SARMINA & SARMIN v. RUSSIA
Inadmissible
The first applicant, Mrs Yekaterina Sarmina, is the Ukrainian national who was born in 1944 and currently resides in Kiev, Ukraine. The second applicant, Mr Vitaliy Sarmin, is the first applicant’s son, born in 1980 and living in Moscow. The respondent Government are represented by Mr P. Laptev, 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. According to the first applicant, in 1989 she left her place of permanent residence in Yakutsk in the Republic of Sakha (Yakutiya), Russia, and moved to Kiev in Ukraine. In 1996 she unsuccessfully applied to the Yakutsk pension authority for an old-age pension. Her request was rejected on 16 May 1996 and, in January 1999, she brought court proceedings against the Yakutsk pension authority, claiming the assessment and payment of her old-age pension as of 1 February 1994. She also claimed damages for its non–payment since 1 February 1994. On 15 February 1999 the Yakutsk Town Court dismissed the action on the ground that the first applicant was no longer living in Yakutsk and had not obtained “registration” (регистрация) there. On 21 April 1999 the Supreme Court of the Republic of Sakha rejected the first applicant’s appeal. Upon the first applicant’s requests (надзор), the Deputy Prosecutor General of the Russian Federation lodged an application for supervisory review (протест), requesting the Supreme Court of the Republic of Sakha to quash the above decisions on the ground that the case had been wrongly determined. On 1 October 1999 the Supreme Court of the Republic of Sakha granted the prosecutor’s application, finding that the Russian Constitution and other statutes entitled the first applicant to receive her old-age pension from the age of fifty, i.e. as of 1 February 1994, regardless of her place of residence. The court reversed the decisions of 15 February 1999 and 21 April 1999, and ordered the Yakutsk pension authority to determine and pay the first applicant’s pension as from that date. The court rejected the first applicant’s claim insofar as she had requested an award of damages. According to the Government, a writ of execution (исполнительный лист) in respect of the decision of 1 October 1999 did not reach the Bailiffs until 24 March 2000. On 24 May 2000 the pension authority transferred the first applicant’s pension arrears of RUR 24,767 for the period between 1 February 1994 and 20 April 2000 to the Bailiffs. As of 1 August 2000 the authority calculated and paid the first applicant’s index-linked pension, transferring the money to her bank account. According to the Government, the enforcement proceedings in respect of the decision of 1 October 2000 were successfully terminated on 27 October 2000. On 15 May 2001 the pension authorities in Moscow informed the first applicant that the Yakutsk pension authority had applied to the Supreme Court of the Russian Federation, requesting it to submit a further application for the “supervisory review” of the decision of 1 October 1999. On 21 June 2001 the Deputy President of the Supreme Court of the Russian Federation lodged an application for the supervisory review against the decisions, requesting the Supreme Court of the Russian Federation to quash them on the ground that the substantive law had been applied incorrectly. On 16 July 2001 the Supreme Court of the Russian Federation accepted the application, set aside the decisions of 15 February, 21 April and 1 October 1999, and returned the case for fresh examination at first instance. It found, among other things, that the lower courts had failed to take into account the provisions of the International Treaty of the Commonwealth of Independent States of 13 March 1992 (“the Treaty”) in relation to pensions and, as a result, had failed to establish all relevant facts. According to the court, the first applicant should have been paid her pension in the place of her permanent residence, pursuant to the Treaty. In returning the case for a fresh examination, the Supreme Court also ordered the lower courts to establish the first applicant’s nationality and the place of her permanent residence. On 28 March 2002 the Yakutsk Town Court ordered the Yakutsk pension authority to determine and pay the applicant’s pension as from 1 January 1999. The court considered that the applicant’s entitlement to the old–age pension had started when she had first brought court proceedings against the pension authority, i.e. in January 1999. It also rejected as unsubstantiated the argument of the Supreme Court of the Russian Federation regarding the application of the Treaty of 13 March 1992 in this case. The Yakutsk Town Court further noted that, on 17 July 2000, the judgment of 1 October 1999 had been enforced, and the first applicant had been paid her pension in the amount of RUR 24,767.84 for the period from 1 February 1994 to 30 April 2000, and RUR 1,247.10 for the period from 1 May to 30 October 2000. The amount of the first applicant’s pension as from 1 November 2000 was set at RUR 623.55 per month. This decision was upheld on appeal by the Supreme Court of the Republic of Sakha (Yakutia) on 22 April 2000. On 9 December 2002 the Deputy President of the Supreme Court filed an application for supervisory review against the decisions of 28 March and 22 April 2000. By a decision of 30 January 2003, the Supreme Court of the Republic of Sakha (Yakutiya) accepted the application, quashed the decisions of 28 March and 22 April 2000 and returned the case for a fresh examination at first instance. According to the Government, the first applicant’s case was listed for trial three times, on 24 March, 8 April and 24 June 2003 respectively. Since the applicant failed to appear, on 24 June 2003 the Yakutsk Town Court disallowed the applicant’s claim without examining it on the merits. On an unspecified date, the pension authority filed an application with a court to recover the money paid to the first applicant pursuant to the decisions of 28 March and 22 April 2002. By a decision of 25 March 2004, the Yakutsk Town Court granted the application and ordered the first applicant to reimburse RUR 61,013.12. The decision could be appealed to the Supreme Court of the Republic of Sakha (Yakutia) within ten days. The case file contains no indication as to whether the first applicant brought appeal proceedings in this connection, whether the decision has entered into force or whether it has been enforced. In 1998 the second applicant arrived in Moscow from Yakutsk. He soon entered a higher education establishment and started living in his relative’s flat in Moscow. The second applicant’s application for registration at his relative’s address in Moscow was refused by the interior authorities. He brought a court action, claiming that the authorities’ refusal was unlawful. On 14 January 1999 the Dorogomilovskiy District Court of Moscow rejected the action. The court found that he lived in Yakutsk where he was registered. By reference to the special governmental regulations of 1995, the District Court ruled that the second applicant could not be registered at the relative’s address in Moscow because inter alia he had failed to prove that he was a close relative. On 18 March 1999 the Moscow City Court rejected the second applicant’s appeal. Upon the second applicant’s requests, on 27 October 1999 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review against the above decisions, claiming that there had been an unlawful interference with the applicant’s constitutional right freely to choose his place of residence. On 18 November 1999 the Moscow City Court rejected the Deputy President’s application, upholding the previous court decisions in the case. Upon the Deputy President’s further application for supervisory review, on 25 January 2000 the Supreme Court of the Russian Federation quashed the above decisions, finding that the authorities’ refusal of the second applicant’s “registration” in Moscow had been unlawful. By reference to the Constitution and the Right to Freedom of Movement and Choice of Residence Act, the Supreme Court stated that the fact of “registration”, or the absence thereof, had no legal consequences on the right of an individual freely to choose his place of residence. The Supreme Court held that the statutory “registration” procedures recorded information as to the individual’s actual place of permanent residence following his free choice thereof, and these procedures could not involve any restriction on the exercise of that freedom. According to the court, it was the authorities’ obligation, not their right, to register the second applicant as living permanently in Moscow, in accordance with the procedure established by the Right to Freedom of Movement and Choice of Residence Act. The Supreme Court ordered the Moscow interior authority to “register” the second applicant at his relative’s address in Moscow. That judgment was final. After a further refusal on documentary grounds, on 29 February 2000 the second applicant was finally registered in Moscow. The Russian Constitution (Article 390) and the State Pensions Act entitle every citizen to an old-age pension, the amount of which depends on the record of the individual’s employment and related activities. The International Treaty of the Commonwealth of Independent States in the field of pensions of 13 March 1992 (Article 6 § 1) provides that the pensions of citizens of the Commonwealth of Independent States are calculated and paid at the place of their permanent residence. Article 27 § 1 of the Constitution and the Right to Freedom of Movement and Choice of Residence Act guarantee to everyone lawfully within the territory of the State the right freely to move and choose the place of residence in Russia. “Registration” at a particular address, by way of a special seal in the individual’s passport, is considered to be one’s place of permanent residence for the purposes of Russian law. Section 6 of the Act provides that an individual must present to the interior authorities documents certifying his or her identity and place of residence in order to have the “registration” entered or changed.