Novocherkassk military pensioners
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- A. Initial domestic awards and subsequent enforcement proceedings
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- A. Supervisory review and military pensions
- A. The parties submissions
- B. The Courts assessment
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FIRST SECTION
CASE OF STRELTSOV AND OTHER “NOVOCHERKASSK MILITARY PENSIONERS” v. RUSSIA
18848/06, 18851/06, 18856/06, 18916/06, 18952/06, 19350/06, 19352/06, 19353/06, 20423/06, 20904/06, 20906/06, 20907/06, 21081/06, 21123/06, 21124/06, 21179/06, 21189/06, 24041/06, 24048/06, 24055/06, 24058/06, 24816/06, 25029/06, 25043/06, 25044/06, 25442/06, 25717/06, 25721/06, 25827/06, 25831/06, 25920/06, 25922/06, 25923/06, 26440/06, 26654/06, 26706/06, 26709/06, 26766/06, 26972/06, 26981/06, 26983/06, 27709/06, 27710/06, 27714/06, 27716/06, 27718/06, 27833/06, 27840/06, 28105/06, 28231/06, 28886/06, 28888/06, 30481/06, 30494/06, 31422/06, 31424/06, 31436/06, 31410/06, 31411/06, 31414/06, 31427/06, 31429/06, 31433/06, 31419/06, 31309/06, 31324/06, 31439/06, 32419/06, 32421/06, 34443/06, 40256/06, 41560/06, 42694/06, 42695/06, 42696/06, 42697/06, 42701/06, 5648/07, 6167/07, 6902/07, 7869/07, 39423/07)
JUDGMENT This version was rectified on 4 November 2010 under Rule 81 of the Rules of the Court
STRASBOURG 29 July 2010
29/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. CASE OF STRELTSOV and other “Novocherkassk military pensioners” v. RUSSIA 1 JUDGMENT In the case of Streltsov and other “Novocherkassk military pensioners” v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President, Anatoly Kovler,
Elisabeth Steiner, Dean Spielmann,
Sverre Erik Jebens, Giorgio Malinverni,
George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 6 July 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in eighty-seven applications (nos. 8549/06, 17763/06, 18352/06, 18354/06, 18835/06, 18848/06, 18851/06, 18856/06, 18916/06, 18952/06, 19350/06, 19352/06, 19353/06, 20423/06, 20904/06, 20906/06, 20907/06, 21081/06, 21123/06, 21124/06, 21179/06, 21189/06, 24041/06, 24048/06, 24055/06, 24058/06, 24816/06, 25029/06, 25043/06, 25044/06, 25442/06, 25717/06, 25721/06, 25827/06, 25831/06, 25920/06, 25922/06, 25923/06, 26440/06, 26654/06, 26706/06, 26709/06, 26766/06, 26972/06, 26981/06, 26983/06, 27709/06, 27710/06, 27714/06, 27716/06, 27718/06, 27833/06, 27840/06, 28105/06, 28231/06, 28886/06, 28888/06, 30481/06, 30494/06, 31422/06, 31424/06, 31436/06, 31410/06, 31411/06, 31414/06, 31427/06, 31429/06, 31433/06, 31419/06, 31309/06, 31324/06, 31439/06, 32419/06, 32421/06, 34443/06, 40256/06, 41560/06, 42694/06, 42695/06, 42696/06, 42697/06, 42701/06, 5648/07, 6167/07, 6902/07, 7869/07, 39423/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eighty-seven Russian nationals, (“the applicants”), on various dates listed below. 2. All applicants except for Mr Dvoretskiy were represented by Mr P.V. Sedlyar, a lawyer practising in Novocherkassk. Mr Dvoretskiy was not represented in the proceedings before the Court. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and subsequently by Mr G. Matyushkin, both the Representatives of the Russian Federation at the European Court of Human Rights. 3. On various dates the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1).
2 CASE OF STRELTSOV and other “Novocherkassk military pensioners” v. RUSSIA JUDGMENT 4. By letter of 15 June 2009 Mrs Tatyana Nikolayevna Melnikova (born on 23 January 1948), Mr N.N. Melnikov's widow, informed the Court that on 15 December 2006 Mr N.N. Melnikov, the applicant in case no. 31419/06, had passed away, and she wished to maintain her late husband's case before the Court. 5. In letter dated 17 December 2009 Mr Vadim Nikolayevich Zakharov (born on 3 May 1979), Mr N.P. Zakharov's son, informed the Court that Mr N.P. Zakharov (application no. 28888/06) had died on 15 November 2009. The son expressed a wish to pursue the application in his stead. 6. For the sake of convenience, the Court will, however, continue to refer to Mr N.P. Zakharov and Mr N.N. Melnikov as “the applicants”. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The eighty-seven applicants were born on the dates listed in Annex I and live in Novocherkassk, the Rostov Region. 8. The facts of the case, as submitted by the applicants, may be summarised as follows. A. Initial domestic awards and subsequent enforcement proceedings 9. The applicants, retired military officers, sued the military commissariats of Novocherkassk and the Rostov Region for recalculation of their pensions. One group of the applicants sought adjustment of the pension to the minimum wage and claimed arrears for 1995-1998 in line with the increase in the latter. Another group of the applicants claimed recalculation of their pensions on account of the increase of the monetary compensation paid in respect of the food allowance. Several applicants raised both types of claims before the domestic courts. 10. On the dates listed in Annex I the domestic courts found in the applicants' favour. As regards the case no. 25442/06 by Mr Pavlov, the judgment of 22 September 2004 was issued by the Justice of the Peace of the 6 th
favour of Mr Pavlov, as well as all the judgments in favour of the remaining eighty-six applicants, were issued by the Novocherkassk Town Court of the Rostov Region. 11. The court ordered in respect of the first type of the claims that the pensions be adjusted to the minimum wage and that the arrears be paid to the applicants. As concerns the second type of the claims, the court held that the pensions should be increased in line with the increase of the daily food allowance and awarded the applicants the respective lump sums in arrears. The awards were made against the Military Commissariat of the Rostov
CASE OF STRELTSOV and other “Novocherkassk military pensioners” v. RUSSIA 3 JUDGMENT Region, while the respective claims against the commissariat of Novocherkassk had been dismissed. 12. The representatives of the Military Commissariat of the Rostov Region were present at the court room on 30 August and 15 September 2004. 13. In several cases the respondent authority introduced the grounds of appeal with the Town Court. However, on various dates in 2004 the respondent authority revoked their applications. For example, in case of Mr Turutin (no. 18952/06) the grounds for appeal were revoked on 10 November 2004. As a result, none of the judgments was appealed against. They entered into force ten days later. 14. The applicants took various steps to obtain execution of the judgment. In particular, the Government submitted that in September- October 2004 Mr Sobolev, Mr Sedlyar and 31 other applicants sent the writs of execution to the respondent authority. It follows from the incoming correspondence log of the Rostov Regional Military Commissariat that the latter received the writs. 15. In 2005 the military prosecutor's office started an inquiry into lawfulness of proceedings concerning military pension arrears throughout the Rostov Region and detected several instances of fraud. In particular, they found out that the respondent commissariat on several occasions had made payments against forged writs of execution issued in the similar but unrelated proceedings. On various dates the enforcement proceedings in the cases at hand were suspended pending the region wide inquiry, because the prosecutor's office had to establish authenticity of the writs of execution issued in the applicants' cases. It appears that the investigation did not reveal any evidence of fraud in the present cases. 16. According to the Government, in September 2005 judge A. who had issued the judgments in question was dismissed by the decision of the Judicial Qualification Board of the Rostov Region. At some point several high officials of the Military Commissariat of the Rostov Region had been charged with and convicted of embezzlement. 17. As regards the group of nineteen applicants named in Part A of Annex I, the domestic awards in their favour were fully executed by the respondent authorities on the dates specified in the table. As concerns the remaining applicants whose names are listed in Part B of Annex I, at least one judgment in their favour has remained unenforced.
18. On various dates in 2005-2007 the respondent commissariat applied for the supervisory review of the judgments. 19. According to the Government's observations, thirty-three requests for review were lodged outside the one-year time-limit from the date of the judgment's entry into force. In such cases, the respondent authority also applied for extension of the time-limit for application for supervisory review
4 CASE OF STRELTSOV and other “Novocherkassk military pensioners” v. RUSSIA JUDGMENT arguing that it had not received copies of the respective first instance judgments in time and had only been informed of the judgments in October 2005, when the prosecutor's inquiry had been opened. On various dates the Novocherkassk Town Court allowed these applications. In particular, in case of Mr Turutin (no. 18952/06) the Novocherkassk Town Court on 20 December 2006 accepted the authority's argument that they had been unaware of the judgment, having found, in particular, as follows: “There is no evidence in the case materials to the effect that a copy of the judgment of 30 August 2004 ... had been sent to the Military Commissariat of the Rostov Region. It follows from the above that the [respondent commissariat] had a real opportunity to avail itself of its right to apply for supervisory review within one year.” 20. The Town Court made similar findings in respect of thirty-two remaining cases. 21. Enforcement of the unexecuted domestic judgments had been suspended pending the supervisory review. 22. On various dates in 2005-2007 the Rostov Regional Court allowed the applications for supervisory review of the judgments lodged by the military commissariat of the Rostov Region and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court. 23. On the dates specified in Annex I the Presidium of the Rostov Regional Court quashed the judgments in the applicants' favour and remitted the cases for a fresh consideration. In each case the Presidium concluded that the first-instance court had erroneously applied the substantive law. They also found that the Novocherkassk Town Court had lacked territorial jurisdiction to examine the cases. The arrears were awarded against the Military Commissariat of the Rostov Region and thus the cases should have been examined by a court in the Oktiabrskiy District of Rostov-on-Don where the respondent commissariat was located.
24. The cases were considered afresh by the Oktyabrskiy District Court of Rostov-on-Don. 25. According to the Government, Mr Karatayev (application no. 18352/06) modified the scope of his claim in the new round of the proceedings concerning the adjustment of his pension to the increase of the minimum wage. On 6 August 2007 The Oktyabrskiy District Court granted his action in full and ordered that he be paid 32,811.52 Russsian roubles (RUB). The judgment was executed. The parties did not submit copies of the respective statement of claims and judicial decision. 26. As regards the remaining applicants, the court either discontinued the proceedings or dismissed the applicants' claims. The particulars of the respective proceedings are summarised in Annex I below.
CASE OF STRELTSOV and other “Novocherkassk military pensioners” v. RUSSIA 5 JUDGMENT II. RELEVANT DOMESTIC LAW A. Supervisory review and military pensions 27. Under Article 376 of the Code of the Civil Procedure of the Russian Federation of 14 November 2002 (in force from 1 February 2003), judicial decisions that have become legally binding, with the exception of judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned (§ 1). Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding (§ 2). By its ruling of 5 February 2007, the Constitutional Court interpreted Article 376 § 1 as allowing the above-mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals 28. For the summary of other applicable provisions of the domestic law, see Murtazin v. Russia, no. 26338/06, §§ 14-18, 27 March 2008.
29. Article 28 of the Code of Civil Procedure provides that a civil claim is to be filed with the court with territorial jurisdiction over the defendant's place of residence. A claim against the organisation is to be filed with the court having territorial jurisdiction over the organisation's residence. According to Article 31 § 1 of the Code, where a claim is filed against several defendants having different places of residence, a claim is to be lodged with a court having territorial jurisdiction over one of the defendants, upon the claimant's choice.
30. Succession is regulated by Part 3 of the Civil Code. The succession includes the deceased's property or pecuniary rights or claims but does not include rights or obligations intrinsically linked to the deceased's person, such as alimony or a right to compensation for health damage (Article 1112). An heir should claim and accept succession, as well as obtain a succession certificate from a public notary (Articles 1152, 1162). The right to receive the amounts of salary and payments qualifying as such, pension and other amounts of money provided to the deceased person as means of subsistence which had been payable but had not been received in his lifetime shall belong to the members of the deceased's family who had been residing together with him and also his disabled dependants, irrespective of their having resided with the deceased or not (Article 1183 § 1). In accordance with section 63 of the Federal Law on 6 CASE OF STRELTSOV and other “Novocherkassk military pensioners” v. RUSSIA JUDGMENT Pension Welfare of Military Service Personnel (1993), as in force at the material time, the amount of pension due to a pensioner but not received in his lifetime shall belong to the members of the deceased's family if they were in charge of his or her funeral, and shall not be included in the succession. THE LAW I. JOINDER OF THE APPLICATIONS 31. Given that the eighty-seven applications at hand concern similar facts and complaints and raise identical issues under the Convention, the Court decides to consider them in a single judgment. II. LOCUS STANDI AS REGARDS APPLICATIONS Nos. 28888/06 AND 31419/06 32. The Court notes firstly the fact of the death of Mr N.P. Zakharov, one of the applicants, and the wish of Mr V.N. Zakharov, his son, to pursue the proceedings he initiated. Likewise, it is noted that Mrs T.N. Melnikova expressed her wish to maintain the case of her late husband, Mr N.N. Melnikov, applicant in case no. 31419/06. A. The parties' submissions 33. With reference to the case of Belskiy v. Russia ((dec.), no. 23593/03, 26 November 2009) the Government submitted that neither Mr V.N. Zakharov nor Mrs T.N. Melnikova had standing to pursue the cases of their late relatives. The award in the applicants' favour was made in respect of the pension arrears. The pension rights were not transferable. Under the domestic law, the succession included the deceased's property or pecuniary rights or claims but did not include rights or obligations intrinsically linked to the deceased's person. The late applicants' relatives had not inherited the claim in respect of the judgment debt. Furthermore, the judgments had been annulled and thus no judgment debt existed at the moment of the applicants' death. Therefore, the applications should be struck out of the Court's list of cases pursuant to Article 37 § 1 (c) of the Convention. 34. Mrs T.N. Melnikova and Mr V.N. Zakharov maintained their submissions arguing that they were entitled to claim unpaid pension arrears due to their late relatives in accordance with section 63 of the Federal Law on Pension Welfare of Military Service Personnel. Indeed, the pension arrears were awarded to the applicants and thus were payable, but the
CASE OF STRELTSOV and other “Novocherkassk military pensioners” v. RUSSIA 7 JUDGMENT applicants had not received the respective sums in their lifetime. Mrs T.N. Melnikova and Mr V.N. Zakharov were in charge of the applicants' funeral. Thus, they had title to receive the unpaid pension. The fact that the judgments had been quashed did not have any impact on the standing issue. Accordingly, they had a legitimate interest to maintain the applications in their respective late relatives' stead. B. The Court's assessment 35. 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...”
36. The Court reiterates that in a number of cases in which an applicant has died in the course of the proceedings before the Court it has taken into account the statements of the applicant's heirs or of close family members expressing the wish to pursue the proceedings, or the existence of a legitimate interest claimed by a person wishing to pursue the application (see Léger v. France (striking out) [GC], no. 19324/02, § 43, ECHR 2009-..., with further references). The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009-...; and Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI). In this connection the Court has to consider whether or not the persons wishing to pursue the proceedings were the applicant's close relatives. Moreover, as a second criterion, the Court has to examine whether the rights concerned were transferable (see, mutatis
to pursue the proceedings before the Court to substantiate his or her standing to do so (see, for example, Belskiy (dec.), cited above).
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