CASE OF ANDROSOV v. RUSSIA
Preliminary objection dismissed (Article 37-1 - Striking out applications);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award
Christos Rozakis
7. The applicant was born in 1948 and lives in Zenzeli village, the Limanskiy District of the Astrakhan Region. 8. In 1986 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions. In 1996 and 1997 the applicant underwent medical examinations which established the link between the applicant’s poor health and his involvement in the Chernobyl events. The applicant was awarded compensation, to be paid monthly. 9. In 1999 the applicant brought proceedings against the Welfare Office of the Limanskiy District of the Astrakhan Region (Отдел социальной защиты населения Лиманского района Астраханской области - “the defendant”) for an increase in the compensation, for backdating the increase and recovering of the unpaid amount. The applicant considered that the amount of compensation had been determined incorrectly. 10. On 3 November 1999 the Limanskiy District Court of the Astrakhan Region established, upholding the applicant’s claim, that the applicant was entitled to a monthly compensation of 5,045.73 roubles (RUR). The court established that the debt accrued as a result of previous underpayment was RUR 108,892.07. It also awarded the applicant RUR 60,000.00 as a penalty payment. 11. By a decision of 14 December 1999 the Astrakhan Regional Court, acting on appeal, upheld the judgment as to the amount of the monthly payment and the principal debt, but reversed the penalty award. The judgment entered into force and enforcement proceedings were instituted. Both parties lodged requests for supervisory review of the courts’ decisions. 12. On 17 March 2000 the Astrakhan Regional Court stayed the enforcement proceedings, pending the consideration of the defendant’s request for supervisory review. 13. The defendant’s request for supervisory review was refused by the Supreme Court of the Russian Federation on 13 April 2000. 14. On 22 May 2000 the Limanskiy District Court of the Astrakhan Region resumed the enforcement proceedings. 15. By a decision of 15 August 2000 the President of the Astrakhan Regional Court refused the applicant’s request for supervisory review. 16. On 15 September 2000 the Limanskiy District Court of the Astrakhan Region granted a request by the Astrakhan Regional Office for Welfare Payments (Астраханский областной центр по начислению и выплате пенсий и пособий) to suspend the enforcement proceedings. The enforcement was stayed until 1 December 2000 to allow the authorities to “decide how to finance the court awards involving the recalculation of compensation to the victims of the Chernobyl catastrophe”. 17. On 17 October 2000 the Supreme Court of the Russian Federation refused the applicant’s request for supervisory review of the suspension order. 18. On an unspecified date, following a request made by the Astrakhan Regional Office for Welfare Payments, the President of the Astrakhan Regional Court brought an extraordinary appeal against the judgments of 3 November 1999 and 14 December 1999. 19. On 27 December 2000 the Presidium of the Astrakhan Regional Court examined the appeal and quashed both the judgment of the Limanskiy District Court of the Astrakhan Region dated 3 November 1999 and the judgment of the Astrakhan Regional Court dated 14 December 1999. The Presidium decided that the subordinate courts had wrongly determined the amount of monthly compensation. In particular, they had based all the calculations on the applicant’s salary as of October 1986. The Presidium held that the calculations should have been based on the applicant’s average earnings over the 12 months prior to the date on which the medical examination had established his disability. The case was remitted to the same District Court for a fresh examination. 20. On 27 February 2001 the Supreme Court of the Russian Federation, in response to the applicant’s complaint, refused to conduct a supervisory review of the decision of 27 December 2000. 21. By a judgment of 23 April 2001 the Limanskiy District Court of the Astrakhan Region, acting as a first instance court, awarded the applicant the monthly payment of RUR 3,336.99 and established that the debt accrued was RUR 114,466.01. No penalty was awarded. 22. On 24 July 2001 the Astrakhan Regional Court acting as an appeal instance reversed the judgment of the Limanskiy District Court of the Astrakhan Region of 23 April 2001. It pointed out that the District Court had applied the calculation mode incorrectly and that the amounts due had to be recalculated. The case was remitted to the same District Court for a new decision. 23. On 23 September 2002 the applicant filed a complaint with the Astrakhan Regional Court concerning the length of proceedings. He complained in particular that no decision had been taken in his case since 24 July 2001. 