THIRD SECTION
DECISION
Applications nos. 8647/09 and 8653/09
Magomet Karim-Sultanovich KOKURKHAYEV against Russia
and Karim-Sultan Abdul-Karimovich KOKURKHAYEV against Russia
The European Court of Human Rights (Third Section), sitting on 23 May 2017 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 30 July 2008 and 30 July 2008 respectively,
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
The applicants’ personal details appear in the Appendix.
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.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of proceedings
On 23 January 2007 the Nazran District Court of Ingushetia awarded the applicants compensation for service during the period of the regime of a state of emergency based on the rate available at the material time. The judgments became final and were fully executed. It appears that the applicants also continue to receive a retirement pension.
On 22 January 2009 the Supreme Court of Russia quashed the judgment of 23 January 2007 and dismissed the applicants’ claims. It appears that the execution was not reversed.
2. Second set of proceedings
On an unspecified date the applicants sued the republican prosecutor’s office arguing that the District Court while granting them additional compensation for service in the context of a state of emergency (judgment of 23 January 2007) did not take into account that as from 1 January 2007 the prosecutors’ salary was increased by 1,075 times. They consequently sought additional indexation.
On 22 November 2007 the domestic courts, relying on the judgment of 23 January 2007 and retrospectively applying to the relevant domestic provisions, granted the applicants’ claims in full and ordered the defendant authorities to pay them outstanding payments. The judgments became final but the authorities failed to enforce them. Subsequently upon the appeal of the republican prosecutor the Supreme Court of Russia quashed the judgments of lower instance courts on the grounds of newly discovered circumstances and dismissed the applicants’ claims (for more details see the Appendix). The court referred to the fact of the quashing of the previous judgments (23 January 2007) on the findings of which the judgments of 22 November 2007 were based.
B. Relevant domestic law and practice
The relevant domestic law and practice governing the restoration of the time-limits for appeal is summed up in the Court’s decision in the case of Cherbizhev v. Russia (dec.) (no. 53155/09, §§ 23-27, 21 February 2017).
COMPLAINTS
The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about non-enforcement of the judgments of 22 November 2007.
THE LAW
In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to consider the applications in a single decision, given their similar factual and legal background (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03 and 9 others, § 15, 14 January 2010).
The applicants complained that the non-enforcement of the judgments in their favour had violated their property rights. They 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.”
The Government argued that the relevant judgments could not be executed on account of their quashing on the grounds of newly discovered circumstances.
The Court notes at the outset that it has already addressed similar issue in the identical case Cherbizhev v. Russia (dec.) (cited above). It thus does not see any ground to depart from the findings in that case.
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).
The Court attaches importance to the fact that additional compensation sought by the applicants originated from a special advantageous scheme to which other retired persons were not entitled to. It further notes that not only the applicants retained all the rights attaching to their ordinary pension under general regime but they 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 applicants 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 applicants were totally divested of their 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).
In these circumstances, the Court does not consider that the applicants’ claim to additional compensation scheme was denied in a manner contrary to Article 1 of Protocol No. 1 to the Convention.
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.
Having regard to its finding above, the Court considers that the applicants’ complaint under Article 6 § 1 of the Convention does not require a separate examination.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 15 June 2017.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
APPENDIX
No.
Application no. Lodged on
Applicant name
Year of birth
Place of residence
Nationality
Final domestic judgment
a) date of delivery
b) date of becoming final
Award
(in Russian roubles)
Quashing
8647/09
30/07/2008
Magomet Karim-Sultanovich KOKURKHAYEV
1961
Ordzhonikidzevskaya
Russian
Nazran District Court
22/11/2007
02/12/2007
RUB 194,454 (additional compensation)
Supreme Court of Russia
27/05/2011
8653/09
30/07/2008
Karim-Sultan Abdul-Karimovich KOKURKHAYEV
1932
Nesterovskaya
Russian
Nazran District Court
22/11/2007
02/12/2007
RUB 1,928,074 (additional compensation)
Supreme Court of Russia
27/05/2011
Full & Egal Universal Law Academy