior to 1991, which had already been examined in the judgment of 31 March 2004 that had entered into force and become final. The appeal court thus set aside the judgment of 7 October 2004 and remitted the case for a fresh consideration.
By letter of 13 October 2005 the applicant notified the Court that the proceedings in his case were still pending before the first instance court.
B. Relevant domestic law
In August 1996 the President of the Managing Board of the Savings Bank of Russia (Председатель правления Сберегательного Банка России) ordered that all operations in respect of the deposits with the Chechen Savings Bank be suspended until further notice.
By virtue of decision no. 127 of the Managing Board of the Savings Bank of Russia dated 16 December 1996 the branches of the Savings Bank of Russia on the territory of the Chechen Republic were wound up and removed from the State Register of Lending Agencies. Powers of attorney issued to heads of those branches were revoked and annulled.
On 19 April 2000 the Government of Russia issued decree no. 352 concerning compensation of deposits made by certain categories of Russian citizens prior to 20 June 1991. The decree enabled the heirs of individuals who had opened savings account prior to the date concerned and died in 1998-2000 to receive the sum of RUR 1,000 to cover burial expenses.
By section 12 of decree no. 117 “On payment to certain categories of citizens of the Russian Federation in 2003 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations” dated 19 February 2003 the Government of Russia entitled the former depositors of the Chechen Savings Bank to compensation of their deposits made prior to 20 June 1991. In particular, the individuals who lived outside the territory of the Chechen Republic could obtain compensation in those branches of the Savings Bank which had put them on the list of former depositors of the Chechen Savings Bank.
1. The applicant complains under Article 1 of Protocol No. 1 about a violation of his right to peaceful enjoyment of his possessions in that the judgment of 16 January 2001 was not enforced with sufficient dispatch and that between 1992 and 2003 he was unable to withdraw savings he deposited with the Chechen Savings Bank in 1979-1992 with the result that they lost their purchasing power on account of inflation.
2. The applicant complains under Articles 13 of the Convention that he had no effective remedies to challenge his inability to gain access to his deposits. He next relies on this provision, stating that in the civil proceedings in 2001 the trial court incorrectly applied domestic law and, therefore, took a wrong judgment, while the higher court upheld this wrong judgment on appeal. The applicant also invokes Article 17 of the Convention in this latter respect.
1. The applicant complains under Article 1 of Protocol No. 1 to the Convention about the prolonged non-enforcement of a final judgment in his favour, his inability to access his deposits in the Savings Bank of Russia during the period from 1992 until 2003 and significant depreciation of his savings because of inflation. Article 1 of Protocol No. 1 reads as follows:
“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) As regards the applicant’s complaint concerning the time taken to enforce the judgment of 16 January 2001, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
(b) In so far as the applicant’s complaint about his inability to withdraw his savings for a long period relates to the deposits made in 1992, the Court notes that the proceedings in domestic courts concerning the applicant’s claim for damages in the above connection are still pending. Accordingly, the applicant cannot at this stage claim to be a “victim” of a violation of the Convention within the meaning of Article 34, and it would be premature for the Court to deal with this part of the application.
It follows that this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
(c) To the extent the applicant complains that he was refused access to his savings deposited prior to 20 June 1991, the Court observes at the outset that in 1996 the managing bodies of the Savings Banks of Russia decided to ban for an indefinite period any operations in respect of deposits made with the Chechen Savings Bank, and then to wind it up. Those decisions, which both pre-dated the ratification of the Convention by the Russia on 5 May 1998 and de facto extinguished the right of the depositors of the Chechen Savings Bank to dispose of their funds, constituted the interference with the applicant’s property rights, as they served as the basis for the Savings Bank’s repeated refusal to return the applicant’s deposits. The Court recalls in this connection that, as a general rule, it has no jurisdiction ratione temporis in respect of the events that occurred before the ratification of the Convention or its Protocols by the respondent State. It may, however, have regard to facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Broniowski v. Poland (dec.) [GC], no. 31443/96, ECHR 2002-...). In particular, the Court has found that it has temporal competence to examine the cases where, having interfered with the applicant’s property rights before the ratification of the Convention, the respondent State then recognised the applicant’s entitlement to the property in question by legal acts that remained in force on the date of the State’s ratification of the Convention, or were adopted after that date (see Broniowski v. Poland [GC], no. 31443/96, § 125, ECHR 2004-..., or Kovačić and others v. Slovenia (dec.), nos. 44574/98, 45133/98 and 48316/98, 9 October 2003 and 1 April 2004). In the present case, however, there is nothing to suggest the existence of any continuing situation, given that during the period between 1996 and 19 February 2003 the State did nothing to ratify the applicant’s claim to have his deposits paid out to him by either adopting legal acts to the effect the applicant’s entitlement to his deposits remained intact, or in any other way, whilst decree no. 117 adopted on the latter date did not, as such, restore the applicant’s entitlement to his savings but merely acknowledged his right to compensation for his deposits. The Court thus considers that the alleged interference with the applicant’s property rights was of an instantaneous nature, and therefore the Court has no jurisdiction ratione temporis to examine the applicant’s complaint in so far as it relates to the events that took place prior to 5 May 1998.
