CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION Application no. 53678/08 by Sergey Aleksandrovich VERIGIN 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 application lodged on 26 May 2008, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant’s next-to kin, Having deliberated, decides as follows: THE FACTS The applicant, Mr Sergey Aleksandrovich Verigin, is a Russian national who was born in 1954 and lived in Yessentuki, the Stavropol Region. In 2009 the applicant passed away. He was represented before the Court by Mr   V.M. Zavyalov, a lawyer practicing in Yessentuki. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. For the sake of convenience, the Court will continue to refer to Mr   S.A.   Verigin as “the applicant”. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant took part in the cleaning-up operation at the Chernobyl nuclear disaster site, was registered disabled and became entitled to various social benefits. On an unspecified date he sued the authorities for inflation adjustment of the disability benefits due to him. On 4 June 2007 the Mineralniye Vody Town Court of the Stavropol Region upheld his action in part and ordered the local department of the State Treasury to pay him 1,925.45 Russian roubles (RUB) monthly as a disability pension, to be adjusted in accordance with legal requirements, and awarded him 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 applicant was in receipt of the monthly payments in good time and on 24 September 2007 he received the awarded lump sum. 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 case for a fresh examination. The Presidium found that the lower court had erred in applying the provisions of the Federal Law   No. 1244-1 “On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion” 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 applicant under the quashed judgment. Instead, the authorities started to pay the applicant monthly disability benefits in accordance with the relevant legislation. On 15 February 2008 the Town Court discontinued the court proceedings, due to the applicant’s failure to appear before the first instance court. In February 2009 the Ministry of Finance of the Russian Federation brought proceedings against the applicant claiming repayment of the lump sum he had received pursuant to the quashed judgments. On 4 March 2009 the Town Court rejected the claim. It appears that the judgment was not appealed against and became final. On 10 April 2009 the applicant had passed away. His widow, Ms Olga Timofeyevna Verigina, expressed her wish to pursue the application. On 25 July 2009 the applicant’s widow died. Ms Verigina’s and the applicant’s son, Mr Konstantin Sergeyevich Verigin (born in 1990), expressed his intention to maintain his late father’s case before the Court. COMPLAINT The applicant complained under Article 6 of the Convention and Article   1 of Protocol No.1 thereto about the quashing of the judgment in his favour. THE LAW The Court observes that the applicant died after having lodged his application under Article 34 of the Convention. However, his widow, and, after the death of the latter, the applicant’s son expressed the wish to pursue the application. The Government did not object to the standing of the applicant’s next-to-kin. However, the Court considers it necessary to examine the issue of locus standi of the applicant’s son 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 (a)     the applicant does not intend to pursue his application; or (b)     the matter has been resolved; or (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, with further references; 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 case, the Court observes that the applicant raised complaints under Article 6 of the Convention and Article 1 of Protocol   No.   1 about the quashing of the judgments in his favour. The late applicant was a party to the domestic proceedings concerning the determination of the amount of the monthly disability payments, whereas the applicant’s son was not a party to those proceedings. The Court now has to ascertain whether the applicant’s son substantiated his standing to pursue the proceedings before the Court (see Belskiy , cited above). The Court considers that the need for a justification of a legitimate interest in pursuing the application in the present case was particularly strengthened by the specific nature of the complaints raised by the applicant 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 applicant’s favour by way of the supervisory review proceedings. The quashing in the instant case had occurred before the applicant passed away. The crux of the grievance under Article 6 was, in fact, frustration of the applicant’s reliance on the binding judicial decision. The Court reiterates that the 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 applicant, or that the applicant’s son – who was not a party 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.)). 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 applicant’s case. At stake at the present case was the applicant’s 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 applicant was entitled to receipt of these payments as a participant 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 applicant. 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 case the supervisory review issue was not coupled with the non-enforcement problem. Furthermore, no outstanding judgment debt in the applicant’s favour existed by the moment of introduction of the present application (see, by contrast, Andreyeva (dec.), cited above), since it was not contested by the parties that the applicant had timely received the lump sum due to him. In sum, there is nothing in the case at hand to suggest that the applicant’s claims in the initial domestic proceedings formed a part of the estate that accrued to Mr K.S. Verigin (see, by contrast, Andreyeva (dec.), cited above; and Malhous (dec.), cited above). Furthermore, it is observed that after the quashing the applicant continued to receive the monthly pension, while the crux of the dispute was an exact amount of such pension. 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 amount of pension which would have been paid to an applicant, if the final judgment in the applicant’s 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 Mr K.S. Verigin has not justified his standing and it is not convinced that he has a legitimate interest to pursue the proceedings before the Court in the applicant’s 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 application, despite the applicant’s death. The Court reiterates in this respect that the problem of the annulment 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; Mordachev v. Russia , no. 7944/05, §§ 14-19, 25   February 2010; and Bodrov v. Russia , no. 17472/04, §§ 20-33, 12   February 2009). In these circumstances the Court considers that it is no longer justified to continue the examination of the application and concludes pursuant to Article 37 § 1 (c) of the Convention that the application should be struck out of its list of cases. For these reasons, the Court unanimously Decides to strike the application out of its list of cases.   Søren Nielsen   Christos Rozakis   Registrar   President