THIRD SECTION
DECISION
Application no. 53155/09
Umar Kovdiyevich CHERBIZHEV
against Russia
The European Court of Human Rights (Third Section), sitting on 21 February 2017 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 16 September 2009,
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
1. The applicant, Mr Umar Kovdiyevich Cherbizhev, is a Russian national, who was born in 1935 and lives in Nazran, Republic of Ingushetia, Russian Federation.
2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Between 27 December 1993 and 30 June 2005 the applicant served as a prosecutor in the prosecutor’s office for Ingushetia Republic.
5. Between 2 February 1992 and 15 February 1995 a regime of a state of emergency was declared on the territory of Ingushetia.
6. Between 27 December 1993 and 7 January 2002 an exceptional situation was declared in the Nazran district of the Republic, where the applicant served at that time as a prosecutor.
7. On an unspecified date the applicant was granted compensation for service during the period of the regime of a state of emergency based on the rate available at the material time. It appears that he also continues to receive a retirement pension.
8. By the Government Decree of 29 October 2005 the prosecutors were added to the list of persons who may apply for additional guarantees and compensation for the period during which they effectively served on the territory placed under the regime of a state of emergency or in the location attached to the zone of an armed conflict.
9. Considering that by virtue of the Government Decree of 29 October 2005 he became entitled to additional compensation, the applicant sued the republican prosecutor’s office.
1. First set of proceedings
(a) Main proceedings
10. On 28 July 2006 the Nazranovskiy District Court (hereinafter “District Court”) granted the applicant’s claim and awarded him additional compensation for the service in the context of a state of emergency or an armed conflict.
11. On 5 October 2006 the Supreme Court of Ingushetia (hereinafter “Regional Supreme Court”) upheld this judgment on appeal.
12. On 29 August 2008 the Supreme Court of the Russian Federation quashed the aforementioned judgments and sent the applicant’s case for a fresh examination.
13. On 3 February 2010 the District Court dismissed the applicant’s claims.
(b) Proceedings aimed at additional indexation of the amount granted by the judgment of 28 July 2006
14. On an unspecified date the applicant sued the regional prosecutor’s office arguing that the District Court while granting him additional compensation for service in the context of a state of emergency or an armed conflict did not take into account that as from 1 July 2006 the prosecutors’ salary was increased by 1,32 times. He consequently sought additional indexation.
15. On 23 April 2007 the District Court relying on the judgment of 28 July 2006 and retrospectively applying to the relevant domestic provisions granted the applicant’s claims and awarded him 645,215 Russian roubles (RUB) as outstanding payments.
16. On 7 June 2007 the Supreme Court of the Ingushetia Republic upheld this judgment on appeal.
17. On 30 November 2011 the Presidium of the Regional Supreme Court quashed the judgments of 23 April and 7 June 2007 on the ground that they were based on the judgment of 28 July 2006 quashed by the federal Supreme Court and rejected the applicant’s claims.
2. Second set of proceedings
18. On an unspecified date the applicant relying on the judgment of 28 July 2006 which established his entitlement to additional compensation scheme applied for an increase of other different benefits and allowances.
19. On 5 June 2007 the District Court granted the applicant’s claims against the defendant and awarded him RUB 1,318,481.05 corresponding to the recalculation of different compensations and allowances. The District Court found that the applicant had been eligible for new privileged regime as a result of the retrospective application of the relevant domestic provisions and in the absence of the necessary documents ascertaining that he indeed fall under this privilege.
20. On 12 July 2007 the republican Supreme Court upheld this judgment on appeal.
21. On 18 April 2008 the Presidium of the republican Supreme Court terminated the proceedings initiated following a supervisory review application lodged by the defendant.
22. On 19 March 2009 the federal Supreme Court quashed the judgments of 5 June and 12 July 2007 and issued a new judgment rejecting all the applicant’s claims.
B. Relevant domestic law
1. Law no. 4328-1 of 21 January 1993 on additional guarantees and compensation to servicemen serving on the territory of Caucasus, Baltic States and Tajikistan as well as in the context of a state of emergency or armed conflicts
23. Under its Article 7, the entitlement to such additional benefits is to be established by the Government of the Russian Federation.
2. Government Decree no. 280 of 31 March 1994 on the procedure of establishing of the fact of service by servicemen and other persons in the context of a state of emergency or armed conflicts and granting them additional guarantees and compensation
24. According to its point 2, additional guarantees and compensation are provided to such persons only for the period during which they effectively served on the territory placed under the regime of a state of emergency or in the location attached to the zone of an armed conflict. This period cannot be extended to the period prior to the decision to declare a state of emergency or to attach a particular location to the zone of an armed conflict or to the period following the decision to revoke the previous one. The periods during which servicemen effectively carried out their duties in the context of a state of emergency or of an armed conflict are established on the basis of orders issued by their commanders.
