Ivan Pavlovich CHERNYY v Russia - 24822/06 [2011] ECHR 2291 (6 December 2011)

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The European Court of Human Rights (First Section), sitting on 6 December 2011 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having regard to the declaration submitted by the respondent Government on 20 September 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

The applicant, Mr Ivan Pavlovich Chernyy, was a Russian national who was born in 1940 and lived in Novocherkassk, the Rostov Region.

On 8 May 2008 the applicant died. By letter of 16 June 2008 his widow, Ms Galina Grigoryevna Chernaya, born in 1940 and living in Novocherkassk, expressed a wish to pursue the application in his stead in so far as the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 about non-enforcement of the judgment in his favour and its subsequent quashing by way of supervisory review were concerned..

For the sake of convenience, the Court will refer to Mr Ivan Pavlovich Chernyy as “the applicant”.

He was represented before the Court by Mr P.V. Sedlyar, a lawyer practising in Novocherkassk, and so is Ms G.G. Chernaya. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 15 September 2004 the Novocherkassk Town Court awarded the applicant, a retired military serviceman, 214,057.08 Russian roubles (RUB) in pension arrears, to be paid by the military commissariat of the Rostov Region. The judgment entered into force ten days later and remained unenforced.

On 29 December 2005 the Presidium of the Rostov Regional Court quashed the judgment of 15 September 2004 by way of supervisory review and referred the case for a fresh examination by a different court.

On 20 March 2006 the Oktyabrskiy District Court of Rostov examined the applicant’s action against the commissariat and rejected it as having no basis in domestic law.

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about delayed enforcement of the judgment in his favour and the violation of the legal certainty principle in the supervisory review proceedings.

He also complained under Article 13 about the lack of an effective domestic remedy in respect of the above grievances.

By letter of 16 June 2008 the applicant’s widow submitted that she maintained the application in so far as the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 about non-enforcement of the judgment in the applicant’s favour and its subsequent quashing by way of supervisory review were concerned.

By letter of 20 September 2011 the Government submitted a unilateral declaration dated of 29 August 2011 aimed at resolving the issues raised by the application. The declaration, in its relevant part, read as follows:

“[...] The Russian authorities acknowledge Galina Grigorievna Chernaya, the applicant’s widow, as a legal successor in the present case.”

The Court reiterates that where an applicant dies during the examination of a case his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000 IX). Furthermore, in Streltsov and other “Novocherkassk military pensioners” cases concerning a similar set of facts, the Court recognised the right of the relatives of the deceased applicants to pursue the application (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, nos. 8549/06 et al., §§ 37-42, 29 July 2010).

The Court notes that the rights at stake in the present case are very similar to those at the heart of the case referred to above. The Government accepted that the applicant’s widow had standing to pursue the case. Therefore, the Court considers that the applicant’s widow has a legitimate interest in pursuing the application insofar as the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 are concerned.

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about non-enforcement of the judgment in his favour and its subsequent quashing by way of supervisory review. These provisions, in so far as relevant, read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

“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.”

By their declaration of 29 August 2011 cited above the Russian authorities acknowledged a violation of the applicant’s rights as a result of the quashing of the judgment of 15 September 2004 by way of supervisory review.

“With reference to the European Court’s case-law in the similar case of Streltsov and other “Novocherkassk military pensioners” cases v. Russia, [cited above], the authorities of the Russian Federation are ready to pay the applicant ex gratia the sums of 2,000 euros in respect of non-pecuniary damage and RUB 214,057.08 as the pecuniary arrears under the judgment of the Novocherkassk Town Court of 15 September 2004 subsequently quashed by way of supervisory review, plus any tax that may be chargeable on those amounts.

The authorities therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

By letter of 20 September 2011 accompanying the declaration the Government submitted, in particular, that the judgment of 15 September 2004 had not been enforced due to its quashing on 29 December 2005 by way of supervisory review.

By letter of 21 October 2011 the applicant’s widow accepted the terms of the declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75 77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).

Turning to the present case, the Court observes that, according to the above declaration, the Government explicitly acknowledged a violation of the applicant’s rights in respect of the supervisory review complaint only. However, it transpires from the terms of the declaration that the Government expressed their readiness to pay the applicant’s widow the amount of the initial unenforced judgment debt. In their letter of 20 September 2011 accompanying the declaration they expressly acknowledged that the domestic judgment at stake had remained unenforced due to the quashing.

In these circumstances, the Court is satisfied that the alleged violations of the Convention and its Protocol on account of both supervisory review and non-enforcement are acknowledged by the Government either explicitly or in substance. The Court also notes that the compensation offered in respect of these alleged violations is comparable with Court awards in similar cases (see, for example, Streltsov and other “Novocherkassk military pensioners” cases v. Russia, cited above, §§ 84-98).

The Court further observes that, according to the declaration, the amounts of compensation suggested by the Government are to be paid to the applicant. However, by the same declaration the Government explicitly acknowledged that they regarded the applicant’s widow as the applicant’s legal successor for the purposes of the present application (see above). In these circumstances, the Court is satisfied that the amounts specified in the declaration will, in fact, be payable to Ms G.G. Chernaya, the applicant’s widow.

The Court therefore considers that it is no longer justified to continue the examination of the application. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic (see Streltsov and other “Novocherkassk military pensioners” cases, cited above), it is also satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) and the protocols thereto does not require it to continue the examination of the application in this part.

Accordingly, the application in the part concerning the complaints of non-enforcement and supervisory review should be struck out of the list.

In any event, the Court’s present ruling is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the present application to the list of cases (see E.G. v. Poland (dec.), no. 50425/99, § 29, ECHR 2008 ... (extracts)).

The applicant complained under Article 13 of the Convention about the lack of an effective domestic remedy against non-enforcement and quashing of the judgment in his favour.

The Court notes that the applicant has died. It further takes note of the contents of Ms Chernaya’s letter of 16 June 2008 by which she specified that she was pursuing the applicant’s complaints only under Article 6 of the Convention and Article 1 of Protocol No. 1. Accordingly, the Court considers that the applicant’s widow has not expressed a wish to continue the proceedings in respect of the complaint under Article 13 before this Court in the applicant’s stead.

The Court considers with reference to Article 37 § 1 (a) and (c) of the Convention that, in these circumstances, it is no longer justified to continue the examination of the application in this part. Furthermore, it finds no special circumstances regarding respect for human rights which require the continued examination of the case in this part (contrast Karner v. Austria, no. 40016/98, §§ 24 28, ECHR 2003 IX).

In view of the above, the Court considers it appropriate to strike the application in the part concerning the applicant’s complaint under Article 13 out of its list of cases under Article 37 § 1 (c) of the Convention.

Decides that Ms Galina Grigoriyevna Chernaya has a legitimate interest in pursuing the application in the applicant’s stead in so far as the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 are concerned;

Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides that the amounts specified in the respondent Government’s declaration should be payable to Ms Galina Grigoryevna Chernaya;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Ivan Pavlovich CHERNYY v Russia - 24822/06 [2011] ECHR 2291 (6 December 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2291.html Cite as: [2011] ECHR 2291