FIRST SECTION
DECISION
Application no. 53637/08
by Valdemar Fedorovich ZHITNIKOV
and application no. 53682/08
by Aleksandr Dmitriyevich KOLOSOV
against Russia
The European Court of Human Rights (First Section), sitting on 25 November 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above applications lodged on 22 May 2008,
Having deliberated, decides as follows:
THE FACTS
The applications were lodged by two Russian nationals (“the applicants”), Mr Valdemar Fedorovich Zhitnikov (application no.53637/08) and Mr Aleksandr Dmitriyevich Kolosov (application no. 53682/08) on 22 May 2008. The applicants were born in 1938 and 1951 respectively and passed away on the dates specified below. They lived in Mineralnyye Vody, the Stavropol Region. The applicants were represented before the Court by Mr V.M. Zavyalov, a lawyer practicing in Yessentuki, the Stavropol Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
For the sake of convenience, the Court will continue to refer to Messrs V.F. Zhitnikov and A.D. Kolosov as “the applicants”.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants took part in the cleaning-up operation at the Chernobyl nuclear disaster site, were registered disabled and became entitled to various social benefits.
On unspecified dates the applicants sued authorities for inflation adjustment of the disability benefits due to them.
On 4 June 2007 the Mineralnyye Vody Town Court of the Stavropol Region in one judgment upheld the applicants’ actions in part and ordered the local department of the State Treasury to pay each claimant 1,925.45 Russian roubles (RUB) monthly as a disability pension, to be adjusted in accordance with legal requirements, and awarded each claimant a lump sum of RUB 104,405.82 in respect of the outstanding benefits, to be paid by the Ministry of Finance of the Russian Federation. The judgment was not appealed against and became final on 19 June 2007.
As from July 2007 the applicants were receiving the monthly payments in good time and on 24 September 2007 they received the awarded lump sums.
On 29 November 2007 the Presidium of the Stavropol Regional Court, upon the Ministry of Finance’s application, quashed the judgment of 4 June 2007 and remitted the cases for a fresh examination. The Presidium found that the lower court had erred in applying the provisions of substantive domestic law and, as a result, incorrectly determined the defendant authority in the case.
In December 2007 the respondent welfare authority discontinued the monthly payments due to the applicants under the quashed judgments. Instead, the authorities started to pay the applicants monthly disability benefits in accordance with the relevant legislation.
On 15 February 2008 the Town Court discontinued the proceedings, due to the applicants’ failure to appear before the first instance court.
In February 2009 the Ministry of Finance of the Russian Federation brought proceedings against both applicants claiming repayment of the lump sums they had received pursuant to the quashed judgment. On 4 March 2009 the Town Court rejected the claim. It appears that the judgment was not appealed against and became final.
On 28 May 2009 Mr Zhitnikov and on 21 June 2008 Mr Kolosov passed away. Their widows, Mses Galina Grigoryevna Zhitnikova and Nadezhda Nikolayevna Kolosova, expressed their wish to pursue the applications. They submitted copies of the respective marriage certificates and death certificates in support of their requests.
COMPLAINTS
The applicants complained under Article 6 of the Convention and Article 1 of Protocol No.1 thereto about the quashing of the judgment of 4 June 2007 in their favour.
THE LAW
1. Given that the present two applications concern similar complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of the Court.
2. The Court observes that the applicants died after having lodged their applications under Article 34 of the Convention. However, their widows expressed their wish to pursue the applications. The Government did not object to the standing of Mses Zhitnikova and Kolosova. However, the Court considers it necessary to examine the issue of locus standi of the applicants’ widows in detail of its own motion.
Article 37 § 1 of the Convention reads in the relevant part as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
[...] (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires...”
The Court reiterates that in various cases in which an applicant died in the course of the Convention proceedings it took into account the statements of the applicant’s heirs or close members of his or her family expressing their wish to pursue the application (see, amongst other authorities, Kalló v. Hungary, no. 30081/02, § 24, 11 April 2006, and Novinskiy v. Russia, no. 11982/02, § 92, 10 February 2009, § 92). Where the issue of standing is to be determined, the Court must examine each application in the light of its particular facts and from the standpoint of whether the applicant’s interest at stake is of such a nature that it can be transferred to the heir, and, further, whether considerations relating to the general interest require the continued examination of the application (see Gorodnichev v. Russia (dec.), no. 32275/03, 15 November 2007; S. v. the United Kingdom, no. 9502/81, Commission decision of 13 July 1983, DR 34, p. 103; and Veit v. Germany, no. 10474/83, Commission decision of 6 May 1986, Decisions and Reports (DR) 47, p. 116). Furthermore, the cases before the Court generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant’s death (see Malhous v. the Czech Republic [GC] (dec.), no. 33071/96, ECHR 2000-XII).