24. In reply dated 27 September 2002, the applicant was informed that on 22 November 2001, on his request, the proceedings had been stayed pending the Constitutional Court’s decision in a similar case. He was informed that the proceedings had been resumed after the Constitutional Court’s ruling of 19 June 2002, and that a hearing had been fixed for 7 October 2002. He was also informed that the hearings had not been fixed until 2 September 2002 on the applicant’s request due to his counsel’s absence. 25. On 4 November 2002 the Limanskiy District Court of the Astrakhan Region decided that the compensation payable to the applicant by the welfare authorities was RUR 45,640.94. The applicant was also awarded legal costs of RUR 1,300 and non-pecuniary damages of RUR 5,000. 26. The applicant appealed against this decision. He challenged the principal amount, the amount of non-pecuniary damages and the refusal of the penalty. 27. By an appeal decision of 14 January 2003 the Astrakhan Regional Court reversed the first instance judgment and remitted the case for fresh examination by the same court. 28. On 3 March 2003 the Limanskiy District Court of the Astrakhan Region awarded the applicant RUR 235,210.32 of the principal debt, future monthly payments of RUR 4,727.96 and the legal costs of RUR 500. 29. Both parties appealed against this judgment. 30. On 29 April 2003 the Astrakhan Regional Court upheld the first instance judgment. 31. On 5 August 2003 the awarded sums were transferred to the applicant’s bank account. 32. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 33. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff. 34. Under the Code of Civil Procedure of 1964, which was in force at the material time, judgments became final as follows: “Court judgments shall become legally binding on the expiration of the time-limit for lodging a cassation appeal if no such appeal has been lodged. If the judgment is not quashed following a cassation appeal, it shall become legally binding when the higher court delivers its decision...” 35. The only further means of recourse was the special supervisory-review procedure that enabled courts to reopen final judgments: “Final judgments, decisions and rulings of all Russian courts shall be amenable to supervisory review on an application lodged by the officials listed in Article 320 of the Code.” 36. The power of officials to lodge an application (protest) depended on their rank and territorial jurisdiction: “Applications may be lodged by: 1. The Prosecutor General – against judgments, decisions and rulings of any court; 2. The President of the Supreme Court – against rulings of the Presidium of the Supreme Court and judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance; 3. Deputy Prosecutors General – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court; 4. Vice-Presidents of the Supreme Court – against judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance; 5. The Prosecutor General, Deputy Prosecutor General, the President and Vice-Presidents of the Supreme Court – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court; 6. The President of the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district, the Public Prosecutor of an autonomous republic, region, city, autonomous region or an autonomous district – against judgments and decisions of district (city) people’s courts and against decisions of civil chambers of, respectively, the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district that examined the case on appeal.” 37. The power to lodge such applications was discretionary, that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review. 38. Under Article 322 officials listed in Article 320 who considered that a case deserved closer examination could, in certain circumstances, obtain the case file in order to establish whether good grounds for lodging an application existed. 39. Article 323 of the Code empowered the relevant officials to stay the execution of the judgment, decision or ruling in question until the supervisory review proceedings had been completed. 40. Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments: “The court that examines an application for supervisory review may: 1. Uphold the judgment, decision or ruling and dismiss the application; 2. Quash all or part of the judgment, decision or ruling and order a fresh examination of the case at first or cassation instance; 3. Quash all or part of the judgment, decision or ruling and terminate the proceedings or leave the claim undecided; 4. Uphold any of the previous judgments, decisions or rulings in the case; 5. Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re-examination if substantive laws have been erroneously construed and applied.” 41. The grounds for setting aside final judgments were as follows: “... 1. wrongful application or interpretation of substantive laws; 2. significant breach of procedural rules which led to delivery of unlawful judgment, decision or ruling...” 41. There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final.