3. Government Decree no. 649 of 29 October 2005 amending the Government Decree no. 942 of 12 August 1994
25. Its point 2 added prosecutors to the list of persons who may apply for additional guarantees and compensation in accordance with the conditions outlined in the point 2 of the Government Decree no. 280 of 31 March 1994.
26. This Decision entered into force on 11 November 2005. There is no indication that it contained any reference to the possibility of its retrospective application.
4. Order of General Prosecutor of the Russian Federation No. 10-18 of 19 February 1993 on extra guarantees for prosecutors investigating crimes in an emergency context
27. In accordance with this Order, during such periods the prosecutors’ salary should be increased by 1,5 times.
COMPLAINTS
28. The applicant complained that the quashing of final domestic judgments of 23 April and 5 June 2007, both delivered by the Nazran District Court and confirmed on appeal by the Supreme Court of Ingushetia on 7 June and 12 July 2007 respectively, infringed his right to a court enshrined in Article 6 § 1 of the Convention and constituted an interference with his property rights provided by Article 1 of Protocol No. 1 to the Convention.
THE LAW
29. The applicant first complains about a violation of his property rights on the ground that by virtue of the judgments of 19 March 2009 and of 30 November 2011 he was deprived of an extra allowance in addition to his normal pension. He relied on Article 1 of Protocol No. 1 to the Convention, which provides, insofar as relevant:
“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.”
30. The Government argued the applicant’s complaint should be dismissed because it did not have basis in domestic law. They first noted that his entitlement was based on the retrospective application of the Government’s decision no. 649 and was unsubstantiated. In this latter respect, they clarified that the mere presence of prosecutors in the zone placed under the state of emergency or of an armed conflict regime is not enough for being eligible for the privileged scheme of additional benefits. They must have effectively carried out their duties. This should be confirmed by orders of their commanders. No such documents were submitted by the applicant to the domestic courts. They further argued that the lower instance courts put the applicant in a privileged position as compared to other persons. Thus by quashing the judgments the supervisory review court addressed social injustice. Finally, the Government recalled that the applicant, as well as other prosecutors who carried out their duties on the territory of Ingushetia between 2 February 1992 and 15 February 1995 had been entitled to an increased salary.
31. The applicant disagreed. He considered that the Government’s Decision could be retroactively applied and his eligibility to the scheme of additional compensation was based on the sole fact that he had to carry out his duties in the zone placed under an emergency or an armed conflict regime.
32. The Court considers that there is no need to address the parties’ arguments in detail because the application is in any event inadmissible for the following reasons.
33. The Court recalls that Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, any right to a social benefit of a particular amount (see Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004‑IX). The Court further notes that where the person concerned did not satisfy (see Bellet, Huertas and Vialatte v. France (dec.), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999), the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 to the Convention (see Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009).
34. In the present case, the Court observes that, by virtue of the judgments of 19 March 2009 and of 30 November 2011 the applicant was deprived of an extra compensation based on the new adjustment rate. The applicant did, however, retain all the rights attaching to his ordinary pension as well as the compensation he had previously granted. It has also not been argued, let alone shown, that the applicant’s means of subsistence were at stake. Moreover, the Court attaches importance to the fact that additional compensation sought by the applicant originated from a special advantageous scheme to which other retired persons were not entitled to. It further notes that not only the applicant retained all the rights attaching to his ordinary pension under general regime but he also regularly benefited from different extra allowances resulting from other special measures taken by the authorities in respect of the specific category of persons to which the applicant belongs (see Domalewski v. Poland (dec.), no. 34610/97, 15 June 1999). Hence, it cannot be said that in the circumstances of this case the applicant was totally divested of his only means of subsistence (see Da Silva Carvalho Rico v. Portugal (dec.), § 42, no. 13341/14, 1 September 2015, and Iwaszkiewicz v. Poland, no. 30614/06, § 57, 26 July 2011).
35. In these circumstances, the Court does not consider that the applicant’s right to additional compensation scheme was infringed in a manner contrary to Article 1 of Protocol No. 1 to the Convention, especially as the loss of his entitlement to additional compensation did not result in the essence of his pension rights being impaired.
36. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and should be rejected in accordance with Article 35 § 4 of the Convention.
37. Having regard to its finding above, the Court considers that the applicant’s complaint under Article 6 § 1 of the Convention does not require a separate examination.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 March 2017.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy