CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 mars 2006

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margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sD8926F5B { font-family:Arial; font-size:12pt; color:#000000 } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Applications nos. 75025/01, 75026/01, 75027/01, 75028/01, 75029/01, 75030/01, 75031/01, 75032/01, 75033/01, 75034/01, 75035/01, 75036/01, 75037/01, 75038/01, 75136/01, 76386/01, 76542/01, 76736/01, 77049/01, 77051/01, 77052/01, 77053/01, 3999/02, 5314/02, 5384/02, 5388/02, 5419/02, 8190/02 and 8192/02 by ALEKSENTSEVA and 28 Others [*] against Russia The European Court of Human Rights (First Section), sitting on 23   March 2006 as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above applications lodged on the dates set out in the appended schedule, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the Court’s decision of 4 September 2003 to strike the above applications out of its list of cases, Having regard to the subsequent submissions by the respondent Government and by the applicants, Having deliberated, decides as follows: THE FACTS The applicants whose names are listed in the schedule are Russian nationals who live in the Rostov-on-Don Region. The Russian Government (“the Government”) are represented by Mr   P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. A.     Facts that gave rise to the applications The applicants are clean-up workers of the Chernobyl nuclear accident site or dependants of deceased workers. They live in the town of Shakhty in the Rostov-on-Don Region. On the dates set out in the schedule the applicants obtained final and enforceable judgments in their favour. The judgments were made against the local social security offices who had been ordered to pay certain amounts to the applicants. B.     Proceedings before the Court On 21 March 2002 the applications were communicated to the respondent Government. By letter of 22 October 2002, the Government acknowledged that there had been a violation of the Convention in the applicants’ cases and informed the Court that they had paid the arrears and compensation and were prepared to pay additional compensation for non-pecuniary damage. On 4 January 2003 the Court received the following declaration from the Government in respect of each applicant: “I declare that the Russian authorities have already paid the sums due under the domestic judgment, of which the applicant complains. In addition, we offer to pay the amount of EUR [1,500 or 3,000, depending on the period when the judgment remained unenforced] to [the respective applicant’s name] ... on an ex gratia basis for the withdrawal of [his/her] application pending before the Court. This sum (EUR [1,500/3,000]) shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable converted in Russian roubles on the date of payment, free of any taxes that may be applicable, within three months after the notification of the decision taken by the Court pursuant to Article 37 § 1 (a) and (c) of the European Convention on Human Rights. This payment will constitute the final resolution of the case.” The applicants, in their written replies, rejected the Government’s initiative. They did not dispute the receipt of outstanding amounts due to them, but they argued that the amounts, as determined by the domestic courts and social security offices and the basis applied for their adjustment for inflation, had been unsatisfactory. On 4 September 2003 the Court decided to strike the applications out of its list of cases, finding as follows: “...the Court notes that the complaints made by the applicants in this case were of a pecuniary nature and concerned an alleged violation of their rights to have a final court decision, made in their favour against a State authority, enforced. Their complaints are similar to those made in the Burdov v. Russia case ( Burdov v. Russia , no.   59498/00, ECHR 2002 ‑ III, admissibility decision of 21 June 2001, judgment of 7   May 2002). The applicants come from the same area as Mr Burdov and the judgments in their favour were made against the same State agency. ...Also, the Court notes that during the examination of the Burdov case at the 810th (October 2002) and 819th (December 2002) meetings of the Committee of Ministers, the Russian authorities informed the Committee of Ministers of a number of measures adopted in response to the judgment in the Burdov case, including, in particular, payment of arrears because of the non-execution of domestic judgments ordering the payment of allowances for the victims of Chernobyl (a total of 284,6 million roubles were paid between January and October 2002). The Court next notes that the Government paid in full all the amounts due to the applicants in the present cases. In their letter of 22 October 2002 the Government, with reference to the Burdov judgment, admitted that the present cases were substantially similar to the Burdov case and that there had also been a violation in the present cases as well. The Government also reported to the Court that they had paid the arrears, as well as compensation for [pecuniary] damage in the amount determined by the Russian courts for a failure to execute the final decisions on time. In addition to this payment, the Government confirmed their readiness to pay non-pecuniary damage to the applicants similar to the amount awarded by the Court to Mr   Burdov. The Court recalls that in cases in which it is possible to eliminate the effects of an alleged violation and the Government declare their readiness to do so, the intended redress is more likely to be regarded as appropriate for the purposes of striking out the application, the Court, as always, retaining its power to restore the application to its list as provided in Article   37 § 2 of the Convention and Rule 44 § 5 of the Rules of Court (see Tahsin Acar v. Turkey [GC], cited above, § 76 in fine ). The Court has examined the Government’s submissions and the terms of their declarations. Having regard to the fact that the Government did not dispute the facts, acknowledged the violation, provided appropriate redress and expressed their readiness to pay specifically indicated additional amounts to cover any damages and costs, the Court considers that it is no longer justified to continue the examination of the applications (Article 37   §   1 (c)). Having regard to these considerations and also to the fact that the execution of the Burdov judgment is currently under supervision by the Committee of Ministers of the Council of Europe in accordance with Article 46 § 2 of the Convention, the Court is satisfied that respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in   fine ) does not require it to continue the examination of the applications.” In their letters of various dates of 2005, the applicants informed the Court that they had not received the amounts referred to in the Government’s declarations. Their attempts to obtain enforcement of the terms of the declarations through the domestic legal system had been futile. On 28 November 2005 the President of the First Section requested the respondent Government, under Rules 43 and 54 § 2 (a) of the Rules of Court, to inform the Court whether the amounts indicated in their declarations had in fact been paid to the applicants. On 12 December 2005 the Government submitted their reply. They indicated that the applicants had received the principal amounts due to them under the original judgments, as well as RUR 10,000 (approximately EUR   300) as interest for late payment. The Government denied, however, that the terms of their unilateral declarations had implied an obligation on their part to pay any further amounts to the applicants. The condition precedent for payment of the amounts referred to in the declarations had been the applicants’ agreement to a friendly settlement and withdrawal of their applications. Since the applicants had refused the terms of the proposed settlement, the declarations had not given rise to any binding undertakings. Moreover, nothing in the text of the Court’s decision of 4   September 2003 suggested that its coming into force would be conditional on any additional payment by the Government. COMPLAINTS The applicants complained under Article 6 of the Convention and Article   1 of Protocol No. 1 about non-enforcement of final judicial decisions in their favour. THE LAW I.     WHETHER THE CIRCUMSTANCES JUSTIFY THE DECISION TO RESTORE THE APPLICATIONS TO THE LIST OF CASES On 4 September 2003 the Court decided to strike the above applications out of its list of cases. The Court now has to determine whether the circumstances justify restoration of these applications to its list. It has the power to make such a decision by virtue of Article   37 § 2 of the Convention and Rule   43 § 5 of the Rules of Court. Article 37 § 2 provides as follows: “The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.” Rule 43 § 5 (former Rule 44) reads as follows: “The Court may restore an application to its list if it considers that exceptional circumstances justify such a course.” In their reply of 12 December 2005, the Government maintained that there were no substantive or procedural grounds to reverse the Court’s decision of 4 September 2003. The Government had made reasonable steps to provide redress for the applicants’ legitimate grievances but they had not undertaken to effect any payments outside the framework of a friendly settlement. Moreover, certain claims the applicants had made went beyond the scope of their original complaints. The applicants submitted that payment of compensation for the non-pecuniary damage which they sustained through the lengthy non-enforcement of judgments in their favour, should have been the condition precedent for a friendly settlement of the case. However, the Russian Government failed to effect any such payment and, accordingly, the applicants may still claim to be “victims” of the alleged violations. The Court reiterates that, in deciding whether or not it should strike the present applications out of its list, regard should be had to the criteria established in its case-law (see Tahsin Acar v. Turkey [GC], no.   26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v. Turkey (striking out), no.   25754/94, §§   22-23, 26 March 2002; Meriakri v. Moldova (striking out), no. 53487/99, §§ 31-35, 1 March 2005; Van Houten v. the Netherlands (striking out), no.   25149/03, §§ 34-38, ECHR 2005 ‑ ...). In particular, in such situations the Court must carefully scrutinise the scope and extent of the various undertakings referred to in the Government’s declaration as well as the amount of compensation proposed. In passing the decision on striking-out the present applications on 4   September 2003, the Court noted the Government’s undertaking to pay certain amounts to the applicants in respect of compensation for the non-pecuniary damage sustained through belated enforcement of judicial decisions in their favour. However, the Russian Government made their undertaking conditional on withdrawal of the applications by the applicants and their agreement to a friendly settlement. As the applicants had not agreed to the settlement or withdrawn their applications, the Russian Government refused to pay the compensation for the non-pecuniary damage referred to in their declaration. It follows that their undertaking was not truly unilateral as its implementation was predicated on the other party’s fulfillment of certain additional requirements. In this connection, the Court reiterates that the procedure for striking an application out of the list of cases on the basis of the Government’s declaration is an exceptional one and is not, as such, intended to circumvent the applicant’s opposition to a friendly settlement (see Tahsin Acar , cited above, and, as a recent example, Androsov v. Russia , no. 63973/00, §   44, 6   October 2005). The Court considers that the terms of the Government’s declaration, in so far as they bound the applicants to agree to the proposed settlement and to withdraw their applications as a condition precedent for receiving compensation, sought to circumvent the applicants’ opposition to a friendly settlement. It notes, however, that accepting a friendly settlement is an applicant’s right rather than a legal obligation, no matter how advantageous its terms might appear. Having regard to the fact that the applicants did not receive any non-pecuniary redress for the violation which the Government had acknowledged to have occurred, the Court finds that there exist the exceptional circumstances referred to in Article 37 § 2 of the Convention and Rule 43 § 5 of the Rules of Court. It decides therefore to restore the present applications to its list of cases. II.     ADMISSIBILITY OF THE APPLICATIONS The applicants complained about the lengthy non-enforcement of judgments in their favour. They relied on Article 6 of the Convention and Article 1 of Protocol No. 1. Article 6, in the relevant part, provides as follows: “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 reads 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.” The Government submitted that in April 2002 all the amounts outstanding had been paid and that an offer of compensation for non-pecuniary damage had been made. Without relying on any specific ground for inadmissibility, the Government claimed that the applicants’ complaints should be dismissed because their rights had been “restored”. The applicants claimed that, contrary to the Government’s submissions, the original judgments had not been enforced in their entirety because the monthly payments had not been adjusted in line with the statutory minimum wage. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. For these reasons, the Court unanimously Decides to restore the applications to its list of cases in accordance with Article 37 § 2 of the Convention; Declares the applications admissible, without prejudging the merits.   Søren Nielsen   Christos Rozakis   Registrar   President SCHEDULE (29 APPLICATIONS v. RUSSIA DECISION) NAME OF THE APPLICANT APPLICATION NO. DATE OF INTRODUCTION JUDGMENT CONCERNING SUSPENSION OF COMPENSATION INDEXATION OF 1996/1997 AWARD JUDGMENT CONCERNING AMOUNT OF COMPENSATION Usanov Gennadiy Pavlovich 75030/01 01/08/2001 03/03/1997 04/02/2000 05/08/1999 Zolotukhin Oleg Sergeyevich 75032/01 23/07/2001 19/02/1997 23/08/2000 13/05/1999 Gaydukov Stepan Vladimirovich 75038/01 25/07/2001 17/02/1997 09/03/2000 30/04/1999 Dremlyugin Vladimir Nikolayevich 75136/01 14/08/2001 17/02/1997 09/03/2000 30/04/1999 Frolov Vladimir Nikolayevich 77051/01 31/10/2001 17/02/1997 04/02/2000 01/07/1999 Pakhmonov Vladimir Nikolayevich 3999/02 13/12/2001 20/02/1997 23/08/2000 24/05/1999 Ochiyev Vitaliy Fedorovich 5388/02 11/12/2001 18/02/1997 23/08/2000 21/05/1999 Saplenkov Vladimir Ivanovich 8190/02 23/07/2001 17/02/1997 04/02/2000 28/07/1999 Gladkov Anatoliy Andreyevich 75026/01 01/08/2001 17/03/1997 not requested 05/07/1999 Shabalin Boris Federovich 75027/01 23/07/2001 18/03/1997 not requested 06/07/1999 Mandrykin Vladimir Aleksandrovich 75028/01 23/07/2001 08/04/1997 not requested 17/04/1997 09/07/1999 Lobanov Vladimir Ivanovich 75029/01 01/08/2001 19/03/1997 not requested 21/05/1999 Olishchuk Ivan Vladimirovich 75031/01 01/08/2001 19/02/1997 not requested 24/06/1999 Chernyshkov Aleksandr Ivanovich 75034/01 09/08/2001 26/02/2001 not requested 31/03/1999 Shishkov Aleksey Ivanovich 75035/01 09/08/2001 19/03/1997 not requested 30/04/2000 Avsetsin Nikolay Fedorovich 75036/01 25/07/2001 28/02/1997 not requested 04/06/1999 Grechko Valeriy Viktorovich 75037/01 25/07/2001 28/02/1998 not requested 07/07/1999 Kosygin Vyacheslav Fedorovich 76386/01 15/10/2001 07/04/1997 not requested 25/05/1999 09/07/1999 Kot Gennadiy Iosifovich 76542/01 02/10/2001 25/02/1997 not requested 28/06/2000 Sevostyanov Viktor Sergeyevich 76736/01 22/10/2001 22/04/1997 not requested 09/06/1999 Paramonov Vladimir Alekseyevich 77053/01 05/09/2001 28/02/1997 not requested 24/06/1999 Novikov Nikolay Nikolayevich 5384/02 28/11/2001 11/12/1996 not requested 03/06/1999 Aleksentseva Valentina Dmitriyevna 75025/01 01/08/2001 none ― 06/07/1999 Vazhenin Nikolay Yegorovich 75033/01 01/08/2001 none ― 07/10/1999 Suvorova Svetlana Anatloyevna 77049/01 06/09/2001 none ― 21/02/2000 Klimchuk Yevgeniy Vladimirovich 77052/01 29/10/2001 none ― 04/10/1999 Suyev Dmitriy Nikolayevich 5314/02 10/08/2001 none ― 24/06/1999 Fedorenko Aleksandr Grigoryevich 5419/02 28/11/2001 none ― 03/09/1998 15/07/1999 Panteleyev Yuriy Vasilyevich 8192/02 10/08/2001 none ― 17/06/1999   [*] The names of the other applicants are listed in the Schedule.