THIRD SECTION
DECISION
Application no. 78495/12
Genrikh Nikolayevich AGASIYEV and Others
against Russia
The European Court of Human Rights (Third Section), sitting on 18 May 2021 as a Committee composed of:
Georges Ravarani, President,
Anja Seibert-Fohr,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above application lodged on 20 August 2012,
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 FACTS
1. The applicants are forty-nine Russian nationals. A list of the applicants is set out in the appendix.
2. On 23 October 2018 the applicant Mr Soslan Archilovich Muzayev died. In March 2020 the applicant’s widow, Mrs Fatima Beslanovna Besolova, born in 1959, expressed the wish to pursue the proceedings in the late applicant’s stead.
3. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicants are acting or former police officers. In 2004-2006 they were issued with certificates of “combat operations veteran” as they had performed their service in North Ossetia in the wake of the Ossetian-Ingush conflict in October and November 1992 or, in some cases, in Dagestan. A veteran certificate confirms a holder’s title to various allowances in connection with his or her participation in combat operations specified in the Veterans Act.
6. In 2007 the authorities revealed irregularities in issuing such certificates in North Ossetia. In 2008 a local Commission for Issuing the Certificates of Combat Operations Veteran (“the commission”) annulled the applicants’ certificates. According to regulations in force at that time, the commission was competent to examine the applications from the claimants in North Ossetia and to issue certificates, but not to annul those already issued. The applicants challenged the annulment in courts.
7. By separate judgments listed in the Appendix (“the initial judgments”) the Sovetskiy District Court of Vladikavkaz granted the applicants’ claims, having found that the above regulations did not confer on the commission a power to annul certificates or to review their lawfulness. The courts accordingly ordered, in each case, “... to declare unlawful actions of the officials of the North Ossetian Ministry of the Interior in respect of annulment of [the applicant’s] veteran certificate”. The judgments, some of which were upheld on appeal by the Supreme Court of the Republic of North Ossetia, entered into force on the dates indicated in the Appendix.
8. In reply to some of the applicants’ request for clarifications, the first‑instance court ruled that the judgments constituted a basis for a reinstatement of the applicants’ veteran status and of their entitlement to relevant allowances. In June 2009 those clarifications were set aside in the final instance by the Supreme Court of North Ossetia, and the applicants’ requests dismissed. The appellate court found that such clarifications amounted to a change of the contents of the initial judgments, whilst there had been no basis for such a broad interpretation in domestic law.
9. In January 2009 the North Ossetian Ministry of the Interior adopted new regulations on the commission and repealed the earlier ones. According to the new regulations, the commission was competent to review lawfulness of earlier decisions to issue veteran certificates, as well as to review, supplement and modify relevant records.
10. Between 23 January and 24 July 2009 a newly-created commission, established in line with the above order, examined the applicants’ cases and found that during the relevant period of time the applicants had performed their service in the areas which had not been listed in the Veterans Act. Therefore, they were not eligible to the veteran status within the meaning of that Act. The commission accordingly annulled their veteran certificates. The applicants did not appeal against those new refusals.
11. They subsequently sued various authorities for compensation of non‑pecuniary damage caused by a failure to respect the initial judgments, as well as for unpaid allowances and for a supplement to their pensions allegedly due to them as veterans.
12. By separate judgments of 22 and 30 April 2010 given in respect of two groups of the applicants the Leninskiy District Court of Vladikavkaz rejected their claims for non-pecuniary damage, referring to the lack of fault in the actions of the authorities. The courts observed that the decisions of May 2008 to annul the certificates had indeed been found unlawful by the domestic courts. However, at a later stage a competent commission had again examined their individual cases and had issued new decisions on the matter, but the applicants had not appealed against them. The judgments were upheld on appeal on 6 July and 22 June 2010, respectively.
13. By a judgment of 1 September 2011 the Sovetskiy District Court of Vladikavkaz dismissed their claim for unpaid allowances (as upheld on appeal on 8 November 2011). The court reiterated that the judgments listed in the Appendix had not concerned the applicants’ eligibility to veteran status, allowances or an increased pension, but had dealt with a procedural irregularity on the part of the authorities, successfully rectified in 2009. The court found established that the applicants were not entitled to veteran certificates and relevant allowances. The applicants’ subsequent application for supervisory review and their ensuing cassation appeal were also dismissed, the latest decision was taken on 2 February 2012 by a judge of the Supreme Court of Russia.