The Court has previously accepted that the late applicants’ close relatives could maintain applications with complaints concerning various aspects of Article 6 of the Convention (see Malhous (dec.), cited above; Andreyeva v. Russia (dec.), no. 76737/01, 16 October 2003; Shiryayeva v. Russia, no. 21417/04, § 8, 13 July 2006, concerning the non-enforcement of domestic judgments; see also Horváthová v. Slovakia, no. 74456/01, § 26, 17 May 2005, in the context of the length of proceedings; see also, by way of contrast, Gorodnichev (dec.), cited above; and, in so far as relevant, Stankevich v. Ukraine (dec.), no. 48814/07, 26 May 2009). The Court has also found in a number of cases relating to claims under Article 1 of Protocol No. 1, that the applications concerning property rights may be, in principle, transferable to the heirs (see, among others, Nerva and Others v. the United Kingdom, no. 42295/98, § 33, ECHR 2002-VIII; see also Sobelin and Others v. Russia, nos. 30672/03 et seq., §§ 43-45, 3 May 2007, concerning a combination of issues under Article 6 and Article 1 of Protocol No.1). In assessing the transferability of the complaints, the former Commission and the Court took into account, for example, that the link between the complaints at stake and the deceased applicant was not exclusive, or the late applicant’s next-to-kin personally suffered the consequences (see, in the context of Article 6, Funke v. France, no. 10828/84, Commission decision of 6 October 1988, D.R. No. 57, p. 18), or had an interest of their own (see, regarding Article 8, Armonienė v. Lithuania, no. 36919/02, § 29, 25 November 2008), or that the domestic proceedings concerned the late applicant’s pecuniary rights (see Jeruzal v. Poland, no. 65888/01, § 25, 10 October 2006).
The Court has also established that it is for the heir who wishes to pursue the proceedings before the Court to substantiate his or her standing to do so (see Belskiy v. Russia (dec.), no. 23593/03, 26 November 2009).
Turning to the present cases, the Court observes that the applicants raised complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 about the quashing of the judgments in their favour. The late applicants were parties to the domestic proceedings concerning the determination of the amount of the monthly disability payments, whereas neither Ms Zhitnikova nor Ms Kolosova were parties to those proceedings.
The Court now has to ascertain whether the applicants’ widows substantiated their standing to pursue the proceedings before the Court (see Belskiy, cited above).
The Court considers that in the present two cases the need for a justification of a legitimate interest in pursuing the applications was particularly strengthened by the specific nature of the complaints raised by the applicants before the Court.
As regards the complaint under Article 6, the Court attaches particular weight to the specific aspect of the “right to a court” at stake, namely the alleged impairment of the principle of legal certainty as a result of the annulment of the domestic judgment in the applicants’ favour by way of the supervisory review proceedings. The quashing in the instant cases had occurred before the applicants had passed away. The crux of the grievance under Article 6 was, in fact, frustration of the applicants’ reliance on the binding judicial decision. The Court reiterates that quashing of a final judgment is an instantaneous act and does not create a continuing situation (see, mutatis mutandis, Sardin v. Russia (dec.), no. 69582/01, ECHR 2004‑II). It was not demonstrated that such a complaint was not personal to the applicants, or that the applicants’ relatives – who were not parties to the domestic proceedings – could claim to have a sufficient legal interest to justify the continued examination of the complaint about the alleged violation of the legal certainty principle (see, mutatis mutandis, S. v. the United Kingdom, cited above; and, in so far as relevant, Gorodnichev (dec.), cited above).
Likewise, as regards the complaint under Article 1 of Protocol No.1, the Court does not lose sight of the specific nature of the judgment debt in the applicants’ cases. At stake at the present cases was the applicants’ legitimate expectation to receive monthly payments in a particular amount and, more precisely, to have these payments index-linked in accordance with a particular method. The applicants were entitled to receipt of these payments as participants of the cleaning-up operation at the Chernobyl nuclear disaster site. In the absence of any evidence to the contrary, the Court is inclined to find that the claim in respect of the disability pension was personal to the applicants. Furthermore, by contrast to the recent case of Streltsov and Other “Novocherkassk Military Pensioners” (nos. 8549/06 et seq., §§ 32-42, 29 July 2010), as well as to Sobelin and Others (cited above), in the present cases the supervisory review issue was not coupled with the non-enforcement problem. Furthermore, no outstanding judgment debt in the applicants’ favour existed by the moment of introduction of the present applications (see, by contrast, Andreyeva (dec.), cited above), since it was not contested by the parties that the applicants had timely received the lump sums due to them. In sum, there is nothing in the cases at hand to suggest that the applicants’ claims in the initial domestic proceedings formed a part of the estate that accrued to Mses Zhitnikova and Kolosova (see, by contrast, Andreyeva (dec.), cited above; and Malhous (dec.), cited above).
Furthermore, it is observed that after the quashing the applicants had continued to receive the monthly pensions, while the crux of the dispute was an exact amount of these pensions. The Court recalls its earlier findings that it would in principle be a largely hypothetical exercise to attempt to predict in the long term the amounts of pension which would have been paid to an applicant, if the final judgments in the applicants’ favour had not been quashed, given the many imponderables in evolving political and economic conditions that could affect future pension entitlements and calculations (see, in so far as relevant, Tarnopolskaya and Others v. Russia, nos. 11093/07 et seq., § 51, 7 July 2009). Thus, in the absence of any further clarification on the matter from the parties, it would be highly speculative for the Court to conclude on the transferability of the claim at stake.
In view of the above, the Court finds that Mses Zhitnikova and Kolosova have not justified their standing and it is not convinced that they have a legitimate interest to pursue the proceedings before the Court in the applicants’ stead.
Furthermore, the Court does not consider that respect for human rights as defined in the Convention and the Protocols requires the examination of the applications, despite the applicants’ death. The Court reiterates in this respect that the problem of the quashing of the final judgments by way of the supervisory review has been already examined by the Court in a number of cases against Russia (see, among others, Kot v. Russia, no. 20887/03, §§ 20-33, 18 January 2007; and Mordachev v. Russia, no. 7944/05, §§ 14‑19, 25 February 2010).
In these circumstances the Court considers that it is no longer justified to continue the examination of the applications and concludes pursuant to Article 37 § 1 (c) of the Convention that the applications should be struck out of its list of cases.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to strike the applications out of its list of cases.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy