CASE OF ALEKSANDR PONOMAREV v. RUSSIA

FIRST SECTION

CASE OF ALEKSANDR PONOMAREV v. RUSSIA

(Application no. 8235/03)

JUDGMENT

STRASBOURG

6 December 2011

This judgment is final but it may be subject to editorial revision.

In the case of Aleksandr Ponomarev v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Mirjana Lazarova Trajkovska, President,
Anatoly Kovler,
Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 15 November 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 8235/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Vasilyevich Ponomarev (“the applicant”), on 27 January 2003.

2. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. On 30 September 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1953 and lives in Rozhdestvenskoye, Kostroma Region.

5. The applicant is disabled following his participation in the emergency clean-up operations at the site of the Chernobyl nuclear plant disaster and receives compensation for health damage.

6. On 30 April 1999 he brought proceedings against the Welfare Office of the town of Sharya of the Kostroma Region (Отдел социальной защиты населения г. Шарьи Костромской Области), in which he sought increase of his monthly compensation and recovery of the arrears.

7. The first hearing was scheduled for 30 August 1999. Between 30 August 1999 and 30 November 2000 four hearings were held by the court, while seven hearings had to be rescheduled due to the lack of attendance by the respondent or a third party, two hearings did not take place due to the applicant’s default in appearance, and one hearing was cancelled for the judge’s illness.

8. By a judgment of 30 November 2000 the Sharya Town Court of the Kostroma Region (“the Town Court”) rejected the applicant’s claims.

9. On 31 January 2001 the Kostroma Regional Court (“the Regional Court”) quashed the judgment of 30 November 2000 on the applicant’s appeal for erroneous application of the material law and ordered to re‑consider the case.

10. By a decision of 15 February 2001 the Town Court stayed the proceedings waiting for the outcome of the proceedings pending before the Constitutional Court of Russia, which were relevant to the determination of the applicant’s case.

11. On 19 June 2002 the Constitutional Court delivered its decision on the issue pending before it, and the proceedings in the applicant’s case were resumed on 18 November 2002.

12. By a decision of 26 December 2002 the Town Court granted the applicant’s challenge of the judge and assigned the case to a different judge.

13. Between 14 July and 9 December 2003 the court repeatedly requested that the applicant submit information about his earnings during certain periods of time. Overall, in the second round of the proceedings, two hearings were held as scheduled, two of them did not happen as the applicant did not appear, and one was postponed due to the respondent’s default in appearance.

14. By a judgment of 9 December 2003 the Town Court allowed the applicant’s claims in part. However, that judgment was set aside by the Regional Court on both parties’ appeal on 2 February 2004.

15. After one hearing in the new round of the proceedings, on 16 April 2004 the Town Court again granted the applicant’s claims in part. The court ordered the Welfare Office to recalculate the compensation payments and awarded the applicant 6,936 Russian roubles (RUB) to be paid monthly and to be adjusted in accordance with the legislation. The court also recovered the debt in the amount of RUB 259,818 and reimbursement of the legal costs in the amount of RUB 12,051.

16. On 16 June 2004 the Regional Court upheld the judgment on appeal.

17. The amount of RUB 259,818 was paid to the applicant on 12 August 2005, and RUB 12,051 was paid on 30 December 2005. Following the delay in the payment of the lump-sum amounts awarded on 16 April 2004, the applicant obtained compensation for the depreciation of the awards in the amount of RUB 31,084 on 18 November 2005 and RUB 1,617 on 17 March 2006. The amount of RUB 31,084 was paid to the applicant on 28 September 2006.

18. By a decision of 10 March 2006 the Town Court adjusted the applicant’s monthly payment in line with the consumer prices index to RUB 7,900. It appears from the applicant’s observations that this decision, as well as the decisions taken in the subsequent years, has been enforced with a delay or not enforced altogether.

II. RELEVANT DOMESTIC LAW

19. Federal Law № 68-ФЗ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation.

20. Section 6.2 of the Federal Law № 68-ФЗ provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to the domestic courts.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS

21. The applicant complained that the proceedings in his case had taken too long, breaching the requirement of Article 6 § 1 of the Convention, which in the relevant part reads as follows:

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

A. Admissibility

22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

23. The Government denied that the length of the proceedings in the applicant’s case had been unreasonable. They asserted that the parties had protracted the proceedings to a certain extent exercising their procedural rights, but their behavior could not be imputed to the authorities. The Government also drew the Court’s attention to the fact that a significant delay had occurred due to the stay of the proceedings pending the outcome of an inquiry with the Constitutional Court.

24. The applicant contended that on a few occasions the court had failed to duly summon the parties to the hearings, as a result of which they had not been able to attend. The court had also failed to verify the respondent’s and third party’s reasons for failure to appear or requests for postponement of the hearings and had not disciplined them.

25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

26. The Court observes that the proceedings in the instant case lasted from 30 April 1999 to 16 June 2004. During this time, which amounts approximately to five years and two months, the case was examined three times at two levels of jurisdiction.

27. The Court further observes that in the three rounds of the proceedings the trial court held a total of eight hearings as scheduled, whereas an equal number of hearings were cancelled due to the respondent’s or third party’s default in appearance. It also notes that aside from several warnings, the trial court did not discipline the defaulting parties.

28. At the same time, the Court observes that the proceedings were stayed for one year and nine months pending decision of the Constitutional Court on an issue relevant to the applicant’s case. It notes that the hearings were scheduled regularly. It also does not lose sight of the role of the applicant who contributed to the length of the proceedings by having the case re-assigned to a different judge and refusing to submit requested information. While an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in the defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319-A), the resulting delays cannot be attributed to the authorities. The Court also notes that the applicant did not present any evidence in support of his allegations that the trial court had failed on a few occasions to duly summon the parties to the hearings.

