ANDROSOV v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63973/00
by Nikolay Fedorovich ANDROSOV
against Russia

The European Court of Human Rights (First Section), sitting on 16 December 2003 as a Chamber composed of

MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsF. Tulkens,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr S. Nielsen, Deputy Section Registrar,

Having regard to the above application introduced on 1 August 2000,

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 applicant, Mr Nikolay Fedorovich Androsov, is a Russian national, who was born in 1946 and lives in Zenzeli village, Limanskiy District of the Astrakhan Region.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Between 5 October 1986 and 11 November (or 1 November, according to the Government) 1986 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions. In 1996 and 1997 the applicant underwent medical examinations which established the link between the applicant’s poor health and his involvement in the Chernobyl events. The applicant was awarded compensation, to be paid monthly.

In 1999 the applicant brought proceedings against the Welfare Office of the Limanskiy District of the Astrakhan Region (Отдел социальной защиты населения Лиманского района Астраханской области – “the defendant”) for an increase in the compensation, for backdating the increase and recovering of the unpaid amount. The applicant considered that the amount of compensation had been determined incorrectly.

On 3 November 1999 the Limanskiy District Court of the Astrakhan Region established, upholding the applicant’s claim, that the applicant was entitled to a monthly compensation of 5,045.73 roubles (RUR). The court established that the debt accrued as a result of previous underpayment was RUR 108,892.07. It also awarded the applicant RUR 60,000.00 as a penalty payment.

On 14 December 1999 the Astrakhan Regional Court, acting on appeal, upheld the decision as to the amount of the monthly payment and the principal debt, but reversed the penalty award. The judgment entered into force and enforcement proceedings were instituted. Both parties lodged requests for supervisory review of the courts’ decisions.

On 17 March 2000 the Astrakhan Regional Court stayed the enforcement proceedings, pending the consideration of the defendant’s request for supervisory review.

On 13 April 2000 the Supreme Court of the Russian Federation refused the defendant’s request for supervisory review.

On 22 May 2000 the Limanskiy District Court of the Astrakhan Region resumed the enforcement proceedings.

On 15 August 2000 the President of the Astrakhan Regional Court refused the applicant’s request for supervisory review.

On 15 September 2000 the Limanskiy District Court of the Astrakhan Region granted a request by the Astrakhan Regional Office for Welfare Payments (Астраханский областной центр по начислению и выплате пенсий и пособий) to suspend the enforcement proceedings. The enforcement was stayed until 1 December 2000 to allow the authorities to “decide how to finance the court awards involving the recalculation of compensation to the victims of the Chernobyl catastrophe”.

On 17 October 2000 the Supreme Court of the Russian Federation refused the applicant’s request for supervisory review of the suspension order.

On an unspecified date, following a request made by the Astrakhan Regional Office for Welfare Payments, the President of the Astrakhan Regional Court brought an extraordinary appeal against the judgments of 3 November 1999 and 14 December 1999. The case was thus reopened for consideration by way of supervisory review.

On 27 December 2000 the Presidium of the Astrakhan Regional Court quashed both the judgment of the Limanskiy District Court of the Astrakhan Region dated 3 November 1999 and the judgment of the Astrakhan Regional Court dated 14 December 1999. The Presidium decided that the subordinate courts had wrongly determined the amount of monthly compensation. In particular, they had based all the calculations on the applicant’s salary as of October 1986. The Presidium held that the calculations should have been based on the applicant’s average earnings over the 12 months preceding the date on which the medical examination had established his disability. The case was remitted to the same District Court for a fresh examination.

On 27 February 2001 the Supreme Court of the Russian Federation, in response to the applicant’s complaint, refused to conduct a supervisory review of the decision of 27 December 2000.

On 23 April 2001 the Limanskiy District Court of the Astrakhan Region, acting as a first instance court, ruled on the case. It awarded to the applicant the monthly payment of RUR 3,336.99 and established that the debt accrued was RUR 114,466.01. No penalty was awarded.

On 24 July 2001 the Astrakhan Regional Court acting as an appeal instance reversed the judgment of the Limanskiy District Court of the Astrakhan Region of 23 April 2001. It pointed out that the District Court had applied the calculation mode incorrectly and that the amounts due had to be recalculated. The case was remitted to the same District Court for a new decision.

On 23 September 2002 the applicant filed a complaint with the Astrakhan Regional Court concerning the length of proceedings. He complained in particular that no decision had been taken in his case since 24 June 2001.

On 27 September 2002 the applicant was informed in reply that on 22 November 2001, on his request, the proceedings had been stayed pending the Constitutional Court’s decision in a similar case. He was informed that the proceedings had been resumed after the Constitutional Court’s ruling of 19 June 2002, and that a hearing had been fixed for 7 October 2002. He was also informed that the hearings had not been fixed until 2 September 2002 on the applicant’s request due to his counsel’s absence.

On 4 November 2002 the Limanskiy District Court of the Astrakhan Region decided that the compensation payable to the applicant by the welfare authorities was RUR 45,640.94. The applicant was also awarded legal costs of RUR 1,300 and non-pecuniary damages of RUR 5,000.

The applicant appealed against this decision. He challenged the principal amount, the amount of non-pecuniary damages and the refusal of the penalty.

On 14 January 2003 the Astrakhan Regional Court acting on appeal reversed the first instance judgment and remitted the case for fresh examination by the same court.

On 3 March 2003 the Limanskiy District Court of the Astrakhan Region awarded the applicant RUR 235,210.32 of the principal debt, future monthly payments of RUR 4,727.96 and the legal costs of RUR 500.

Both parties appealed against this judgment.

On 29 April 2003 the Astrakhan Regional Court upheld the first instance judgment.

On 5 August 2003 the awarded sums were transferred to the applicant’s bank account.

B.  Relevant domestic law

1.  Execution of a judgment

Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.

Under section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.

2.  Supervisory review (Пересмотр в порядке судебного надзора)

Under the Code of Civil Procedure of 1964, which was in force at the material time, judgments became final as follows:

Article 208. Coming into force of judgments

“Court judgments shall become legally binding on the expiration of the time-limit for lodging a cassation appeal if no such appeal has been lodged. If the judgment is not quashed following a cassation appeal, it shall become legally binding when the higher court delivers its decision...”

The only further means of recourse was the special supervisory-review procedure that enabled courts to reopen final judgments:

Article 319. Judgments, decisions and rulings amenable to supervisory review

“Final judgments, decisions and rulings of all Russian courts shall be amenable to supervisory review on an application lodged by the officials listed in Article 320 of the Code.”

The power of officials to lodge an application (protest) depended on their rank and territorial jurisdiction:

Article 320. Officials who may initiate supervisory review

“Applications may be lodged by:

1. The Prosecutor General – against judgments, decisions and rulings of any court;

2. The President of the Supreme Court – against rulings of the Presidium of the Supreme Court and judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance;

3. Deputy Prosecutors General – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;

4. Vice-Presidents of the Supreme Court – against judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance;

5. The Prosecutor General, Deputy Prosecutor General, the President and Vice-Presidents of the Supreme Court – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;

6. The President of the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district, the Public Prosecutor of an autonomous republic, region, city, autonomous region or an autonomous district – against judgments and decisions of district (city) people’s courts and against decisions of civil chambers of, respectively, the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district that examined the case on appeal.”

The power to lodge such applications was discretionary, that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review.

Under Article 322 officials listed in Article 320 who considered that a case deserved closer examination could, in certain circumstances, obtain the case file in order to establish whether good grounds for lodging an application existed.

Article 323 of the Code empowered the relevant officials to stay the execution of the judgment, decision or ruling in question until the supervisory review proceedings had been completed.

Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments:

Article 329. Powers of supervisory-review court

“The court that examines an application for supervisory review may:

1. Uphold the judgment, decision or ruling and dismiss the application;

2. Quash all or part of the judgment, decision or ruling and order a fresh examination of the case at first or cassation instance;

3. Quash all or part of the judgment, decision or ruling and terminate the proceedings or leave the claim undecided;

4. Uphold any of the previous judgments, decisions or rulings in the case;

5. Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re-examination if substantive laws have been erroneously construed and applied.”

41. The grounds for setting aside final judgments were as follows:

Article 330. Grounds for setting aside judgments on supervisory review

“...