As regards the post-ratification period, the Court first notes that between 5 May 1998 and 19 February 2003 in the absence of any legal acts enabling reimbursement or compensation of the deposits in the former Chechen Savings Bank, the applicant had at best a mere hope of recovering his savings rather than a claim that could be regarded as sufficiently established to be enforceable. Accordingly, the applicant had no “possession” within the meaning of Article 1 of Protocol No. 1 (see, among the most recent authorities, Kopecký v. Slovakia [GC], no. 44912/98, § 35, 28 September 2004).
On 19 February 2003 the Russian Government passed a decree that entitled the former depositors of the Chechen Savings Bank to receive a compensation of RUR 2,000 in respect of each of their deposits. On 5 and 7 May 2003 the Savings Bank paid the applicant the amount due under the above decree. The domestic courts confirmed that the applicant had obtained the full amount fixed under relevant legislation without any deduction or discount, and was not entitled to further compensation. The Court does not find it necessary to depart from the findings of the domestic courts, given that, in any event, Article 1 of Protocol No. 1 does not guarantee, as such, the right to acquire property (see, in a similar context, Grishchenko v. Russia (dec.), no. 75907/01, 8 July 2004).
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains under Article 13 of the Convention about the lack of the effective remedies in respect of his complaints about the Savings Bank’s refusal to repay his deposits on demand and about the incorrect application of domestic law and erroneous court decisions taken in the 2001 proceedings. Article 13 provides as follows:
“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.”
(a) To the extent the applicant complains that he was denied the effective remedies in respect of the alleged violation of his property rights on account of his inability to dispose of his deposits with the Savings Bank, the Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The Court has above found the applicant’s complaint under Article 1 of Protocol No. 1 relating to the refusal of the Savings Bank to reimburse his deposits inadmissible as being manifestly ill-founded. Accordingly, the applicant does not have an “arguable claim” in this respect and Article 13 is therefore inapplicable in the present case.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) As regards the complaint relating to the proceedings in 2001, the Court observes that the applicant complains in essence about the unsuccessful outcome of the court proceedings against the Savings Bank. It recalls in this connection that the effectiveness of a remedy for the purposes of Article 13 of the Convention does not depend on the certainty of a favourable outcome for the applicant (see Swedish Engine Drivers’ Union v. Sweden, judgment of 6 February 1976, Series A no. 20, p. 18, § 50). On the basis of the materials submitted by the applicant, the Court notes that he was able to avail himself of a remedy under national law, namely instituted the civil proceedings against the bank. Moreover, the applicant was able to present his arguments as he wished, and the judicial authorities gave those arguments due consideration. The fact that the applicant’s claims were rejected does not indicate that the remedy in question was ineffective in the circumstances of the present case.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 thereof.
3. Lastly, the Court has examined the applicant’s complaint under Article 17 of the Convention. However, having regard to all materials in its possession, the Court finds that this complaint is essentially the same as those the complaint regarding the proceedings in 2001 advanced under Article 13 and raises no separate issue. It follows that this part of the application must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the non-enforcement of the judgment of 16 January 2001;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
CHERKASHIN v. RUSSIA DECISION
CHERKASHIN v. RUSSIA DECISION