14. In 2012 forty-five of the applicants brought court actions under the Compensation Act, seeking compensation for a violation of their right to have the initial judgments enforced in good time. On 4 May 2012 their claims were rejected by the appellate instance of the Supreme Court of the Republic of North Ossetia, as the Compensation Act as in force at the material time did not apply to judgments imposing obligations in kind on the authorities.
THE LAWLocus Standi of Mrs Besolova
15. The Court notes that the applicant Mr S.A. Muzayev passed away and that his widow expressed a wish to continue the proceedings before the Court in his stead (see paragraph 2 above). The Government agreed that Mrs F.B. Besolova could continue the proceedings in the applicant’s stead. Therefore, and having regard to its case-law concerning similar complaints under the Convention (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, nos. 8549/06 and 86 others, §§ 36-42, 29 July 2010), the Court considers that Mrs F.B. Besolova has a legitimate interest in pursuing the application in late Mr S.A. Muzayev’s stead.Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention
16. The applicants complained that the initial judgments had not been enforced, that their veteran certificates had been annulled in disregard of those judgments and that their claims for damage had been unfairly rejected, claiming that each of them had remained entitled to veteran status and relevant allowances. They relied on Article 6 of the Convention and Article 1 of Protocol No.1 to the Convention, which read as follows:
Article 6
“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.”
17. The Government argued that the judgments had not imposed on the authorities an obligation to confer veteran status on the applicants or to provide them with allowances, but had only concerned procedural irregularities in the first round of the proceedings before the commission. The authorities had rectified those shortcomings in good time, as in 2009 new regulations had been adopted, and a competent commission had reviewed the applicants’ individual cases and had found that none of them had been entitled to a veteran status. The applicants had not appealed against those decisions. Lastly, their subsequent claims for compensation had been lawfully rejected by well-reasoned decisions.
18. The Court reiterates that in determining whether or not the judgment was enforced, the Court should, in principle, rely on the findings made by the domestic courts, since its role in this matter is essentially subsidiary to that of the domestic authorities, who are better placed and equipped to assess the particular manner in which the enforcement should be carried out and the debtor’s compliance with the enforcement modalities (see Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, § 173, 1 July 2014).
19. The Court notes that by several final domestic decisions (see paragraphs 8, 12 and 13 above) the domestic courts consistently held that the scope of initial judgments had been confined to the issue of the authorities’ compliance with the relevant domestic procedure, and that the domestic courts had not determined the individual applicants’ eligibility to veteran status or social benefits in those proceedings. The Court finds nothing in the case material to reach a different conclusion and agrees that the initial judgments did not confer either veteran status or any entitlement to social benefits on the applicants (see, mutatis mutandis, Teteriny v. Russia, no. 11931/03, §§ 29-30, 30 June 2005). Accordingly, the complaint in this part is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
20. In so far as the initial judgments can be interpreted as confirming the applicants’ right to have their cases examined within a due domestic procedure and notably by a competent authority, the Court notes that the authorities took measures to make good the shortcomings revealed by the initial judgments in good time – that is, as early as in 2009, when the new regulations on the commission were adopted, and a newly-created commission competent to examine the issue re-examined the applicants’ cases (see paragraph 10 above). The applicants did not appeal against the second set of decisions annulling their certificates. The Court further notes that those decisions – as well as all subsequent court judgments (see paragraphs 12 and 13 above) – had been given more than six months from the date of introduction of the applicants’ complaint to this Court; and that, in any event, the courts in those proceedings consistently assessed the commission’s findings as lawful and made in due procedure.
21. It follows that the non-enforcement complaint in this part, as well as the applicants’ complaints about the alleged failure to correctly determine their claims for damage and unpaid social benefits, must be rejected in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.Article 13 of the Convention
22. Lastly, the parties were invited to comment whether the applicants had had an effective domestic remedy in respect of the non-enforcement complaint within the meaning of Article 13 of the Convention.
23. The Court has found above that the non-enforcement complaint did not give rise to an arguable claim of a breach of a Convention right. Accordingly, Article 13 of the Convention does not apply. It follows that this part of the application is incompatible ratione materiae and must be rejected in accordance with Article 35 § § 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides that Mrs F.B. Besolova has standing to pursue the application in late Mr S.A. Muzayev’s stead;
Declares the application inadmissible.
Done in English and notified in writing on 17 June 2021. {signature_p_2}
Olga ChernishovaGeorges Ravarani
Deputy RegistrarPresident
Appendix
No.