1. wrongful application or interpretation of substantive laws;

2. significant breach of procedural rules which led to delivery of unlawful judgment, decision or ruling...”

There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final.

COMPLAINTS

The applicant complains that the failure on the part of domestic authorities to enforce the final judgment taken by the Astrakhan Regional Court on 14 December 1999 violated his right to a fair trial guaranteed by Article 6 § 1 of the Convention and his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1 to the Convention.

He states that the quashing of the final judgment in his favour by the Presidium of the Astrakhan Regional Court on 27 December 2000 violated his right to a fair trial guaranteed by Article 6 § 1 of the Convention and his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1 to the Convention.

The applicant further complains that the overall length of civil proceedings in his case exceeded the reasonable time in breach of Article 6 § 1 of the Convention.

THE LAW

The applicant complains that the award made in his favour was not enforced for a long time and that it was subsequently quashed by way of supervisory review. In respect of both complaints he invokes Article 6 and Article 1 of Protocol No. 1 to the Convention.

The applicant also complains about the length of civil proceedings in his dispute over the welfare payments contrary to Article 6 § 1 of the Convention.

Article 6 of the Convention, in so far as relevant, provides as follows:

“1.  In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

Article 1 of Protocol No. 1 to the Convention provides 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.”

1.  Non-execution of a judgment

The Government state that the enforcement proceedings could not be pursued in the absence of a final judgment. They made no comments as to the non-execution of the judgment which entered into force on 14 December 1999.

The applicant contends that there was a final and enforceable judgment in his case between 14 December 1999 and 27 December 2000 when this judgment was quashed.

The Court considers, in the light of the parties’ submissions, that this issue raises serious questions 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.  Quashing of a judgment

The Government allege that the judgment was quashed by the Presidium of the Astrakhan Regional Court for the applicant’s benefit. They contend that the judgment of 14 December 1999 was reversed with a view to correct a judicial error which had “influenced the extent of the compensation to be awarded to [the applicant] and, as a consequence, violated his right to a fair trial”. The Government argue, in addition, that the applicant’s right to compensation has never been contested. The remittance of the case for a new examination was aimed at ensuring the applicant’s right to fair trial and his right to peaceful enjoyment of his possessions.

The Government also refer to the fact that the applicant’s dispute about his allowance increase was a part of a complex general problem caused by the vagueness of the Law “On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion”. The ambiguity had to be eliminated by reference to the Constitutional Court, which clarified the matter by its ruling of 19 June 2002. All disputes similar to the applicant’s one were resolved in accordance with this ruling thereafter.

The applicant contests the Government’s allegation that the quashing was for his benefit. He claims that the principal debt and the monthly payments payable under the 14 December 1999 decision satisfied him, and he only sought supervisory review to claim penalty. He recalls that his petition was refused, before the opposite request solicited by the State authorities was granted. He also insists that the calculation method used in the second set of proceedings was incorrect and less advantageous to him, while the one used before quashing yielded the right result.

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.

3.  Length of proceedings

The Government submit that the overall length of proceedings in the present case was not excessively long given the complexity of the case. In support of their statement they refer to the proceedings before the Constitutional Court the opinion of which had to be sought to resolve ambiguity of the interpretation of the legislation applicable in the dispute. They acknowledge no periods of inactivity attributable in the authorities dealing with the applicant’s case. They state that on 22 November 2002, following the applicant’s request, the proceedings were stayed pending the Constitutional Court’s ruling relevant to his dispute. After it was held on 19 June 2002 the proceedings were resumed. No hearing was appointed before 2 September 2002, as the applicant notified the court of his counsel’s absence. Thereafter the hearings were conducted without undue intervals, and the case was finally resolved on 29 April 2003. The Government also contend that the applicant contributed to the length of proceedings by repeatedly changing his claim and putting forward claims “which in the set contradict the legislation”.

The applicant maintains that the proceedings were not expeditious enough. He contests the statement that he was repeatedly changing his claim and explains that he only updated the calculations to add up the arrears accruing during the proceedings. He also alleges that the Government’s reference to the complexity of the case is unsubstantiated.

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 the application admissible, without prejudging the merits of the case.

Søren NielsenChristos Rozakis
              Deputy RegistrarPresident

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