29. Regard being had to the above, the Court considers that in this case the authorities complied with the requirement of expedition. Accordingly, there has been no breach of Article 6 § 1 of the Convention on account of the length of the proceedings.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF NON‑ENFORCEMENT

30. Without referring to any particular provision of the Convention, the applicant complained that the authorities had delayed the enforcement of the judgment of 16 April 2004 in respect of the lump-sum payments and had failed to adjust the amount of the monthly payment in breach of the trial court’s order. The Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read in the relevant part 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.”

31. The Government acknowledged that the delayed payment of the reimbursement of legal costs had breached the Convention but disagreed with the rest of the complaint.

32. The applicant maintained his complaint, adding in his observations a complaint of delayed enforcement of the court decisions adopted in 2006 and later.

A. Admissibility and scope of the case

33. The Court notes that the applicant’s complaint of non-enforcement of the court decisions delivered in 2006 and later was first raised in his observations and was not communicated to the Government for comments. The complaint in this part accordingly falls outside of the scope of this case and will not be considered by the Court on the merits.

34. The Court further notes that the remainder of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

35. The parties’ arguments are summarised in paragraphs 31-32 above.

36. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III).

37. The Court observes that the judgment of 16 April 2004 concerned three awards, including a monthly compensation and obligation to adjust it in line with the legislation, the arrears, and reimbursement of the legal costs. It further observes that the arrears and reimbursement of the legal costs were paid to the applicant approximately one year and two months and one year and six months, respectively, after the judgment became final.

38. As to the obligation to adjust the monthly payments, the Court notes that in this part the judgment had not been executed until on 10 March 2006 the applicant obtained a new judicial decision adjusting his monthly compensation. The length of the delay thus amounted approximately to one year and nine months.

39. Having regard to the length of the delays in the enforcement of the judgment of 16 April 2004, the Court finds that they were sufficiently long to impair the applicant’s right to a court.

40. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

41. The applicant complained under Article 13 that he had not had an effective remedy in respect of the length of the proceedings in his case. The relevant provision reads 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. Admissibility

42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

43. The Court takes cognisance of the existence of a new remedy introduced by the federal laws № 68-ФЗ and № 69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009‑...). These statutes, which entered into force on 4 May 2010, set up a new remedy which enables those concerned to seek compensation for the damage sustained as a result of unreasonable length of the proceedings or delayed enforcement of court judgments (see paragraph 19 above).

44. The Court observes that in the present case the parties’ observations in respect of Article 13 arrived before 4 May 2010 and did not contain any references to the new legislative development. However, it accepts that as of 4 May 2010 the applicant has had a right to use the new remedy (see paragraph 20 above).

45. The Court recalls that in the pilot judgment cited above it stated that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court to bring again their claims before domestic tribunals (Burdov (no. 2), cited above, § 144). In line with this principle, the Court decided to examine the present application on its merits and found a violation of the substantive provision of the Convention.

46. However, the fact of examination of the present case on its merits should in no way be interpreted as compromising the Court’s possible future assessment of the quality of the new remedy (see Fakhretdinov and Others v. Russia (dec.), nos. 26716/09 et al, § 33, 23 September 2010). It will examine this question in other cases more suitable for this analysis. It does not consider it appropriate to make any further assessment in this respect in the present case, particularly in view of the fact that the parties’ observations were made with account of the situation that had existed before the introduction of the new remedy.

47. Having regard to these special circumstances, while the Court considers this complaint admissible, it does not find it necessary to continue its separate examination in the present case (see Utyuzhnikova v. Russia, no. 25957/03, § 52, 7 October 2010).

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

48. Lastly, the applicant complained that the length of the proceedings in his case had amounted to torture in the meaning of Article 3 of the Convention.

49. Having regard to all the material in its possession, and in so far as this complaint falls within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

51. In respect of pecuniary damage the applicant claimed 51,548 Russian roubles (RUB) (approximately 1,240 euros (EUR)) calculated as the sum of the awards made to him to cover the inflation losses following delay in the enforcement of the original judgment (see paragraphs 17 and 18 above). Those amounts remained unpaid at the moment of his lodging of the claim for damages. He also claimed EUR 10,000 in respect of non-pecuniary damage.

52. The Government disputed the claim for pecuniary damage, arguing that the principal debt under the judgment of 16 April 2004 had been paid to the applicant. They also found the claim for non-pecuniary damage excessive, referring to the amounts awarded by the Court under this head in the cases of Gorokhov and Rusayev v. Russia (no. 38305/02, 17 March 2005) and Yemanakova v. Russia (no. 60408/00, 23 September 2004) as reasonable.

53. As to pecuniary damage, the Court notes that the judicial awards were paid to the applicant in full (see paragraph 17 above). Furthermore, the applicant has not submitted an itemised claim for possible pecuniary loss arising from delays in the payments. In these circumstances the Court rejects the claim for pecuniary damage in full.

54. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicant EUR 2,400 under this head.

B. Costs and expenses

55. The applicant did not submit any claim for costs and expenses.

56. The Court will therefore make no award under this head.

C. Default interest

57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning length of the proceedings, non‑enforcement and lack of an effective remedy admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention on account of the length of the proceedings;

3. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the delayed enforcement of the judgment of 16 April 2004;

4. Holds that there is no need for separate examination of the complaint under Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachMirjana Lazarova Trajkovska
Deputy RegistrarPresident

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