The applicant’s name
Birth year
Place of residence
Date of the judgment,
final on
Genrikh Nikolayevich AGASIYEV
1960
Vladikavkaz
11/12/2008
10/02/2009
Bakhram Agabekovich AGABEKOV
1969
Vladikavkaz
Vasiliy Vladimirovich CHERTKOYEV
1956
V. Saniba
Soslan Archilovich MUZAYEV
Legal heir:
Mrs Fatima Beslanovna BESOLOVA
1954
(died in 2018)
Vladikavkaz
Vladimir Vasilyevich AGAFONOV
1948
Vladikavkaz
11/12/2008
10/02/2009
Ruslan Yasonovich BAGIYEV
1963
Vladikavkaz
Kazbek Muratbekovich BITIMIROV
1960
Beslan
Oleg Konstantinovich BITSOYEV
1960
Mizur
Gennadiy Viktorovich DAVYDOV
1965
Vladikavkaz
Guram Georgiyevich DRYAYEV
1959
Beslan
Vitaliy Soltanovich DZARAKHOKHOV
1960
V. Biragzang
German Vladimirovich GIGOLAYEV
1966
Vladikavkaz
Uruzmag Nikolayevich GIGOLAYEV
1960
Vladikavkaz
Lyudmila Sandroyevna KACHMAZOVA
1954
Alagir
Pavel Mikhaylovich KUCHIYEV
1952
V. Biragzang
Valeriy Gavrilovich KULUMBEKOV
1963
Ir
Viktor Valentinovich MINAYEV
1959
Vladikavkaz
Andrey Albertovich NOSOV
1964
Vladikavkaz
Anatoliy Zaurbekovich PLIYEV
1962
Alagir
Sergey Nikolayevich ROYENKO
1961
Vladikavkaz
Spartak Evdokimovich SUANOV
1957
Biragzang
Artur Yasonovich BAGIYEV
1965
Vladikavkaz
16/01/2009
10/02/2009
Shamil Aleksandrovich FARNIYEV
1948
Vladikavkaz
Elbrus Vladimirovich GAGLOYEV
1966
Vladikavkaz
Saveliy Kharitonovich KELEKHSAYEV
1963
Vladikavkaz
Chermen Taymurazovich KUPEYEV
1960
Vladikavkaz
Natalya Georgiyevna KUSHNAREVA
1957
Vladikavkaz
Tamerlan Lavrentyevich ABAYEV
1971
Vladikavkaz
25/03/2009
06/04/2009
Feliks Chermenovich KOBLOV
1966
Vladikavkaz
Dzhangir Khaliddinovich SAFIBEKOV
1969
Vladikavkaz
Soslan Yevgenyevich ZHITNIK
1969
Vladikavkaz
Vladimir Sergeyevich GERGAULOV
1960
Vladikavkaz
25/03/2009
06/04/2009
Albert Gersanovich KHABALOV
1959
Alagir
Alan Ruslanovich LOLAYEV
1967
Tsrau
Igor Umarovich TEDEYEV
1970
Alagir
Stanislav Alikhanovich GAKHOV
1962
Nogir
30/01/2009
10/03/2009
Igor Vladimirovich KULUMBEGOV
1967
Kambileyevskoye
David Sulikoyevich MARGIYEV
1971
Zavodskoy
Akhsarbek Zaurbekovich OSMANOV
1960
Mayramadag
Valiko Grafovich PARASTAYEV
1952
Alagir
Aleksandr Nikolayevich VYAZNIKOV
1968
Alagir
Aslanbek Kirillovich BADTIYEV
1965
Mikhaylovskoye
23/12/2008
03/03/2009
Robert Andreyevich BIGULOV
1967
Vladikavkaz
29/01/2009
17/03/2009
Artur Aslanbekovich DZANAGOV
1964
Vladikavkaz
29/01/2009
17/03/2009
Aslan Mukhtarovich DZESTELOV
1963
Vladikavkaz
29/01/2009
17/03/2009
Soslan Borisovich KHODOV
1968
Vladikavkaz
19/02/2009
02/03/2009
Oleg Viktorovich KIRGUYEV
1964
Vladikavkaz
16/02/2009
Ten days later
Vikentiy Nestorovich KOZAYEV
1956
Mikhaylovskoye
25/03/2009
03/04/2009
Oleg Nikolayevich ZANGIYEV
1964
Alagir
26/03/2009
06/04/2009
Full & Egal Universal Law Academy